DONALD MACDONALD V DONALD REID
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STATE OF MICHIGAN
COURT OF APPEALS
DONALD MACDONALD,
UNPUBLISHED
March 6, 2007
Plaintiff-Appellee,
v
No. 265399
Sanilac Circuit Court
LC No. 04-029819-CH
DONALD REID and MARY JANE REID,
Defendants-Appellants.
Before: Hoekstra, P.J., and Markey and Wilder, JJ.
PER CURIAM.
Defendants appeal by right from the trial court judgment quieting title in favor of plaintiff
to a strip of property owned by defendants under the theory of acquiescence. We affirm. This
appeal has been decided without oral argument pursuant to MCR 7.214(E).
This action arises out of a dispute over a strip of land located between adjacent lots
owned by plaintiff (owner of lot 23) and defendants (owners of lot 22). The property has been
used as part of plaintiff’s driveway since before 1977 but defendants actually owned it.
On appeal, defendants argue that the trial court erred in ruling that plaintiff had acquired
rights to the disputed portion of property by acquiescence. Actions to quiet title or remove a
cloud on a title are equitable in nature. We review equitable actions de novo, but review the
factual findings of the trial court for clear error. Killips v Mannisto, 244 Mich App 256, 258;
624 NW2d 224 (2001). A finding is clearly erroneous when the reviewing court on the entire
record is left with a definite and firm conviction that a mistake has been committed. Alan
Custom Homes, Inc v Krol, 256 Mich App 505, 512; 667 NW2d 379 (2003).
In this case, plaintiff asserted ownership to the disputed portion of property under a
theory of acquiescence for the statutory period. Such a claim requires that the plaintiff show by a
preponderance of the evidence that the parties acquiesced in the boundary line and treated it as
the boundary for the statutory period of 15 years, irrespective of the existence of a controversy
regarding the correct boundary. Walters v Snyder, 225 Mich App 219, 223-224; 570 NW2d 301
(1997); MCL 600.5801(4). “Only when there has been some agreement, whether tacit or overt,
as to the location of the boundary does the question of acquiescence become important.” Wood v
Denton, 53 Mich App 435, 439-440; 219 NW2d 798 (1974). This Court has further explained
the theory in Kipka v Fountain, 198 Mich App 435, 438-439; 499 NW2d 363 (1993):
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The law of acquiescence is concerned with a specific application of the statute of
limitations to cases of adjoining property owners who are mistaken about where
the line between their property is. Adjoining property owners may treat a
boundary line, typically a fence, as the property line. If the boundary line is not
the recorded property line, this results in one property owner possessing what is
actually the other property owner’s land. Regardless of the innocent nature of this
mistake, the property owner whose land is being possessed by another would have
a cause of action against the other property owner to recover possession of the
land. After fifteen years, the period for bringing an action would expire. The
result is that the property owner of record would no longer be able to enforce his
title, and the other property owner would have title by virtue of his possession of
the land.
“[A]n assertion of acquiescence does not require that the possession be hostile or without
permission.” Killips, supra at 260. Furthermore, acquiescence is not defeated because one of
the parties is aware that the line treated as the boundary is not the actual boundary, when that
party took no action to prohibit the other party’s use of the property or to deny the acquiesced
boundary. Id. at 260-261.
Here, there was evidence of a tacit agreement that the driveway was the boundary line
between the respective owners of lots 22 and 23 for a period in excess of 15 years. According to
Mary K. Doran, plaintiff’s predecessor, the driveway at issue remained in the same location from
before 1977 to at least 1992. During that time plaintiff’s predecessors actively used the driveway
and, apparently, maintained both it and the nearby lawn. Sometime during Doran’s ownership of
lot 23, she and one of defendants’ predecessors, Eugene Oldford, became aware that the actual
boundary was other than the driveway. At that time, Oldford could have commenced an action
to recover possession of the property. However, like the defendant in Killips, supra at 260-261,
Oldford took no action pertaining to the boundary line during the entire time he owned lot 22.
Instead, Oldford said that the encroachment was “fine,” and plaintiff’s predecessors continued to
use the driveway as before. Moreover, none of Oldford’s successors in interest, except
defendants, sought to prohibit the owners of lot 23 from using the encroaching portion of the
driveway or otherwise pursued an action to recover the property. Thus, the tacit agreement
between the respective owners of the properties was in existence in excess of the mandated
statutory period of 15 years. Hence, the trial court did not clearly err in finding that the doctrine
of acquiescence applied.
Furthermore, the trial court did not clearly err in ruling that the boundary line was to
reflect what was established by a survey completed in May 2004. There was evidence that the
driveway existed in essentially the same location from before 1977 to the present. There was
also evidence that a survey was conducted in May 2004, showing the location of the actual
boundary and indicating that the driveway encroached on defendants’ lot. Defendant Donald
Reid claimed that plaintiff had improved the driveway and thereby increased the encroachment
and that the biggest movement onto his property occurred in October 2004. Apparently, the trial
court found credible defendant Donald Reid’s testimony that the encroachment had recently
expanded, and therefore, the court concluded that the proper boundary was to be determined by
the May 2004 survey, which was performed before the October 2004 improvements. Because
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there was evidence to support the trial court’s decision, we hold that it did not clearly err in
utilizing the May 2004 survey to establish the correct boundary line.
We affirm.
/s/ Joel P. Hoekstra
/s/ Jane E. Markey
/s/ Kurtis T. Wilder
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