Featherston v. Pontiac Tp., 42.

• Decision Date: 30 November 1944
• Docket Number: No. 42.,42.
• Citation: 310 Mich. 129,16 N.W.2d 689
• Parties: FEATHERSTON et al. v. PONTIAC TP. et al.
• Court: Michigan Supreme Court

310 Mich. 129

16 N.W.2d 689

FEATHERSTON et al.

v.PONTIAC TP. et al.

No. 42.

Supreme Court of Michigan.

Nov. 30, 1944.

Suit in equity by Lotta E. Featherston, as administratrix of the estate of William O. Wilson, deceased, and others against Pontiac Township, the Township Board of Pontiac and Oakland County, to establish title by adverse possession to certain land, in which defendant board filed a cross-bill to establish the township's ownership of the land. From a decree dismissing the bill, plaintiffs appeal.

Affirmed.

Appeal from Circuit Court, Oakland County, in Chancery; George E. Hartrick, Judge.

Before the Entire Bench except BUTZEL, J.

Donald C. Porritt, of Pontiac, for appellants.

Harry J. Merritt, of Royal Oak, for appellees.

STARR, Justice.

Plaintiffs Lotta Featherston, administratrix of the estate of William O. Wilson, deceased, and Frank Wilson, Glenn Wilson, and Clara Whittaker, children and heirs at law of said deceased, filed bill of complaint seeking to establish title, by adverse possession, to certain land in the village of Auburn, Pontiac township, Oakland county, described as follows: ‘That portion of premises designated in the plat of the village of Auburn as ‘public square’ and lying southerly of lots 23, 24 and 25 of said plat and westerly of the southerly extension of the easterly line of said lot 25 to the center of the public highway known as Auburn road. Subject to an easement of right of way for public highway purposes over the southerly 50 feet thereof.'

In their bill of complaint plaintiffs alleged that on November 15, 1889, William Wilson entered into possession of said land and continued in open, adverse, hostile, notorious, and exclusive control and possession thereof until his death November 13, 1941, and that he thereby acquired title to said land by adverse possession. Defendant Oakland county answered, disclaiming any interest in the land. Defendants Pontiac township and the township board answered, denying plaintiffs' right to title by adverse possession. By cross-bill the township and its board alleged that the township became the owner of said public square, which includes the land claimed by plaintiffs, by common-law dedication in 1823, and has ever since owned and exercised control thereof. They asked that the township be decreed to be the owner of the land.

Defendants offered no proofs. At the conclusion of plaintiffs' proofs they moved to dismiss the bill of complaint, for the reason, among others, that plaintiffs' proper remedy was by an action at law. The trial court determined that plaintiffs had failed to establish title and entered decree dismissing their bill and also defendants' cross-bill. Plaintiffs appeal from such decree and, this being a chancery case, we review the same de novo.

A copy of the plat of the village of Auburn, recorded September 20, 1826, shows an area designated as ‘public square’ and also certain streets and lots, but does not show descriptions, dimensions or any dedication or granting of said public-square area. The testimony indicates that the so-called public square is a rectangular parcel of land approximately 264 feet in width east and west, and extending approximately 115 feet to the north and about the same distance to the south of Auburn avenue, an east and west street about 100 feet wide. The land claimed by plaintiffs comprises approximately the westerly three-quarters of that part of the public square lying north of the center line of Auburn avenue.

Plaintiffs' decedent, said William Wilson, resided on lots immediately north of the public square. Plaintiffs and other witnesses testified, in substance, that until about 1931 Wilson occupied and used the land in question for lawn, garden, and pasture purposes and for the harvesting of hay and storage of machinery; and that he used a driveway extending north from Auburn avenue over the easterly part of said land.

The question presented on this appeal is whether or not the trial court erred in dismissing plaintiffs' bill. The court held that ‘plaintiffs have not sustained the right of title by adverse possession.’ However, before reaching the question of title by adverse possession, we are confronted with the problem as to whether or not the circuit court in chancery had jurisdiction to entertain the suit. The record shows that about 1931 defendant township, over the objections of Wilson, placed a fence at or near the north boundary line of the public square, and that the...