Walker v. Bowen

• Decision Date: 07 April 1952
• Docket Number: No. 42,42
• Citation: 333 Mich. 13,52 N.W.2d 574
• Parties: WALKER et ux. v. BOWEN.
• Court: Michigan Supreme Court

Page 574

52 N.W.2d 574

333 Mich. 13

WALKER et ux. v. BOWEN.

No. 42.

Supreme Court of Michigan.

April 7, 1952.

Leithauser, Leithauser & Tobias, Detroit, for appellants.

George A. Cram, Pontiac, for appellee.

Before the Entire Bench.

CARR, Justice.

Plaintiffs herein brought suit in equity to quiet title to a small parcel of land located in Farmington township, Oakland county. They alleged in their bill of complaint that they and their immediate grantor had occupied and controlled the premises for a period of over 15 years immediately preceding the starting of the suit, and that they had been 'in actual, continued, visible, notorious, distinct, and hostile possession of the same under a claim of ownership, during said period.' It was further averred that the defendant claimed an interest in the property. A decree was sought adjudging plaintiffs to be the owners of said premises in fee.

Defendant filed an answer to the bill of complaint, asserting that plaintiffs' cause of action was not well founded and that the matter in dispute should be adjudged in an action in ejectment on the law side of the court. She asked that the suit be dismissed on the ground indicated. Such motion was subsequently submitted to the trial court and was denied. The trial on the merits resulted in a decree in favor of the defendant, and plaintiffs have appealed.

Plaintiffs rely on adverse possession of the property in dispute by their immediate grantor, Ralph Schulz, from who they purchased in April, 1947. In August, 1930, Schulz bought from the administrator of an estate land described as follows: 'All that certain piece or parcel of land, situate and being in Farmington Township, Oakland County, Michigan, and described as follows, to wit: Commencing on the west line of section 4 at the north corner of lands leased by Geo. W. Button to the Spring Brook Cheese Factory Co., thence east on the north boundary of said Spring Brook Cheese Factory Co. lands 10 rods; thence north parallel with the west section line 12 rods; thence west at right angles 10 rods to the west section line; thence south on said west section 12 rods to the place of beginning.' Schulz was a witness for plaintiffs on the trial in circuit court, testifying in substance that the property acquired by him was located on the east side of Drake road about a quarter of a mile south of 14-Mile road. He further claimed that he went into possession of the property that he believed was covered by the description in his deed, and that there were fences on the north, east, and south sides. The description in the deed given by Schulz to plaintiffs in April, 1947, was identical in substance with that contained in the conveyance taken by him in 1930. After they received their deed plaintiffs caused a survey to be made, and discovered that their property as described did not include the east 14 feet of the parcel enclosed by the fences above referred to and Drake road on the west. Thereafter Schulz executed a second deed for the purpose of conveying the land that he claimed to have owned. It does not appear to be questioned that the description in the later conveyance covers the land embraced within the fences and the highway on which it fronts. The specific question at issue is the ownership of the 14-foot strip adjacent to the east fence. It is undisputed that defendant is the present holder of the record title to said strip and that she is the owner of property adjoining the land of plaintiffs on the north and east.

At the trial of the case the burden of proof was on the plaintiffs to establish that Schulz occupied the disputed parcel adversely within the requirements of the rule recognized by the bill of complaint. The trial judge concluded, after listening to the testimony and the arguments of counsel, that the proofs did not establish occupancy for more than the statutory period ¹ under a claim of right, or that the possession of plaintiffs' grantor was hostile in character. Appellants insist that such conclusions are not in accord with the evidence. On behalf of defendant it is insisted, in substance, that the proofs on the trial did not show that Schulz intended to claim ownership beyond the actual lines of the property described in the conveyance to him and that, in consequence, title to the disputed strip was not acquired by adverse possession.

The record indicates that it was also defendant's claim in circuit court that Schulz moved the fence on the east side of the land in an easterly direction. Her testimony, and that of her witnesses, relating to the matter is uncertain as to when such action took place, and also as to the distance to which the fence was moved to the east. In his testimony Schulz denied that he moved the fence on the east side, and also denied any change in the line of the north fence, stating that the latter became in such condition that it had to be replaced but that the new fence was on the line occupied by the fence that was there at the time he took possession of the property. He also denied making any statements to the defendant or to anyone in interest in the property to the effect, as claimed by defendant, that if he had taken more land than he was entitled to he would return it or pay for it. With reference to the nature and extent of his possession, the following excerpts from his testimony indicate his claims:

'Q. I will ask you whether or nor when you got your deed, you took possession up to and including everything enclosed in those fences that you saw there? A. That is right.

* * *

* * * 'Q. Now, what improvements in the way of buildings were on the parcel back in 1930 at the time you got the deed? A. Well, I built, immediately after I bought the property, I placed a chicken coop in the same place where the barn is today, that was in 1930.

'Q. You say barn? A. It was a chicken house at the time, I built a chicken house at first.

* * *

* * *

'Q. There is a barn there now up here somewhere in the northeast area? A. There is.

'Q. But the chicken coop which you say you built covered exactly the same area on the ground as the barn that is now there? A. I put the barn right on the same foundation.

'Q. Well, how close to the easterly fence was that chicken coop you built? A. About three or four feet, somewhere around three or four feet, it was over three feet because I know in Detroit you got to keep away three feet from a line.

'Q. Can you state definitely whether or not the chicken coop occupied at least part of the property within fourteen feet of the easterly fence? A. Yes, it does.

'Q. And the barn you subsequently built also occupied part of the premises and within fourteen feet of the easterly fence? A. That is right.

'Q. You know roughly about how far it stick over across the imaginary line we have drawn fourteen feet west of the easterly fence? A. Well, I would say the barn is around three feet or a little over from the east line, and the barn was approximately around twenty-five feet long, going west.

'Q. Have you ever changed or moved or done anything with the easterly fence since you got that property in 1930? A. No, I haven't.

'Q. Did you ever do anything with the northerly fence? A. I did

'Q. What did you do with respect to the northerly fence? A. I replaced it with a new fence in the same place where the old fence was.

'Q. We have been talking about the old fence here on this property, you told us about the easterly fence, we mentioned building a chicken coop there, you say that you subsequently built a barn there, you know about when you built the barn on the spot where you originally built this chicken coop? A. It was the same year but it was warm.

'Q. Can you tell us approximately what year you built the new barn? A. That I built the barn or chicken coop?

'Q. The new barn. A. That would be around in 1932 or 1933.

'Q. You don't remember the exact year? A. No, I don't.

'Q. Is that new barn still there on the property? A. It is.

'Q. The barn is on the same foundation? A. That is right.'

The witness further testified that when he sold to plaintiffs he agreed to convey the parcel of land as then fenced, and which he claimed to have occupied since 1930. Plaintiff Robert E. Walker corroborated the testimony of Schulz with reference to the understanding and agreement at the time of the conveyance to plaintiffs, stating that the property at the time was fenced on the north, east, and south, that the fences were represented to him as the boundary lines, and that he understood that he was purchasing the property incorporated within the three fences and Drake road. Testimony of Schulz as to the maintenance of the fence on the east, and the fence line on the north, was corroborated by that of his sister, Mrs. Erma S. Johnson, who was called as a witness for plaintiffs.

This being an equity case it is our duty to hear and determine it de novo. While the proofs offered by the plaintiffs are in certain respects contradicted by ...