Martin v. Arndt, 17

• Decision Date: 14 April 1959
• Docket Number: No. 17,17
• Citation: 95 N.W.2d 858,356 Mich. 128
• Parties: Frederick MARTIN and Rose Martin, Plaintiffs and Appellants, v. Otto ARNDT and Mary Arndt, Defendants and Appellees.
• Court: Michigan Supreme Court

Page 858

95 N.W.2d 858

356 Mich. 128

Frederick MARTIN and Rose Martin, Plaintiffs and Appellants, v. Otto ARNDT and Mary Arndt, Defendants and Appellees.

No. 17.

Supreme Court of Michigan.

April 14, 1959.

Martin & Martin, Saginaw, for appellants.

Irving M. Hart, Saginaw, for appellees.

Before the Entire Bench.

DAVANAGH, Justice.

Plaintiffs filed a bill of complaint seeking to enjoin defendants from constructing a cement driveway on a portion of lot 3 in a subdivision in the city of Saginaw, Michigan, plaintiffs claiming ownership of all of lot 3.

Defendants, owners of lot 4 in the same subdivision, filed a cross-bill alleging that the property owned by the plaintiffs and the property owned by the defendants are adjoining lots, and the boundary line between these two lots runs along the outer edge of a cement concrete curb now in existence and which divides the two lots. Defendants further allege the boundary line between these two adjoining lots was established in about 1917 when the defendants first laid a concrete curb along said boundary line, which curb was subsequently replaced by the now existing concrete curb.

Defendants contend they have claimed title to the land up to and including the edge of this concrete curb since some time prior to 1920 and their claim of ownership and possession was actual, visible, open, notorious, exclusive, hostile, and under claim of right continuously and uninterrupted for more than the statutory period of 15 years.

Plaintiffs replied to the cross-bill denying defendants and cross-plaintiffs claimed ownership, but alleging they gave permission for the curb to be established, alleging both parties well knew the curb was not built on the property line, denying the boundary line was established by a concrete curb laid in the year 1917, and alleging the permissive use earlier given was withdrawn in 1951 following a survey.

Considerable testimony was taken before the chancellor indicating that defendant Otto Arnodt and his father, Frank Arndt, had purchased lots 3 and 4 from Emil Vogt and wife, common grantors, in 1915, and plaintiffs had acquired lot 3 in 1920 from defendant Otto Arndt's father.

Defendant and cross-plaintiff Otto Arndt testified that he was a bricklayer and mason; that his father measured and laid out his house for him; that he had always used the Martin side of the house for his driveway; that his coalbin was located on that side and in delivering coal this side of the house was used. He further stated that in 1917 he and his father built a concrete curb which was down about 2 1/2 feet in the ground and extended about 6 inches above the normal ground; that this was done to indicate the line between the two pieces of property; that from that day to 1951 he claimed ownership of all property from his house to the edge of the curb. He further testified that later the curb deteriorated and he rebuilt it raising it to a height of approximately 12 inches above the ground without any objections from plaintiffs Martin; that the increase in height was made so as to preclude his driving onto the Martin property.

Defendants called witness Elsie Fettig, who testified that exhibit A was a photograph she took of her mother and Mrs. Arndt on defendants' porch; that her mother died on August 29, 1920; and that the photograph showed a driveway curb existed at the time she took the picture prior to her mother's death.

Another photograph was introduced in evidence showing Margaret Arndt, a niece of defendants, as a young girl seated on defendants' porch. This photograph showed a curb existed on the property at that time. In 1952 Otto Arndt testified that his niece was then past 34 years of age and he would say she was two or three years old at the time the picture was taken.

Plaintiffs established that they were record title holders. Plaintiff Frederick Martin testified that defendant Otto Arndt asked permission about putting a curb along the driveway, saying that he did not have sufficient room to get his car in and out, and it would help to have a little more space on his driveway; that in the interests of being a good neighbor plaintiffs granted him permission to do so. Plaintiff Frederick Martin further testified that this was some time about 1925 or 1926 and previous to the installation of the first curb. He denied that the lot line had ever been established or that a curb existed there prior to 1925 or 1926.

Plaintiffs introduced the testimony of witness Yonke who lived in the house on lot 3 immediately prior to its purchase by plaintiffs. He testified that no curb existed there at the time he lived on the premises.

