Killips v. Mannisto

624 N.W.2d 224 (2001) 244 Mich. App. 256 Rod KILLIPS and Stephanie Killips, Plaintiffs/Counter-Defendants-Appellees, v. Rita M. MANNISTO, Defendant/Counter-Plaintiff-Appellant. Docket No. 223089. Court of Appeals of Michigan. Submitted October 10, 2000, at Marquette. Decided January 5, 2001, at 9:00 a.m. Released for Publication March 22, 2001. *225 D. Robb Ferguson, Munising, for the plaintiffs. Richard M. Graybill, Ishpeming, for the defendant. Before GRIBBS, P.J., and MICHAEL J. KELLY and HOEKSTRA, JJ. GRIBBS, Presiding Judge. This action arises out of a dispute over a triangular strip of land situated between the lots of two neighbors that has been used since approximately 1975 as a portion of plaintiffs' driveway but is in fact titled in defendant's name. Defendant appeals as of right from the circuit court judgment granting plaintiffs the right to use the triangular strip of defendant's property pursuant to theories of prescription or acquiescence. We affirm. On appeal, defendant argues that the trial court impermissibly shifted the burden of proof. There is no merit to this claim. The case cited by the trial court, Widmayer v. Leonard, 422 Mich. 280, 290, 373 N.W.2d 538 (1985), clearly states that the burden of proof remains on the plaintiff during the trial. The trial court correctly noted that the burden of going forward with evidence shifts to defendant once plaintiff has made a sufficient showing, but there is nothing in the record to suggest that the trial court misunderstood the appropriate burden of proof. Defendant also argues that the trial court erred in ruling that plaintiffs had acquired rights to use the triangular strip. We do not agree. Actions to quiet title are equitable; therefore, the trial court's holdings are reviewed de novo. Gorte v. Dep't of Transportation, 202 Mich.App. 161, 165, 507 N.W.2d 797 (1993). The factual findings of the trial court are reviewed for clear error. Grand Rapids v. Green, 187 Mich.App. 131, 135-136, 466 N.W.2d 388 (1991). An easement is a right to use the land of another for a specific purpose. Bowen v. Buck & Fur Hunting Club, 217 Mich.App. 191, 192, 550 N.W.2d 850 (1996). An easement by prescription arises from a use of the servient estate that is open, notorious, adverse, and continuous for a period of fifteen years. Goodall v. Whitefish *226 Hunting Club, 208 Mich.App. 642, 645, 528 N.W.2d 221 (1995); Dyer v. Thurston, 32 Mich.App. 341, 343, 188 N.W.2d 633 (1971). A party may "tack" on the possessory periods of predecessors in interest to achieve this fifteen-year period by showing privity of estate. Dubois v. Karazin, 315 Mich. 598, 605-606, 24 N.W.2d 414 (1946); Connelly v. Buckingham, 136 Mich.App. 462, 474, 357 N.W.2d 70 (1984). This privity may be shown in one of two ways, by (1) including a description of the disputed acreage in the deed, Arduino v. Detroit, 249 Mich. 382, 384, 228 N.W. 694 (1930), or (2) an actual transfer or conveyance of possession of the disputed acreage by parol statements made at the time of conveyance. Sheldon v. Michigan Central R Co., 161 Mich. 503, 509-510, 126 N.W. 1056 (1910); Gregory v. Thorrez, 277 Mich. 197, 201, 269 N.W. 142 (1936). Here, plaintiffs can show privity to at least 1975, when defendant conveyed an easement to the property's former owner. The right to use the disputed strip was reconveyed in 1986 to plaintiff's predecessor-owner by way of a quitclaim deed. Defendant raised no objection to the use until the late 1990s. Contrary to defendant's implication, the term "hostile" is a term of art and does not imply ill will. Instead, "hostile" merely means a use that is inconsistent with the rights of an owner. Plymouth Canton Community Crier, Inc. v. Prose, 242 Mich.App. 676, 619 N.W.2d 725 (2000); Mumrow v. Riddle, 67 Mich.App. 693, 698, 242 N.W.2d 489 (1976). Defendant was aware that the driveway was on her property throughout the entire course of its use. The trial court did not err in finding that plaintiffs had acquired a prescriptive use of the property. Id. The doctrine of acquiescence provides that where adjoining property owners acquiesce to a boundary line for at least fifteen years, that line becomes the actual boundary line. West Michigan Dock & Market Corp. v. Lakeland Investments, 210 Mich.App. 505, 511, 534 N.W.2d 212 (1995); McQueen v. Black, 168 Mich.App. 641, 644, 425 N.W.2d 203 (1988). The underlying reason for the rule of