Opinion
No. 333793
10-17-2017
ANN SWAYZE and ERIC SWAYZE, Plaintiffs/Counter-Defendants-Appellants, v. KENNETH MCNAMEE and TRUDEY MCNAMEE, Defendants/Counter-Plaintiffs-Appellees.
UNPUBLISHED Cheboygan Circuit Court
LC No. 15-008513-CH Before: BOONSTRA, P.J., and METER and GADOLA, JJ. PER CURIAM.
Plaintiffs appeal by right the trial court's order, following a bench trial, quieting title in favor of defendants and rejecting plaintiffs' claim of adverse possession. We affirm.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
The parties own adjacent beachfront properties on Burt Lake. Plaintiff Ann Swayze was married to Clark Swayze, who passed away in June 2008. The Swayzes acquired the deed to their property in 1984 after paying off a land contract entered into in 1971 with the property's former owners. Their son, plaintiff Eric Swayze, became a co-owner of the property upon Clark Swayze's death.
Defendants Ken and Trudey McNamee acquired their neighboring property, which lies immediately to the north of plaintiffs' property, in 1996. The deed for defendants' property encompasses the disputed area, a triangular parcel with frontage on Burt Lake.
Since plaintiffs acquired their property in 1971, they have used the disputed area for picnicking, swimming, sunbathing, placing dinghies, and launching boats. Plaintiffs' use of the disputed area increased after the construction of their permanent home was completed in 1973; they testified that they used the disputed area for placing and tying up boats, storing rafts and boat hoists, accessing a "beach house" (which they had moved to a location adjacent to the disputed area in 1977 and used to store water skis, life jackets, beach chairs, sailboat anchors, buoys, horseshoe accessories, a motor, and fishing tackle), accessing a boat house adjacent to the disputed area, throwing parties, and playing various games, including horseshoes and miniature golf. Over the years, plaintiffs maintained the disputed area by raking it, and by pruning and protecting the birch tree located on or near a north corner of the disputed area. Plaintiffs used the disputed area whenever they were at their property, which was on weekends and holidays every year from April to October. Since acquiring their property, plaintiffs have, according to their own testimony, sought to purchase the disputed area both from defendants and from every previous owner of defendants' property. In October 2002, plaintiffs made an offer to defendants to "swap" for or to purchase a portion of defendants' property that included the disputed area.
Defendants use their property at least once a month throughout the entire year. There was testimony that since acquiring their property in 1996, defendants have used the disputed area for walking, training dogs, swimming, playing various games, ice skating, and accessing the frozen lake with snowmobiles in the winter. Defendants claimed that they maintained the disputed area by raking it and cleaning it after Easter, and by blowing leaves off of it in the fall. Defendants testified that they had given plaintiffs permission to use the disputed area for various purposes on numerous occasions.
The parties' dispute arose in June 2014 when defendants erected a new seawall that extended across part of the disputed area. On July 13, 2014, Ann Swayze sent an email to defendants indicating that she believed that her family had the right to use the disputed area up to the birch tree, and that she was upset and dissatisfied that defendants' seawall was being extended across the disputed area that her family had used for over 40 years. Defendants did not remove the seawall.
Plaintiffs filed an action to quiet title based on adverse possession. After a bench trial, the trial court determined that plaintiffs had failed to prove their claim of ownership of the disputed area by adverse possession. The trial court first held that plaintiffs' use of the disputed area after 1996 was permissive. The trial court further held that plaintiffs' October 14, 2002 offer to purchase or swap for the disputed area constituted recognition by plaintiffs that defendants had superior title to the disputed area, thereby destroying the adverse character of plaintiffs' use of it. The trial court then held that plaintiffs had also failed to prove that they adversely possessed the disputed area before defendants' acquisition of their property in 1996, stating that many of plaintiffs' activities were "not the type of activities, considering the nature of this property, that would alert the owners of the property that the [plaintiffs] were claiming ownership." The trial court also concluded that because plaintiffs had tried to purchase the disputed area from every prior owner of the defendants' property, they recognized that the prior owners had superior title, thereby destroying the adverse character of plaintiffs' use of the disputed area.
This appeal followed.
II. STANDARD OF REVIEW
We review de novo a trial court's decision in an equitable action such as actions to quiet title. Beach v Township of Lima, 489 Mich 99, 106; 802 NW2d 1 (2011). We review the trial court's factual findings at a bench trial for clear error. McFerren v B & B Inv Group, 253 Mich App 517, 522; 655 NW2d 779 (2002).
III. ANALYSIS
Plaintiffs argue that the trial court erred when it determined that plaintiffs had not established adverse possession of the disputed area before defendants' purchase of the property, or in the alternative that it erred when it determined that plaintiffs had not established adverse possession by their use of the property since 1996. We disagree.
