Worden v. Assiff, 62.
| Decision Date | 17 April 1947 |
| Docket Number | No. 62.,62. |
| Citation | 27 N.W.2d 46,317 Mich. 436 |
| Parties | WORDEN et al. v. ASSIFF et al. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE Appeal from Circuit Court, Ingham County, in Chancery; Louis E. coash, judge.
Suit by Vernon Worden and Serena Worden against Sam Assiff and Saloma Assiff to compel defendants to release or deliver to plaintiffs a conveyance of defendants' claim in plaintiffs' premises, wherein defendants filed a cross-bill claiming an easement established by adverse user and possession. From an adverse decree, defendants appeal.
Decree affirmed.
Before the Entire Bench.
Dwight L. Wilson, of Lansing (John P. O'Brien, of Lansing, of counsel), for appellants.
William C. Brown, of Lansing, for appellees.
Plaintiffs and defendants are the owners or vendees under land contracts of adjoining homes on Bement street in the city of Lansing. A dispute arose between them as to the boundary line between their respective lots, where a joint graveled driveway had been in use for many years. Plaintiffs erected a fence on what they claim is their own property on their side of the line, but where the defendants claim it interferes with their right to use the driveway which they claim has been established by user and adverse possession. Plaintiffs filed this bill in chancery to enjoin the defendants from piling ashes and refuse against the fence and through it onto what plaintiffs claim is their land, from pushing the fence over onto plaintiffs' land, and to compel the defendants to release or deliver to plaintiffs a conveyance of any pretended claim of the defendants in plaintiffs' premises. The defendants answered and filed a cross bill claiming that the fence is on land that has been used as a joint driveway for some 25 years, that the defendants have an easement established by adverse user and possession, that the fence deprives defendants from use of their garage for garage purposes, makes it necessary for them to park their car outdoors, and prevents delivery of coal to their house. In their cross bill defendants ask that the plaintiffs (cross-defendants) be enjoined from maintaining the fence, and that the defendants, as cross-plaintiffs, be decreed to have an easement for joint driveway purposes over so much of plaintiffs' land as may be shown to have been used as a joint driveway.
Judge Louis E. Coash heard the proofs and found that the defendants did not have an easement over plaintiffs' land either as a way of necessity or by prescription. A decree was entered restraining the defendants from using plaintiffs' land, piling refuse or other material against or through the fence, and from doing any damage to plaintiffs' property. It was decreed that the defendants release plaintiffs' land from any claimed right therein. Defendants appeal.
Admittedly none of the previous conveyances and land contracts applying to the lots here involved contain any reference to the claimed easement. The only claim here made by appellants is that the court should have held that the defendants had acquired by prescription an easement over plaintiffs' land for the joint driveway. The court found from the proofs that the garages of the respective parties are on their own lots, that they each have ample room on their own premises in which to reach their garages, that there is sufficient space owned by each to establish a private driveway on their own premises, and that there can be no way of necessity in this case. Appellants in their briefs do not controvert that part of the court's finding and decree, but for reversal rely solely on the claim that they have an easement by prescription.
Both these lots were owned by one J. Gottlieb Reutter in 1916, at which time the joint driveway was in use. Between that time and November 15, 1940, plaintiffs' lot was sold or conveyed several times, until on the latter date J. Gottlieb Reutter again acquired title to said lot and then in 1941 sold it on a land contract under which plaintiffs now hold possession as vendees. Mr. Reutter continued to hold the record title to defendants' lot until 1940, at which time he sold it to them. In the interim the said lot had been sold several times on...
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Plymouth Canton Community Crier, Inc. v. Prose
...would in all likelihood conclude that plaintiffs had failed to satisfy their burden of showing prescriptive use. Worden v. Assiff, 317 Mich. 436, 439-440, 27 N.W.2d 46 (1947); Wood v. Denton, 53 Mich.App. 435, 437-438, 440-442, 219 N.W.2d 798 This case, however, involves additional evidence......
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Alstad v. Boyer
...240 Mich. 327, 215 N.W. 331; but see the following cases of Wilkinson v. Hutzel, 1906, 142 Mich. 674, 106 N.W. 207; Worden v. Assiff, 1947, 317 Mich. 436, 27 N.W.2d 46; Wasilewski v. Kowal, 1948, 320 Mich. 473, 31 N.W. 2d 697; Missouri: Jacobs v. Brewster, 1945, 354 Mo. 729, 190 S.W.2d 894;......
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Alstad v. Boyer
...Mich. 327, 215 N.W. 331; but see the following cases of Wilkinson v. Hutzel, 1906, 142 Mich. 674, 106 N.W. 207; Worden v. Assiff, 1947, 317 Mich. 436, 27 N.W.2d 46; Wasilewski v. Kowal, 1948, 320 Mich. 473, 31 N.W.2d 697; Missouri: Jacobs v. Brewster, 1945, 354 Mo. 729, 190 S.W.2d 894; Nebr......
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Alstad v. Boyer
...Mich. 327, 215 N.W. 331; but see the following cases of Wilkinson v. Hutzel, 1906, 142 Mich. 674, 106 N.W. 207;Worden v. Assiff, 1947, 317 Mich. 436, 27 N.W.2d 46;Wasilewski v. Kowal, 1948, 320 Mich. 473, 31 N.W.2d 697; Missouri: Jacobs v. Brewster, 1945, 354 Mo. 729, 190 S.W.2d 894; Nebras......