acquiescence is the promotion of peaceful resolution of boundary disputes. Shields v. Collins, 83 Mich.App. 268, 271-272, 268 N.W.2d 371 (1978). The proper standard applicable to a claim of acquiescence is proof by a preponderance of the evidence. Walters v. Snyder, 239 Mich.App. 453, 455, 608 N.W.2d 97 (2000). This is less stringent than the clear and cogent evidence standard used in adverse possession and prescriptive easement cases. Id.; McQueen, supra at 645, n. 2, 425 N.W.2d 203. Unlike a claim based on adverse possession, an assertion of acquiescence does not require that the possession be hostile or without permission. Walters, supra at 456-457, 608 N.W.2d 97. The acquiescence of predecessors in title can be tacked onto that of the parties in order to establish the mandated period of fifteen years. Jackson v. Deemar, 373 Mich. 22, 26, 127 N.W.2d 856 (1964). In Siegel v. Renkiewicz' Estate, 373 Mich. 421, 426, 129 N.W.2d 876 (1964), our Supreme Court stated that no proof of a parol transfer is needed to establish tacking. Here, plaintiffs and their predecessors actively used the driveway since approximately 1975. During that time defendant did nothing to stop the usage, despite her belief that the original easement had terminated. In fact, defendant approached her neighbor in 1982 about moving the driveway and the neighbor asserted that the right to use the driveway was permanent. From 1982 forward, defendant did nothing to stop plaintiffs or their predecessors from using the driveway. While defendant marked the boundary with markers, these survey stakes did not block the driveway or otherwise interfere with plaintiffs' use. Plaintiffs and their predecessors used and apparently maintained the driveway during this entire post-1982 period. The trial court did not *227 err in finding that plaintiffs had acquired the property by acquiescence. Finally, defendant announces without explanation that plaintiffs increased the burden on the servient estate when they blacktopped the driveway. We find this claim meritless. One who holds an easement by prescription is allowed to do such acts as are necessary to make effective the enjoyment of the easement, and the scope of this privilege is determined largely by what is reasonable under the circumstances. Mumrow, supra at 699, 242 N.W.2d 489. Defendant has done nothing to explain why it was unreasonable for plaintiffs to blacktop the gravel driveway. Affirmed. MICHAEL J. KELLY, J., concurs. HOEKSTRA, J., (dissenting). I respectfully dissent from the majority opinion because I conclude that acquiescence is not applicable to this case and that plaintiffs did not establish the hostile use element of a prescriptive easement. Turning first to acquiescence, I agree with the majority when it states that acquiescence is a doctrine of property law that is applicable to boundary line disputes and that the reason for the rule is to promote peaceful resolution of boundary line disputes. What the trial court and the majority fail to acknowledge is that this case is not a boundary line dispute. The parties here are not litigating where the line between their property lies; rather, they are arguing about whether plaintiff can use for a driveway a triangular strip of land that is on defendant's side of the established boundary. Accordingly, acquiescence is not available to assist the parties in resolving their dispute. Indeed, plaintiffs must have recognized the inapplicability of acquiescence because they did not plead acquiescence in their complaint, nor did they argue it in their trial brief. With regard to plaintiffs' prescriptive easement claim, this case turns on whether plaintiffs' use of the disputed property was legally hostile. The trial court found that from the date plaintiffs purchased the property until defendant attempted to assert her exclusive ownership interest over it, plaintiffs used the disputed land as part of their driveway under the mistaken belief that an easement existed that permitted that use by them. Unlike the majority, I believe that use based upon a perceived, but ultimately mistaken belief that it was lawful, is inconsistent with legal hostility. Plaintiffs' belief that an easement existed and that therefore their use was lawful is tantamount to use by permission, which can never result in a prescriptive easement. West Michigan Dock & Market Corp. v. Lakeland Investments, 210 Mich.App. 505, 511, 534 N.W.2d 212 (1995).