Opinion
Docket No. 949.
Decided July 26, 1966.
Appeal from Muskegon; Beers (Henry L.), J. Submitted Division 3 March 8, 1966, at Grand Rapids. (Docket No. 949.) Decided July 26, 1966.
Complaint by Whitehall Leather Company, a division of Genesco, a Tennessee corporation, against Richard J. Capek and Patricia A. Capek to establish a prescriptive easement. Complaint dismissed. Plaintiff appeals. Affirmed.
Hathaway, Latimer, Clink Robb ( H. Winston Hathaway and Fred C. Culver, Jr., of counsel), for plaintiff.
A. Winton Dahlstrom, for defendants.
Appellant filed its complaint to establish a prescriptive easement. The trial court denied the request and dismissed the complaint.
The appellant owns and operates a tannery in the city of Whitehall that has been in operation since before the turn of the century. North of, and adjacent to, appellant's tannery is the appellees' vacant property through which runs a spur railroad track connecting the tannery with a main line of the Chesapeake Ohio railroad.
The appellees purchased the property, lots 10-14, from Arthur J. Daane, and lots 15-19 from Franklin A. Speese, in November, 1964.
The spur track was in existence prior to 1895, and the appellant and its predecessors in title and business have made extensive daily use of the spur track from 1915 to 1951, with a decline in use since 1951.
The record indicates lease agreements between the tannery and the owners of lots 15-19 as far back as 1895. The payments ranged from $50 to $100 per annum.
With regard to lots 10-14, we find nothing in the record to indicate any lease agreement between the tanning company, its predecessors in title, and the preceding title holders of the present owner (appellees). However, exhibits do show negotiations in 1957 between the tanning company and Arthur J. Daane, appellees' predecessor in title, to lots 10-14, for a lease-purchase agreement. One letter from the appellant corporation to Mr. Daane's attorney contains the following:
"I am again authorized to propose a lease-option agreement whereby Mr. Daane will receive $360 per year and General Shoe to have the option of purchasing the property upon his death for $3,000, applying the rental upon such purchase price. The company to agree to pay the real estate taxes as assessed."
The parties could not come to an agreement as to price; no rent was ever paid, and finally in 1964 Mr. Daane sold the lots to the appellees who also attempted to procure a lease agreement with the appellant, and finally served notice on the appellant.
Our Supreme Court in Burns v. Foster (1957), 348 Mich. 8, 14, stated:
"Determination of what acts or uses are sufficient to constitute adverse possession depends upon the facts in each case and to a large extent upon the character of the premises. Barley v. Fisher (1934), 267 Mich. 450."
And, in King v. Battle Creek Box Co. (1926), 235 Mich. 24, 35, the Court stated:
"Peaceable occupation or use by acquiescence or permission of the owner cannot ripen into title by adverse possession, no matter how long maintained. Hostility is of the very essence of adverse possession. 1 RCL pp 701-705.
"`All of the authorities agree that the adverse possession must have been for the whole period prescribed by the statute, actual, open, visible, notorious, continuous, and hostile.' Bean v. Bean (1910), 163 Mich. 379, 396.
See CL 1948, § 609.1 (Stat Ann § 27.593), and CLS 1961, § 600.5801 (Stat Ann 1962 Rev § 27A.5801). — REPORTER.
"The use for a way of passage of uninclosed vacant land not in use by the owner, or even mere possession of it, is not in itself hostile to the owner. * * * To obtain title by prescription all the essential elements of adverse possession for the whole statutory period must be so clearly shown as to make plain to the owner that his rights are being invaded in a hostile manner. Menter v. First Baptist Church (1909), 159 Mich. 21."
In the present case we find no evidence of hostility with regard to either of the appellees' predecessors in title. In fact, the attitude of the plaintiff-appellant (and its predecessors in title and business) is highly inconsistent with hostility. The payment of rent over a period of many years is hardly adverse and hostile. With regard to the former Daane property, though no rent was ever paid, the negotiations in 1957 would certainly seem to be an admission of title in Mr. Daane.
Judgment of the trial court is affirmed. Costs to the appellees.
FITZGERALD, P.J., and J.H. GILLIS, J., concurred.