Stewart v. Hunt

• Decision Date: 21 October 1942
• Docket Number: No. 15.,15.
• Citation: 5 N.W.2d 737,303 Mich. 161
• Parties: STEWART et al. v. HUNT et al.
• Court: Michigan Supreme Court

303 Mich. 161

5 N.W.2d 737

STEWART et al.

v.HUNT et al.

No. 15.

Supreme Court of Michigan.

Oct. 21, 1942.

Suit in equity by Allan Edgar Stewart and others against Margaret Hunt and others to restrain defendants from trespassing on plaintiffs' property by using a way thereon and to quiet title in plaintiffs. From a decree dismissing the bill, plaintiffs appeal.

Reversed, and decree for plaintiffs authorized on completion of probate proceedings showing plaintiffs' title. Appeal from Circuit Court, Berrien County, in Chancery; Fremont evans, judge.

Before the Entire Bench, except WIEST, J.

White & White, of Niles, for appellants.

Harvey & Fisher, of Benton Harbor, for appellees.

BUTZEL, Justice.

Plaintiffs and defendants respectively own substantial summer homes on adjoining pieces of property fronting on Lakeview Avenue and extending to Lake Michigan in the village of Grand Beach, Michigan. Defendants' right to use a concrete walk approximately two feet in width between the two houses is the subject of this litigation. Defendants Hunt claim an easement by prescription in this walk or right of way. It is built entirely on the land belonging to plaintiffs, who filed this bill to restrain defendants from trespassing on plaintiffs' property by using the way, and to quiet title in plaintiffs. Plaintiffs dismissed the bill as to all defendants except the Hunts. After hearing, the circuit court dismissed the bill upon its merits. From this decree plaintiffs appeal.

Defendants claim a perpetual easement appurtenant in the walk. The burden of proving the existence of an easement is upon the claimant thereof. Turner v. Hart, 71 Mich. 128, 137, 38 N.W. 890,15 Am.St.Rep. 243;Dummer v. United States Gypsum Company, 153 Mich. 622, 642, 117 N.W. 317. If defendants' right to the way rests on permission, such permission may be withdrawn at any time, however long continued. Wortman v. Stafford, 217 Mich. 554, 558, 559, 187 N.W. 326. The record shows beyond any doubt, however, that, even assuming the user of the way by defendants and their predecessors in title to have been adverse, no owner in defendants' chain of title since the walk was first used owned defendants' land (and, hence, no such owner used the claimed way) for as long as 15 years. The record is barren of any claim by defendants either that any conveyance in their chain of title refers to the claimed way or that any parol transfer of such way was made in connection with any such conveyance, except that Margaret and Julia Hunt testified that one Anna Brown, the real estate agent who handled the sale of defendants' land from their immediate predecessor in title, C. Walter Yandell, had told the Hunts, before the sale and in the presence of C. Walter Yandell, that the right of way in the concrete walk was used by both houses, ‘and was to continue to be used by both parties.’ Construing this assertion as equivalent to a parol transfer of the claimed easement by C. Walter Yandell to the Hunts, because made in his presence and theirs and not objected to by him, we might find sufficient privity between defendants and C. Walter Yandell to enable them to tack his period of ownership of the land and user of the way to their own, but, even so, the two periods in combination do not aggregate 15 years. For a similar factual situation where the interest claimed was land not included in claimant's conveyance, rather than an easement not so included, see Maes v. Olmsted, 247 Mich. 180, 183, 225 N.W. 583.

Thus we are brought to the main question in the case. Can the periods of adverse user of a claimed easement appurtenant by the successive owners of the claimed dominant tenement be tacked together to aggregate the 15-year period of prescription, where no single period amounts to 15 years, in the absence of any privity between the successive owners established either by references to the easement in their conveyances or by parol transfers thereof in connection with such conveyances? We are mindful of the great number of decisions from other jurisdictions which answer this question in the affirmative. The law of this State, however, prohibits such tacking. Zemon v. Netzorg, 247 Mich. 563, 226 N.W. 242. Notwithstanding severe criticism of this decision (28 Michigan Law Review 81, 599), that case sets forth the applicable law of this State on this question. Any change, if desirable, should be accomplished by legislation, prospective in operation, rather than by judicial redecision, which would disturb vested rights.

Nor can the way in suit be claimed as a way of necessity. The exhibits in the record show that defendants or their predecessors could always have built a walk across their own land from the street to their house. Indeed, several years prior to the present suit, defendants did build such a walk.

Plaintiffs' and defendants' lands were once united in ownership. Shortly after the walk was originally laid, the two parcels were severed, the common owner conveying plaintiffs' parcel and retaining defendants' himself. The grantee of plaintiffs' land paid the common owner one-half the cost of the two houses and intervening walk (then a board walk), because both parties believed that the dividing line between plaintiffs' and defendants' lands bisected the board walk lengthwise. Later, on the same assumption, when a cement walk was substituted for the board walk, the then owners of the two parcels each paid one-half...