Bachus v. West Traverse Township

Per Curiam.

In August, 1977, plaintiffs, adjoining property owners, filed separate actions to quiet title, under the provisions of MCL 600.2932; MSA 27A.2932, to a parcel of real property which defendant, West Traverse Township, claims by adverse possession. The two actions were consolidated in a single bench trial held in April, 1979. On September 24, 1979, the trial court filed a written opinion finding that defendant township had acquired title by adverse possession. From judgment entered March 17, 1980, declaring defendant township owner of the parcel, plaintiffs appeal of right.

The parcel in question is a strip of land 66 feet (four rods) wide, and 66/100 of a mile long situated on the shore of Lake Michigan approximately five miles north of Harbor Springs. It lies between a scenic gravel road, known both as Lower Shore Drive and Thorne-Swift Memorial Highway on the east and Lake Michigan on the west. Through the center of the parcel runs the section line common to section 32 and section 5. Plaintiffs Bachus are the record titleholders of the southern 33 feet, and plaintiffs Cummings are the record titleholders of the northern 33 feet of said parcel. The township’s claim of adverse title was based on the fact that from 1948 until suit was commenced in 1977, the township had used this strip as a township park and township residents had used the property as an access point to Lake Michigan.

The trial court’s findings of fact in an adverse possession case will not be overturned or modified unless they are clearly erroneous or unless the reviewing court is convinced it would have reached a different result had it occupied the position of the trial court. Rose v Fuller, 21 Mich App 172; 175 NW2d 344 (1970), De Hollander v Holwerda Greenhouses, 45 Mich App 564; 207 NW2d 187 (1973), Caywood v Dep’t of Natural Resources, 71 Mich App 322; 248 NW2d 253 (1976).

The necessary proofs for a successful adverse possession claim have been long established.

"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.” Burns v Foster, 348 Mich 8, 14; 81 NW2d 386 (1957).

Sufficient evidence was submitted to establish defendant’s actual, visible, open, notorious and uninterrupted possession. Some 15 long-time residents, many of whom were former township officers, testified that from 1948 until 1977 the township had placed picnic tables, cook stoves and refuse containers at the site each spring and had removed them in the fall; that cement foundations were provided for the cook stoves; that small signs had been erected in the 1950’s declaring the parcel to be a township park and that the residents of the township referred to the site as a township park.

Nevertheless, it is apparent that the township’s use of the Cummings property lacked the necessary element of exclusiveness. Truman Cummings, Jr., testified that he treated the property as his own private park. He cleaned up the area better than once a month and, when others attempted to camp on the land overnight, he would instruct them to leave. Possession that is concurrent with that of the true owner is never exclusive. Hamilton v Weber, 339 Mich 31, 53-54; 62 NW2d 646 (1954).

Furthermore, the township’s claim to the property was not hostile to that of either of the title owners.

"The term 'hostile’ as employed in the law of adverse possession is a term of art and does not imply ill will. Nor is the claimant required to make express declarations of adverse intent during the prescriptive period. Adverse or hostile use is use inconsistent with the right of the owner, without permission asked or given, use such as would entitle the owner to a cause of action against the intruder.” Mumrow v Riddle, 67 Mich App 693, 698; 242 NW2d 489 (1976).

To the extent that plaintiff Truman Cummings, Jr., intended his portion of the property to be used as a park, defendant’s installation of picnic tables, stoves and refuse containers was not truly hostile to his interest. On the other hand, testimony that the township leveled parts of the land and installed park signs indicate the types of activities that, under the circumstances, would be more likely to lead to action by the true owners.

The deciding factor in our consideration of the element of hostility is that defendant had continually assessed taxes to plaintiffs for the disputed property. These assessments were based on land descriptions which included both the park area and plaintiffs’ adjoining properties.

While the issue is a new one to this jurisdiction, we are convinced that the assessment and collection of ad valorem taxes acts as an emphatic recognition by the assessing governmental unit of private ownership. Levering v City of Tarpon Springs, 92 So 2d 638, 639 (Fla, 1957). Concededly, of the jurisdictions that have taken this view, some consider the payment of property taxes a prerequisite to an adverse possession claim. Dun-nick v Stockgrowers Bank of Marmouth, 191 Neb 370, 373-374; 215 NW2d 93 (1974). Still, even those jurisdictions conclude that the assessment of taxes to the true owner acts as an acknowledgement of ownership; the relevant cases do not limit their reasoning to the fact that the assessing governmental units failed themselves to pay the property taxes. See, e.g, Hamilton v Village of McCall, 90 Idaho 253; 409 P2d 393 (1965), Inhabitants of Town of Island Falls v AKR, Inc, 157 Me 147; 170 A2d 395 (1961).

Defendant contends that while the property descriptions in the assessments included the park area, plaintiffs were not actually taxed for their respective ownership of that land. Our review of the record fails to demonstrate any real evidence to support that claim. While certain testimony indicated that, in other cases, assessment descriptions had extended to the middle of abutting streets without actually taxing for such ownership, it was not established that such action had occurred in this instance.

In any event, the property descriptions contained in the tax assessments, and not the actual amount of tax assessed, serves as recognition of ownership in the person taxed. The property descriptions were such as would have left plaintiffs with the impression that their ownership was conceded by the township.¹ The township’s actions create a strong presumption of plaintiffs’ ownership over that of the township. That presumption was not overcome by the evidence below and, therefore, the necessary element of hostile possession is absent.

We conclude that the lower court was clearly erroneous in finding that defendant had established title through adverse possession. The judgment below is reversed and the case remanded for entry of a judgment quieting title in plaintiffs’ favor.

Reversed and remanded.

1 We mean to make it clear that our decision is not limited to the actual assessment of taxes based on the disputed property. To the extent defendant assessed and collected such taxes its adverse possession claim might best be labeled sheer chutzpah. “Chutzpah” is where a defendant, after being convicted of parricide, begs the mercy of the sentencing court because he is an orphan.