There is no question that there was a real dispute with respect to the testimony of witnesses on both sides. The chancellor in a very lengthy opinion found as follows:

'Viewing all the testimony in the case, together with the exhibits introduced and the physical aspects of the property itself, the court is of opinion and so finds the fact to be, that the concrete curbline is the lawful boundary line between the litigant adjoining property owners. Whether the line as originally placed by the concrete curb was so located by reason of its being the true line, or by reason of an honest belief or mistake that it was the true line, or by whatever means the line was visibly located, the court finds that the defendants have met and fulfilled all the requirements necessary to establish title to the disputed strip of land by adverse possession.'

The following were among the reasons given by the chancellor as to why he felt defendants and cross-plaintiffs had fulfilled all requirements necessary to establish title to the disputed land by adverse possession:

1) Unequivocal testimony of defendant Otto Arndt that he had built curb on boundary line his father had pointed out to him to be the true boundary.

2) Defendants had always claimed this to be the true boundary.

3) Curb was built solely on a good neighbor basis and not by direction or compulsion.

4) No mention of curb from 1920 to 1951 when dispute arose.

5) Defendants' offer to buy disputed strip after trouble arose was only for the sake of avoiding trouble and continuing peace between the parties.

6) If plaintiffs actually knew where true boundary was located why did they have survey made to determine it.

7) Many years of undisturbed and uninterrupted possession of disputed land, together with testimony relative to facts and circumstances by which the curb line was located, negatives the idea that the selected line was permissive.

8) Thirty years of uniterrupted possession is inconsistent with oral permissive use.

9) Defendants who owned an automobile when curb was built would not reasonably locate their house and garage to make the adjoining driveway too narrow for use.

10) Not compatible with good sense that two such friendly neighbors for over 30 years would leave so vital a matter as ownership of land and location of the boundary line in the first instance to an informal oral agreement.

11) Acquiescence in the location of so permanent and visible a marker as this curb is persuasive to a high degree of certainty that plaintiffs regarded the concrete curb as the true boundary line.

12) Silence, plus physical existence of driveway and concrete curb boundary line, undistrubed for nearly 30 years, more than counterbalances, in proof, the claimed permissive use of strip of land in dispute.

13) Viewing all the testimony in the case, together with exhibits ¹ introduced and physical aspects of property itself, is sufficient to show curb line is the lawful boundary line.

I do not disagree with my Brother with respect to the law and the burden of proof with reference to adverse possession as stated in the case of Burns v. Foster, 348 Mich. 8, 81 N.W.2d 386. In my opinion this Court is not in as good a position as the trial chancellor to determine what the facts are with respect to conflicting testimony. This Court in numerous cases has so indicated. The trial chancellor heard the witnesses, observed their demeanor on the stand, and was in the best position to determine their credibility and to conclude what the facts in the case really were. While this Court tries chancery cases de novo, it gives great weight to the findings of the trier of the facts, particularly where there is conflict in the testimony. This Court should not substitute its judgment for that of the chancellor. Quackenbush v. Quackenbush, 305 Mich. 704, 9 N.W.2d 900; Zak v. Gray, 324 Mich. 522, 37 N.W.2d 550; Minasian v. Boyce, 340 Mich. 438, 65 N.W.2d 765; Straith v. Straith, 355 Mich. 267, 93 N.W.2d 893.

We affirm the decree of the lower court. Defendants and appellees may have costs.

SMITH, BLACK, EDWARDS and VOELKER, JJ., concurred with KAVANAGH, J.

KELLY, Justice (dissenting).

Plaintiffs filed their bill of complaint in the Saginaw circuit court alleging:

1) Plaintiffs and defendants are owners of adjacent lots situated in the city of Saginaw;

2) Defendants asked and received from plaintiffs an oral right or license to use a part of plaintiffs' property for driveway purposes;

3) When defendants commenced to make permanent alterations that extended upon plaintiffs' premises they were notified by plaintiffs that the license and permissive use were revoked, but defendants insisted upon carrying on toward making said permanent alterations.

The court issued a temporary injunction and, after hearing testimony, the trial court, by decree, held that defendants 'have met and fulfilled all the requirements necessary to establish title to the aforesaid disputed strip of land by adverse possession.'

Five years elapsed after the decree was entered (June, 1953) before appellants filed a brief in this Court (September, 1958). Appellees filed no protest of delay prior to filing their brief on January 6, 1959.

Plaintiffs and defendants' lots are each 50 feet wide. The strip in dispute is 23 inches wide at the front...