"To establish adverse possession, the claimant must show that its possession is actual, visible, open, notorious, exclusive, hostile, under cover of claim or right, and continuous and uninterrupted for the statutory period of fifteen years." West Michigan Dock & Market Corp v Lakeland Investments, 210 Mich App 505, 511; 534 NW2d 212 (1995). The party claiming adverse possession must establish the elements of adverse possession by clear and cogent evidence. McQueen v Black, 168 Mich App 641, 645; 425 NW2d 203 (1988). "Determination of what acts or uses are sufficient to constitute adverse possession depends upon the facts in each case and to a large extent upon the character of the premises." Burns v Foster, 348 Mich 8, 14; 81 NW2d 386 (1957). "[T]here is a presumption that land is possessed by the owner of record unless it is shown to be otherwise." Kipka v Fountain, 198 Mich App 435, 440; 499 NW2d 363 (1993). Further, "[t]he 15-year period begins when the rightful owner has been disseised of the land." Canjar v Cole, 283 Mich App 723, 731; 770 NW2d 449 (2009). "Disseisin occurs when the true owner is deprived of possession or displaced by someone exercising the powers and privileges of ownership." Kipka, 198 Mich App at 439.
To establish adverse possession, possession and use of the disputed area must have been adverse or hostile, under cover of claim or right. See West Michigan Dock & Market Corp, 210 Mich App at 511. "The belief or knowledge of the adverse claimant is not as important as his intentions. The intention is the controlling consideration and it is not the knowledge or belief that another has a superior title, but the recognition of that title that destroys the adverse character of possession." Smith v Feneley, 240 Mich 439, 441; 215 NW 353 (1927) (emphasis added).
Plaintiffs first argue that they established title to the disputed area by adverse possession before defendants acquired their neighboring property in 1996 and that their title to the disputed area vested in 1986. However, by their own admission, plaintiffs repeatedly tried to purchase the disputed area from every prior owner of defendants' property. These offers to purchase the disputed area from defendants' predecessors in title indicate that plaintiffs recognized that their neighbors possessed superior title to the disputed area, thereby destroying the adverse character of plaintiff's use of the property. See Smith, 240 Mich at 441. Therefore, because plaintiffs could not have intended to occupy the disputed area as their own under cover of claim or right while also recognizing that their neighbors had superior title to it, plaintiffs failed to satisfy the adverse or hostile element of adverse possession. West Michigan Dock & Market Corp, 210 Mich App at 511.
Plaintiffs also argue that they established title to the disputed area by adverse possession after defendants acquired their property in 1996. However, there was no clear error in the trial court's finding that plaintiffs' use of the disputed area after 1996 was permissive. Because permissive use cannot be adverse or hostile, and there was evidence that defendants had granted plaintiffs permission to use the disputed area on multiple occasions, there was support for the finding that plaintiffs' use was not adverse or hostile. "Mutual use or occupation of property with the owner's permission is insufficient to establish adverse possession." West Michigan Dock & Market Corp, 210 Mich App at 511. "Peaceable occupation or use by acquiescence or permission of the owner cannot ripen into title by adverse possession, no matter how long maintained. Hostility is of the very essence of adverse possession." King v Battle Creek Box Co, 235 Mich 24, 35; 209 NW 133 (1926).
Based on the record, the trial court also could have properly found that plaintiff's use of the disputed area was not exclusive. Defendants testified that they also used and possessed the disputed area during the same time period, and plaintiffs' use therefore could have been found to have been concurrent with defendants' use. "Possession concurrent with that of the true owner [is never] exclusive." Le Roy v Collins, 176 Mich 465, 475; 142 NW 842 (1913).
Further, even if plaintiffs' use of the disputed area was not permissive, their October 14, 2002 offer to purchase or swap for 100 additional feet of defendants' property amounted to recognition by plaintiffs that defendants had superior title to the disputed area. See Smith, 240 Mich at 441. Plaintiffs argue that the offer to purchase did not amount to recognition of superior title because the offer was not solely for the disputed area, but was instead an offer to acquire 100 additional feet of defendants' property that included the disputed area. We conclude, however, that the offer to purchase 100 feet of land that included the disputed area equally amounted to recognition of superior title by defendants of those 100 feet of property, including the disputed area within it. Because plaintiffs could not have intended to occupy the disputed area as their own under cover of claim or right while also recognizing that defendants had superior title to it, plaintiffs' failed to satisfy the adverse or hostile element of their claim of adverse possession. See Smith, 240 Mich at 441; West Michigan Dock & Market Corp, 210 Mich App at 511.
Even if plaintiffs had immediately begun to adversely possess the disputed area following the October 2002 offer, the 15-year statutory period would not have run by the time the quiet title action was filed in the trial court. Canjar, 283 Mich App at 731. --------
Affirmed.
/s/ Mark T. Boonstra
/s/ Patrick M. Meter
/s/ Michael F. Gadola