Opinion
No. 347403
03-19-2020
MARY ANN CURREY, individually and as trustee of the DONALD K. CURREY REVOCABLE LIVING TRUST, Plaintiff/Cross-Defendant-Appellee, v. JASON HAAG, Defendant/Cross-Plaintiff-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Tuscola Circuit Court
LC No. 17-029904-CH Before: M. J. KELLY, P.J., and FORT HOOD and BORRELLO, JJ. PER CURIAM.
Plaintiff, the Donald Currey Revocable Living Trust (the Currey Trust), brought this action for injunctive relief and to quiet title to a strip of land between its property and property owned by defendant, Jason Haag. Haag filed a counterclaim to quiet title in his favor, contending that he had acquired title to the disputed land on the basis of the doctrine of acquiescence. Following a bench trial, the trial court found that Haag had failed to establish that a new boundary line had been established by acquiescence, and the court entered a judgment in favor of the Currey Trust. Haag appeals as of right. We affirm for the reasons stated in this opinion.
I. BASIC FACTS
This case arises out of a boundary dispute between Haag and the Currey Trust. The parties own adjoining parcels of agricultural land, which will be referred to as the Abke Farm and the Currey Farm. The Abke Farm and the Currey Farm share a boundary line running north to south; the boundary line is the western boundary of the Currey Farm and the eastern boundary of the Abke Farm. Between the two farms, running in a north to south direction, there is a band of trees and other brush that is approximately 30 to 35 feet wide. The parties refer to the band of trees as the "tree line" or the "fencerow." There are two gaps in the tree line: one in the north and one in the south. The parties agree that the tree line was treated as the boundary between the properties, but it is undisputed that the actual boundary line runs along the western edge of the tree line.
At trial, the Currey Trust presented evidence that since 1991—and consistent with the 2013 survey identifying the actual boundary line between the properties—it treated the western edge of the tree line as the boundary line between the properties. Mary Ann Currey, the Currey Trust's trustee, testified that she picked grapes and raspberries in the woods, that she "never went on the other side of the tree line," and that she did not farm on the west side of the tree line. She also testified that her family farmed the northern and southern gaps in the tree. She stated that all of the tree line belonged to the Currey Trust. Kenneth Currey, Mary Ann's son, testified that he would plant crops in the gap on the "south end of the woods," and that he would plant to the western edge of the tree line. He did not plant beyond the western edge of the tree line because the western edge of the tree line was the boundary line between the properties. Kenneth added that, on the northern end of the boundary line, he farmed up to an old telephone pole because he believed that the telephone pole was where the boundary line between the properties was located. He also stated that "every year" that his family farmed, they cultivated the northern edge of the property line "a little bit." The Curreys farmed the Currey Farm from 1991 until 2003 or 2004, when the property was leased to Richard Gremel. At trial, Gremel testified that the boundary line was on the western edge of the tree line, so he farmed on the eastern side of the trees. He also stated that he farmed the southern gap in the tree line until 2008.
Mary Ann was impeached with her deposition testimony, which suggested that she believed the eastern edge of the tree line was the boundary line between the properties. Specifically, she was asked whether a line drawn on the eastern edge of the tree line by Haag's lawyer depicted the Currey Farm line, and she stated that it did. However, at trial, she expressed confusion with regard to whether she understood what she was being asked during the deposition. In addition, another photograph from her deposition was admitted at trial, and it included handwritten notations from Mary Ann indicating that she believed that Haag was encroaching on the Currey Trust's property in the northern and southern gaps. Regardless, the trial court could have found that, because Mary Ann was impeached with her deposition testimony, her trial testimony was not credible. However, the court was not required to make that finding and, on the record before this court, it is apparent that the court did not find that Mary Ann's testimony at trial was not credible. It is up to the trial court to make determinations regarding witness credibility. Drew v Cass Co, 299 Mich App 495, 502 n 1; 830 NW2d 832 (2013).
In contrast, Haag presented evidence that prior to 1974, the owners of the Abke Farm treated the eastern edge of the tree line as the boundary between the two properties. Gordon Hoffman testified that his grandparents originally owned Haag's property. He indicated that he "basically grew up" on the Abke Farm, and that as a child he would help his grandfather farm. Hoffman recalled hunting and playing in the tree line when he was a child. Hoffman never saw anyone from the Currey Farm on "this side of the tree line," and he opined that a gravel road on the eastern side of the tree line was the boundary line that the parties observed over the years. Hoffman added that, acting as power of attorney for David Abke, he leased the Abke Farm to Mark Gainforth around 2003 or 2004. Hoffman stated that he told Gainforth to farm along the fencerow and to farm "that gap area." Gainforth did not testify.
