Klais v. Danowski

• Decision Date: 08 July 1964
• Docket Number: Nos. 1-3,s. 1-3
• Citation: 129 N.W.2d 414,373 Mich. 262
• Parties: Ferdinand KLAIS and Ella L. Klais, Plaintiffs and Appellees, State of Michigan ex rel. Director of Conservation, Intervening Plaintiff and Appellant, v. Julius DANOWSKI and Beatrice Danowski, Defendants and Appellees.
• Court: Michigan Supreme Court

Page 414

129 N.W.2d 414

373 Mich. 262

Ferdinand KLAIS and Ella L. Klais, Plaintiffs and Appellees State of Michigan ex rel. Director of Conservation Intervening Plaintiff and Appellant, v. Julius DANOWSKI and Beatrice Danowski, Defendants and Appellees.

Nos. 1-3.

Supreme Court of Michigan.

July 8, 1964.

James Segesta, East Detroit, for plaintiffs-appellees.

Meyer D. Stein, Detroit, and Stanley E. Beattie, Detroit, of counsel, for defendants and appellees Danowski and Wife.

Frank J. Kelley, Atty. Gen., Eugene Krasicky, Sol. Gen., Robert A. Derengoski, Sol. Gen., Nicholas V. Olds, Jerome Maslowski, Asst. Attys. Gen., Lansing, for

intervening plaintiff and appellant--No. 49795 and No. 49728.

Before the Entire Bench, except ADAMS, J.

DETHMERS, Justice.

The paramount question is whether the area of the 2 lots, hereinafter described, is a part of the State-owned, unpatented, submerged lands of the Great Lakes and, as such, subject to P.A.1955, No. 247, as amended by P.A.1958, No. 94 (C.L.S.1961, § 322.701 et seq. [Stat.Ann.1958 Rev. and 1963 Cum.Supp. § 13.700(1) et seq.]), which provides that occupants on unpatented, filled-in bottom of the Great Lakes may apply to the State for conveyances of the State's interest therein and authorizes such conveyances to them, for a consideration by the department of conservation.

Plaintiffs are purchasers from defendants, under land contract, of the 2 lots, described as follows: 'Lots 82 and 83 of Schulte's Shores Subdivision No. 2, a replat of Lot 7 of Assessor's Plat No. 20 of part of Lots 6 and 7 of Abbott's Subdivision of Private Claims 599 and 623, Village of St. Clair Shores, Macomb County.' The area in question, containing these lots, lies along the west side of Lake St. Clair. It was filled in during 1931-1932.

Plaintiffs filed their bill of complaint, alleging that, by the terms of the land contract, defendants agreed to convey by warranty deed, free from all encumbrances; that the lots are filled-in lake bottom; that the State claims them as part of submerged lake bottom of the Great Lakes, artifically filled in, and that under the above mentioned statute application would have to be made to the State for a conveyance of the State's interest. Plaintiffs prayed that defendants, in order to fulfill their agreement to convey clear title, be required to join them in such application to the State and to pay the State or reimburse plaintiffs for the amount paid by them to the State for such conveyance.

The State, on petition granted, intervened as party plaintiff and asserted the rights above indicated. Defendants denied that the State ever had title to the lands, and pointed out that the mentioned statute applies only to unpatented submerged lake bottom or unpatented made lands in the Great Lakes, but that the lots in question are and since 1811 have been part of patented lands, namely Private Claim 623, and, therefore, do not come within the purview of that statute. Private Claim 599 lies adjacent to and south of 623. The lots in question definitely are not part of 599 but the latter is discussed in this case with 623 because of their like factual background and both were patented, on the same date, to the same patentees, with the western boundary of one claim being an extension of that of the other. The dispute centers around whether the lots are lakeward or landward of the east or lakeward boundary of Private Claim 623 and, thus, within or outside of its boundaries as of the time of patent. This, in turn, it is argued, depends on or can only be determined from decision of the disputed question of where the western boundary of Claim 623 was when patented.

The circuit court entered a decree adverse to the claims of the State. It appeals here.

The land patent to Private Claim 623, dated June 1, 1811, to the legal heirs of James Abbott, Esq., contains the following description:

'* * * a certain tract of land containing six hundred and thirty nine 99/100 acres situate on the border of Lake St. Clair bounded and described as follows, to-wit: Beginning at a post standing on the border of Lake St. Clair between this tract and a tract confirmed to the claimants, thence North Seventy five degrees West One hundred two Chains Eight links to a post, thence North fifteen degrees East Seventy one Chains fifty Eight links to a Beech tree the boundary between this tract and unconceded lands; thence South Seventy five degrees East Eighty Chains forty nine links to a post standing on the border of Lake St. Clair; thence along the border of said Lake South two degrees West fifty four Chains Seventy five links; thence South twelve degrees East twenty Chains forty six links to the place of beginning: * * *'.

