Burkhart v. Zimmerman

• Decision Date: 24 June 1927
• Docket Number: No. 88.,88.
• Citation: 239 Mich. 491,214 N.W. 406
• Parties: BURKHART et al. v. ZIMMERMAN et al.
• Court: Michigan Supreme Court

239 Mich. 491

214 N.W. 406

BURKHART et al.

v.ZIMMERMAN et al.

No. 88.

Supreme Court of Michigan.

June 24, 1927.

Appeal from Circuit Court, Washtenaw County, in Chancery; George W. Sample, Judge.

Suit by George Burkhart and another against Fred C. Zimmerman and another. From a decree of dismissal, plaintiffs appeal. Reversed and rendered.

Argued before the Entire Bench.

Frank E. Jones, of Ann Arbor, for appellants.

Cavanaugh & Burke, of Ann Arbor (J. F. Fahrner, of Ann Arbor, of counsel), for appellees.

SNOW, J.

Adjoining three-story buildings of the same design face the Chicago turnpike, in the village of Saline. They were built in 1872 with but one stairway leading from the ground to the second story between them. This stairway is entirely on defendants' land and is a part of their building, although it has always been used by the onwers of the two buildings as a common entrance to the second floors.

The land upon which the buildings were built was originally owned by one Allen H. Risdon. He sold the easterly part to Burkhart and Aldrich, making no mention of or provision for the stairway in the deed. They built one of the buildings on the land so purchased, and Mr. Risdon built the other on the land he retained, giving to the owners of the other building oral permission to use the stairway in common with himself.

Use of the stairway continued as the years passed, although ownership of the properties changed. In 1888 Aldrich deeded his interest in his building to his partner, Charles Burkhart, father of the plaintiffs, from whom they later secured the title in 1908. The other building was deeded by Risdon in 1874 to one Louis C. Risdon, and after a number of changes in ownership the defendants finally acquired their title to it in 1914.

At the time of the commencement of this suit, the defendants were using the second story of their building for residential purposes, and plaintiffs were using the third story of their building, among other things, for public dances. This was objectionable to the defendants and they forbade further use by plaintiffs of the stairway. The plaintiffs filed their bill to restrain defendants from interfering with their right to use it, and appeal from its dismissal.

It is conceded that the plaintiffs have no record title to the land upon which the stairway stands. Their right to its use admittedly began in permission. But they now claim that they have acquired an easement in it by adverse possession. They do not dispute the well-settled law that neither title not easement may be acquired against an owner, where occupation or use has existed entirely and only by permission, but they say, quoting from counsel's brief:

‘It is our claim that in the law these conveyances were and constituted a revocation of any license that previously existed, and the possession after such time and use of stairway by plaintiffs was adverse, notorious, hostile, continuous, and, having been so held and used many more than the required 15 years, had ripened into such a title as should justify plaintiffs in seeking and receiving the relief asked for under this bill of complaint.’

The Burkharts, father and sons, since its construction, have occupied their building and used defendants' stairway in connection with it. While Mr. Risdon was the owner...