The gravel road was installed by Consumers Energy as an access road for a windmill it installed on the Currey Farm. On appeal, Haag suggests that after the 2013 survey by Consumers Energy, the acquiescence in the eastern edge of the tree line as the boundary line continued. The record, however, belies that assertion. Kenneth testified that he wanted the road to be installed on the western boundary of the Currey Farm, but that Consumers Energy did not want to spend the money necessary to remove the trees in the tree line. Mary Ann testified similarly. It is plain that, by attempting to have Consumers Energy remove the trees in the tree line and install the access road along the actual boundary line, Mary Ann and Kenneth were not, in fact, treating the boundary line as being on the eastern edge of the tree line. The mere fact that a dispute over the boundary line did not arise until after Haag purchased the property in 2015, does not mean that they acquiesced in the boundary line prior to 2015, especially in light of their testimony directly showing that they were not treating the boundary line as the eastern edge of the tree line immediately after the survey was completed.
Haag's predecessor in title is actually the David Abke Trust; however, the witnesses referred to David Abke as the owner of the property.
In April 2006, Haag entered into a lease to farm the Abke Farm. Haag testified that he understood the boundary to be a "straight line going on the eastern edge of the woods, the eastern edge of the fencerow, all the way up." He explained that he knew that was the case because "[t]hat's the way it's always been farmed." Haag stated that he would previously farm up to the row of crops on the Currey Farm, and he disputed Kenneth and Gremel's testimony that they would farm the southern gap. Haag testified that doing so was "not practical" because they would be spending more time on a resource than they would get out of it. He added that he had never seen Gremel in that field and that he would have noticed if Gremel had farmed that area.
Haag also presented testimony from Darrin Hartman. Hartman testified that for "at least 20 years" he has hunted in the woods on the Abke Farm. During that time, he never saw anyone from the Currey Farm farming the gap area. Hartman opined that the boundary line between the Currey Farm and the Abke Farm "was the fencerow . . . just because of the line of trees" and because, when Larry Abke was alive, Larry Abke told him that he could put a tree stand "in there."
In addition to the tree line, which is a wooded area, the evidence reflects that there is a significantly sized wooded area in the southern portion of the Abke Farm.
According to Hartman, Larry Abke was David Abke's uncle. According to Hoffman, when his grandfather died in 1974, the Abke Farm was split into three parcels. Larry Abke received the eastern parcel, Hoffman's mother received the middle parcel, and "Dick" received the western parcel. The western parcel is the land that Haag purchased.
Following the bench trial, the trial court found that the Currey Trust was the record owner of the disputed strip of land and that Haag had not proven that the parties had acquiesced to the boundary line being on the eastern edge of the tree line for a 15-year period. The court, therefore, entered a judgment against Haag.
This appeal follows.
II. ACQUIESCENCE
A. STANDARD OF REVIEW
Haag argues that the trial court's legal determinations are inconsistent with Michigan law and that its factual findings are incorrect. Challenges to a trial court's factual findings are reviewed for clear error. Walters v Snyder, 239 Mich App 543, 456; 608 NW2d 97 (2000). "A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire record is left with the definite and firm conviction that a mistake has been committed." Id. This Court reviews de novo a trial court's conclusions of law. Id. The court's decision to quiet title is an equitable decision, which is reviewed de novo. Sackett v Atyeo, 217 Mich App 676, 680; 552 NW2d 536 (1996).
