KIRK MANKIN V ALETA SIEFERT
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STATE OF MICHIGAN
COURT OF APPEALS
KIRK MANKIN and CHRISTINE MANKIN,
UNPUBLISHED
September 26, 2000
Plaintiffs-Appellees,
v
No. 218524
Cheboygan Circuit Court
LC No. 98-006430-CH
ALETA SIEFERT and LEROY RETTELL,
Defendants-Appellants.
Before: Murphy, P.J., and Griffin and Wilder, JJ.
PER CURIAM.
Defendants appeal as of right from a judgment for plaintiffs following a bench trial. We affirm.
This suit arises out of a property line dispute, contesting ownership of a strip of land. Plaintiffs
are the deed owners of lot 24 and defendants are the deed owners of lots 22 and 23 in the city of
Cheboygan. In the 1940s, plaintiffs’ predecessors in interest built a home (the Pellenz house) that
straddled the true line between lots 23 and 24. Plaintiffs’ predecessors used an additional area south of
this house for parking and a side yard, and they placed a culvert and gully1 on the disputed strip. The
trial court ruled plaintiffs had established ownership of the strip of land running between the edge of their
own lot 24 and the gully on defendants’ lot 23 pursuant to both adverse possession and acquiescence.
Defendants argue the trial court erred in finding defendants acquired title to a portion of lot 23
pursuant to both adverse possession and acquiescence. Actions to quiet title are equitable; therefore,
the trial court’s holdings are reviewed de novo. Gorte v Dep’t of Transportation, 202 Mich App
1
In this instance, “gully” refers to a small ditch used to channel water from a pipe leading from the
kitchen of the now-leveled home out to the ditch at the roadway. The parties and witnesses
interchangeably refer to this channel as a gully or a ditch. To avoid confusion with the ditch running
parallel with the road, the use of the word “gully” refers only to the gutter that once relayed water from
the sink to the roadside ditch.
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161, 165; 507 NW2d 797 (1993). The factual findings of the trial court are reviewed for clear error.
Grand Rapids v Green, 187 Mich App 131, 135; 466 NW2d 388 (1991).
It is not necessary for us to rule on plaintiffs’ theory of adverse possession because we conclude
the evidence at trial established that the gully became the boundary between lots 23 and 24 pursuant to
the doctrine of acquiescence. Where adjoining property owners acquiesce to a boundary line for more
than fifteen years, that line becomes the actual boundary line. MCL 600.5801(4); MSA 27A.5801(4);
West Michigan Dock & Market Corp v Lakeland Investments, 210 Mich App 505, 512; 534
NW2d 212 (1995); McQueen v Black, 168 Mich App 641, 644; 425 NW2d 203 (1988). The
underlying reason for the rule of acquiescence is the promotion of peaceful resolution of boundary
disputes. Shields v Collins, 83 Mich App 268, 271; 268 NW2d 371 (1978). The proper standard
applicable to a claim of acquiescence is proof by a preponderance of the evidence. Walters v Snyder
(After Remand), 239 Mich App 453, 455; 608 NW2d 97 (2000). This is less stringent than the clear
and cogent evidence standard used in adverse possession cases. Id.; McQueen, supra at 645, n 2.
Michigan courts have applied a broad definition of what may serve as a boundary line for the
purposes of acquiescence. A line of trees, hedges, and some shrubbery was ruled a sufficient line to
serve as an acquiesced boundary in Renwick v Noggle, 247 Mich 150, 151-152; 225 NW 535
(1929). A line of bushes was sufficient in Walters (After Remand), supra at 459. In Sackett v Atyeo,
217 Mich App 676, 682; 552 NW2d 536 (1996), the middle of a shared driveway was later declared
to be an acquiesced boundary. A rotted-away wooden fence represented by some steel fence posts
and a driveway was deemed an acquiesced boundary in Geneja v Ritter, 132 Mich App 206, 212
213; 347 NW2d 207 (1984). In Siegel v Renkiewicz Estate, 373 Mich 421, 425; 129 NW2d 876
(1964), the edge of a concrete sidewalk served as an acquiesced boundary. Further, under the
acquiescence theory, no parol transfer is required to permit the plaintiffs’ predecessors’ periods of
possession to be tacked to establish the statutorily mandated period of fifteen years. Jackson v
Deemar, 373 Mich 22, 26; 127 NW2d 856 (1964); Siegel, supra at 425.
In this case, plaintiffs presented evidence that their predecessors’ house straddled the line
between lots 22 and 23, the southern entrance to the Pellenz house was the structure’s main entry point
from at least the 1950s until 1981, a driveway crossed over a culvert which allowed for some parking
on the south side of the house, and the Pellenzes consistently mowed up to the gully. This evidence of
years of both plaintiffs’ and defendants’ predecessors’ treatment of the gully as the boundary line
supports a finding of acquiescence for the statutory period by a preponderance of the evidence. The
findings of fact by the trial court were not clearly erroneous. MCR 2.613(C). Accordingly, we affirm
the trial court’s ruling that plaintiffs and their predecessors established title to the disputed strip pursuant
to the doctrine of acquiescence.
Defendants also challenge the trial court’s failure to rule that plaintiffs’ action was barred by the
period of limitations for quiet title actions. MCL 600.5801; MSA 27A.5801. However, the statute of
limitations is an affirmative defense. Defendants waived this defense by failing to raise it as an affirmative
defense. MCR 2.111(F); Rasheed v Chrysler Corp, 445 Mich 109, 134-135; 517 NW2d 19
(1994).
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Affirmed.
/s/ William B. Murphy
/s/ Richard Allen Griffin
/s/ Kurtis T. Wilder
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