Westgate v. Mathews, Docket No. 8210

Citation188 N.W.2d 1,31 Mich.App. 480
Decision Date23 March 1971
Docket NumberNo. 3,Docket No. 8210,3
PartiesRussell E. WESTGATE, Plaintiff-Appellant, v. Erwin M. MATHEWS and Hazel L. Mathews, Defendants-Appellees
CourtCourt of Appeal of Michigan (US)

Robert G. Quinn, Jr., Bergstrom, Slykhouse & Shaw, Grand Rapids, for plaintiff-appellant.

Paul L. Greer, Fremont, for defendants-appellees. Before T. M. BURNS, P.J., and R. B. BURNS and MUNRO, * JJ.

T. M. BURNS, Presiding Judge.

This cause arises out of a dispute over the ownership of a parcel of land some 54.2 feet wide north and south and 198 feet wide east and west. (The disputed area is bordered by line C-C1 on the north and D-D1 on the south on the diagram.) From a judgment of no cause entered September 17, 1969, by the court sitting without a jury, plaintiff appeals.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

In 1936, Elmore Westgate, plaintiff's father and predecessor in title, purchased a piece of land 12 rods square from a Mr. and Mrs. Schmidt. This piece of land would be bounded by the lines A-A1 on the north and C-C1 on the south on the diagram. On December 9, 1938, Elmore Westgate sold this piece of property to his son, the present plaintiff. However, the description contained in the deed included the disputed land to which Elmore Westgate never had title.

On November 3, 1952, Forrest and Mary Waldo purchased a large parcel of land from Mrs. Schmidt, her husband then being deceased. The deed gave title to land surrounding plaintiff's land and excepted only that portion (bounded by A-A1 and C-C1 on the diagram) which the Schmidts had deeded to plaintiff's father. The conveyance to the Waldos thus included the disputed property bounded by C-C1 and D-D1 on the diagram.

On June 24, 1967, the Waldos sold a parcel of land which included the disputed area to the defendants. In the Fall of 1967, defendants started construction of a laundromat, part of which was on the disputed parcel. Plaintiff, upon learning of the use defendants were intending for the land which he thought to be his, brought this action to quiet title.

Plaintiff alleges title based upon three theories of the law: (1) adverse possession; (2) possession under color of title; and (3) acquiescence in the boundary line by the adjoining property owners for more than 15 years.

1. WHETHER PLAINTIFF'S ACTS OF OWNERSHIP OVER THE DISPUTED PARCEL WERE OF SUCH A CHARACTER AS TO MEET THE REQUIREMENTS NECESSARY TO GAIN TITLE BY ADVERSE POSSESSION.

The land to which plaintiff actually has title and is in actual possession of has been used by him and his tenants as a gasoline station since 1958. At the trial plaintiff attempted to show that the disputed land had been used to store junk cars; the taxes had been paid upon the parcel by plaintiff since 1938; and the land was surveyed and stakes set at various times since 1938 evidencing the boundaries to be as plaintiff contends.

Defendants asserted that the land is low and swampy and at times was filled with water and that the junk cars were never stored on the disputed parcel. Based upon all of the conflicting testimony the trial court arrived at the following decision:

'The plaintiff has failed to prove by a preponderance of the evidence that he or his predecessor in title have for any 15-year period had possession of this disputed area in a continuous, visible, notorious and hostile manner as to the record title holder. The evidence is devoid of any proof of occupation of any part of the disputed area by plaintiff except for part of an old truck or car extending over the line for a period shorter than 15 years.'

The transcript of the trial reveals a great conflict in the testimony. However, the trial court, upon hearing the testimony and weighing the credibility of the witnesses, found that the plaintiff had not made a visible and hostile use of the disputed land. This court in Rose v. Fuller (1970), 21 Mich.App. 172, 175 N.W.2d 344, held that findings of fact shall not be set aside unless clearly erroneous. 1 The court went on to state that the findings of fact shall not be disturbed unless, upon a review of the entire record, the reviewing court would have reached a different result. 2 The Supreme Court in Martin v. Arndt (1959), 356 Mich. 128, 95 N.W.2d 858, held that great weight is given to findings of fact, particularly when there is a conflict in the testimony.

Based upon the above authority and our review of the record, which reveals ample evidence to support the trial court's findings, we affirm the trial court's determination that plaintiff had not gained title to the disputed land by adverse possession.

2. WHETHER PLAINTIFF GAINED TITLE TO THE DISPUTED LAND BY POSSESSION UNDER COLOR OF TITLE TO THE LAND THROUGH HIS 1938 DEED.

Plaintiff argues that since he was in actual possession of the parcel which had been rightfully deeded to him by his father, he was also in constructive possession of the whole parcel deeded to him. Plaintiff contends, therefore, that since he has been in constructive possession of the disputed parcel since 1938, the date of the deed, that he has gained title to the land.

However, plaintiff must be in actual possession of some portion of the disputed land before good title may be gained in this manner. In Turner v. Stephenson (1888), 72 Mich. 409, 40 N.W. 735, a similar fact situation...

To continue reading

Request your trial
4 cases
  • Jonkers v. Summit Twp., Docket No. 272203.
    • United States
    • Court of Appeal of Michigan (US)
    • March 20, 2008
    ...cannot adversely possess the disputed property without having been in actual possession of some portion thereof. Westgate v. Mathews, 31 Mich.App. 480, 483, 188 N.W.2d 1 2. It is worth reiterating at this point that the requisite period is not disputed. 3. The Bachus opinions discussed the ......
  • DeHollander v. Holwerda Greenhouses
    • United States
    • Court of Appeal of Michigan (US)
    • March 27, 1973
    ...in the lower court's position. GCR 1963, 517.1; Rose v. Fuller, 21 Mich.App. 172, 177, 175 N.W.2d 344 (1970); Westgate v. Mathews, 31 Mich.App. 480, 483, 188 N.W.2d 1 (1971); Gamble v. Hannigan, 38 Mich.App. 500, 504, 196 N.W.2d 807 I. Did plaintiffs acquire title to the disputed strip of l......
  • State v. Hipsher, 02-2461-CR.
    • United States
    • Court of Appeals of Wisconsin
    • May 20, 2003
    ...to a material question and that it is more probable than not that she was biased against him. See State v. Delgado, 223 Wis. 2d 270, 281, 188 N.W.2d 1. Hipsher has not demonstrated that the juror was biased against him. At the time Hipsher requested that she be left on the panel, he believe......
  • Benincasa v. Mihailovich, Docket No. 8175
    • United States
    • Court of Appeal of Michigan (US)
    • March 23, 1971

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT