Maes v. Olmsted

• Decision Date: 03 June 1929
• Docket Number: No. 99.,99.
• Citation: 225 N.W. 583,247 Mich. 180
• Parties: MAES et al. (WACKER et al., Interveners) v. OLMSTED et al.
• Court: Michigan Supreme Court

247 Mich. 180

225 N.W. 583

MAES et al. (WACKER et al., Interveners)

v.OLMSTED et al.

No. 99.

Supreme Court of Michigan.

June 3, 1929.

Appeal from Circuit Court, Newaygo County, in Chancery; Joseph Barton, Judge.

Suit by Julius Maes and another against John Olmsted and another, in which Charles Wacker and another intervened as plaintiffs. From the decree, defendants appeal. Affirmed.

Argued before the Entire Bench.

Penny & Worcester, of Big Rapids, for appellants.

William J. Branstrom, of Fremont, for appellees.

Harry D. Reber, of Fremont, for interveners.

FEAD, J.

This is a bill to quiet title to the boundary between lots E and F of block 25 of Wildwood Park, a summer resort in Newaygo county. Defendants own lot E, plaintiffs lot F, and intervener lot G. The lots range down from north. Defendants appealed from decree for plaintiffs. Decree for intervener is not here for review.

Wildwood Park was platted in 1905. The owner was Olga Richmond, a nonresident. The platting and selling were conducted by her agents, Branch Bros. The titles run:

Lot E: Olga Richmond to Francis Richmond and wife in 1918, to defendants in 1921. The Richmonds lived in Chicago and do not seem to have been on the lands nor known anything about the lines or fences.

Lot F: Olga Richmond to J. M. Gibbs in 1907, to Gibbs' daughter Minnie Roedel a few days later, to her brother Fred Gibbs in October, 1916, to plaintiffs in December, 1916.

J. M. Gibbs selected a site before the land was platted, arranged with Branch for its later purchase, and the plat was laid out with reference to his selection. After the plat was made, the land was surveyed on the ground and lot stakes were set. When Gibbs purchased. Branch pointed out the stakes marking his lot. Gibbs took possession, built fences on the north and south stake lines, erected a house, and lived there until his death late in 1907. When plaintiffs purchased, Fred Gibbs pointed out to them the fences which he said his father had built as marking the lot lines. In 1917 plaintiffs rebuilt part of the north fence on the line of the old one. They and their predecessors in title have had such possession as would ripen into title by adverse possession in a proper case.

Defendants purchased lot D, built a cottage, and have lived in it during summers or the year round since 1909, and were familiar with the local situation.

The south fence of lot F, built by J. M. Gibbs, was accepted by defendants and others as marking the true boundary and was taken as the monument for the location of lines on the subsequent purchases. Defendants so understood when they bought lot D. When they purchased lot E, they understood that the north fence of lot F was on the south boundary of lot E.

About 1921, one Hayward spread the report that the lot lines were not correct. In 1923 a resurvey was made, which is conceded to have been correct, and it was discovered that the south fence of lot F was about 25 feet too far north, and the same error had been carried into the other lots and fences. The survey also disclosed that the lots, instead of running 418 feet east and west, as the parties supposed, were in fact 640 feet in length. So trouble commenced.

In 1925 plaintiffs undertook to extend their north fence west of the 418 feet, and defendants tore down part of it.

In 1926 these defendants brought ejectment against plaintiffs for the 25-foot strip, 418 feet long. After pleading in that suit, plaintiffs, in 1927, brought this action to restrain prosecution of the ejectment suit and to quiet title both to the 418-foot strip fenced and to the 240 feet west of it. They charged trespass and claimed title by adverse possession and estoppel.

This action in equity will lie, both because judgment for these plaintiffs in the ejectment suit would still leave an outstanding record title to the strip in defendants, Flint & Pere Marquette Ry. Co. v. Gordon, 41 Mich. 420, 2 N. W. 648;Eaton v. Trowbridge, 38 Mich. 454, and because other lands are included in this action than are involved in the ejectment suit and a multiplicity of suits may be avoided, Woods v. Monroe, 17 Mich. 238. The jurisdiction of equity to quiet title is also provided by Comp. Laws 1915, § 12302.

Counsel discussed both adverse possession and acquiescence in the boundary lines.

If, as claimed by plaintiffs, there is an exception to the...