Martin v. Arndt ( 1959 )

Kelly, J.

(dissenting). Plaintiffs filed their bill of complaint in the Saginaw circuit court alleging:

(1) Plaintiffs and defendants are owners of adjacent lots situated in the city of Saginaw;

(2) Defendants asked and received from plaintiffs an oral right or license to use a part of plaintiffs’ property for driveway purposes;

(3) When defendants commenced to make permanent alterations that extended upon plaintiffs’ premises they were notified by plaintiffs that the license and permissive use were revoked, but defendants insisted upon carrying on toward making said permanent alterations.

The court issued a temporary injunction and, after hearing testimony, the trial court, by decree, held that defendants “have met and fulfilled all the requirements necessary to establish title to the aforesaid disputed strip of land by adverse possession.”

Five years elapsed after the decree was entered (June, 1953) before appellants filed a brief in this Court (September, 1958). Appellees filed no protest of delay prior to filing their brief on January 6, 1959.

Plaintiffs and defendants’ lots are each 50 feet wide. The strip in dispute is 23 inches wide at the front lot line, tapering back for a distance of 86 feet 3 inches to a width of 15 inches.

Defendant Otto Arndt became owner of his loin 1915 and plaintiffs of their lot in 1920. The boundary line between these 2 lots is the west line of defendants’ property and the east line of plaintiffs’ property. The front lines are on the north and the rear lot lines are on the south.

The court described plaintiffs and defendants neighborly relationship as follows:

“The plaintiffs and defendants are elderly people who have lived on these adjoining lots as friendly neighbors for the past 30 years or more. Plaintiff, Frederick Martin, is 77 years old; defendant, Otto Arndt, is 70. * * *

“These litigants are substantial, hard-working, law-abiding citizens of solid German stock. No word or dispute of any kind, according to the testimony, seems to have marred their 30 years of good neighborliness until the early summer of 1951, when a dispute over correcting the defendants’ driveway caused some trouble between Mr. Martin’s sons and defendant, Otto Arndt. This resulted in the calling of the police and shortly thereafter the filing of this suit, with temporary restraining order.”

Plaintiff Frederick Martin testified that he purchased his property in April, 1920, but had moved into the house thereon in January, 1920, having-rented for about 3 months; that there was no garage or driveway on defendants’ property at that time; that defendants built their garage in 1925 and a year or two later defendants tried to purchase a strip of land adjacent to plaintiffs’ easterly lot line to widen their (defendants’) drive and avoid driving on plaintiffs’ lawn; that plaintiffs refused to sell but gave defendants permission to build a curb on .plaintiffs’ property to help keep defendants’ car from going further onto their lawn; defendants built a curb about 4 inches high and when the frost broke it up and it was apparent a 4-inch curb would not protect plaintiffs’ lawn, permission was given to defendants to replace the curb with one 8 inches higher; that defendants used ashes from their furnace as a base for their drive until 1951 when they started construction of a concrete drive, and plaintiff said “Mr. Arndt, no pour concrete on my property;” that when defendant refused, “I told him I wanted him to take the curb out and I didn’t want him to put concrete on my land;” that plaintiffs knew where the property line was because defendant Otto Arndt’s father established that line when plaintiffs purchased their property from him, but plaintiffs had a survey made after the dispute arose about pouring the concrete, which survey confirmed the .boundary line as they understood it; that defendants knew the true lot line as is disclosed by the fact that both a garage and a picket fence were right on the survey stake and established the lot line from the garage back to the rear lot exactly as fixed by the surveyor; that after plaintiffs’ objections to defendants installing the concrete drive, defendants again endeavored to purchase from plaintiffs the strip of land in dispute.

Defendant Otto Arndt testified that the first curb was put in in 1917 and the second curb was put in on top of the first curb ;'that he did not talk to plaintiffs or ask permission to. build the first or second curb because he saw no necessity, believing that the curb was being constructed within his lot line; that “the first curb was not put in to settle any dispute or argument about a boundary line. Now that the surveyor has staked 23 inches beyond, that is the first I ever knew about it,” and all these years he has been claiming property through a mistake of where the actual boundary line was; that the second curb was installed before his garage was built and the garage was built in either 1922, 1923, 1924 or 1925; that plaintiffs wanted the curb removed before the survey was made; that before the curb was built he built concrete fence posts and put a wire fence up (being the same location as the picket fence later placed in rear of garage), which posts were within 1/2 inch of the lot line established by the surveyor, and the concrete posts he installed were at least 20 years old; that the front corner of his garage (northwest’corner) “is probably in about 14 inches from the curb. When I built the curb, I didn’t know that my land did not go that far. * * * I built my garage, according to the roof, with my lot line;” that his garage is about 20 feet in front of the back line of his lot; that he never had a conversation with Martin asking permission to establish the place he was going to build his drive; that he is able and does regularly drive his car into the driveway east of the pole that is now there and placed there by the survey- or; that he has purchased an additional 25 feet on the east side of his house, giving him 75-foot frontage on the street and that there are no buildings or permanent structures in that area and all of that area is available to an approach to his garage in the rear.

