Jan Vansteenhouse v. Wynne Winslow

STATE OF MICHIGAN
COURT OF APPEALS
JAN VANSTEENHOUSE, UNPUBLISHED
June 28, 2016
Plaintiff/Cross Defendant-Appellee,
v No. 326224
Midland Circuit Court
WYNNE WINSLOW f/k/a WYNNE DOWNING, LC No. 12-008936-CH
Defendant/Cross Plaintiff-
Appellant.
and
TOWNSHIP OF HOPE,
Defendant.
Before: MARKEY, P.J., and OWENS and BOONSTRA, JJ.
PER CURIAM.
Defendant appeals by right the trial court’s judgment in favor of plaintiff on her claim of
acquiescence and her claim that defendant Wynne Winslow (defendant) violated deed
restrictions. The trial court also ruled in plaintiff’s favor on defendant’s counterclaims for
nuisance, harassment, and trespass. We affirm.
I. FACTS
The parties dispute the location of the boundary line between lots 66 and 67 of the
Lagoon Beach Subdivision. In 2001, defendant purchased lots 65, 66, and 67, and she lived in a
house located on lots 65 and 66. Lot 67 is east of, and adjacent to, lot 66. In 2005, defendant
sold lots 65 and 66 to plaintiff but retained lot 67 for herself.
Before closing on the sale, defendant walked the lot with plaintiff, showing her the
boundary lines, including the now relevant boundary line between lots 66 and 67. Plaintiff
testified that defendant pointed out a “candy-cane” shaped rod in the ground near the lake.
Plaintiff explained that defendant indicated that this rod, along with another marker near the
road, marked the property line between lots 66 and 67. According to plaintiff, the candy-cane
shaped rod was located just east of a large tree. Defendant agreed that she showed plaintiff the
boundary line between the two properties, but she further contends that she identified a marker
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that is west of the large tree. This lawsuit was incited by a fence plaintiff built along what she
believed to be the boundary line between the parties’ properties. Years earlier, defendant had
objected to the presence of two trees plaintiff had planted in the disputed area.
Following a bench trial, the court found that “both parties treated the boundary line
created by the ‘candy cane’ metal shaped rod and the stake at the end of the road as the correct
boundary line which is evidenced by their actions.” Noting the “subsequent disputes over the
correct boundary line” and surveys that had been completed in 2008 and 2012, the court
concluded that “there was not a subsequent agreement or acceptance of a new boundary line.”
The court found in favor of plaintiff on her claim of acquiescence.
II. ANALYSIS
A. ACQUIESCENCE AND TRESPASS
Defendant argues that the trial court erred in ruling that plaintiff is entitled to the disputed
land by acquiescence. A trial court’s decision to quiet title is an equitable decision which is
reviewed de novo. Sackett v Atyeo, 217 Mich. App. 676, 680; 552 NW2d 536 (1996). The factual
findings underlying this decision are reviewed for clear error. Id.
There are three theories of acquiescence recognized in Michigan: “acquiescence for the
statutory period, acquiescence following a dispute and agreement, and acquiescence arising from
the intention to deed to a marked boundary.” Waisanen v Superior Twp, 305 Mich. App. 719,
732-733; 854 NW2d 213 (2014). Both parties agree that this case involves the third theory—
acquiescence arising from the intention to deed to a marked boundary. Acquiescence to a
marked boundary occurs when a grantor references a marker and expresses an intent to convey to
that marker. Daley v Gruber, 361 Mich. 358, 363; 104 NW2d 807 (1960); Maes v Olmstead, 247
Mich. 180, 184; 225 N.W. 583 (1929). When the parties designate a boundary on the ground that
is different from the boundary listed in the deed, the designated boundary, if it is a “settled
boundary,” will not be disturbed. Daley, 361 Mich. at 362.
The trial court was faced with contradicting testimony from plaintiff and defendant.
Plaintiff claimed that defendant referred to the candy-cane rod on the east side of the tree when
identifying the boundary line, while defendant claimed she referred to a different spot on the
west side of the tree. The trial court credited plaintiff’s testimony and found that the parties met
in 2005 and fixed the boundary line at the candy-cane rod. Witness credibility is for the trier of
fact to resolve. Drew v Cass Co, 299 Mich. App. 495, 501-501, n 1; 830 NW2d 832 (2013). This
Court will not disturb the trial court’s credibility determinations on appeal in the absence of
exceptional circumstances. People v Unger, 278 Mich. App. 210, 232; 749 NW2d 272 (2008).
