Harr v. Coolbaugh, 90

• Decision Date: 08 June 1953
• Docket Number: No. 90,90
• Citation: 337 Mich. 158,59 N.W.2d 132
• Parties: HARR et ux. v. COOLBAUGH et al.
• Court: Michigan Supreme Court

Page 132

59 N.W.2d 132

337 Mich. 158

HARR et ux. v. COOLBAUGH et al.

No. 90.

Supreme Court of Michigan.

June 8, 1953.

Dudley & Rogers, Jackson, for defendants and appellants.

Joseph A. Navarre, Jackson, for plaintiffs and appellees.

Before the Entire Bench.

REID, Justice.

Defendants Coolbaughs' possession was not inconsistent with plaintiffs' easement in question and, lacking the quality of being adverse, was no notice to plaintiffs. See Greve v. Caron, infra. In the cases cited by Mr. Justice Sharpe, the possession was adverse, and thus was notice.

Plaintiffs, owners of the dominant estate, obtained a warranty deed of their premises including the easement in question, May 14, 1943, and recorded the deed on the next day. They had been given an option, February 4, 1943, went into possession in March, drove in and out over the right of way in question before obtaining the option and during their possession under the option, without interference and without warning from any one that their rights under the easement were in dispute or that their grantor did not have a right to convey the easement. Their grantor's (Mrs. Ruede's) right so to convey was on record in 1937 and the right of way in question was in use since 1924, but prior to plaintiffs' grantor's receiving title, a quit claim deed without reservation of the right of way of the lands crossed by the easement had been given by the then owners of both the dominant estate and the servient estate, to defendants Coolbaugh in 1936; but defendants did not put their deed on record until January 3, 1944. Defendants Coolbaugh lived on their lands, the servient estate, and had lived in the neighborhood many years. From 1920 to 1927, defendant Clifford Coolbaugh with other members of the Coolbaugh family had lived in what is now the plaintiffs' house, during which period there arose the necessity for and creation of the right of way in question because a high embankment was thrown up in front of the house, shutting off access to the road in front of the house. According to the testimony of Roy Coolbaugh, the Coolbaugh family then began using the right of way now in dispute. Defendant Clifford Coolbaugh must have known about the easement, and knew there was no way in and out for plaintiffs except over the right of way in dispute or across some other lands owned by defendants Clifford Coolbaugh and wife.

Plaintiffs' occupancy of the house and their use and to that extent possession of the now disputed right of way as a means of access during their option to purchase, was notice to defendants of their rights under their option, yet defendants Coolbaugh did not then make known to them that their deed covered the easement, did not then block plaintiffs' use of the easement, so that plaintiffs closed the deal for the purchase in total ignorance of the fact that defendants Coolbaughs' deed covered the right of way with no reservation of it. Defendants Coolbaughs' conduct was inequitable.

Plaintiffs remained in undisturbed use of the easement for five years after their purchase. Defendant Clifford Coolbaugh testified that after the trouble arose later, over the easement,

'I put the posts in there [referring to way of access across defendants' other lands] so Mr. Harr wouldn't use the DUR as a public drive. He would have to seek ingress and egress to his property by way of the so called right-of-way.' (Italics supplied.)

Plaintiffs were hemmed in by a bank about 14 feet high that goes down into a viaduct, dangerous and impractical as a means of access to their property.

The fact that when plaintiffs bought their premises from the record owner of the title, defendants were in possession of the adjacent lands without blocking or denying to plaintiffs the easement in question, was no notice to plaintiffs that defendants' deed covered the easement. The easement was in actual use by others than Coolbaughs. Coolbaughs therefore were not in adverse possession of the very thing that plaintiffs were buying, to-wit, the easement in question, as distinguished from the lands traversed by the right of way.

'The maintenance of a gate across an alleyway at the street, even though continuous, would not constitute an obstruction to the way or result in its loss by ouster or adverse possession, if it permitted use of the way, since the owner of the servient estate may make any use of the premises not inconsistent with easement.' Greve v. Caron, 233 Mich. 261 (per syl. 7), 206 N.W. 334. (Italics supplied.)