The description in the patent is based on a survey made for that purpose in 1810 by Aaron Greeley. It will be noted that the claim was described as containing 639.99 acres; that the southerly line was 102 chains 8 links in length and the northerly line was 80 chains 49 links in length, which had, as their easterly termini, posts described as standing on the border of Lake St. Clair, and that the easterly boundary ran along the border of said lake, between those two posts. Where that lake border then was, except as it may be ascertained from the description, is not now definitely known from any independent sources. The westerly boundary ran from a post at the claim's southwest corner north 15~ east for 71 chains 58 links to a beech tree which was at the northwest corner of the claim. That tree and the three mentioned posts or any physical evidences of their location are not to be found today.

Where was the westerly boundary when the patent issued? The answer is important because the Greeley survey and description in the patent locate the lakeward boundary as being a specific number of chains and links easterly or lakeward, on a certain course, from the westerly boundary or, at least, from the southwest and northwest corners of the claim, and they call for an area of 639.99 acres. Thus, if the westerly boundary were ascertained, the lengths of the northerly and southerly boundaries and the total of acreage would serve to locate the easterly boundary on the lake side.

When the patents for Private Claims 623 and 599 issued the adjacent lands to the north and west were unconceded. For the purpose of subdividing and surveying out those lands or public domain for sale to settlers, one William Preston, United States deputy surveyor, in January of 1818, made a survey of those unconceded lands. He was not authorized or commissioned to survey Private Claims 599 and 623 as they already had been surveyed in 1810 by Aaron Greeley. In his survey of the unconceded lands surrounding Claims 599 and 623 Preston did, however, delineate the outlines of those claims, to separate them from the unconceded lands. It is said, for the State, that the effect of the Preston survey was to move the westerly boundary of claims 599 and 623 easterly 19.40 chains toward Lake St. Clair and to eliminate some 250 of the 1,280 acres of those 2 claims as confirmed by patents to the heirs of James Abbott. This, apparently, is concluded from the fact that on the northerly side of the north line of Claim 623, separating it from unconceded land being surveyed by Preston, as shown by the plat prepared by him, the distance between the northwest corner of Claim 623 and the lake is written as being 41.7 plus 19.50 chains, which would total 61.20 chains, as contrasted with the 80.49 chains recorded for the line on the Greeley survey. It must be noted, however, that on the southerly side of that same line on the Preston plat it is written that the length is 81.61 chains, almost the same as the 80.49 chains ascribed to it on the Greeley survey. While both the Greeley and Preston surveys refer to the easterly terminus of that line as being a post standing on the border of Lake St. Clair, there is no proof to establish that that border remained stationary during the 8 years intervening between the 2 surveys or that the post referred to in one was the same as that in the other or in the same location as that mentioned in the other, or whether the presence of the post or posts antedated one or the other of the 2 surveys or whether each surveyor placed posts for the purpose of his survey.

From testimony and many exhibits, including descriptions contained in conveyances through many years, of property in Claims 599 and 623 and also in what is above referred to as unconceded lands it is evident that Harper Avenue, once known as French Claim Road, has commony been accepted for many decades as the dividing line on the west between the 2 claims and the unconceded lands. This is not expressly disputed by the State, which apparently accepts that line as the westerly boundary of the 2 claims as located in the Preston survey. The defendants contend, but the State disputes, that it must also be taken to be the westerly boundary as located by the Greeley survey. If the latter be taken as the fact, then the measurements of the lines of Claim 623, running east and west, according to the Greeley survey, place the eastern boundary of that claim east or lakeward of the 2 lots involved in this case. If the Preston measurement written on the north side (as contrasted with that written on the south side) of the north boundary line of Claim 623 on his plat be accepted as correct, then, commencing from Harper Avenue, the 2 lots would be lakeward of the easterly line of Claim 623.

Is it true, as the State contends, that the alleged difference in the 2 surveys of some 19 chains in the length of the northerly boundary of Claim 623 is due to Preston's having placed the westerly boundary of Claims 623 and 599 that much further east than Greeley had done, thus shortening the east and west depth of the 2 claims, as patented, and eliminating some 250 acres therefrom and incorporating the same into the unconceded lands area? Did the 2...