Schweikart v. Stivala, 19

• Decision Date: 05 December 1950
• Docket Number: No. 19,19
• Citation: 45 N.W.2d 26,329 Mich. 180
• Parties: SCHWEIKART et al. v. STIVALA.
• Court: Michigan Supreme Court

Page 26

45 N.W.2d 26

329 Mich. 180

SCHWEIKART et al. v. STIVALA.

No. 19.

Supreme Court of Michigan.

Dec. 5, 1950.

Carl K. Rix, Detroit, John T. Lungerhausen, Mount Clemens, of counsel, for appellants.

Clifford A. John, Mount Clemens, for appellee.

Before the Entire Bench, except REID, J.

NORTH, Justice.

This is a suit in ejectment to try title to certain property hereinafter designated. Defendant claims title to the parcel as an accretion to a lot owned by him. Plaintiffs dispute defendant's claim of ownership and assert title to the parcel in controversy on the following grounds: 'That the land in this area, including the land in question, was formed by accretions to the shore of the lake (St. Clair), of which the plaintiffs were the littoral proprietors at the date of defendant's land contract (1940) * * *.'

Plaintiffs also assert title under the terms of a decree rendered in a suit brought by plaintiffs to quiet title to an area including the parcel which is the subject matter of this ejectment case. The instant suit was heard by the court without a jury. From a judgment in defendant's favor plaintiffs have appealed.

Plaintiffs, as heirs of Carl Schweikart, deceased, in 1926 inherited title to a parcel of land in Harrison township, Macomb county, Michigan. At least a portion thereof was platted in 1935, the plat being known as 'Supervisor's Plat No. 9' of Harrison township. In 1940 plaintiffs entered into a contract to sell to defendant lot 57 of the plat; and in fulfillment of the contract plaintiffs in November, 1942, conveyed this lot 57 by warranty deed to defendant. The lot appears to be 60 feet in width and approximately 168 feet in length. In a southwesterly direction this lot faces on Conger Bay drive, and in a northeasterly direction towards Conger Bay, which is a part of Lake St. Clair. The plat in which lot 57 is included is formed somewhat like the letter L. It extends from lot 55 at the angle of the L in a northwesterly direction to and beyond Lake street, and from lot 55 the plat extends almost directly east. Defendant's lot 57 is the second lot northwesterly of lot 55. The area in controversy in this case, as described in plaintiffs' declaration, is of the same width as lot 57 and extends northeasterly therefrom approximately 466 feet to the open waters of Lake St. Clair. Prior to the time of defendant's purchase a channel known as 'Schweikart's Channel' had been excavated. It extends from the next lot southeasterly of defendant's lot in a southeasterly direction to the water front of lot 55 and thence in an easterly direction. At some little distance east of lot 55 Schweikart's channel connects with or crosses another channel known as 'Catfish Channel' which extends in a northerly direction and through which boats can reach the open waters of Lake St. Clair. The above noted portion of Catfish channel is an extension of the channel which runs northerly from Clinton river to Conger Bay and the waters of Lake St. Clair. The Schweikart channel was first dredged sometime between 1924 and 1926. In addition to the portion of this channel above noted, it also continues in an easterly direction from Catfish channel to Lake St. Clair near the mouth of Clinton river. Supervisor's Plat No. 9 was so laid out in 1935 that a row of lots faced on Schweikart's channel as extended northwesterly in front of lots 56, 57 and 58. From time to time Schweikart's channel has been widened and deepened by dredging, and the excavated soil deposited on adjacent area. A channel separating lots 56, 57 and 58 from the area northeasterly thereof, including the area in suit, had existed for some considerable time prior to defendant's purchase. About 1926 a Mr. Peltier, the owner of the lot next northwesterly of defendant's lot, 'dug out and made the channel wider' to about 15 feet in front of lots 56, 57 and 58. At least from 1935 to 1941 this portion of the channel continued to be of the width of 15 or 16 feet. In 1941 further dredging was done by defendant, evidently to enable somewhat larger boats to reach and go through Schweikart's channel to lake St. Clair.