B. ANALYSIS
"[A]cquiescence is established when a preponderance of the evidence establishes that the parties treated a particular boundary line as the property line." Mason v City of Menominee, 282 Mich App 525, 529-530; 766 NW2d 888 (2009) (quotation marks and citation omitted). In Michigan, three theories of acquiescence are recognized: "acquiescence for the statutory period, acquiescence following a dispute and agreement, and acquiescence arising from the intention to deed to a marked boundary." Waisanen v Superior Twp, 305 Mich App 719, 732-733; 854 NW2d 213 (2014). The relevant theory in this case is acquiescence for the statutory period. The statutory period for acquiring property by acquiescence is 15 years. MCL 600.5801(4); Mason, 282 Mich App at 529. A precise line need not be established, and a physical object marking the boundary need not be identified. See Walters, 239 Mich App at 457-458. Additionally, there need not be a historical dispute regarding the boundary line. Mason, 282 Mich App at 529. It is sufficient to establish that there was a mere mistake regarding the actual boundary line. Id. The key is that the mistake regarding the actual boundary line must be a mutual mistake made by both parties. See Walters, 239 Mich App at 457-458 (explaining that although there is not an explicit set of elements necessary to establish acquiescence, the key inquiry is whether the evidence presented establishes that the parties treated a particular boundary line as the property line). See also McGee v Eriksek, 51 Mich App 551, 557; 215 NW2d 571 (1974) (noting that a "unilateral mistake" as to the location of a boundary line does not establish a new boundary under the doctrine of acquiescence). The question of acquiescence becomes relevant "[o]nly when there has been some agreement, whether tacit or overt, as to the location of the boundary[.]" Wood v Denton, 53 Mich App 435, 439-440; 219 NW2d 798 (1974).
On appeal, Haag challenges the following "conclusions of law" and "findings of fact" made by the trial court:
19. In this instance, a viable claim of acquiescence for the statutory period requires [Haag] to demonstrate how his predecessor(s) in title, along with [the Currey Trust or its] predecessor(s) in title, treated some particular boundary line, other than the surveyed line, as the property line dividing the parcels. [Haag] does not provide a definite period of time through which the statutory requirement of 15 years is satisfied.
20. While [Haag] contends that the fence row is indicative of a mutually recognized boundary other than the surveyed boundary line, the fence row is an area of trees touching both parcels that spans up to 30 feet wide and, therefore, does not delineate a particular line which the parties (or their predecessors in title) could have treated as the property line.
21. In any event, the area where [Haag] encroached past the surveyed line is located to the South of the fence row; it is not distinguished by any marker or monument that could definitively effectuate acquiescence for the statutory period by establishing exactly where a newly recognized property line might lie.
22. Although [Haag] argues correctly that a fence or other monument is not a legal requirement for establishing a claim of acquiescence, the existence of some durable structure along the purportedly acquiesced boundary line (typically a fence) would constitute a sound demonstration of exactly where the parties acquiesced in some new, particular line for the statutory period, if any.
23. [Haag] instead suggests that the Eastern-most edge of the fence row should be taken by the Court to extend invisibly and unfixed from North to South along the entire adjoined boundary between the parcels, and that this unfixed line stretches over the disputed area in this matter. The Court does not take this presupposition as a demonstration of the parties having treated a particular boundary line as the property line by a preponderance of the evidence.
24. In sum, [Haag] has not established a claim of acquiescence for the statutory period by a preponderance of the evidence for the following reasons: the time period over which the purported acquiescence occurred is, by the evidence proffered, undetermined with no approximate starting or ending date, and; [Haag] has not demonstrated how his predecessor(s) in title and [the Currey Trust] specifically treated the invisibly extended Eastern-most edge of the fence row as the property line for any period of time.
We first address the allegations of legal error. Haag argues that the court made errors of law by requiring a definite period of 15 years with an approximate starting and ending date and by requiring him to establish definitely and exactly where the acquiesced property line is located. He directs this Court to Paragraphs 21 and 22 of the trial court's opinion as support for his contention that the trial court incorrectly required him to prove the exact location of the acquiesced property line. In doing so, however, he neglects that the court correctly recognized in Paragraphs 22 and 23 of its opinion that there was no requirement that the acquiesced boundary line be delineated by a fence or other monument. Moreover, Haag does not credit the court's finding of fact in Paragraph 24, which demonstrate that the trial court found that Haag had failed to establish by a preponderance of the evidence that the eastern edge of the tree line, extending north to south along the entire boundary line between the two properties, was treated as the property line by the parties for the statutory period. Thus, contrary to Haag's assertions on appeal, we conclude that the court did not apply the law incorrectly because it did not require a precise boundary line be identified by a marker, fence, or other monument. We also are unpersuaded that the trial court made any error of law by requiring Haag to establish a "definite period of time through which the statutory requirement of 15 years is satisfied." As is clear from Mason, 282 Mich App at 529, the party claiming title by acquiescence must establish that there was, in fact, acquiescence to a boundary line for a period of 15 years.
