Simon v. Sch. Bd. of Dist. No. 2 of Richland

• Decision Date: 02 December 1941
• Docket Number: No. 39.,39.
• Citation: 300 N.W. 851,299 Mich. 478
• Parties: SIMON et al. v. SCHOOL BOARD OF DIST. NO. 2 OF RICHLAND AND MILLS TOWNSHIPS.
• Court: Michigan Supreme Court

299 Mich. 478

300 N.W. 851

SIMON et al.

v.SCHOOL BOARD OF DIST. NO. 2 OF RICHLAND AND MILLS TOWNSHIPS.

No. 39.

Supreme Court of Michigan.

Dec. 2, 1941.

Action in ejectment by Kollman Simon and another against the School Board of District No. 2 of Richland and Mills Townships. From a judgment for the defendants, plaintiffs appeal.

Affirmed.

Appeal from Circuit Court, Ogemaw County; John C. Shaffer, judge.

Argued before the Entire Bench.

Ernest Nichols Papps, of Detroit, for appellants.

James B. Ross, of West Branch, for appellee.

CHANDLER, Justice.

On May 14, 1940, plaintiffs brought this action in ejectment claiming title to that portion of land upon which defendants' school house building stands. Defendant claimed title by adverse possession for a period longer than 15 years, 3 C.L.1929, § 13964, Stat.Ann. § 27.593, and prevailed in the lower court where a trial by jury was had.

This appeal follows.

Plaintiffs and defendant are adjoining landowners; defendant purchased its property on October 30, 1897, and plaintiffs secured their title in December, 1918. Plaintiffs' deed contained the following description:

‘The southwest quarter of the northwest quarter of section nineteen, town twenty-one north of range four east, all except one acre of land in the southwest corner belonging to School District Number Two.’, and defendant's deed contained the following: ‘beginning at the southwest corner of the southwest fractional quarter of the northwest quarter of section nineteen in town twenty-one north, of range four east. Thence north along the west lien of said section twelve and 65/100 rods; thence easterly parallel with the south line of said section, twelve and 65/10 rods; thence southerly parallel with the west line of said section twelve and 65/100 rods, to the quarter line; thence west along said quarter line twelve and 65/100 rods; to the place of beginning containing one acre of land more or less.’

Defendant now occupies and has since 1897 1.8 acres, and plaintiffs' sole complaint as contained in their declaration is as follows: ‘That while plaintiffs were so possessed of the aforesaid described real estate property the defendant afterwards, entered unto said premises and caused the removal of a schoolhouse building from their said above described property to the plaintiffs' land thereby making the use of fourteen hundred (1400) feet or three hundred and fifty (350) feet from each way, the north, south, east and west, in direct line of the schoolhouse building.’

There is uncontradicted testimony that the school building stands within the confines of fences which the school board, in an attempt to define the property they believed they owned, erected in 1899, and continuously maintained thereafter; according to further uncontradicted testimony, when new fences were built, the old ones were torn down and the new fences were placed in exactly the same position. Thus, by the time plaintiffs acquired title in 1918 their grantor was barred from bringing a successful ejectment action (see Gildea v. Warren, 173 Mich. 28, 138 N.W. 232), and plaintiffs are not even in the position of innocent, unknowing purchasers, for:

‘Defendant's actual and unequivocal possession of the land in question at the time of plaintiffs' purchase of adjoining land was sufficient notice to plaintiffs of his claim. It is said by a text writer that it is ‘notice to all the world.’ Gates Real Property, p. 482. And see Banks v. Allen, 127 Mich. 80, 86 N.W. 383;Howatt v. Green, 139 Mich. 289, 102 N.W. 734;Clark v. Bussard, ,189 N.W. 873.' Vanden Berg v. DeVries, 220 Mich. 484, 190 N.W. 226, 227.

Adverse possession for 15 years is a statutory bar, and actual knowledge of such adverse holding is not required when the circumstances are such that the contiguous holder ought to have such knowledge. Bird v. Stark, 66 Mich. 654, 33 N.W. 754, cited with approval in Gould v. Fiero, 262 Mich. 467, 247 N.W. 719, and more recently in Trowbridge v. Van Wagoner, 296 Mich. 587, 296 N.W. 689.

There was undisputed testimony that defendant entered into the possession of the land in 1897 or at the latest, 1899, when the fence was built, under the impression that it was the land which it bought, and the court might have very properly instructed the jury to return a verdict for the defendant on these facts. Call v. O'Harrow, 51 Mich. 98, 16 N.W. 249.

Plaintiffs do not seriously question the fact that, with the exception of length of time, the concurrence of the essential elements of adverse possession, namely, that it had been actual, continuous, visible, notorious, distinct, and hostile throughout, are present. See Vanden Berg v. DeVries, supra; Cotton v. McClatchey, 277 Mich. 109, 268 N.W. 894. But they contend, disregarding the fence, that the new school building was erected in 1927 and this date is the first time defendant encroached upon their land. Plaintiffs did not testify that the new school was built in 1927 but rely solely on one conjecture made...