Murray v. Buikema
| Citation | 54 Mich.App. 382,221 N.W.2d 193 |
| Decision Date | 23 July 1974 |
| Docket Number | No. 3,Docket No. 17364,3 |
| Parties | Donald A. MURRAY et al., Plaintiffs-Appellees, v. Edward C. BUIKEMA and Dorcas J. Buikema, Defendants-Appellants |
| Court | Court of Appeal of Michigan — District of US |
Robert N. Hammond, Hillman, Baxter & Hammond, Grand Rapids, for defendants-appellants.
Francis E. Lindsay, Cheboygan, Edward B. Emery, Birmingham (of counsel), for plaintiffs-appellees.
Before ALLEN, P.J., and T. M. BURNS and SMITH,* JJ.
This is an appeal from the judgment determining the boundary dispute in favor of plaintiffs. The facts are not in dispute.
One E. R. Smith was the common grantor of all parties in this case and was also the plattor of Waubun Beach plat. In 1910 Smith conveyed lots 1 [54 Mich.App. 384] through 6 to plaintiffs' predecessors in title. The descriptions were by courses and distances and made no reference to section lines but each description contained the following:
'being a part of Lot 1, Sec. 2, T. 35 N.R.3 W.' These deeds were recorded in 1910 and 1911.
In 1915 Smith filed the Waubun Beach plat for record. The description of the property composing the plat, as set forth in plaintiffs' Exhibit 3, is as follows:
'commencing at point 15 East from the Meander Post set on the shore of Burt Lake on the S. 1/8th line of Section 2 Township of Tuscarora County of Cheyboygan State of Michigan, a gas pipe 3 long B.T. Pine 22 S 78 30 E 55 thence East 473 to Section Line no B.T. thence South on Section Line 369 B.T. White Oak 16 N 7 E 28 thence S 38 W 2832 B.T. Red Oak 12 S 78 30 E 13 B.T. Red Oak 7 N 12 E 33 thence S 89 W 745 B.T. Pine 4 N 58 30 E 8 6 B.T. Aspen 7 N 24 W 6 thence N 38 E 3289 Meandered along shore of Burt Lake to place of beginning all dimentions (sic) are given in feet and inches'
Comparing the plat with the descriptions covering plaintiffs' property it is noted that these descriptions correspond to Lots 1 through 6 of the Waubun Beach plat. Some variation in the description of Lot 1 was not considered of decisional importance by these parties.
Defendants claim under a chain of title, uncontroverted by plaintiffs, beginning with the deed from E. R. Smith to one J. A. Pollard made on October 24, 1916, and describing the land as follows:
'1. The southwest quarter of the southwest quarter of section one, of township thirty-five, north of range three, west of the meridian of Michigan.
'2. That portion of section two of said township thirty-five north of range three west of the meridian of Michigan which lies south of the east and west one-eighth line (being the southeast quarter of the southeast fractional quarter of said section), and lots one and two of section eleven of said township thirty-five north of range three west of the meridian of Michigan (being north half of northeast quarter of said section, EXCEPTING and RESERVING however, from the descriptions above on said sections two and eleven, so much thereof as is included in the recorded plat of 'WAUBUN BEACH'.
'3. The northwest quarter of the northwest quarter of section twelve of said township thirty-five north of range three west of the meridian of Michigan.
'4. Lots fifty-two, fifty-three and fifty-four according to the recorded plat of 'Waubun Beach, Township of Tuscarora, Cheboygan County, Michigan'.'
The deed further included the following notice of intent:
Defendants claim ownership of the southwest quarter of the southwest quarter of section 1, township 35 north, range 3 west, by virtue of a warranty deed dated September 16, 1967. The present dispute arose out of a survey conducted in 1968. In this survey the section line separating sections 1 and 2 was found to be some 207 feet west of where it was originally thought to be; that is, the section line was found to be some 207 feet west of the east boundary of Waubun Beach. Claiming to own all of the property east of the 1968 survey line in section 1, defendants placed some barricades across trails on the easterly portion of plaintiffs' land, precipitating this lawsuit.
Plaintiffs do not dispute the 1968 survey. All parties acknowledge that the common grantor E. R. Smith mistakenly believed the section line between sections 1 and 2 was approximately 207 feet east of the true section line. The first issue for discussion is: What was the common grantor's intent? In 12 Am.Jur.2d, Boundaries, § 2, p. 548, we find:
'The primary rule which the courts apply in construing and interpreting a conveyance where the location of the boundary lines of the land is uncertain by reason of inconsistent or conflicting descriptive calls in the conveyance which cannot be explained by any competent evidence, is that the intention of the parties controls and is to be followed.'
See also 11 C.J.S. Boundaries § 3, p. 538.
It is clear that plaintiffs' property is identifiable without the use of the phrase 'part of Lot 1, Sec 2'. Their courses and distances as described coincide with Lots 1 through 6 in the plat of Waubun Beach. Terms of description repugnant to the identifiable description may be rejected. Ives v. Kimball, 1 Mich. 308 (1849); Burton Twp. v. Genesee County, 369 Mich. 180, 119 N.W.2d 548 (1963).
It is evident from the description found in the plat of Waubun Beach that the plattor, E. R. Smith, intended that the lots in the plat be 600 feet long. This intent is also clear from the deeds. The description of the plat used as calls such monuments as Burt Lake, Pipe, White Oak, Red Oak, Aspen, Pine, and Post. All these monuments have been found to exist at the present time. It is not disputed that these monuments were placed or determined as of the time of the original survey of the Waubun Beach plat. 'It is a well-settled law in this state that monuments control courses and distances, and that, when monuments and measurements vary,...
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