Burns v. Foster

• Decision Date: 28 February 1957
• Docket Number: No. 63,63
• Citation: 81 N.W.2d 386,348 Mich. 8
• Parties: J. Alfred BURNS and M. Dorls Burns, Plaintiffs and Appellees, v. David Elihu FOSTER, Defendant and Appellant.
• Court: Michigan Supreme Court

Page 386

81 N.W.2d 386

348 Mich. 8

J. Alfred BURNS and M. Dorls Burns, Plaintiffs and Appellees, v. David Elihu FOSTER, Defendant and Appellant.

No. 63.

Supreme Court of Michigan.

Feb. 28, 1957.

D. D. Moorhead, Sault, Ste. Marie, for defendant-appellant.

Burney C. Veun, Sault Ste. Marie, for plaintiffs-appellees.

Before the Entire Bench.

KELLY, Justice.

Plaintiffs purchased in 1931 a 50-foot lot in Sault Ste. Marie, and in 1936 constructed a home 47 feet in width on said lot. In the spring of 1937 plaintiffs landscaped not only the 50 feet they purchased but an additional 3 feet of an adjoining lot (defendant's lot 15). While the property was purchased by the plaintiffs as tenants by the entireties, the husband is referred to as the plaintiff herein, representing both parties.

Defendant purchased this adjoining lot in 1953 and when plaintiff's right to ownership of the 3 feet in dispute was challenged by defendant in 1955, plaintiff brought this suit in chancery asking injunctive relief against trespass.

Defendant appeals from a decree of the circuit court for the county of Chippewa holding that plaintiff's acts of ownership for more than 15 years constituted adverse possession, vesting title in plaintiff.

Plaintiff's lot 16 and defendant's lot 15 (R. D. Perry's Addition, Amended Plat) have 50-foot Frontages on the north side of East Spruce Street and a depth of 145 feet to an alley in the rear. Defendant's lot is to the west of plaintiff's, and when plaintiff purchased his lot the 2 lots to the west were vacant and the lot to the east, namely lot 17, had a residence thereon owned by Herbert E. Fletcher.

Plaintiff's testimony that he never intended to claim more than he purchased, namely lot 16, is as follows:

'Q. Did you receive this property by deed? A. I did.

'Q. And you are only claiming then up to the boundaries of lot 16, is that your testimony, that you received by deed? A. Well I wouldn't say that exactly, if there was a mistake made in the survey and I have owned the property 25 years, I don't know.

'Q. What property are you claiming, lot 16? A. That's right.

'Q. Are you claiming any additional property? A. Wait a minute.

'Q. How do you claim any property you don't have a deed to? A. Well we have been there that long. We have never been disputed there before.

'Q. When you went into possession Mr. Burns, was it you intention to claim more than lot 16? A. No, that is why we had it surveyed.

'Q. Then really all you claim or intended to claim was lot 16, is that right? A. At that time, yes.

'Q. Are you claiming it now? A. That is for my attorney to say.

'Q. That for you to decide, Mr. Burns? A. I don't know.'

Plaintiff testified that surveyor Colwell made a survey establishing his lot lines prior to his landscaping in 1937. Plaintiff's architect and landscaper and also surveyor Colwell died prior to trial. Whether surveyor Colwell established plaintiff's lot lines depends solely upon plaintiff's word, as he had no written instrument or record to sustain such fact.

Appellant contends that the trial court 'relied heavily in its opinion' on the line plaintiff contended was established by surveyor Colwell, and this is sustained by the statement in the trial court's opinion that: 'The failure of the county surveyor, Colwell, to run a correct line has resulted in this litigation.'

Appellee's application for a building permit was filed with the city of Sault Ste. Marie and attached thereto was a drawing, or ground plan, which establishes that appellee asked permission to build his house and attached garage so that the garage would extend to the lot line separating his property from Mr. Fletcher's property on the east, and extending the house to within 3 feet of his lot line on the west. The westerly line as established by appellee in his application did not include the 3 feet of property now in dispute.

Plaintiff's application for building permit was rejected by the building inspector because of the city's requirement that a building should not be constructed within 5 feet of the lot lines. To meet this objection plaintiff obtained, from lot owners Fletcher on the east and Dr. Cameron on his west, letters, which plaintiff presented to the zoning board on August 28, 1935. Mr. Fletcher's letter stated:

'It is my understanding that Mr. J. Alfred Burns is about to build a residence adjoining our residence on Spruce St. on the west and that his plans are drawn so that it will necessitate placing his garage up to our west line which will be satisfactory to us.'

Dr. Cameron's letter confirmed the fact that plaintiff intended to build 3 feet from his west lot line. That letter read:

'It is my understanding that Mr. J. Alfred Burns is about to build a residence adjoining our property on Spruce St., on the east and that his plans are drawn so that it will necessitate placing his house up to three (3) feet of our east line, which will be satisfactory to us.'

Because of the letters presented along with the application for a building permit, the zoning board approved plaintiff's request for such building permit.

Dr. Cameron's letter to the zoning board was weritten on the 'Burns Department Stores' stationery. Plaintiff was president of said store. Plaintiff denied that he ever asked Dr. Cameron's permission to build closer to his lot line than the ordinance allowed, and testified:

'Q. As long as this is on this subject, Mr. Burns, is that your signature? A. That's right.

'Q. And the defendant's Exhibit E is a request for a building permit? Now in connection with obtaining this and your signature, did you ask permission of either of the lot owners to build that close? A. I have permission from this lot owner right here to build right up here on the line.

'Q. That would be the one east? A. Yes.

'Q. How about the one lying to the west? A. I don't remember. I bought that property before Dr. Cameron did. I had a deal with the Baptist Church. I went by the Colwell line.

'Q. You never did get permission from Dr. Cameron? A. No, I never did.'

Dr. William F. Murtaugh testified that in 1936 he was a joint purchaser on contract of lot 15; that while plaintiff was in Dr. Cameron's office he had a telephone conversation with Both Dr. Camerson and plaintiff and that in said conversation he 'told Mr. Burns as far as I was concerned with the consent of Dr. Cameron, he could have the use of that property while building, and if the zoning board would give him permission to build a little closer to the line, it was all right with me. I knew Mr. Burns. I though we were going to be all together, O.K., that was all.'

Dr. Cameron was deceased at time of trial. His widow, Marie Cameron, who jointly with her husband purchased lot 15, testified:

'Q. A question has come up as to Mr. Burns' use of a portion of lot 15 that lies west of his house, and I wonder, Mrs. Cameron, can you tell us whether...