Opinion
Docket No. 6,839.
Decided August 24, 1970. Leave to appeal denied February 9, 1971. 384 Mich. 803.
Appeal from Iosco, Alan C. Miller, J. Submitted Division 3 February 5, 1970, at Grand Rapids. (Docket No. 6,839.) Decided August 24, 1970. Leave to appeal denied February 9, 1971. 384 Mich. 803.
Complaint by Elizabeth Oakes Moore against Ottawa Equipment Company to recover possession of land and abate a nuisance. Judgment of no cause of action for defendant. Plaintiff appeals. Reversed and remanded.
Paul Harvey ( Arthur G. Taylor, of counsel), for plaintiff.
Clark, Stroup, Brown MacKenzie, for defendant.
This action was brought to recover possession and to abate a nuisance. Although the outcome of this cause may have an effect on several adjacent parcels, its primary effect is on the boundary line between the adjoining parcels owned by plaintiff and defendant. Both parcels are included in a tract called Forest Glen, which was acquired by the Tawas Beach Association from the Detroit Mackinac Railway Company and platted into 16 lots by a registered surveyor, John W. Applin, in 1920. Although this plat was never recorded, the same surveyor prepared an assessor's plat in 1934 which was duly filed. The 1934 assessor's plat differed from the 1920 plat in at least one significant respect. The point of beginning in the written description and as marked on the 1920 plat commenced at a monument on the west side of Forest Glen along the line common to Government Lot 1. However, the written description of the tract in the assessor's plat commenced at the common corner of Sections 21, 22, 27 and 28.
There was testimony at trial from plaintiff, as well as others, that when the lots were originally sold, the property lines were indicated by white wooden stakes.
During the 40-odd years period in which plaintiff's family and the defendant's immediate predecessor in title owned the lots in question, the common boundary was accepted as laid out when plaintiff's father purchased his lot. There was no dispute as to the location of the boundary until defendant purchased the lot, had it surveyed, and then built its fence.
The trial court made findings of fact in support of its judgment for the defendant.
A review of the record does not indicate that the findings of fact made by the Court are erroneous within the guidelines as set down by GCR 1963, 517.1. We feel compelled, however, to reverse and remand this case on the ground that the trial court erred as to the law applicable to the facts as he found them. Finding of Fact No 7 made by the trial court is as follows: "There is no evidence of any dispute between the Moores and Hendersons resolved by acquiescence, or of any possession held openly in the nature of adverse possession." It would appear that the trial court believed that a "dispute" was essential to the application of the principle of acquiescence. Such we do not believe to be the case.
This Court, in Weisenburger v. Kirkwood (1967), 7 Mich. App. 283, 289, said:
"The doctrine of acquiescence, as recognized in Michigan, is found in Jackson v. Deemar (1964), 373 Mich. 22. Therein, the Michigan Supreme Court quoted from Johnson v. Squires (1956), 344 Mich. 687, 692, as follows (pp 25, 26):
"`We had occasion, in the case of Renwick v. Noggle (1929), 247 Mich. 150, to examine the doctrine of acquiescence in the establishment of boundary lines and we there held (p 152):
"`"The rules for establishment of a boundary line by acquiescence are summarized by Mr. Justice FELLOWS in Hanlon v. Ten Hove (1926), 235 Mich. 227, 231, 232 (46 ALR 788):
"`"`While acquiescence alone is not a defense, if acquiescence follows the resolving of a doubt as to where the line is or the settlement of a bona fide controversy, which settlement agreement contemplates an agreed line, and the monuments of such line are fixed and maintained thereafter, such line so established and acquiesced in is the line, and the acquiescence need not continue for the statutory period; likewise where the line is acquiesced in for the statutory period it is also fixed.' (Emphasis in Johnson and Renwick.)
"`"In that case it was held that the acquiescence of predecessors in title can be tacked on that of the parties, and if the whole period of acquiescence exceeds 15 years, the line becomes fixed, regardless of whether there had been a bona fide controversy as to the boundary."'" (Emphasis in Jackson.)
We find from the evidence in this case that the boundary line between the parcels in question was accepted as laid out on the original plat and in accordance with the stakes as they were set at the date of the sale to the plaintiff's father.
The boundary line, as staked, was accepted by both predecessors in title for over 40 years, and the mere fact that neither felt that it was necessary to destroy the natural condition of the area between their respective cottages should not work a change in an established line.
On the question as to the location of the proper boundary between the lots now owned by plaintiff and defendant, it seems to the Court that the case of Flynn v. Glenny (1883), 51 Mich. 580, 584, is the controlling law. Justice COOLEY says, p 584:
"It is also pure assumption that the original survey was mathematically correct. It is seldom or never that a town plat in a new country is made with perfect accuracy; and it is familiar knowledge in this state, if not elsewhere, that any attempt to make street lines and lot lines correspond with mathematical accuracy to the recorded plat after the lots have been occupied and improved, would disturb possessions in the most serious manner, and lead to infinite difficulty and litigation. Fortunately the rules of law do not admit of this. Purchasers of town lots have a right to locate them according to the stakes which they find planted and recognized, and no subsequent survey can be allowed to unsettle their lines. The question afterwards is not whether the stakes were where they should have been in order to make them correspond with the lot lines as they should be if the platting were done with absolute accuracy, but it is whether they were planted by authority, and the lots were purchased and taken possession of in reliance upon them. If such was the case they must govern, notwithstanding any errors in locating them."
See Diehl v. Zanger (1878), 39 Mich. 601, 605, where Justice COOLEY again states:
"The surveyor has mistaken entirely the point to which his attention should have been directed. The question is not how an entirely accurate survey would locate these lots, but how the original stakes located them. No rule in real estate law is more inflexible than that monuments control course and distance, — a rule that we have frequent occasion to apply in the case of public surveys, where its propriety, justice and necessity are never questioned. But its application in other cases is quite as proper, and quite as necessary to the protection of substantial rights. The city surveyor should, therefore, have directed his attention to the ascertainment of the actual location of the original landmarks set by Mr. Campau, and if those were discovered they must govern. If they are no longer discoverable, the question is where they were located; and upon that question the best possible evidence is usually to be found in the practical location of the lines, made at a time when the original monuments were presumably in existence and probably well known."
The finding of the lower court permitting the erection of a six foot wire fence is affirmed. However, the fence must be removed from its present location.
Reversed and remanded. Costs to plaintiff.
All concurred.