Young v. Thendara, Inc.

Citation328 Mich. 42,43 N.W.2d 58
Decision Date05 June 1950
Docket NumberNo. 21,21
PartiesYOUNG et al. v. THENDARA, Inc., et al.
CourtSupreme Court of Michigan

Harry J. Merritt and N. C. Zack, Pontiac, attorneys for defendants and cross-plaintiffs, appellants.

Harcourt S. Patterson, Pontiac, attorney for plaintiffs and appellees.

Before the Entire Bench.

BOYLES, Chief Justice.

Thirty-three individual plaintiffs filed the bill of complaint in this case, claiming to constitute a class representing all owners of lots in Thendara Park Country Club, a subdivision in Independence township, Oakland county. Their purpose in filing the bill was to establish certain easements claimed by them in the use of the parks, club grounds, et cetera, in said subdivision. The property referred to in the bill includes, inter alia, a golf course, club house, boat house, beach, several parks and a road across one of them. During the hearing, the trial court dismissed the case as to 23 of the plaintiffs, and from such dismissal no question is raised on this appeal. The decree as entered further provides that as to the remaining 10 plaintiffs (5 individuals and their wives), the defendants were permanently restrained from in any way interfering with said plaintiffs' free use of said road, the club grounds, golf course, boat house, docks, aggregating 8 parks in all; and after naming the 10 plaintiffs adds 'in common with other lot owners in Thendara Park Country Club, a subdivision.' The apparent purpose of such addition seems to have been to include all lot owners, together with the 23 individuals as to whom the bill was dismissed, as a class, represented by the 10 individual plaintiffs who who prevailed as the remaining plaintiffs in the case.

The defendants filed a cross bill seeking a finding of fact and law as to each separate parcel of land purchased by the defendants from the State at scavenger sale a decree that said purchase created a new title in the defendants, and that the plaintiffs had no right or interest in said property. From the decree entered as above stated, the defendants appeal.

In 1925 one Wayland D. Stearns and his wife recorded a plat of the Thendara Park Country Club subdivision. There were approximately 1,220 lots, 8 so-called parks, including a golf course (outlot A), club grounds park block 6, club house, boat house, beach, et cetera. The elaborate scheme of a country club subdivision failed and in 1935 a receiver was appointed over the interests of the subdividers. The plattors conveyed their interests to the receiver (with exceptions unimportant here), and on March 3, 1939, the receiver, by order of court, conveyed said interests in the property to a grantee from whom said title became vested in one Kathryn Adams prior to 1940. In the meantime, the taxes for the years 1928 to 1935 had accumulated and become delinquent, as a result of which the park properties involved herein were sold for delinquent taxes in May, 1938, and bid in by the State. The title of the State became absolute November 3, 1939. On that date previous owners and the holders of liens and encumbrances 'ceased to have any more interest in the title to the lands * * * than any stranger to that title.' James A. Welch Co., Inc., v. State Land Office Board, 295 Mich. 85, 294 N.W. 377, 379.

On March 28, 1940, the defendant Thendara, Inc., obtained a quitclaim deed from Kathryn Adams of all her right, title and interest in the property in the subdivision. However, this conveyed no rights to Thendara, Inc., as to any 'park' property which the State had sold for delinquent taxes, the title to said property having become absolute in the State on November 3d of the preceding year. Thereafter the said property was put up for sale by the State land office board at so-called scavenger sale, and in February and March, 1941, Thendara, Inc., purchased club grounds block 6, and amphitheatre park block 9, from the State at said scavenger sale. In July, 1941, defendant N. C. Zack purchased from the State at scavenger sale the remaining parts of the park property in question. In the interim between those dates, section 9 of the State land office board act 1 had been changed by the legislature, to which change reference will be made later.

Plaintiffs introduced in evidence a properly certified copy of the original plat, but otherwise there was no proof of the dedication of streets, parks, et cetera, shown on the plat. Appellants here claim that said dedication cannot be considered, relying on Township of Pontiac v. Featherstone, 319 Mich. 382, 29 N.W.2d 898. However, in view of our conclusion in this case, that question becomes unimportant. In the original plat the plattors dedicated two roads, naming them (not involved here), 'to the use of the public,' and all other streets, walks, parks, and paths 'to the use of the owners of lots in said subdivision.' The gist of plaintiffs' claim here is that the plaintiffs, as a class, representing all owners of lots in the subdivision, have an easement in the parks by reason of the 'use,' namely, the right to use the club house and all of the other parks. Other 'streets, walks, * * * and paths' are not involved.

