WILBERT WHEAT V STEGER HORTON
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STATE OF MICHIGAN
COURT OF APPEALS
WILBERT WHEAT,
UNPUBLISHED
February 5, 2004
Plaintiff-Appellee,
v
No. 242932
Wayne Circuit Court
LC No. 99-932353-CZ
STEGER HORTON,
Defendant-Appellant.
Before: Schuette, P.J., and Murphy and Bandstra, JJ.
PER CURIAM.
In this property dispute, defendant appeals as of right from a judgment in favor of
defendant in part and in favor of plaintiff in part. We affirm in part and reverse in part.
I. FACTS
Plaintiff and defendant were next-door neighbors since 1982. Sometime in 1980 or 1981,
defendant erected a fence in his back yard along the southern border of his property and the
northern border of plaintiff’s property. The fence ran along the property line for several feet, and
then began to encroach on plaintiff’s property, enclosing and denying access to a small area of
plaintiff’s property, and denying plaintiff access to the north wall of plaintiff’s garage (as the
fence was attached to, or flush to, this wall). Defendant also stacked firewood along the north
wall of plaintiff’s garage for between ten and 14 years. In 1997, plaintiff engaged the services of
a contractor to build a new driveway on his property. The contractor became concerned that the
new driveway would cause water to run into defendant’s basement unless it was allowed to
extend onto defendant’s property up to the side of defendant’s house. The contractor advised
plaintiff and defendant of his concerns and defendant orally agreed to allow the extension of the
driveway at plaintiff’s expense. In 1999, plaintiff asked defendant to move his fence off of
plaintiff’s property, at which point defendant, according to plaintiff, became “belligerent” and
refused to comply citing “squatter’s rights.”
Plaintiff filed the instant action seeking damages for trespass, ejectment, and
compensation for damage to the garage. Defendant answered, alleging that he had gained title to
the disputed portion of plaintiff’s land by either adverse possession or acquiescence, and that the
statute of limitations for a trespass action had run. Defendant also counterclaimed, seeking
ejectment and damages for trespass as a result of plaintiff’s driveway encroaching on defendant’s
property. The trial court ordered defendant to move his fence and plaintiff to remove that part of
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his driveway that encroached on defendant’s property. Following a subsequent bench trial, the
trial court rejected the affirmative defenses of acquiescence and adverse possession and thus
found for plaintiff on the trespass claim regarding the lot line and ordered defendant to pay
plaintiff’s costs for removing part of his driveway. At issue on appeal are defendant’s adverse
possession and acquiescence claims and the trial court’s award of plaintiff’s costs of removing
the part of his driveway that encroached on defendant’s property.
II. ACQUIESCENCE
Defendant’s first issue on appeal is that the trial court erred in finding that defendant had
not gained title to the part of plaintiff’s land enclosed by defendant’s fence for at least 17 years.
We agree.
A. Standard of Review
Actions to quiet title are equitable actions that we review de novo. Gorte v Department
of Transportation, 202 Mich App 161, 165; 507 NW2d 797 (1993). We may only set aside a
trial court’s findings of fact in an equity action if they are clearly erroneous. Attorney General v
Lake States Wood Preserving, Inc, 199 Mich App 149, 155; 501 NW2d 213 (1993) (citations
omitted). However, we need not limit our review to clear error where a finding is derived from
an erroneous application of law to fact. Id.
B. Analysis
A claim of acquiescence to a boundary line based upon the statutory period of 15 years,
MCL § 600.5801(4), requires merely a showing that the parties acquiesced in the line and treated
the line as the boundary for the statutory period, irrespective of whether there was a bona fide
controversy regarding the boundary. Sackett v Atyeo, 217 Mich App 676, 681; 552 NW2d 536
(1996). A claim of acquiescence does not require that the possession be hostile or without
permission. Walters v Snyder (After Remand), 239 Mich App 453, 457; 608 NW2d 97 (2000).
Acquiescence must be shown by a preponderance of the evidence. Id. at 455.
