FRED BAKI V PATRICK KELLY
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STATE OF MICHIGAN
COURT OF APPEALS
FRED BAKI and JUDITH BAKI,
UNPUBLISHED
January 29, 2002
Plaintiffs-Appellees,
v
No. 226780
Genesee Circuit Court
LC No. 95-040507-CH
PATRICK KELLY and WENDY KELLY,
Defendants-Appellants.
Before: White, P.J., Whitbeck, C.J., and Holbrook, Jr., J.
PER CURIAM.
Defendants Patrick and Wendy Kelly appeal as of right from a judgment settling a
property line in favor of plaintiffs Fred and Judith Baki. We affirm.
I. Basic Facts And Procedural History
The Kellys and Bakis own adjacent pieces of property in Fenton, Michigan. The Bakis
own what is known as lot 7 and the Kellys own what is known as lot 8, with lot 7 situated north
of lot 8. Margaret Drive sets the western boundary of the two lots and Lake Fenton serves as the
eastern boundary. Around 1965, the Kellys’ predecessors in title, Arthur and Virginia Phelon,
installed a split-rail fence at a position they believed to be about two inches south of the
boundary between the lots. The fence, which was subsequently replaced, runs approximately 50
feet, with bushes and shrubs marking the remainder of the boundary. The Phelons, their
successors in title, as well as the owners of lot 7 and their successors in title, cared for the
property on their respective sides of the fence.
A dispute arose between the parties in May or June 1995 when the Kellys claimed that
landscaping ties the Bakis were installing in the ground encroached on the Kellys’ land. Though
the trial testimony is conflicting about what occurred next, it is clear that Wendy Kelly and
Judith Baki began to fight and, eventually, the police had to intervene. Each woman blamed the
other for the scuffle.
In October 1995, the Bakis filed this lawsuit, asking the trial court to settle the line
marked by the fence and tree line as the legal boundary between lots 7 and 8. The Bakis set forth
three grounds for establishing title to the disputed property: adverse possession, easement by
prescription, and acquiescence. The Kellys later filed a counter complaint alleging intentional
trespass, but this claim was dismissed at trial and is not at issue on appeal.
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At trial, the past and present owners of the two lots testified concerning the property line
and the fence line, as well as the trees, bushes, and flowers on the disputed area. Arthur Phelon
testified that he built the split-rail fence in the 1960s to support grape vines, not to mark the
property as a boundary. In fact, Phelon indicated, there never was any specific agreement about
where the fence line was, and he never intended the boundary between the two lots to be
anything other than the surveyed line. In what would later prove to be significant to the trial
court’s ruling, Phelon said that after the fence was installed, he would mow the grass on his side
of the split rail fence and Mr. Smith, who owned lot 7 at that time, would mow the grass on the
other side of the fence. Phelon also noted that he did not store anything on the Smiths’ side of
the fence. Although Phelon stated that he occasionally mowed on the Smiths’ side of the fence
and that he sometimes picked grapes from that side of the fence, the Smiths and Phelons
essentially stayed on their respective sides of the fence. After selling lot 8 to the Rowlands in
July 1977, on the occasions he drove or walked past the fence, Phelon observed that the
Rowlands and Smiths also stayed on their respective sides of the fence.
At the close of the Bakis’ case, the Kellys moved for a directed verdict on all three of the
Bakis’ claims. The trial court took the motion under advisement and proceeded with the Kelly’s
case. In early May 1999, the trial court issued its opinion in the case, ruling that the Bakis had
failed to establish a right to the land based on adverse possession because they failed to show
that the “Kellys, Phelons or Rowlands understood their property interest was being invaded.”
Further, the Bakis failed to satisfy the 15-year statutory period for adverse possession. The trial
court, however, found that the Bakis had established a right to the land under their theory of
acquiescence. The trial court noted that the testimony showed that after the Phelons erected the
fence, the various property owners “through their conduct alone, accepted, recognized
acquiesced in and used the fence line . . . as the boundary between Lots 7 and 8.” The trial court
was careful to distinguish between the fence line and the vegetation between the two pieces of
property, which the trial court found had not been respected as a boundary between the lots. In
the end, with it unnecessary to address whether an easement existed, the trial court adjusted the
legal boundary between the two lots to reflect the position of the fence for its length and the
original survey line where the fence ended and the vegetation continued.
