Whitaker v. Erie Shooting Club

• Decision Date: 20 November 1894
• Citation: 102 Mich. 454,60 N.W. 983
• Court: Michigan Supreme Court
• Parties: WHITAKER ET AL. v. ERIE SHOOTING CLUB ET AL.

60 N.W. 983

102 Mich. 454

WHITAKER ET AL. v. ERIE SHOOTING CLUB ET AL.

Supreme Court of Michigan

November 20, 1894

Appeal from circuit court, Monroe county, in chancery; Edward D Kinne, Judge.

Bill of Maria S. Whitaker and others against the Erie Shooting Club and Jay W. Keeney to quiet title to certain land. Judgment for defendants, and complainants appeal. Affirmed.

Willis Baldwin (Ira G. Humphrey, of counsel), for appellants.

De Forest Paine, for appellee Erie Shooting Club.

Ira R Grosvenor, for appellee Keeney.

GRANT J.

The complainant Maria is the widow, and the other complainants are the heirs at law, of Harvey Whitaker, deceased, who died in June, 1890. Harvy Whitaker purchased the land in question in 1837. The object of the bill is to remove a cloud from their title, caused by a tax deed made by the state of Michigan, January 16, 1860, to Elias W. Hodges and Andrew J Keeney, for the taxes of 1857, and a lease executed by Andrew J. Keeney to the Erie Shooting Club, August 28, 1889. The defendant Keeney an swered, claiming title by adverse possession, and asking affirmative relief, affirming his title. The shooting club answered, admitting the execution of the lease, and of its corporation, and leaves complainants to their proofs on their other allegations.

The situation and character of the land: The land is a piece of marsh situated in the southeast corner of Monroe county about 120 rods from the mainland, on the west, and a mile from the sea wall of the shore of Lake Erie, on the east. Between it and the mainland is mud, which is at times covered with water. Upon it is a large sulphur spring. Around the spring the land is a little higher, and, on a few acres, grows hay fit for use. At low water the land around this spring is from a foot and a half to two feet above the water. When the wind blows from Lake Erie the land is entirely submerged. The only way to reclaim it, so as to render it fit for cultivation, would be the erection of the a dike around it, several feet high. The only use to which it can ever be put, aside from cutting of the hay around the spring, is for hunting birds, muskrats, and mink, but its principal use is for hunting birds.

Abandonment by complainants' ancestor: From 1837 to 1892 neither the complainants nor their ancestor exercised any act of possession. For 10 years prior to his death, Harvey Whitaker lived in Detroit, 40 miles distant. Maria S. Whitaker testified on behalf of the complainants as follows: "Q. Do you know what became of his property? A. Well, it was overflowed. We had nothing to do with it. Q. What did you do with this spring lot? A. I don't know as anything. We all supposed it went. We considered it all lost. We thought it wasn't worth anything. Q. And you abandoned it? A. Yes. Q. You never paid any taxes on it? A. No, sir, I think not. I never knew any being paid. Q. When did you first know your husband left this property? A. I knew he bought it at the time, but, as I say, we had given it up. It was overflowed, and we supposed it was worth nothing. I don't suppose he knew it was worth anything." Prior to 1860 the land was sold for taxes to various parties, who took no steps to obtain possession.

Defendants' connection with the land: Mr Hodges and Andrew J. Keeney knew that Mr. Whitaker had abandoned the land at the time of the purchase of the tax title. Their tax deed was placed upon record January 30, 1860. From that time to the present the taxes were assessed to and paid by them. Hodges and Keeney leased the right to trap upon the premises to various parties every year, some years receiving four or five dollars; some, twelve or fifteen; and other years receiving nothing. They also caused some willows to be planted near the spring, and occasionally cut hay. No other acts of actual possession are shown, except that they occasionally went to the land to look after it, as owners of land usually do. From 1860 to the commencement of this suit, it was understood by all living in the neighborhood that this was the property of Hodges and Keeney. On May 8, 1879, Andrew J. Keeney executed to the Bay Point Shooting Club a lease of the undivided half interest of the land, which interest is now the sole subject of controversy here, for the purpose of hunting and shooting snipe, wild fowls, and all other birds recognized as game by the laws of the state, and for all other purposes necessary and incident thereto, and for no other use or purpose. This lease was recorded November 15, 1880. This club immediately caused signs to be painted, and posted at various places around this land the following notice: "Lands of the Bay Point Shooting Club. All Trespassers will be Prosecuted. [Signed] A. J. Keeney, President." At the termination of that...