Sackett v. Atyeo, Docket No. 174961

• Decision Date: 23 July 1996
• Docket Number: Docket No. 174961
• Citation: 552 N.W.2d 536,217 Mich.App. 676
• Parties: Duane SACKETT and Violet Sackett, Plaintiffs-Appellees, v. Scot D. ATYEO and Andrea M. Schroeder, Defendants-Appellants.
• Court: Court of Appeal of Michigan — District of US

Page 536

552 N.W.2d 536

217 Mich.App. 676

Duane SACKETT and Violet Sackett, Plaintiffs-Appellees, v. Scot D. ATYEO and Andrea M. Schroeder, Defendants-Appellants.

Docket No. 174961.

Court of Appeals of Michigan.

Submitted April 16, 1996, at Detroit.

Decided July 23, 1996, at 9:30 a.m.

Released for Publication Sept. 13, 1996.

Morrice, Lengemann & Zimmerman, P.C. by Marilyn J. Zimmerman, Imlay City, for plaintiffs.

Philip A. Fulks, Lapeer, for defendants.

Before MURPHY, P.J., and REILLY and SIMON, ^* JJ.

PER CURIAM.

Defendants appeal as of right a judgment establishing the boundary line between plaintiffs' and defendants' real property and ordering defendants to remove the fence that they erected on plaintiffs' property. We affirm.

This case involves a dispute regarding ownership of the western half of a gravel driveway located between plaintiffs' and defendants' property. Plaintiffs purchased their home and property on West Genesee Street in Lapeer in December 1962. At that time, Chester and Harriet White, defendants' predecessor in title, owned the home and property adjacent and to the east of plaintiffs' home. There was a T-shaped gravel driveway separating the properties, which was located near the eastern boundary of plaintiffs' property and near the western boundary of the Whites' property.

Plaintiffs and the Whites peacefully shared the use of the driveway and split the maintenance expenses associated with the driveway the entire time that they were neighbors. At trial, plaintiff husband testified that he and Chester White had conversations regarding ownership of the driveway. The first conversation occurred shortly after plaintiffs moved into their home in 1963. At that time, Chester White asked plaintiff husband if he was aware that the driveway was a shared one. Plaintiff husband responded that he understood that the driveway was shared and that he was to share in the expenses and maintenance of the driveway. According to plaintiff husband, Chester White then stated that they both owned the driveway and that the boundary line was down the middle of the driveway.

According to plaintiff husband, the second conversation between plaintiff husband and Chester White regarding ownership of the driveway occurred five to seven years later. The driveway needed gravel, and plaintiff husband arranged for the gravel to be delivered and spread. At that time, plaintiffs and the Whites split the cost of the gravel and Chester White again indicated to plaintiff husband that the boundary line was down the middle of the driveway.

In 1972, plaintiffs had their property surveyed. The survey of plaintiffs' property revealed that the entire driveway was on the Whites' property. After the survey was done, Chester White and plaintiff husband had a third conversation regarding ownership of the driveway. Chester White told plaintiff husband that he did not care about the survey results, plaintiffs owned the western half of the driveway and the Whites owned the eastern half of the driveway. After the survey, plaintiffs continued to use the driveway.

Vivian Bottger was a friend of the Whites. She recalled having a conversation with the Whites around 1974 regarding the ownership of the driveway. According to Bottger, Chester White stated that the driveway used to be Jackson Street and that he and plaintiffs owned and shared the driveway. The reason Bottger still remembered the conversation was that she had moved to Lapeer from Detroit, and she thought that it was honorable that two neighbors could get along and share a common driveway peacefully.

In 1985, Chester White died. Harriet White died in 1989. Defendants purchased the Whites' home and property in July 1990. Before the purchase, defendants had a stake survey of the Whites' property done. The survey revealed that the driveway was located on the Whites' property, but the mortgage report contained a notation that the "drive is also used by the house to the west." Defendants also spoke to plaintiffs before they purchased the Whites' house. According to defendant husband, at that time, plaintiffs informed defendants that they shared the driveway, but did not inform defendants that they owned half of the driveway. Defendants apparently purchased the property believing on the basis of the survey that they owned the entire driveway.

Problems between plaintiffs and defendants arose over the use of the driveway. Defendants contacted an attorney. In February 1991, defendants' attorney sent a letter to plaintiffs informing plaintiffs that defendants would be discontinuing use of the driveway and erecting a fence around their property. The letter also stated that defendants expected plaintiffs to stop using the driveway no later than July 1, 1991. Plaintiffs responded to defendants' letter by informing defendants that plaintiffs believed that they owned the western half of the driveway. In July or August of 1992, defendants erected a fence about six inches inside their property line as established by the stake survey.

On September 8, 1992, plaintiffs filed an action to quiet title to the western half of the driveway, arguing that they were the owners of that portion of the driveway under the doctrine of acquiescence. ¹ The trial court entered a judgment for plaintiffs, in effect determining that, on the basis of the doctrine of acquiescence, the legal boundary line between plaintiffs' and defendants' property was the center of the driveway. In so doing, the trial court stated:

In any event, I am satisfied that on a preponderance of the evidence that's been presented to me that acquiescence did occur. That it occurred at least from 1972 and possibly before that. And that therefore, a portion of the driveway that is shown on the surveys, and I'm referring right now to the Defendants' Exhibit C, that a portion of the driveway is owned by the plaintiffs and, of course, and a portion is owned by the defendants.

Defendants appeal as of right.

Actions to quiet title are equitable in nature; this Court reviews such actions de novo. Michigan Nat'l Bank & Trust Co. v. Morren, 194 Mich.App. 407, 410, 487 N.W.2d 784 (1992). We review the trial court's factual findings for clear error. Id.

Defendants argue that the trial court erred in determining that, on the basis of the doctrine of acquiescence, the boundary line between plaintiffs' and defendants' property was the center of the driveway. We disagree. There are three theories of acquiescence. These three theories were outlined and explained in Pyne v. Elliott, 53 Mich.App. 419, 426-428, 220 N.W.2d 54 (1974). They include: (1) acquiescence for the statutory period; (2) acquiescence following a dispute and agreement; and (3) acquiescence arising from intention to deed to a marked boundary. Id.; see also Rock v. Derrick, 51 Mich.App. 704, 708-709, 216 N.W.2d 496 (1974). The relevant theory in this case is acquiescence for the statutory period. We conclude that the Whites acquiesced that the center of the driveway was the boundary line between their property and plaintiffs' property for more than the fifteen-year statutory period. MCL 600.5801(4); MSA 27A.5801(4). Therefore, the trial court properly determined that the center of the driveway was the boundary line between plaintiffs' and defendants' property on the basis of the acquiescence for the statutory period.

Under this theory of acquiescence, acquiescence to a boundary line may be established where the line is acquiesced in for the statutory period irrespective of whether there has been a bona fide controversy regarding the boundary. Jackson v. Deemar, 373 Mich. 22, 26, 127 N.W.2d 856 (1964). In Kipka v. Fountain, 198 Mich.App. 435, 499 N.W.2d 363 (1993), this Court explained:

The law of acquiescence is concerned with a specific application of the statute of limitations to cases of adjoining property owners who are mistaken about where the line between their property is. Adjoining property owners may treat a boundary line, typically a fence, as the property line. If the boundary line is not the recorded property line, this results in one property owner possessing what is actually the other property owner's land. Regardless of the innocent nature of this mistake, the property owner whose land is being possessed by another would have a cause of action against the other property owner to recover possession of the land. After fifteen years, the period for bringing an action would expire. The result is that the property owner of record would no longer be able to enforce his title, and the other property owner would have title by virtue of his possession of the land. [Id., 438-439, 499 N.W.2d 363.]

In this case, plaintiffs and the Whites mistakenly treated the center of the driveway as the boundary between their property when it was not the recorded property line. Because the entire driveway was actually on the Whites' property, plaintiffs' and the Whites' treatment of the center of the driveway as the boundary...