honour's this is a case i think that is somewhat of a unique case in the sense that i believe the record shows that this property involving question was subdivided early on in the history of the city of tesco on three different occasions the surveyors i think agreed that there were almost definitely problems with the particular property from the outset the aptly surveyor indicated that poverty problems persisted had been fixed even after efforts have been made over the years to do that also the present somewhat unique situation i think in the sense that the two properties involved here were under common ownership for many many years and not provided which is somewhat unusual i think in a small town in a residential area where the  two residences would be under common ownership for so many years without being sold off at some point to a different party even though their properties were split in the sense that two residences were built in two different members of the family were living there there was never any surveys performed up until the time that led to this litigation when my clients see my client the f want had the property surveyed in order to because of the circumstances i think that at least surveyors while he approached it i think from a different perspective and with a different purpose than in mine in the evidence in the testimony  didn't disagree that deficiencies existed there were problems that had to be fixed in his situation by making everything fit to the existing  property lines that were on the ground when he the perform the survey i know that you have a lot surveyor mr parsley was was employed for the purpose of doing  boundary survey he put pins on the property you know the boundary markers the boundary corners survey performed by yeah police surveyor i didn't result in him hitting any of the corners of  in terms of making everything come out the way that they were looking to have it come out i believe yes could you speak to the of the pleadings of what was the issue at the time of the bench trial just simply complaints required tile the i believe the ejectment account was still viable at the time of trial i know the judge i think well i can't remember the findings judge webber decided sufficient evidence to show adverse possession that that issue was decided by or at the end of the trial there was also a separate passion which i don't think it's a part of this appeal  i don't remember if that was decided prior to the end of the bench trial or if it was still viable at the end of the bench trial but i think our argument asked that issue always was it really not a possession issue per se it was  not really a viable complaint and as i as i remember it really boiled down to the quiet highly question there was a complete complete claim competing claims for a quiet current garage in the same location those of the old oak garage well our contention and i think the evidence we presented was because of the dispute concerning the property when the new garage was constructed my client move that wall farther east so there would not be a question about whether it was in the disputed area or not and i know the aptly presented evidence that that was not the case  ended up being moved farther west but my client's contention always was that they took pains to move the bit the whole structure i believe a foot or so to the east so that there would not be a question of the wall being in the disputed area just in terms of potential claim for adverse possession by your clients and you know that has not been litigated in this case you know is there still the potential for that legal i suppose your honor that under the law maybe that potentially exists because of the fact that  their claim to the earlier title but i mean they did not own the property for twenty years ok as as was the case that leave the athlete and i'm property for twenty years so  relatively clear that when there is this type of problem that the apportionment rule would apply and that that efficiency would have to be borne by all of the property owners within  block that's involved and that that that would have to be on a proportionate basis we pointed that out to the trial court in the argument that we presented in the bench trial the judge obviously didn't agree with  rule differently fixed the property line at the west wall of my client's new garage which we believe your honour's only has the potential to create future issues and problems for the  parties who obviously have been in a fairly contentious state here because of the with patients so we believe that that the correct decision here is for the apportionment rule to apply and we would ask that the case be remanded back to the it wouldn't matter whether you measure from the east or the west surveyors and i think in this case and mr parsley testified at trial he had worked from the east side of the property there is a section warner that's probably a mr cox to review i don't know your honor why mr cox chose to come from the west rather than the east as i say of the money if the property is there it should have made any difference it would all come out the same there would be enough property there but the we're not talking about necessarily a difference in the starting point i mean when you say that essentially mine where are you when you start the measurement well normally  think mr parsley started out the section corner which revives i as i said about word of a mile east the where the east the north east corner of this block would be it's about a quarter of a mile east of there there's four sections that come together there he started there yes you are going to go west of this walk to a section corner i believe that hugh would have to go even farther away now i don't know that mr cox went back far i believe if i remember his testimony correctly he said that he went over there is a main street that lives a couple of  that that's section one but he started there i believe and then measured west now why he chose to start there i can't say for certain normally i would think or normally in my experience having worked with surveyors over the years usually they will try to start a section corner or a half section mark her order section marker when they can at the beginning of the survey and and i don't know if that's what mr parsons or i'm sorry if that's what was i'm not sure where he started so what is the section on a section corner marks where a particular section of land or one corner of that section starts in this four most of the city of tesco lives in section thirty four suppose a railroad town