Bell v. Reed , 199 Mich. 35 ( 1917 )

Brooke, J.

(after staling the fads). The first 17 assignments are predicated upon alleged errors in the admission or exclusion of testimony. In our view of the case these assignments require no discussion.

The 18th assignment is based upon the findings of fact and of law by the court below. We are well satisfied that the defendants took by their conveyance from the plaintiffs title in fee simple to an undivided one-sixteenth interest in the water frontage. We are equally well satisfied that defendants could make a conveyance of lot 10 and retain title to said one-sixteenth interest. The purchaser from defendants of lot 10 acquired no interest in the lake frontage, and the deed from plaintiffs to defendants contains no Iimitations upon the right of defendants to convey the lot without likewise conveying the undivided one-sixteenth interest- in the lake frontage. It is difficult to understand exactly what is meant by the language used in reference to the undivided one-sixteenth, “to be used as a private common with the other owners of the lots of said first parcel.” We have been unable to find any legal definition of the words, “private common,” and the diligence of counsel has failed to aid us in this respect. In the light of all the circumstances surrounding this case, the acts of the owners of the parcel in so dividing it as to give each lot owner a building site away from the lake, a right of way to the lake, and an undivided one-sixteenth interest in the lake frontage, it would seem to have been the intention of the owners to give to each lot purchaser an equal right to beneficially use the frontage for such purposes as lake frontage in that vicinity is ordinarily used. If the erection of small boathouses upon the frontage by the owners of the lots is a beneficial use of the property consistent with the character of the surroundings, it would seem that the erection of such a boathouse by the defendants would not be in contravention of the terms of the grant.

But it is contended on behalf of plaintiffs that defendants are, at most, tenants in common of said lake frontage, and as such tenants in common they have no right to appropriate any aliquot part thereof to their own use and to exclude therefrom their co-tenants. As an abstract legal proposition, this position is undoubtedly sound, but we do not think it controlling in the case under consideration. It appears undisputed in the record that the value of each of the 16 lots was less than the value of the undivided one-sixteenth of the lake frontage. It further appears undisputed that, while the plaintiffs were the owners of fifteen-sixteenths of the undivided parcel, they, through their agent, consented to the erection of a boathouse where it now stands by the defendants. Based upon this fact, defendants contend that the parties, then in interest orally agreed to a partition of the lands held by them in common, and that, at least to the extent of the lands covered by the boathouse, the agreement for partition having been executed by the building of the boathouse, plaintiffs cannot now question defendants’ title thereto. Upon this point defendants cite us to section 464, Gates’ Michigan Real Property, where it is said:

“Moreover, in several instances a parol partition followed by either long possession or by valuable improvements, has been held to be conclusive upon the parties” — citing Joyce v. Williams, 26 Mich. 332, and Cronin, v. Gore, 38 Mich. 381.

An examination of these cases, will demonstrate that upon the facts they are readily distinguishable from ■the case at bar, but if the acts of the parties in interest at the time the defendants’ boathouse was erected, where it now stands, do not amount to an oral agreement to partition the lands, held in common, now performed by the defendants, they still constitute a sufficient license from one cotenant to his fellow cotenant to warrant the erection of the structure. The record shows no revocation of said license, and until it is revoked we are of opinion that defendant may justly maintain his boathouse where it stands. See volume 25, Cyc. p. 647, where it is said:

“According to the better opinion, however, where nothing more than a mere oral license appears, it is' revocable at the will of the licensor, whatever expenditures the licensee may have made, provided the licensee has reasonable notice and opportunity to remove his fixtures and improvements. To hold otherwise would be to override the statute of frauds and convert an executed license into an estate in land, which is going a greater length than equity ever went under the doctrine of part performance.”

Cases from many jurisdictions are cited in support of the. above, including Hitchens v. Shaller, 32 Mich. 496, and Nowlin Lumber Co. v. Wilson, 119 Mich. 406 (78 N. W. 338). There is no doubt that, in the absence of said license, the exclusive occupation by the defendants of any, even the smallest portion, of the property held in common, would operate as to the co-tenants of defendants as an ouster and would justify the bringing of ejectment. In this view of the case, defendants, upon proper notice, would be obliged to vacate the lands now covered by their boathouse, and neither they nor any of their cotenants could erect anything upon the water front, and thus the very purpose of the conveyance of the undivided interest there would, it seems to us, be defeated. That, however, would be the position of the parties according to their strict legal rights. As the matter stands upon this record, we think the conclusion of the trial court that plaintiff had failed to make out a case for relief was proper.

The judgment is affirmed.,

Kuhn, C. J., and Stone, Ostrander, Bird, Moore, Steere, and Brooke, JJ., concurred.