Smith v. Crandell, 42

• Citation: 332 Mich. 44,50 N.W.2d 718
• Decision Date: 07 January 1952
• Docket Number: No. 42,42
• Parties: SMITH et al. v. CRANDELL et al.
• Court: Michigan Supreme Court

Page 718

50 N.W.2d 718

332 Mich. 44

SMITH et al. v. CRANDELL et al.

No. 42.

Supreme Court of Michigan.

Jan. 7, 1952.

Reber & Reber, Fremont, Theodore C. Crandell and Mona M. crandell.

Mitts & Smith, Grand Rapids, Arthur S. Palmer and Bertha S. Palmer.

J. Donald Murphy, Fremont, for Hersel G. Smith and Lois Smith.

Before the Entire Bench.

CARR, Justice.

Plaintiffs brought suit in circuit court to quiet title to certain land in the city of Fremont, Newaygo county. The bill of complaint filed alleged the right to the relief sought on the ground of adverse possession by the plaintiffs and their predecessors in title for more than the statutory period. ¹ Defendants Crandell are the record title owners of a parcel of land described as follows: 'Commencing eighty-eight (88) feet north of the southeast corner of lot ten (10), block twenty-six (26) of the Empire Company's Plat of the Village of Fremont Center, now City of Fremont, Michigan, according to the recorded plat thereof, running thence west eighty-eight (88) feet, thence north forty-four (44) feet to the middle line of alley, according to said plat, thence east eighty-eight (88) feet, thence south forty-four (44) feet to the place of beginning.'

For many years past there has been located a building on the property above described, the south wall of which is 3.9 feet from the south line of the lot as set forth in the description. Said building faces Division street on the east. The land in controversy here is the parcel between the building and the south line of the lot to which Mr. and Mrs. Crandell own the title of record. Plaintiffs own and occupy a lot lying south of said building, and defendants Palmer own a lot similarly situated adjoining plaintiffs' property on the east. Each lot is described as 22 feet in width and 88 feet in depth. The buildings on each face Mian street, to the south.

The strip of land in question, to which plaintiffs claim to have acquired title by adverse possession is, as indicated, 3.9 feet in width and extends from Division street on the east in a westerly direction for a distance of 44.92 feet. It is a portion of a strip of land 10 feet in width between the rear of the buildings on the lots of plaintiffs Smith and defendants Palmer and the building on the lot of defendants Crandell. The bill of complaint alleged that in 1945 defendants Palmer undertook to convey to plaintiffs that portion of the property in dispute lying immediately north of the north line of the lot to which Mr. and Mrs. Palmer then held the record title. It was further alleged that because of a mistake on the part of the scrivener the description in the deed was not correct, and plaintiffs sought reformation to the end that such description might accord with the intention of the parties. Defendants Palmer by their answer conceded the right of the plaintiffs to reformation and have not appealed from the provisions of the decree of the trial court granting such relief.

On the trial of the case defendants Crandell relied on their record title, denying that plaintiffs had acquired title to the strip of land between the south wall of their building and their south lot line, as described in the conveyance in their chain of title, by virtue of adverse possession by plaintiffs and defendants Palmer and prior owners under whom they claim. After listening to the proofs of the parties the trial court came to the conclusion that plaintiffs had by a preponderance of the evidence established their claim to the land in question A decree was entered accordingly, and defendants Crandell have appealed.

On the trial of the case plaintiffs offered proof tending to establish that they and their predecessors in title had acquired and held their lot with the understanding that its north line was the south wall of the building located on the property to which defendants Crandell now own the legal title, and that the strip of land in dispute had been used and occupied accordingly. A like showing was made as to defendants Palmer. The testimony of a prior owner of both lots was introduced by plaintiffs and is relied on by them as supporting their claim. The witness acquired his title to the Palmer lot in 1904 and to plaintiffs' lot in 1908. It was his testimony in substance that the land between the buildings on his lots and the building on appellants' lot was considered by him to be his property, and that it was used as a private alley to serve the businesses conducted on his lots. He testified further that insofar as he was aware no other person or persons claimed title to any protion of the 10 foot strip. In 1926 he conveyed both lots, indicating to the purchaser of each that the north line was the south wall of the building located on the property to the north. It further appears in evidence that the purchasers paved the strip to its full width in order to facilitate its use for their purposes, and that this work was done in either 1926 or 1927.

In 1938 the plaintiffs purchased the lot now owned by them, and defendants Palmer acquired title to their lot in 1943. The evidence justifies the conclusion that each grantor made conveyance, and that the grantees purchased, with the understanding and assurance that said lots included the strip of land in question. In 1945 plaintiffs constructed a one- story building extending entirely across the strip. While the work was in progress appellants purchased and occupied their lot, but made no objection to plaintiffs' action. In 1949 appellants procured a survey of their lot, and discovered that their south line was not the wall of their building but was, in fact, 3.9 feet to the south. Negotiations between the parties having failed, Mr. and Mrs. Crandell started an ejectment suit the prosecution of which plaintiffs in their bill of complaint asked to have enjoined. Such relief was granted by the decree of the trial court.

It is the...