Ogorek v. Loisell, Docket No. 8903
| Decision Date | 28 April 1971 |
| Docket Number | Docket No. 8903,No. 2,2 |
| Citation | 33 Mich.App. 245,189 N.W.2d 738 |
| Parties | Adolph A. OGOREK, Jr., and Walter R. Ogorek, Plaintiffs- Appellants and Cross-Appellees, v. Lawrence S. LOISELL and Violet M. Loisell, Defendants-Appellees and Cross- Appellants |
| Court | Court of Appeal of Michigan — District of US |
Kittredge R. Klapp, Neithercut & Neithercut, Flint, for plaintiffs-appellants.
M. Bushnell Trembly, Max Dean, Leitson, Dean, Dean, Segar & Hart, Flint, for defendants-appellees.
Before BRONSON, P.J., and R. B. BURNS and HOFF, * JJ.
This appeal arises from a boundary dispute. The plaintiffs and defendants share a north-south boundary, the plaintiffs' property being the more southern property. They sued defendants seeking to enjoin defendants permanently from trespassing on their property. The trial court was asked to decide three questions: (1) Did the old fence line constitute the true boundary between the property of the parties or was that boundary north of the fence line? (2) If the fence line was not the boundary as described by the deeds, had the fence line become the boundary by acquiescence? (3) If the fence line was not the boundary, had the defendants acquired title to the property north of the fence line by adverse possession?
The testimony presented at trial tended to indicate the following facts: The plaintiffs' expert witness, a surveyor, indicated that he had surveyed the property, the premises in question, and that he had located the 1/8 section line, which was the title boundary line between the two properties, some distance to the north of the existing fence line. Defendants' expert surveyor testified that he could not fault the plaintiffs' expert witness as to technique and method of establishing the 1/8 section line and that, in effect, if he had followed the same procedure he would have located the line in the same place. The testimony also indicated that the fence line in question had been in existence as long as anyone could remember. The testimony also indicated that the defendant and his predecessors in title had always considered the fence line to be their southern boundary. On the other hand the plaintiffs and their predecessors in title had always refused to recognize the fence as their northern boundary. The testimony also indicated that the defendants had cultivated a portion of the land in dispute, that they and their predecessors had run a road along the fence line, had used the road for access to the lake, that they had for a period used part of the area in question as a pasture and had generally exercised control of the disputed property west of the lake up to the fence line. Other than the portion of the property that was cultivated, the area in question is overgrown and in a wild state.
The trial judge made the following rulings: (1) that the old fence line was not the true boundary between the two properties and that the boundary lay north of the fence; (2) that the fence line had not become the true boundary line by acquiescense; (3) that the defendants had obtained title to approximately half of the property in question (roughly west of the lake) by adverse possession and that the other half was to remain with the plaintiffs. It should be noted that the trial judge personally viewed the property in question at the request of both parties.
The plaintiffs appeal from the trial judge's ruling that about half of the property was to go to the defendants by adverse possession. The defendants cross appeal from the trial judge's determination that half of the property was to remain with the plaintiffs as they had not obtained title to by...
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...adverse possession are sufficient if those acts are consistent with the character of the premises in question," Ogorek v. Loisell, 33 Mich.App. 245, 248, 189 N.W.2d 738 (1971), lv. den. 385 Mich. 766 (1971). The premises in question in this case is a tract of wild, undeveloped, landlocked r......
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