Rose v. Fuller, Docket No. 6733

Citation21 Mich.App. 172,175 N.W.2d 344
Decision Date28 January 1970
Docket NumberNo. 3,Docket No. 6733,3
PartiesRuth ROSE, Plaintiff-Appellee, v. Frank G. FULLER and Esther J. Fuller, Wallace Syers and Effie Syers, Martin O. Engle and Margaret Engle, and The Muskegon Bank and Trust Company, Defendants-Appellants
CourtCourt of Appeal of Michigan (US)

Paul L. Greer, Fremont, for Wallace and Effie Syers.

William J. Hipkiss, Muskegon, for Martin and Margaret Engle and Muskegon Bank & Trust Co.

Clifford W. Prince, Hinds, Sikkenga & Prince, Shelby, for appellee.

Before V. J. BRENNAN, P.J., and R. B. BURNS and T. M. BURNS, JJ.

PER CURIAM.

Plaintiff instituted this action in circuit court, alleging that title to Lot #56 of St. Hubert's Subdivision belonged to her through adverse possession. Plaintiff is the undisputed owner of a rectangular 80 acres of land immediately adjacent to the disputed Lot #56. The complaint sets forth that plaintiff and her predecessors in title have been in exclusive possession of these premises (Lot #56) under a continuous chain of title since 1902; that they have fenced, enclosed, farmed and grazed said premises since that date, thereby vesting in plaintiff a title in fee to said lands, which is superior to any right or title claimed by any defendant or any other person. Defendants are the legal title holders to the land and deny that plaintiff has fulfilled the necessary and legal elements to gain title through adverse possession. After a trial on the merits, and personal inspection of the premises, the trial court acting within a jury found that a portion of Lot #56, the center eleared area, belonged to plaintiff in fee, through adverse possession. Defendants appeal, contending that plaintiff failed to prove by a preponderance of evidence any occupancy which was actually open, notorious, exclusive, continuous with hostile intent, under a claim of right, and that such occupancy had existed for the statutory period of 15 years.* This Court is asked whether there was, in fact, sufficient and credible evidence to sustain in findings of fact made by the trial court.

Adverse possession must be established by clear and cogent proof of possession that is actual, visible, open, notorious, exclusive, continuous, and uninterrupted for the statutory period of 15 years, hostile and under cover of a claim of right. Burns v. Foster (1957), 348 Mich. 8, 81 N.W.2d 386.

In order to support a claim of title by adverse possession, acts of possession must be open and of a hostile character, but it is sufficient if the acts of ownership are of such character as to indicate openly and publicly an assumed control or use such as is consistent with the character of the premises in question. Monroe v. Rawlings (1951), 331 Mich. 49, 49 N.W.2d 55; Denison v. Deam (1967), 8 Mich.App. 439, 154 N.W.2d 587.

The land in this case was, for the most part wild and wooded, except a cleared center part. As to this portion, evidence was produced at trial which, if believed, would satisfy the required elements of actual, visible, open and notorious acts of ownership and of occupancy, sufficient to notify the title owner of an adverse claim. Testimony of witnesses establishes that the disputed parcel had been fenced by plaintiff's predecessors in title, cattle and horses were pastured thereon, crops had been raised and harvested, and, more recently, gravel had been mined up to and possibly including part of the disputed area by a lessee of the plaintiff. These are all acts of ownership which are inconsistent with the possessory interests of the title owner and disclose an intent and claim to use and occupy the land as an adverse owner. All of these activities were plainly visible, open, notorious and hostile; circumstances from which the owners ought to have known or could have known of the adverse possession.

There is ample record support for the trial court's determination that plaintiff had sustained the burden of proof necessary on the questions of adverse occupancy and available notice in perfecting a valid adverse possession...

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    • Court of Appeal of Michigan — District of US
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    ...asked or given, use such as would entitle the owner to a cause of action against the intruder [for trespassing]. See Rose v. Fuller, 21 Mich.App. 172, 175 N.W.2d 344 (1970); also, 25 Am. Jur. 2d, Easements and Licenses, § 51, pp. 460-461. "[Goodall, supra at 646, 528 N.W.2d 221, quoting Mum......
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    • Michigan Supreme Court
    • December 23, 1982
    ...of claim of right and uninterrupted for the statutory period. Burns v. Foster, 348 Mich. 8, 81 N.W.2d 386 (1957); Rose v. Fuller, 21 Mich.App. 172, 175 N.W.2d 344 (1970); Whitehall Leather Co. v. Capek, 4 Mich.App. 52, 143 N.W.2d 779 (1966). If the party alleging title by adverse possession......
  • Connelly v. Buckingham
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    • Court of Appeal of Michigan — District of US
    • October 19, 1984
    ...and under cover of a claim of [136 MICHAPP 468] right". Burns v. Foster, 348 Mich. 8, 14, 81 N.W.2d 386 (1957). Rose v. Fuller, 21 Mich.App. 172, 175, 175 N.W.2d 344 (1970) lv. den., 384 Mich. 751 (1970). See also M.C.L. Sec. 600.5801(4); M.S.A. Sec. 27A.5801(4). When a landowner takes poss......
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    • Court of Appeal of Michigan — District of US
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