Taggart v. Tiska

619 N.W.2d 731 (2000) 242 Mich. App. 688

David P. TAGGART and Bonnie J. Taggart, Plaintiffs/Counter Defendants—Appellants,
v.
Terry L. TISKA, Defendant/Counter Plaintiff—Appellee, and
JAK Construction, Inc., Defendant/Counter Plaintiff/Third Party Plaintiff-Appellee, and
Keith Smith, Defendant-Appellee, and
St. Clair Title Insurance and Stewart Title Guaranty Company, Third Party Defendants-Not Participating.

Docket No. 219498.

Court of Appeals of Michigan.

Submitted September 6, 2000, at Detroit. Decided October 6, 2000, at 9:00 a.m. Released for Publication December 8, 2000.

John J. Jarzyna, Ray, for the plaintiffs.

Feikens, Stevens, Kennedy & Galbraith, P.C. (by Robert H. Feikens), Detroit, for Terry L. Tiska.

Ogne, Alberts & Stuart, P.C. (by John M. Conway and Michael A. Ross), Troy, for JAK Construction, Inc., and Keith Smith.

Before: MARK J. CAVANAGH, P.J., and SAAD and METER, JJ.

PER CURIAM.

Plaintiffs, Davis P. and Bonnie J. Taggart, appeal as of right from the summary disposition of their adverse possession claim pursuant to MCR 2.116(C)(7), (8), and (10). The trial court ruled that plaintiffs' action was barred by the one-year period of limitation for filing claims after a possessor of property has been ousted. MCL 600.5868; MSA 27A.5868. We affirm.

Plaintiffs own a home and lot located at 9055 Stone Road (the 9055 property). Defendant Terry L. Tiska owns a home and lot adjacent to the 9055 property on a parcel known as 9057 Stone Road (the 9057 property). Plaintiffs claim that since 1980 they have treated a line of trees as the boundary line of the 9055 property. However, a survey shows that this line of trees is not the lot line and that the line of trees is actually within the boundary line of the 9057 property. The plaintiffs claimed the triangular strip of land between the line of trees and the actual lot line by adverse possession.

On appeal, plaintiffs aver that the trial court erred in summarily disposing of their adverse possession claim pursuant to the one-year period of limitation provided in M.C.L. § 600.5868; MSA 27A.5868. The trial court's grant of summary disposition is reviewed de novo. Smith v. Globe Life Ins. Co., 460 Mich. 446, 454-455, 597 N.W.2d 28 (1999). Whether a cause of action is barred by the statute of limitation, and therefore subject to summary disposition pursuant to MCR 2.116(C)(7), is a question of law that is reviewed de novo. McKiney v. Clayman, 237 Mich.App. 198, 201, 602 N.W.2d 612 (1999). We conclude that the trial court did not err in ruling that plaintiffs' action was time-barred by M.C.L. § 600.5868; MSA 27A.5868 because they failed to seek recovery of the disputed strip within one year of their ouster.

The trial court relied on M.C.L. § 600.5868; MSA 27A.5868 to dispose of plaintiffs' action as untimely. It provides:

No person shall be deemed to have been in possession of any lands, within the meaning of this chapter merely by reason of having made an entry thereon, unless he continues in open and peaceable possession of the premises for at least 1 year next after such entry, or unless an action is commenced upon such entry and seisin, within 1 year after he is ousted or dispossessed of the premises.

The primary purpose of statutory interpretation is to ascertain and effectuate the intent of the Legislature. Frankenmuth Mut. Ins. Co. v. Marlette Homes, Inc., 456 Mich. 511, 515, 573 N.W.2d 611 (1998). When determining the intent of the Legislature, this Court must first look to the specific language of the statute. People v. Borchard-Ruhland, 460 Mich. 278, 284, 597 N.W.2d 1 (1999). If the plain and ordinary meaning of the statute's language is clear, judicial construction is inappropriate. Id. However, if reasonable minds can differ regarding the statute's meaning, judicial construction is appropriate. Adrian School Dist. v. Michigan Public School Employees' Retirement System, 458 Mich. 326, 332, 582 N.W.2d 767 (1998).

We note that in this case the statute's wording causes its meaning and intended application to be less than perfectly clear, and we urge the Legislature to revisit and clarify this provision. However, this section is contained in the portion of the Revised Judicature Act governing the limitation of actions and it is well established that a plaintiff who is aware of his right to bring a cause of action may not sit idly by and later bring an untimely suit. Therefore, in light of the intent of the Legislature to generally limit untimely actions, and the language of the statute at issue in this case, we conclude that the statute requires an action for recovery of property to be commenced within one year after a person has reentered the property after being ousted.

Here, actions in November 1996 by defendant JAK Construction, Inc., Tiska's predecessor in title, of clearing some of the 9057 property and digging a trench through the disputed strip had disseised and ousted plaintiffs of the strip, thereby requiring plaintiffs to file suit for recovery within one year pursuant to M.C.L. § 600.5868; MSA 27A.5868. Further, plaintiffs reentered the strip by immediately continuing to use the portions of the strip not affected by the trenching. Therefore, pursuant to statute, plaintiffs were obligated to file their action within one year of their November 1996 ouster and reentry. The trial court did not err in ruling that plaintiffs' action was time-barred by M.C.L. § 600.5868; MSA 27A.5868.^[1]

Affirmed.

NOTES

[1] We note plaintiffs' frequent reference to their action as one claiming that they acquired ownership to the disputed strip pursuant to acquiescence. While plaintiffs' motion to amend their complaint to add a claim of acquiescence was granted, no amended complaint was ever filed.