The only testimony that would either sustain plaintiffs’ contention that they gave permission to defendants to extend their drive onto plaintiffs’ lot, or to sustain defendants’ position that no such agreement was ever asked for or given, is the testimony of plaintiffs’ son, Julins Martin, a home builder, 47. years of age at time of trial, residing in Saginaw. He testified that he was 14 years old when his parents bought the lot and at that time there was no curb existing; that defendants’ garage was built in 1925 and that the first curb was installed because defendants’ car was cutting ruts into his father’s lawn; that in about 1926, when he was 21 years of age and was driving his first car, he was present and heard a conversation between Mr. Arndt and Mr. Martin; that this conversation was previous to the installation of the first curb. The following questions were asked and answers given by this witness in that regard :

“Q. Tell the court what the conversation was between Mr. Martin and Mr. Otto Arndt.

“A. Mr. Arndt asked permission about putting a curb in along that driveway. He said ‘Mr. Martin, I haven’t got enough room to get in and out of there with my car and if you will give me permission to put the curb on your property, why, it would help me to get a little more space on my driveway.’ ”

The witness further stated that his father gave permission but that the curb, about 2 or 3 inches above the ground and 4 inches wide, did not accomplish the desired results and that, while he knew another curb was built about 2 years later, he was not present when any discussion was had in regard to the second curb.

Two witnesses were called: One to support plaintiffs’ contention that defendants had not constructed the first curb when plaintiffs bought their property, and the other to furnish proof that the curb was in existence in 1920.

Plaintiffs’ witness, Yonke, testified that he was a farmer and lived in Unionville, about 25 to 30 miles from Saginaw; that he is well acquainted with plaintiffs and defendants and friendly with hoth; that as a renter he lived in the hoine next to defendants, which plaintiffs purchased; that he moved out in January, 1920, just before plaintiffs moved in; that up to January, 1920, there never was a driveway or a curb along defendants’ line and that the area between plaintiffs and defendants’ homes was all lawn, which he used to cut by borrowing defendants’ lawn mower.

Defendants called witness Elsie Fettig, who testified that she lived in Saginaw and at one time worked in a photographer’s shop and that exhibit “A” is a picture she took of her mother and Mrs. Arndt on defendants’ porch; that her mother died on August 29, 1920; that the photograph showed a driveway curb existed at the time she took the picture, prior to her mother’s death.

Defendants also introduced a picture of their niece, Margaret Arndt, now married and living in Alaska, showing her as a young girl seated on defendants’ porch, and that a curb existed on the property. Defendant Otto Arndt stated that his niece is now past 34 years of age and that he would say she was 2 or 3 years old at tbe time the picture was taken.

After carefully reviewing the record, we find that the preponderance of the evidence sustained plaintiffs’ contention that defendants had no right to use plaintiffs’ property beyond the permission granted by plaintiffs.

Plaintiffs established they were record titleholders of the strip of ground in dispute and after such proof plaintiffs did not have to prove defendants had not acquired rights by adverse possession, as the burden then rested upon defendants.

In a recent decision, Burns v. Foster (Feb. 1957), 348 Mich 8, this Court established the following principles in a similar case:

(1) The burden of proving adverse possession rests upon the party who alleges it;

(2) A strict construction is applied to the doctrine of adverse possession;

(3) Adverse possession must rest upon clear and positive proof, not upon inference;

(4) Adverse possession must be established by clear and cogent proof of possession that is actual, visible, open, notorious, exclusive, continuous and uninterrupted for the statutory period of 15 years, hostile and under cover of claim of right;

(5) To make good a claim of title by adverse possession, the true owner must have actual knowledge of the hostile claim or the possession must be so open, visible and notorious as to raise presumption of notice to the world that the right of the true owner is invaded intentionally, a mere permissive possession, or one consistent with the title of another, never ripening into a title by adverse possession.

Defendants failed to meet the requirement that they prove adverse possession, and the decree of the trial court is reversed and defendants’ cross bill dismissed. The matter should be remanded to the trial court to issue permanent injunctive relief as prayed in plaintiffs’ bill of complaint.

Decree should be reversed and remanded. Costs to appellants.

Dethmers, C. J., and Carr, J., concurred with Kelly, J.