Stolte v. Krentel

• Decision Date: 08 April 1935
• Docket Number: No. 86.,86.
• Citation: 271 Mich. 98,260 N.W. 127
• Parties: STOLTE v. KRENTEL et al.
• Court: Michigan Supreme Court

271 Mich. 98

260 N.W. 127

STOLTE

v.KRENTEL et al.

No. 86.

Supreme Court of Michigan.

April 8, 1935.

Bill by Fannie N. Stolte against Flossie I. Krentel, the Michigan Trust Company of Grand Rapids, Michigan, and others. From the decree, second-named defendant appeals.

Affirmed.

Appeal from Circuit Court, Ingham County, in Chancery; Charles B. Collingwood, Judge.

Argued before the Entire Bench.

Joseph H. Dunnebacke and Leslie B. Butler, both of Lansing, for appellant.

C. F. & E. T. Hammond, of Lansing, for appellee.

BUSHNELL, Justice.

In a bill to foreclose mortgages covering parts of lots 1, 2, 3, and 4 of block 196 in the city of Lansing, plaintiff, Stolte, also prays for reformation of a driveway agreement which was executed contemporaneously with the release hereinafter described. In 1924 Alex C. Krentel, the owner of the fee, secured a release of part of the mortgage premises and erected a building, hereinafter called the ‘new garage,’ at the southwest corner of Washington avenue and Hazel street, part of which is on the land originally included in the mortgage. The description of the land so occupied is: ‘Beginning 41 feet south of the northeast corner of lot 1, block 196, thence south 47 1/2 feet, thence west 79 feet, thence north 5 feet, thence west 11 feet, thence north 42 1/2 feet and thence east to the place of beginning.’

The remainder of the lands encumbered by the mortgage may be described as: ‘Commencing at a point on Washington Avenue 88 1/2 feet south of the corner of Hazel Street, thence west 79 feet, thence north 5 feet, thence west 11 feet, thence north 42 1/2 feet, thence west to Grand River, thence south along Grand River 107 1/2 feet, thence east to Washington Avenue, thence north 60 feet to place of beginning.’

The easterly portion of the last-described property was then, and is now, occupied by a building fronting on Washington avenue which is also used for garage and storage purposes, and which we will hereafter refer to as the ‘old garage.’ Access to the ground floor is from Washington avenue on the east, but the basement can only be reached from Hazel street on the north.

Krentel thereafter gave the Michigan Trust Company, defendant herein, a mortgage on the property first described and the north 41 feet of lot 1 and east 20 feet of lot 2, which property is bounded on the north by Hazel street, on the east by Washington avenue, on the south by the property involved in the instant case, and on the west by the property of one Henning, who is not a party to this action. The Michigan Trust Company foreclosed its mortgage and in 1932 bid in the property covered by such mortgage.

Access to the basement of the ‘old garage’ is had through a door of sufficient size to admit automobiles, which door is in the north wall some 30 feet west of the ‘new garage.’ The driveway agreement, after describing the mortgaged premises, provided:

‘And whereas said second party has certain mortgage rights covering the above described lands and adjoining lands and Whereas, said second party has this day released adjoining lands, which lands provide access on the north to the buildings on the premises above described, and it is agreeable to the parties that another right of way be granted from the north to premises first above described.

‘Therefore, for a valuable consideration the said first parties do hereby grant to said second party an easement or right of way for driveway purposes during such time as the said second party may hold her mortgage interest on said lands above described over lands described as follows: the west 4 feet of the east 20 feet of the north 41 feet of lot 2, block 196, city of Lansing, Michigan, is to be used with the east 4 feet of the land adjoining on the west.’

This way, as so described, failed to reach the ‘old garage’ by 42 1/2 feet, but this was unimportant so long as no one objected to the use of the land hereinafter described in a quotation from the opinion of the trial court.

Defendant Michigan Trust Company appeals from the decree, which corrected the description of driveway agreement, and raises the following questions:

1. The bill fails to describe the easement it seeks to impose.

2. The court was in error in finding a mutual mistake in the original driveway agreement.

3. That, while relief might be granted as against Krentel, it may not be given against a subsequent owner.

4. Plaintiff is estopped.

5. The decree should have directed a sale in parcels.

The legal yardstick is found in Fox v. Pierce, 50 Mich. 500, 15 N. W. 880, 881: ‘Now a right of way which is too indefinite for a determinate description, is too indefinite to be established and protected by the court of chancery. Assuming the right which is actually in controversy, or rather the rights which complainants contemplate, to be capable of such a description, the rule then applies that the complainant must so state his case that if admitted by answer or proved at the hearing, the court can decree upon it. Has that been done? Are the means given to enable the court to declare in its paper decree exactly what right of passage exists, and of what shape and dimensions the place is, and precisely where it is located with reference to lot lines and permanent erections?’

In the case at bar the termini of the driveway are clear: Hazel street on the north and the ‘old garage’ (the only property to be benefited) on the south. These points became such monuments as would control courses and distances. The purpose of the parties being inconsistent with the distance of 41 feet south in the agreement, both cannot stand, and the rule that monuments control must apply. In County of St. Clair v. Lovingston, 23 Wall. 46, 62, 23 L. Ed. 59, Mr. Justice Swayne said: ‘It is a universal rule that course and distance yield to natural and ascertained objects. A call for a natural object, as a river, a spring, or even a marked line, will control both course and distance.’

Practically the same language is used by Mr. Justice Champlin in Turner v. Holland, 65 Mich. 453, 33 N. W. 283, and in Gilman v. Riopelle, 18 Mich. 145, 164, Mr. Justice Cooley said: ‘Inasmuch as definite and permanent boundaries are given, the deed must be held to convey all the land within those boundaries, notwithstanding the quantity is much greater than that mentioned. This is on the familiar principle that the incorrect portion of the description is to be rejected where that which remains is sufficient, and that definite and permanent monuments are to control distance and quantity.’

In Bauman v. Barendregt, 251 Mich. 67, 231 N. W. 70, Mr. Justice Fead wrote: ‘If distances in the description control, defendant's title runs out into the lake. However, he does not controvert plaintiffs' contention that courses and distances yield to natural and ascertained objects, like the shore of the lake. Brown v. Milliman, 119 Mich. 606, 78 N. W. 785;Turner v. Angus, 145 Mich. 679, 108 N. W. 1100.’

We held in Miles v. Shreve, 179 Mich. 671, 146 N. W. 374, 377:

‘It is elementary that the burden of proof is strongly upon the party asking reformation of a written instrument on the ground of mistake. The proof of mistake must be clear and convincing. * * *

‘The mistake must be mutual. For relief by...