C.L.1948, § 565.29, Stat.Ann. § 26.547, is in part as follows:

'Every conveyance of real estate within the state hereafter made, which shall not be recorded as provided in this chapter, shall be void as against any subsequent purchaser in good faith and for a valuable consideration, of the same real estate or any portion thereof, whose conveyance shall be first duly recorded.'

'The presumption is, that a subsequent purchaser, who has got his deed first recorded, is a bona fide purchaser without notice, until the contrary is made to appear.' Godfroy v. Disbrow, Walk.Ch.R., 260 (per syl. 7), cited with approval in Runyon v. Smith, C.C., 18 F. 579, 580, and in many Michigan decisions.

'Our registry laws * * * for the purpose of protecting an innocent purchaser give him what he supposed, and from an examination of the records had a right to suppose, he was acquiring by his purchase, and to this extent cut off the previous purchaser, who negligently failed to record his conveyance.' Burns v. Berry, 42 Mich. 176, 180, 3 N.W. 924, 925. (Italics supplied.)

Examination of the records is the extent of the diligence suggested by the Burns case to be exercised by a purchaser in good faith and without actual notice, who thereby and by his prior recordation, becomes protected in his title.

Plaintiffs' grantor had received a deed of their house and premises together with the easement in question from the mother and brother of defendant Coolbaugh.

Plaintiffs were not obligated to presume that their grantor would intentionally commit a fraud upon them by deeding to them the easement in question without right so to do. Because the right of way was wide open to them without obstruction, plaintiffs were not obliged to make personal inquiries as to whether the terms of Coolbaughs' unrecorded deed would defeat their easement, with Coolbaugh saying nothing and nothing being doen by any person to warn them; it must have seemed to plaintiffs that the residence would not be found to have been occupied with no lawful means of ingress and egress. The testimony of defendant Coolbaugh himself shows that there is no other means of ingress and egress except by the easement in question. To rule that intending purchasers must make inquiries concerning the precise terms of an unrecorded deed under such circumstances, would be to defeat the very purpose of the above quoted statute and would subject purchasers to endless vagaries and uncertainties of unrecorded instruments.

'The purpose of the recording law is that the true state of the title be represented', i. e., in the public records. See Grand Rapids National Bank v. Ford, 143 Mich. 402, 406, 107 N.W. 76, 78. The purpose, further, is to protect an innocent purchaser. See Burns case, supra.

'Where, prior to the purchase of land abutting upon a village street, a railway company has, with the consent of the owner of such land, laid in the street in front of the premises purchased a single track of its road, and is operating cars thereon, such condition is notice to the purchaser of a right to maintain such track; and his easement in the street, as owner of abutting land, is, to the extent of such possession and user, affected thereby. but such right will not be affected by an unrecorded deed from his grantor, executed more than six months prior, giving to the company permission to lay additional tracks, if, at the time of his purchase, the purchaser acts in good faith, and has no knowledge of the existence of such conveyance.' Varwig v. Cleveland, C., C. & St. L. R. Co., 54 Ohio St. 455, 44 N.E. 92. (Italics supplied.)

It seems unlikely that plaintiffs would have bought the house without the actual and honest belief that the easement was rightfully theirs. They are, in every sense, purchasers in good faith without notice. The trial judge correctly so held. Their prior recordation gives them the title to the easement, that is, the right to use it. Coolbaugh's co-defendants (his grantees) are in no better position than Coolbaugh himself.

The decree appealed from recognized and determined plaintiffs' perpetual right of way and permanently enjoined defendants from interfering with plaintiffs' use and enjoyment of it. That decree is affirmed. Costs to plaintiffs.

DETHMERS, C. J., and ADAMS, BUTZEL, CARR, BUSHNELL and BOYLES, JJ., concur.

SHARPE, Justice (dissenting).

In the instant case plaintiffs filed a bill of complaint in the circuit court of Jackson County in which they seek in injunction to restrain defendants from interfering with a so called right-of-way across the lands of defendants. Plaintiffs Harr own a piece of property in which they acquired title by deed in 1943. Defendants Wells own a piece of property directly east of the Harr property. The Wells' acquired title to their...