the railroad owned that property in years and years ago is the illinois central railroad and that property was given to the railroad and then subsequently the railroad i don't think gave it a think it came to the city of tesco to build the city is the railroad did back in those days along the rail line so that there were places for them to stop in places do you know serve and that sort of thing tuscola was one of those towns and section thirty four was the section that was originally laid out for the city of tesco immediately north of that is section twenty seven so if you go east of this property about a quarter of a mile there are i believe four section corners there where the four sections come together section twenty seven section thirty four and then there's two sections on east they are that all come together at that at and i would say from my experience i'm not surveyor from my experience working with surveyors that's not at all unusual that's oftentimes what they would do they would go to a what would be a pretty well be fine marker that's existed for many as there was no deficiency established here so did mr cox i guess is there any dispute as to whether or not mr cox testified that deficiency existed in the east west measurement and i guess i don't know for sure athlete speeds and i presume they do but i believe i made reference to the record i think when i pointed that out in my brief i think there was a point in the testimony where m am i think i don't remember if i pointed this out a trial there was reference made to a fence post and fence i think there's photographs in the record the fence ran east and west between two garage it was a small piece of chain link fence that ran between two grogs there was not in this case your honor what i would consider to be a boundary type stance between the properties there was no property there was no fence or friend north and south that would suggest that i aided the property line between these two property and i think your honor the reason for that was the fact that ziegler family had only this property so many years and there was two family members that only used to property and so i'm sure in their case  they were looking to try to keep one family member or the other off of their property so they didn't put up a north south thing so i mean i think mr cox said that he found this fence post and believed that that was a  marker a boundary marker but i don't think that he ever pointed to anything else to suggest that that was true and so since you had a property there that wasn't really  was part of the reason that i think the building inspectorate city and my clients wanted to get a boundary survey because there was not a clear delineation of where the boundary line was happy because there was no fancy there was not had not been a prior survey done where there was a survey pins at the corners of the of the properties there was nothing of that type there at the time the mr parsley survey was done so i think that that's the reason and i think frankly your honor that probably the parties were surprised by what came out of this because nobody expected that but you know given the circumstances that's that's what occurred argue should be given equal weight and as such a shortage of the block exists which leads to the necessary application of the apportionment rule however the of ellie's contention which is supported by the record of evidence is that there is not in fact a shortage of feet of any distance in the block so because there is no shortage evidence by mr cox of survey and evidence page eighteen the portion rule would not be appropriate here it would not super ninety six through ninety seven that there are other avenues that should be looked at when looking at what an appropriate starting point is for a survey in this case all the blocks west deficiency it was so negligible they couldn't be found and that is supported by the already existing apparently foundry line markers that mr cox found now he testified that was on super ninety eight that from experience i was already existing boundary believe two zero by four and that way you could detect exactly who's serving marker is in years past didn't exactly do that so you could tell exactly who the amount really markers there but mr cox testified that the ones that you found were consistent with boundary line markers and they matched up with the west section line legal scription he found already existing ones and i indicated in my brief and i'm i apologize if this caused any confusion on page two of my brief i indicated that he found  v existing boundary line marker at the north west corner of lot two it was actually the west or the east fifteen feet of rock group that would be the westernmost line earth surveyors mark but he also funnels and blocks three which is the block that would be to the south west block one that we're dealing with here he found on the west corner the northwest corner of the block three and already existing found higher which is consistent with a survey marker he additionally found in block four on both the north east corner and the northwest corner boundary line markers or surveyor markers which are consistent with the measurements that mr cox fan for the west section line says and that's particularly important the survey marker that was found at the north east corner of block poor because if there wasn't fact short sentences that would mean that the legal description that mr cox is advocating for would put the of talents the property in the street now that cannot be the case as shown by the northeast corner block for because there is a marker there so if there is a marker there which lines up exactly with the east line of black one that would mean that that marker would have to be in the street and there is not a marker in the street what about the possibility of a marker was measurements supported in block four where that location be in the measurements also coincide with the plat that we're dealing with bad eight hundred eighty eight as described in the record which indicates the measurements of approximately eighty five feet for that lot one and then approximately one hundred foot measurements for the other lines and that lines up near exactly what we're dealing here so that would mean that  it has is the property after mr partially survey moves her property over from when everyone previously saw it as being the defined boundary lines with a defined fence on the which would be on the west side of her property moved over by mr partially surveyed further over to the west now if you look in a world