Kettunen v. Torreano , 59 Mich. App. 652 ( 1975 )

59 Mich. App. 652 (1975) 230 N.W.2d 14

KETTUNEN
v.
TORREANO

Docket No. 20953.

Michigan Court of Appeals.

Decided March 13, 1975.

Wisti & Jaaskelainen (by James E. Kliber), for plaintiff.

Garfield H. Wood, for defendants.

Before: BRONSON, P.J., and M.F. CAVANAGH and D.F. WALSH, JJ.

Leave to appeal denied, 394 Mich. 791.

PER CURIAM.

This appeal arises from a boundary-line dispute between adjacent owners of land on Lake George in Baraga County. Suit was commenced in September, 1970 by plaintiff-appellant to quiet title to the property at issue and the case presented on trial depositions and exhibits. The court's judgment, entered on October 13, 1971, found plaintiff's proofs insufficient to establish a claim of adverse possession and fixed the boundary line between the parties. From a denial of her motion for new trial plaintiff appeals.

A recital of the factual-historical background of this dispute is unnecessary as we find the instant facts controlled by Warner v Noble, 286 Mich. 654; 282 N.W. 855 (1938). At page 660, the Court stated:

"There was no claim by either party that they owned anything except the lots mentioned and described in their respective deeds according to the recorded plat thereof. There was no claim and no intention to claim upon the part of either party anything except the lots and premises which they had acquired by deed and to assert title to the true line between the premises.

"Where the possession is up to a fixed boundary under a mistake as to the true line and the intention of the parties is to hold only to the true line, such possession is not hostile, and will not ripen into title, 2 C.J.S. pp. 519, 632; and where the element of hostility is absent, there can be no adverse title acquired. 2 C.J.S. p. 568. Nor is possession which is permissive adverse possession. 2 C.J.S. p. 624. The possession must be actual, visible, open, notorious, exclusive, continuous, uninterrupted for the statutory period, hostile, and under cover of claim of right. 2 C.J.S. p. 520."

See also Cooley v Marx, 17 Mich. App. 470; 169 NW2d 655 (1969). So, in this cause, each party claims only that property to which each is the title owner. Their dispute goes only to the proper dividing line between the parcels.

The trial court has established what the proper boundary line is and has not erred in so doing. We find no error in the remaining allegations of appellant.

Affirmed. Defendant may tax costs.