Plaintiff Denne acquired title to a lot in the subdivision by deed from Stearns, the plattor, in 1928, and later by deed from Thendara, Inc., in July, 1941. Said deeds did not contain any reference to any conveyance of an easement in the parks owned by the plattors, or by the defendants, nor does this record show what disposition has been made of Denne's case, or his claim of an easement, unless it is 'in common with other lot owners.' He is not mentioned by name in the decree. Plaintiffs Frechette and wife obtained their title by assignment of a contract from the original owner of their property who had obtained a contract from the State after the scavenger sale by 'redeeming' it. According to appellants' brief, plaintiffs Tingler and wife, Jewell and wife, and Arnold and wife, obtained deeds from the defendants. But in none of their conveyances did the defendants grant to them any easement or use in the park property here involved. Plaintiff Young and wife obtained a quitclaim deed from Thendara, Inc., on March 18, 1941, and later, in October, 1942, a warranty deed from the same grantor. Their deeds did not include an express grant of any easement in the use of the parks in question. The above-mentioned Frechettes, Tinglers, Jewells, Arnolds and Youngs are the only plaintiffs mentioned by name in the decree enjoining the defendants from interfering with their 'free use' of the parks here involved. Any other owners, if granted any relief by the decree, would have to be considered as 'class owners' under the addition to the above names in the decree 'in common with other lot owners' in the subdivision. The diversity of sources from which titles to lots have been acquired by all other possible lot owners, the doubt as to the title of their grantors at the time their respective rights accrued, shows the impracticability of considering all owners of lots in the subdivision as a class for the purpose of decreeing their individual rights, in the case at bar. See Barker v. Township of Vernon, 63 Mich. 516, 519, 30 N.W. 175.

Plaintiffs claim an easement across club grounds park block 6 by prescription--the right to the use of a road across said park for access to some of plaintiffs' lots. No claim is made of a way of necessity, or by dedication in the plat. But the proofs show that said claimed roadway had not been used by any of the lot owners for 15 years prior to the time when the title of the State to said park block 6 had become absolute on November 3, 1939. At that time any right by adverse possession was extinguished. Grand Rapids Trust Co. v. Doctor, 222 Mich. 248, 192 N.W. 641. Title against the State cannot be acquired by adverse possession. Staub v. Tripp, 248 Mich. 45, 226 N.W. 667. As an additional reason why plaintiffs fail to establish said easement by prescription, the proofs show that said use was by consent of the thenowners of said park block 6, hence the proofs fail to show the necessary adverse user. See Stewart v. Hunt, 303 Mich. 161, 5 N.W.2d 737.

Counsel for appellees in their brief properly refer to their claim of rights of plaintiffs in the parks as easements. There is no claim that the defendant Thendara, Inc., or the defendants Zack have ever conveyed to the plaintiffs any easement to use the parks for any purpose. The proof is to the contrary. The crucial question which confronts plaintiffs is whether their so-called easements, the right to use the parks owned by the defendants, were extinguished when title to the parks became absolute in the State. We conclude they were. When the defendants acquired title from the State at scavenger sale, it was free from the easements claimed by the plaintiffs.

For the purposes of this case, none of the parties make any point in the difference between section 9 of the State land office board act at the time Thendara, Inc., purchased at the scavenger sale before June 19, 1941, and the time when the defendants Zack purchased the remainder of the property after that date. Section 9 of the act in effect in February, 1941, provided: 'Any quitclaim deed or deeds executed by the board shall convey title in fee to land vested in the board under the provisions of this act, free from any encumbrances, except as herein otherwise provided.' P.A.1937, No. 155.

As amended by P.A.1941, No. 363, effective June 19, 1941, it provides: 'Any quitclaim deed or deeds executed by the board or department shall convey title in fee to land under the provisions of this act, free from any encumbrances, including all taxes and special assessments which were cancelled by the decree pursuant to which the state obtained title, except as herein otherwise provided.'

The exceptions referred to are not claimed to be pertinent here. None of the parties here claim any distinction as to their rights...

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    ...disputes. A Michigan Cases The "convenient administration of justice" requirement was first applied by the Court in Young v. Thendara, Inc., 328 Mich. 42, 43 N.W.2d 58 (1950). The plaintiffs were attempting to sue the defendant on behalf of themselves and all other lot owners in a subdivisi......
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