On appeal the Kellys challenge the trial court’s decision that the Bakis demonstrated
possession by acquiescence. They claim that the trial court erred by construing the property
owners’ decision to say on their respective sides of the fence as a tacit agreement that the fence
was a boundary line in light of the testimony that the fence line was never intended to set the
boundary line.
II. Standard Of Review
This Court reviews a trial court’s factual findings under the clearly erroneous standard.1
“A finding is clearly erroneous when, although there is evidence to support it, the reviewing
1
MCR 2.613(C).
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court on the entire record is left with the definite and firm conviction that a mistake has been
committed.”2
III. The Doctrine Of Acquiescence
“The doctrine of acquiescence provides that where adjoining property owners acquiesce
to a boundary line for at least fifteen years, that line becomes the actual boundary line.”3 As this
Court has pointed out, Michigan case law does not set out a list of explicit elements necessary to
satisfy the doctrine of acquiescence.4 Instead, our courts have outlined the doctrine more
generally5 in relation to its goal and purpose of promoting “peaceful resolution of boundary
disputes.”6 Consequently, the proper inquiry is “whether the evidence presented establishes that
the parties treated a particular boundary line as the property line.”7
In this case, there was ample evidence that the parties and their predecessors in title
actually treated the fence as the boundary between the two lots even if the fence was not
designed to serve that purpose. Yet, the Kellys claim that the trial court erred in finding that this
de facto attitude toward the fence was sufficient in the absence of a specific agreement to make
the fence the legal boundary. While the Kellys’ underlying proposition that property owners
may acquiesce to a boundary by entering into an explicit agreement is correct, they fail to
recognize that it is not the exclusive way to establish acquiescence.8 Rather, “treating” a line
established by some marker other than an accurate deed line as the boundary for the statutory
period is enough to satisfy this doctrine.9
If the Kellys intend to argue that there can be no acquiescence in this case because none
of the individuals who owned lots 7 and 8 were “mistaken” concerning whether the fence
established the true property line,10 they do not say so explicitly. More importantly, though
many acquiescence claims involve some sort of mistaken belief concerning the property line,11
there was testimony that the landowners in this case perceived the fence to be a boundary. For
instance, Patrick Kelly testified that he did not go on the Bakis’ side of the fence because he did
2
Walters v Snyder (After Remand), 239 Mich App 453, 456; 608 NW2d 97 (2000).
3
Killips v Mannisto, 244 Mich App 256, 260; 624 NW2d 224 (2001). But see Walters, supra at
457, citing Sackett v Atyeo, 217 Mich App 676; 552 NW2d 536 (1996) (there are three theories
of acquiescence, one of which is acquiescence for the statutory period under MCL 600.5801(4),
the other two of which are “acquiescence following a dispute and agreement, and . . .
acquiescence arising from intention to deed to a marked boundary.”).
4
Walters, supra at 457.
5
See id. at 456-458.
6
Killips, supra at 260.
7
Walters, supra at 458.
8
Id. at 457; see also Kipka v Fountain, 198 Mich App 435, 438; 499 NW2d 363 (1993).
9
See Sackett, supra at 682-683.
10
Id.
11
See Kipka, supra at 438-439. But see Killips, supra at 259.
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not believe it was his property, not just because he chose to remain on his side of the fence.
Further, the other owners’ behavior was consistent with this belief that the fence marked the
boundary and this Court has previously cautioned that it is inappropriate to inquire into the
property owners’ “perceptions and behavior” at a minute level at the expense of a view of the
circumstances as a whole.12 Thus, we can discern no clear error in the trial court’s finding that
the owners’ overall conduct amounted to acquiescence for the mandatory period.
Affirmed.
/s/ Helene N. White
/s/ William C. Whitbeck
/s/ Donald E. Holbrook, Jr.
12
Walters, supra at 458.
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