where the property should be further over to the west than that would necessarily but the street to the eas moved over somewhere between a few inches to approximately but couldn't tell exactly the difference between the old when the new one was because by the time mr x was brought in they had already poured a foundation for the new new garage but this finding is is to the west wall of the then existing garage at the time of the bench trial right he did judge me around it would be with respect to the west wall of the new garage yes so is  inches of the neighborhood watch me it couldn't be conclusively prove that the new garage was over significantly from the prior garage so at that point and because of that there is no essential challenge that  of their garage without being on your client's probably so right essentially yes your honor and that's the way that stood before hand i mean unfortunately that's how the property had been built and that coincides with the legal descriptions shown by mr cox in an ideal world there would be sufficient set backs everywhere but in this case there are not set backs and this isn't something new it's something that was already exist in existing being unfortunately what happened here and was an application was made showing a new survey there's really no research done into it if there was it likely would have avoided this whole scenario but there was not  here we are dealing with that situation now but yes there are set back provisions in the city of protest all of that they were not like here and so for this what we fall back to here are the legal descriptions and the preferred legal description should be that of mr cox and he did testify that in a perfect scenario a legal description no matter whether it's measured from a west section winery east section line would come to the same levels but often we're not faced with perfect and in this case you have to look to external evidence to support it and it's not just simply a whim or simple preference because mr cox was hired by ellie and mr partially was hired by l and mr cox specifically looked to the if there's essentially no issue with a world in which there is a west section one else's for a number of blocks no issues with any of the property surveys are all done doing the west section line analysis and all of a sudden somebody wants to move their property similar to this further west necessarily was a shortage so when there is a shortage that has to be apportioned equally amongst them there was not an analysis that there was actually a shortage here the analysis in the testimony that there was a shorter it was only that if both surveyors were given equal weight then there is a contest and there is a shortage there but where one of the survey should be preferred is supported by other evidence there is not a survey and as such there should not be  apply here and the issue that was presented on appeal was not disputed by the appellee and was the only issue was whether appellant had given sufficient evidence to support that there was a lot two and it was actually on a shown by his survey in evidence page eighteen at the northwest corner of the east fifteen feet of lot three which is consistent which could not specifically be identified i don't believe because it there was no kind of marking on it i was just an iron pipe i think mr kosik has said well that was some sort of a survey marker no one knows i don't think mr cox and i don't think mr parr's we knew the place it did appear from the measurements as though that may have marked the very westernmost corner of the apple lease property  that your honor asked i mean if you're measuring easter you're measuring west if property exists on the ground there shouldn't be a difference i believe i even asked mr cox about that in your testimony why would it matter which way you are measuring from should make a difference the only thing i can say which i think i said earlier is the reason that we're you have this difference in what the surveyors found is that the purpose that they were out there always different mr parsley was called by my clients to do a foundry survey of their property when you do a boundary survey in my experience as a surveyor surveyor comes out to measure from known markers he then measures up to the property that to be surveyed he surveys around it puts one or pins in and he gives the people are that's what he did here in doing that he said oh by the way folks let me tell you from from things here that i've seen him doing the survey it appears as though there's a discrepancy  in how much property exists because there's an overlap you know these folks their driveways built over on what i have found to be your property you know that there are there is a decision there's a dispute here to this there's a discrepancy there's a shortage mr cox came in after the litigation started measures several different blocks to find various markers to try to prove that that the  survey there would have been a dispute at the end as to whether the garage the new garage supposedly was on what mr cox said was mrs big weapons property or not he never put it in so that makes it clear i think pop i mean you don't actually expect are going to find shortly or in excess when you go in the field to do a survey usually figure it's going to be what what is existing markers in these other blocks as mr kosik said they're not marked in any way there's no way to tell when they were placed who they were placed by they might happen to be in a specific spot that seems to line up with some divisions of the property or something and maybe they were placed by people with good subdivisions of those blocks and lives the fact of the matter is here i think which i think is is telling is it doesn't appear that mr cox ever did his survey all the way on to the east so how we know from mr cox is why if you go in the west everything all lines up well he didn't go check to the east to see why supposedly there was a problem when you were when you were serving from the east he just stopped and said well you know according to these existing markers it looks like everything's ok because mrs smith whether you would get her seventy seven feet and you know what difference does it make from there well it makes a difference because as i have argued that puts the deficiency on my client if it's eight to ten feet that's not to minimize that's a significant deficiency so it shouldn't matter whether you measure from the east or the way if everything is ok and both of the surveyors testify in this case on these properties everything was ok