Haag next challenges a number of the court's factual findings. The court found that the area that Haag encroached on was "not marked by marker or monument." Haag encroached in the southern gap area of the tree line. Based on the photographs admitted at trial, it is clear that there is no barrier or other monument, natural or manmade, indicating where the property line is located in the gap areas. Further, the testimony from the witnesses further confirms that the parties treated the edge of the tree line, invisibly extended in an approximately straight line, as the boundary line, with the Curreys and their tenant treating the western edge of the tree line as the boundary and Haag and his predecessors in title treating the eastern edge of the tree line as the boundary. Given that the evidence undisputedly supports the court's finding that there was no marker or monument in the gap area the court did not clearly err by making that finding. Nor did it err by referring to the disputed line in the gap, which was unmarked by any natural or manmade barriers, as an invisible line.
Further, based on the record before this Court, the trial court did not clearly err by finding that Haag had "not demonstrated [by a preponderance of the evidence] how his predecessor(s) in title and [the Currey Trust] specifically treated the invisibly extended Eastern-most edge of the fence row as the property line for any period of time." Nor did the court clearly err by finding that Haag did not establish acquiescence for the statutory period.
To show that there was acquiescence for the statutory period, Haag directs this Court to a Google Earth photograph depicting the property in 1999. He contends that the photograph shows that there were "distinct patterns" of farming on both sides of the tree line. The photograph, however, was taken in March 1999, and there is no testimony supporting an inference that, despite it being winter in Michigan, the parties or their predecessors were farming their respective properties. Moreover, based on our review of the photograph, we are unable to discern readily apparent and distinct patterns of farming on both sides of the tree line.
One of the Google Earth photographs clearly depicts distinct patterns of farming on both sides of the tree line. However, that photograph is dated June 2011, and the testimony reflects that after 2008 until after 2013, no one from the Currey Farm was farming the gaps in the tree line.
Next, Haag asserts that he presented testimony that Hartman hunted on the Abke Farm for a 20-year period and that Hartman recognized the boundary was on the eastern edge of the tree line. Hartman testified in 2018. Therefore, it is reasonable to infer that he hunted on the Abke Farm starting in 1998, which is 20 years earlier. Hartman testified that he believed the boundary line was where the gravel road was located, i.e., on the eastern edge of the tree line. He based his opinion on the fact that he never observed anyone from the Currey side of the property farming in the southern gap in the tree line, and on the fact that he had obtained permission from Larry Abke to hunt in the southern woods on the Abke Farm and to place a tree stand in the tree line around 2007 or 2008. Hartman's testimony allows for a reasonable inference that for a definite period of over 15 years the boundary line was treated as being on the eastern edge of the tree line.
The trial court, however, was not required to find Hartman's testimony credible. Witness credibility is for the trier of fact to resolve. Drew v Cass Co, 299 Mich App 495, 502 n 1; 830 NW2d 832 (2013). This Court will not disturb the trial court's credibility determinations on appeal in the absence of exceptional circumstances. People v Unger, 278 Mich App 210, 232; 749 NW2d 272 (2008). Exceptional circumstances do not exist in this case, especially given that the probative value of Hartman's testimony was diminished by the remainder of his testimony. For instance, Hartman testified that he received permission from Larry Abke to hunt in the disputed area. The record, however, does not allow for an inference that Larry Abke was ever a titled property owner of the Abke Farm. As a result, Hartman's testimony that he knew where the boundary line was based on the permission obtained from a non-property owner is less significant. Moreover, Hartman also testified that he was only on the property on a daily basis from the beginning of October until the end of November for a three and a half hour period for the first 11 years that he had been hunting on the property (i.e. from around 1998 until around 2009), and that thereafter, he was only on the property around 20 to 30 days during the same time period for approximately two hours per day. Finally, during that time period, he was hunting in the southern woods on the Abke Farm; there is nothing to indicate that he consistently had a clear view of the boundary line or that he was present at times when the farmers on the Currey Farm would likely be farming. Given those limitations on when he observed the boundary line and how clearly he could do so, Hartman's testimony does not leave us with a definite and firm conviction that the court made a mistake.
