support our appeal and or cross appeal raise a single issue although in two different manners and that issue is does section thirteen to one seventh of the court of civil procedure permit a party who has volunt interest to reinstate that claim within one year or the remaining period on the statue of limitations and in our case the remaining period on the statute of limitations doesn't lapse until twenty twenty four we're tempted to reinstate a no authority or it's a matter of my discretion whether i'm going to allow you to reinstate a claim that you voluntarily distance over theirs to your part so they answer the first part is judge mason respectfully the two six one six portion of that motion sought to amend the pleadings to conform to the evidence or just a trial section b of that motion was the thirteen to one seven motion which stuck to reinstate the claim for  ownership she there was no other than our brief having been filed there was no further briefing and the date that we were in front of her for presenting of that motion she denied it she denied it based on so i don't understand why you think she was confused she simply didn't the underlying action was still pending the parties were still in front of it or are you asking us to reinterpret the statute and say what it really means is that you have a right absolute right according to your argument an absolute right to force the judge to give up some control over the docket because now it's no longer a matter of her discretion it is a matter of of direction from this section that you're citing that she absolutely has to grant you the right to reinstate we found a motion seeking that the court reinstated i'm following wind versus the school board which is a second district case with very similar facts and then that case the court said it the most efficacious thing to do here is to allow the party who was voluntarily dismissed the claim without prejudice to bring it back into the action because the parties are still in front of the court and the other claims the issue was still before the court my recollection your honor is that we dismissed that claim it was in our first complaint our original complaint count three so i got a declaration either that we owned it on the right of way or that we had pre scriptive easements over the right of way and with the defendants filed their answer they raised the reverse right a reversion reentry statute which extinguishes such a claim after forty years they raised a counterclaim in response to a later a later complaint down the road and the counterclaim sign a declaration that they were owners were under the facts that we were going to bring out a trial which was simply addressed to easement we didn't challenge their claim of ownership based on the conrail deed because we didn't have a basis to challenge it we didn't have a claim for ownership or competing claim for ownership following the d s case released in the second district he doesn't that there go to the judge's well the more seasoned that day would prejudice the other side if she granted promotion the motion pointed out to the court that all the documents that needed to result this needed to take no new evidence at all alternatively we suggested in our motion the court could conclude and ensure an opinion on the case that was tried and reserve the new claim that were reinstating for summary judgment because there was no need for discovery there was no need for further evidence it was a question of law purely a question of law let me ask you this since some of the issues had a ready been decided at trial and now you bring your motion to reinstate something been concluded and now the lawyer brings a new cause of action i mean do you think that's fair to the defendant who is a ready prepared his case based on what the complaint as show if there were prejudice and if that were a consideration under thirteen to one seven it could be resolved by the court taking the case letting us reinstate it and resolving it later on summary judgment whole could have been done was the time the case was filed in two thousand and two trial was in two thousand and six and this there had been no determination by the way on any of the claims at the time we brought this motion we were in the post trial briefing other has to be a point at the trial when the court has to say this is it and that's what judge nation said when we were in front of her she said all things must come to an end except that thirteen to one seven which is a limitation section it's under article thirteen of the code civil procedure says we have the right to have litigated on the merits our claim for ownership until the statute of limitation right we have under thirteen to one seven to reinstate a viable claim for which the statute has not lapse and it and it cuts that right off artificially not on the merits and the purpose of thirteen to one so that you did you did we refile how did she keep you free filing what we refine out in the defendant's challenge and on the basis that it was a prior pending action well so now i'm caught between a rock and a hard place i got this fire burning action and i try to bring it in front of the judge who has the  absolute ownership as a matter of fact so matter of fact the deed that we got from conrail so wires were had an abundance of caution i guess when they gave it to us but it says six one nine eight three right and as says you and another action pending as a reason for dismissal of a complaint some or here we have exactly and what's what's the philosophy behind that is that so and in fact the pending count three is presumably what triggered your counter claim indicating that you had great ownership right away it probably that is one but at any rate and isn't it also true that the judge said to the lawyers you know why don't you get together and show me exactly where th permissive versus adverse easement you say that the railroad gave what you term as a permissive easy and yes eventually the railroad and title to to claim it as permissive or on the other property of the south branch eventual suffrage entitle to say that at that point it could become adverse to the subsequent owners and if they something else you'd like to manifest weight standard of review and except for those questions that you believe are questions a lot such as a claim that there is no evidence of supporting the other side and that might be in fact a question of law but otherwise we  that they must be located with the dimensions that might actually be used as well we're going to have eighteen wheelers over there  judgment in december so it's a two month difference but the trial it ended when the trial ended in january of two thousand and two two thousand and six you may want to go into some of the other issues i do like the two other issues  when judge mason ruled that the defendants owned the right of way she did so only and there their merits of the quickly indeed the merits of their deal were not challenged in our case because we had dismissed our claim for ownership so we could not file a notice of appeal on their ruling because it would have been an appeal like on an issue to which we had entered no evidence of trial and there's rules the score his rules about filing appeals and a frivolous matters s true but you're not saying that because you didn't enter any evidence on that issue the judge was obligated to accept all the evidence presented by the other side two six one nine eighty three and our issue right to him and section thirteen to one seven this court in a way to persons file some years ago the scotts the tension between these troops provisions but didn't resolve in that case the court said we don't have to address that because those are facts are well the facts are here now it's not it's next an advisory opinion or asking for we're asking for the court to look at those choose those to  during the prescriptive period that the judge found she found a scripture period began in one nine hundred seventy eight when harrison marcus or harry author became the owner and that's why sutton went on the property and he observed it continuously for the a adjacent players doesn't say you have to let him have crossovers it just says accommodate him and the reason is these owners these these property owners certainly south ranches predecessor interest was a business that function building wasn't built the building was built thirty one years later so for thirty one years south grant just predecessors in interest had absolute access to the property from thirty fifth street we don't know and this was not a judicial admission on part of m record that says if there had been a record that says this is what occurred on this property in the intervening years we certainly would have put it into evidence so the origin of the easement is not unknown there go therefore under the case law adversity is presumed but if you don't agree with that tracks were there until he thinks sometimes in one nine hundred eighty s excuse me the train took out some shrubs that he planted along the right the right of way which shows at least the train engineer saw that people were crossing over in three places crossing over the right of way so that there is now a john the part of the railroad and that we have since because it didn't ever object so we hire case we've established adversity and we move on to the other elements after the element of location mr sutton testified in his direct and cross examination with reference to exhibits that were in evidence the aerial photographs and then there was the demonstrative the pledge a survey testimony is those these most right at those driveways never change the location and character of them never changed in all the years that he worked on the property defendants put into test and look into evidence a diagram of the to the right way did not create express reasons that just as you have to accommodate your jason landowners there was an express easement granted to the chicago manufacturing just for a central manufacturing district but by the time that was granted our property was outside of the chain of title there