It seems conceded that for many years flood waters of Clinton river were partially carried away through Catfish channel and that by reason of the alluvial deposits of these flood waters upon the area lying northeasterly of lots 56, 57 and 58, the land gradually built up. When the water level of the lake was high most (if not all) of such land was covered with water; during normal or low water this area was not all submerged, but was of a marshy, boggy character and much of it grown over with rather dense, heavy vegetation. For approximately ten years prior to the time defendant purchased lot 57 (1940), the level of the lake was comparatively low, and during that period pheasant hunters and muskrat trappers went into the area in question; but otherwise no use of the land appears to have been made or attempted at that time.

In the spring of 1941 by dredging opposite the northeasterly line of his lot defendant widened his channel to between 25 and 30 feet, with a depth of four and one-half feet. Much and possibly all of the earth removed was deposited on defendant's lot for the purpose of filling. In 1940, the year when defendant contracted to purchase lot 57, he had a small garden plot on the opposite side of the channel from lot 57, being a portion of the land in suit.

The surveyor, Walter J. Lehner, who in 1935 prepared Supervisor's Plat No. 9, testified in effect that with slight variation the plat line in the area here involved and his survey line or meander line are the same, and the line of the plat, which includes the northeasterly line of defendant's lot where it is along the water's boundary, is the shore line or water's edge, and that the row of lots 56 to 97 (which includes defendant's lot 57) went to the water and meander line. It so appears from the recorded plat. At the time defendant purchased lot 57 he did not examine the plat, nor did he make any examination of the area involved in this suit. We quote from his testimony:

'Q. You never went over to see whether there was land over here or not, did you? A. All I see water from the other side, from marsh.

'Q. You just stood over here (apparently on the platted land) and looked across here and what you saw was some marsh and saw water in some spots? A. Right there.

'Q. But you never were over there to see whether there was any land there? A. Never. After they put the dirt there the following year I went over. That was in 1941. * * * As a matter of fact I never did try to go over into this area on the easterly part of the land in front of my lot until I made soundings here about two weeks ago. * * * My house now stands about 55, 60 feet from the water. * * * When I built it was about 10 to 15 feet from the water. * * *

'Q. To get back to the original question, there always was water here as far as you know, in front of your lot? A. It was all over water.

'Q. In front of your lot there was water? A. Yes. * * * When I bought there was water out in front of lot 57.

'Q. Was there water as far out as you can see? A. Yes, that is all can see.

'Q. Was there any land between the edge of the water looking straight out east from your land? A. I never seen any.

'Q. You said when you bought you didn't see any canal, all you saw was water? A. Water.

'Q. Water, and since 1940 when you bought that property has there ever been a time when, except for this little garden plot, you couldn't look out toward the bay and see water and marsh? A. That is right.

'Q. Can you do that today? A. Yes.'

The area to which the foregoing testimony of defendant refers is included in that to which plaintiffs herein claim to be the absolute owners, excepting plaintiffs' admission of defendant's right of 'easement of a canal known as Schweikart's Water Highway (also known as Schweikart's Channel).' Prior to defendant's purchase of lot 57 from plaintiffs, they owned in fee all of the land (with certain exceptions not material herein) adjacent to that portion of Conger Bay to the northeast and to the north of Supervisor's Plat No. 9. In the instant case plaintiffs' claim they are now the fee owners of a substantial area, mostly, if not wholly, resulting from alluvial deposits flooded in from Clinton river, which claimed area is within that designated in Supervisor's Plat No. 9 and in earlier government surveys as Conger Bay.

As a first requisite of plaintiffs' right to recover in this ejectment suit they must prove their title or right of possession to the land involved. As noted earlier herein plaintiffs assert that (1) they have such title by reason of conveyances to them and their predecessors in title; (2) by reason of...