Both parties’ actions after plaintiff purchased the property indicated that this was a “settled
boundary.” For example, plaintiff installed erosion stones along the waterline that extended to
the settled boundary line, and she built a deck on the property conforming to the township
setback requirements. Also, there was uncontroverted testimony indicating that defendant placed
a small fence along what plaintiff claims was the settled boundary line.
Accordingly, the settled boundary line became the true boundary line by acquiescence.
Daley, 361 Mich. at 363; Maes, 247 Mich. at 184. And given that defendant’s counterclaim of
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trespass is predicated on the premise that the parties did not acquiesce to the boundary line
advanced by plaintiff, the court did not err in dismissing defendant’s trespass claim.
B. DEED RESTRICTIONS
Defendant also argues that the trial court erred by finding she violated her deed
restrictions. “The interpretation of restrictive covenants is a question of law that this Court
reviews de novo.” Johnson Family Ltd Partnership v White Pine Wireless, LLC, 281 Mich. App.
364, 389; 761 NW2d 353 (2008). The goal is to determine the intent of the parties, and
unambiguous restrictions must be enforced as written. Id.
1. RESIDENTIAL PURPOSES
The warranty deed applicable to defendant’s property states, “All lots sold within said
Subdivision are to be used for residential purposes only . . . .” Later in the same paragraph, the
deed provides that “[a]ll buildings shall be of a permanent nature . . . .” The restrictions do not
make any mention of campers, recreational vehicles, or trailers.
In Bloomfield Estates Improvement Ass’n, Inc v City of Birmingham, 479 Mich. 206, 215;
737 NW2d 670 (2007), the Court said the phrase “strictly residential purposes only” in the deed
in that case meant the land may only be used for “homes where people reside.” Here, defendant
does not use the lot as the location of her home. She uses the property primarily for recreational
activities, including camping. Parking a camper on a lot for four months and using it for periodic
camping activities is not consistent with the “usual, ordinary and incidental use of property as a
place of abode . . . .” Wood v Blancke, 304 Mich. 283, 288-289; 8 NW2d 67 (1943). Thus, the
trial court was correct in determining defendant violated this deed restriction.
2. DEED RESTRICTION REQUIRING ALL BUILDINGS TO BE PERMANENT
The trial court erred, however, in determining that defendant’s camper violated the deed
restriction that “all buildings be of a permanent nature.” This Court gives a term not defined by
a deed restriction “its commonly used meaning.” Bloomfield Estates, 479 Mich. at 215. This
Court has defined a “building” as a “ ‘relatively permanent, essentially boxlike construction
having a roof and used for any of a wide variety of activities, as living, entertaining, or
manufacturing,’ ” and a “ ‘structure designed for habitation, shelter, storage, trade,
manufacturing, religion, business, education and the like. A structure or edifice enclosing a
space within its walls, and usually, but not necessarily covered with a roof.’ ” Ali v City of
Detroit, 218 Mich. App. 581, 584-585; 554 NW2d 384 (1996), quoting The Random House
College Dictionary: Revised Edition (1984) and Black’s Law Dictionary (5th ed). Accord
Merriam-Webster’s Collegiate Dictionary (11th ed), p 162 (defining “building” to be “a
usu[ally] roofed and walled structure built for permanent use (as for a dwelling)”).
Defendant’s camper is a motor vehicle registered with the Secretary of State. It may have
a geometric design much like a box, but it is not designed for permanent use. A camper is not a
structure; it is not an edifice. Simply put, defendant’s camper use cannot violate the restriction
that all buildings be permanent because it is a vehicle, not a building.
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But the trial court’s finding that the camper violated the permanent-building restriction
was not essential to its holding and ultimate resolution as we discussed above. In fact, this
finding was articulated in one sentence after the court had explained at length why the camper
was not a residence and thus violated the first restriction at issue. And the trial court also found
that defendant otherwise violated the permanent-building restriction by using a portable
outhouse, which she does not contest on appeal.
We affirm.
/s/ Jane E. Markey
/s/ Donald S. Owens
/s/ /Mark T. Boonstra
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