Pontiac Tp. v. Featherstone
| Citation | 319 Mich. 382,29 N.W.2d 898 |
| Decision Date | 03 December 1947 |
| Docket Number | April Term, 1947.,No. 15,15 |
| Parties | PONTIAC TP. v. FEATHERSTONE et al. |
| Court | Supreme Court of Michigan |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Oakland County; Philip Elliott, judge.
Suit in ejectment by the Township of Pontiac against Lottie E. Featherstone, administratrix of the estate of William O. Wilson, deceased, and others. From a judgment for defendants in part, plaintiff appeals.
Cause remanded for amendment of the judgment, and judgment affirmed subject to such correction.
Before the Entire Bench.
Harry J. Merritt, of Royal Oak, for plaintiff and appellant.
Donald C. Porritt, of Pontiac, for defendants and appellees.
On September 12, 1826, a plat of the village of Auburn, a copy of which is attached of this opinion, was received for recording in the office of the register of deeds of Oakland County.
On November 15, 1889, William O. Wilson purchased lost 23, 24 and 25 and went into possession in that same year. Plaintiff has brought this suit in ejectment against defendants, who are the administratrix and heirs at law of William O. Wilson, and their tenant. Involved in the controversy is that portion of a public square included in said plat which abuts and extends south from the southern boundary of said lots to the north line of the street which is referred to in testimony as Auburn Avenue and which bisects the public square.
Plaintiff's declaration alleges that it became owner of the land in question in 1826 but does not indicate how it claims to have acquired title. Defendants' answer alleges that the plat is defective and that there never was a legal dedication to nor acceptance by the public of said portion of the public square, and that from 1889 until 1941 William O. Wilson was, and ever since that time they have been in continuous, open, hostile and adverse possession thereof. Plaintiff, in reply, alleges that it neither admits nor denies defendants' allegations as to non-dedication and nonacceptance of the public square for the reason that the events involved happened so long ago and the records are so inadequate that plaintiff has no knowledge thereof and leaves defendants to their proofs thereon.
At the conclusion of plaintiff's proofs defendants moved for dismissal on the ground that plaintiff had failed to establish title in itself. The motion was not granted. Defendants then introduced proofs largely designed to establish title in themselves by adverse possession. The trial court thereafter entered written findings of fact and law, on which judgment was entered, in which the court found that plaintiff had established prima facie such interest in the property in dispute as to entitle it to maintain ejectment and that defendants were guilty of unlawfully withholding possession from plaintiff of that portion lying south of the line of a former fence, which the court found had been located ‘approximately 50 feet north of the north line of Auburn Avenue’, except for an easement for a driveway thereover, but that defendants had established title by adverse possession prior to the effective date of Act 46, Public Acts of 1907, to said easement for a driveway and also to that portion lying north of said old fence line. Plaintiff appeals.
While defendants have taken no crossappeal and appear content with an adjudication in their favor as to the property north of the fence line and the easement over the property south thereof, noentheless, in their brief on appeal, they urge in support of the judgment, as they did in support of their motion for dismissal at the conclusion of plaintiff's proofs, that plaintiff failed to establish title in itself to any of the disputed premises.
For the purpose of establishing its own title plaintiff contented itself with introducing the plat into evidence and resting its case. As indicated by plaintiff's reply and by its failure to produce further proofs on the subject, plaintiff appears to have entertained the idea that the burden rested on defendants to establish their own title or to prove the weakness of plaintiff's title. We quote from the syllabus in Van Vleet v. Blackwood, 39 Mich. 728, the following:
‘The plaintiff in ejectment must rely on the sufficiency of his own title, and cannot question the defendant's before making a prima facie case of actionable right in himself.'
Similarly, in Smelsey v. Safety Investment Corporation, 310 Mich. 686, 17 N.W. 2d 868, we quoted with approval from Briggs v. Prevost, 293 Mich. 677, 292 N.W. 527, 528, the following:
At the time the plat was recorded there was in effect an act to provide for the recording of town plats, to be found in 1 Terr.Laws, p. 816. Section 2 thereof reads as follows:
‘Such maps or plats as are required by this act to be recorded, shall particularly set forth and describe all the public ground within such town, by its boundaries, courses and extent, and whether it be intended for streets, alleys, commons or other public usees, and all the lots intended for sale by progressive numbers, and their precise length and width; and the maps made and acknowledged before a justice of the peace, a justice of the county court of the proper county where the town lies, or before a judge of the supreme court, and certified under the hand and seal of the judge or justice taking such acknowledgment, and recorded, shall be deemed a sufficient conveyance, to vest the fee of such parcels of land as are therein expressed, named or intended to be for public uses, in the county in which such town lies, in trust to and for the uses and purposes therein named, expressed or intended, and for no other use or purpose whatever.'
It will be observed from the plat that the public square is not set forth and described by its boundaries, courses and extents, nor is its use or purpose therein expressed as required by the act. Plaintiff quotes in this connection 3 Comp.Laws 1929, § 13267, Stat.Ann. § 26.500:
‘The record of any plat heretofore made and duly acknowledged shall be evidence, as against the parties so acknowledging, of the sufficient dedication, gift and grant to the public of any portion thereof represented in the plat as a public square.'
While the latter statute may cure the defect insofar as failure of the plat to express the use or purpose of the public square is concerned, it affords no answer to the defect as to descriptions. Baker v. Johnston, 21 Mich. 319. Nothing appears on the plat to fix the location of any of the land attempted to be platted. Applicable here is the following from Diamond March Co. v. Village of Ontonagon, 72 Mich. 249, 40 N.W. 448, 451:
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