Haag also directs this Court to Hoffman's testimony. Hoffman testified that his grandparents originally owned the Abke Farm, and he clearly testified that he played and hunted in the tree line and was instructed to stay to the west of a fence within the tree line. Haag testified that the fence was on the eastern edge of the tree line. Hoffman stated that the farm was split into three in 1974, with the current Abke Farm being transferred to someone named "Dick." He also testified that from approximately 2003 until 2012, he managed the Abke Farm for David Abke via a power of attorney. Based on that testimony, the court could have reasonably inferred that prior to 1974 and until at least 2012, the owners of the Abke Farm treated the boundary line as being on the eastern edge of the tree line. The court, however, was not required to make that finding. The court was, instead, free to credit testimony from Kenneth that the Curreys treated the western edge of the tree line as the boundary line since 1991, testimony from Kenneth and Mary Ann that they farmed the northern and southern gaps in the tree line from 1991 until 2003 or 2004, and testimony from Gremel that he farmed the southern gap in the tree line until 2008. That testimony would allow the court to find that from 1991 until the date of the trial, the boundary line was treated by the Curreys and their tenant being as on the western edge of the tree line, as opposed to the eastern edge. Thus, deferring to the court's credibility determination, we discern no clear error in the court's finding that Haag did not establish by a preponderance of the evidence that the parties (or their predecessors in title) mutually acquiesced in a boundary line for a 15-year period.
To the extent that Haag may be arguing that between 1974 and 1991 the boundary dispute was resolved in his favor, we note that there has not been any testimony regarding how the Currey Trust's predecessor in title treated the boundary line. The Currey Trust obtained the property from the Farm Credit Bank of St. Paul, however, and it is reasonable to infer that the bank owner did not treat the tree line as the boundary line and instead treated the line described in the property description on the deed as the boundary line. Moreover, there is nothing on the record to indicate how long Farm Credit Bank of St. Paul had title to the property, nor is there evidence sufficient to show that Farm Credit Bank of St. Paul's predecessor in title treated the eastern edge of the tree line as the boundary line as opposed to the line described in the property description of the deed. We note that even undisputed evidence must still satisfy the preponderance-of-the-evidence standard, and in this case, the evidence pre-dating 1991, is, standing alone, insufficient to establish by a preponderance of the evidence that the eastern edge of the property was treated by the parties or their predecessors in title as the boundary line for a 15-year period.
Still, Haag suggests that the existence of a fence within the tree line supports his position that the parties treated the boundary line as the eastern edge of the tree line. At trial, Haag testified that the old fence is on the eastern edge of the tree line, and Hoffman testified that he was told by his grandfather to stay on the west side of the fence. Yet, Mary Ann and Kenneth both testified that they never saw a fence in the tree line. Moreover, the dispute at trial was whether the eastern edge or the western edge of the tree line was the line that the parties treated as the boundary line. Because Haag presented no evidence that the fence was treated by the parties or their predecessors in title as the boundary line for 15 years, the fact that a fence existed has no bearing on the outcome of this case.
Next, Haag suggests that testimony from David Kemp indicates that, within the community, the boundary line was understood to be on the eastern edge of the tree line. Kemp installed drainage tile on the Abke Farm around 2005. His testimony, therefore, is limited to a small period of time. In addition, Kemp's testimony clearly shows that he was unaware of the exact boundary line, and that he installed the title by driving around the property with a truck equipped with GPS. Furthermore, although Kemp's drain tile map, which was admitted at trial, shows that there was tile placed in the gap areas, Mary Ann testified that she gave someone permission to place drain tile on her property. As a result, Kemp's testimony does not actually support an inference that he knew how the parties treated the boundary line between the properties. Instead, it only allows for an inference that he placed tile in the gap area, possibly with Mary Ann's permission, in 2005.
Finally, Haag suggests that there is no testimony supporting the Currey Farm's position from "objective" witnesses. We agree that Mary Ann, Kenneth, and—to an extent—Gremel are not unbiased witnesses. However, the court is allowed to credit the testimony of witnesses that have an interest in the outcome of the proceedings and does not clearly err by crediting testimony that is not "objective."
In sum, having considered the entire record before this Court, we are not left with a definite and firm conviction that the trial court made a mistake by finding that Haag had failed to establish that the parties treated the eastern edge of the tree line as the boundary line for the statutory period of 15 years.
Affirmed. The Currey Trust, as the prevailing party, may tax costs. MCR 7.219(A).
/s/ Michael J. Kelly
/s/ Karen M. Fort Hood
/s/ Stephen L. Borrello