Three theories of acquiescence are in fact noted by Sackett, supra: (1) acquiescence for
the statutory period, (2) acquiescence following a dispute and agreement, and (3) acquiescence
arising from intention to deed to a marked boundary. The relevant theories in this case are (1)
and (2). Defendant explicitly alleged the first theory, that plaintiff had acquiesced to the fence as
the boundary line for more than fifteen years. On appeal, defendant argues his case under this
theory. The trial court chose to analyze the case under the second theory, which requires a
dispute and an agreement to settle that dispute.
We find that defendant did indeed establish acquiescence for the statutory period and that
the trial court erred in failing to quiet title in favor of defendant . Walters, supra, involves a case
remarkably similar to this one, in that plaintiff Walters brought an ejectment action against
defendant Snyder when Walters discovered that defendant’s fence and part of defendant’s garage
encroached upon Walters’ lot, intruding into the southern portion of Walters’ lot. The parties
had previously believed a line of bushes several feet north of the fence and garage marked the
boundary, when in fact the line was several feet south of the fence. Walters, supra, 454-455.
This Court held that both parties had acquiesced to the mistaken boundary line and reversed the
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contrary judgment of the trial court and ordered the boundary to be fixed at the fence (this was
the boundary requested by Snyder, despite the fact that it sat two to three feet south of the line of
bushes). Walters, supra, 460. This Court reasoned that, for the statutory period, the parties
treated the line of bushes as the boundary, and thus, acquiesced. Id.
Similarly, the facts of this case, as determined by the trial court, establish acquiescence
by a preponderance of the evidence. Both plaintiff and defendant treated the fence as the
boundary between their property for well beyond the statutory 15 years. Plaintiff even asked
permission of defendant to access the property on defendant’s side of the fence to begin repairs.
Plaintiff testified that he knew that defendant’s fence extended onto his property for over
seventeen years, from 1982 until 1999, yet plaintiff also admitted that 1999 was the first time
plaintiff took any action against defendant regarding the property. Thus we remand this case and
instruct the trial court to issue a finding of fact regarding the dimensions and legal description of
the strip of land possessed by defendant and enter judgment quieting title in the disputed strip of
land in favor of defendant.
In light of our conclusions on the issue of acquiescence, we decline to address the issue
of adverse possession.
III. COSTS OF DRIVEWAY REMOVAL
Defendant argues that the trial court’s award of plaintiff’s costs of removing his driveway
from defendant’s property stem from a clear error in its findings of fact. We disagree.
Despite the conflicting testimony regarding whether defendant agreed with plaintiff and
Studstill to allow plaintiff to extend his driveway onto defendant’s property, the trial court, as
finder of fact in this bench trial, chose to accept plaintiff’s version of the facts. This Court must
give deference “‘to the special opportunity of the trial court to judge the credibility of the
witnesses who appeared before it.’” People v Cress, 250 Mich App 110, 148; 645 NW2d 669,
vacated in part on other grounds, remanded in part of other grounds 466 Mich 882 (2002),
reversed on other grounds 468 Mich 678 (2003) (quoting MCR 2.613(C)). The facts indicate
that there was no boundary dispute to support a claim of acquiescence under the “disputeagreement” theory, and that the driveway did not encroach for the statutory period of time.
Therefore, the trial court properly found that defendant was within his rights to seek removal of
plaintiff’s driveway from his property. However, the trial court held that this counterclaim was
filed in retaliation in response to plaintiff’s complaint in this case, given that defendant agreed to
allow the driveway to encroach upon defendant’s property in the first place. The trial court
engaged in a balancing of the equities in this case in coming to its decision and concluded that
equity demanded that plaintiff be awarded his costs of removing the driveway to avoid injustice.
We conclude that the trial court’s findings of fact on this issue were not clearly erroneous. We
therefore disagree with defendant that the trial court’s findings of fact are clearly erroneous. We
further disagree with defendant’s argument that the trial court’s award of $947.50 for the costs of
removing the concrete should be reversed.
IV. CONCLUSION
We affirm the trial court’s judgment in favor of plaintiff on defendant’s counterclaim.
We reverse the trial court’s judgment to the extent that it held that defendant had not gained title
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to the disputed strip of land enclosed by defendant’s fence and remand with instructions for the
trial court to make a finding of fact regarding the legal description of that strip and to enter a
revised judgment of acquiescence quieting title in the disputed strip in favor of defendant.
/s/ Bill Schuette
/s/ Richard A. Bandstra
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