MARK M BACHA V ROSS PROPERTIES INC
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STATE OF MICHIGAN
COURT OF APPEALS
MARK M. BACHA and KAREN M. BACHA,
UNPUBLISHED
February 4, 2010
Plaintiffs/CounterdefendantsAppellants,
v
No. 286632
Macomb Circuit Court
LC No. 2006-002763-CZ
ROSS PROPERTIES, INC.,
Defendant-Appellee,
and
MARK M. CRONMILLER,
Defendant,
and
GOWANIE GOLF CLUB, INC.,
Defendant/Counterplaintiff.
Before: Shapiro, P.J., and Jansen and Beckering, JJ.
JANSEN, J. (concurring in part and dissenting in part).
I concur with the majority’s conclusion that the trial court correctly granted summary
disposition of plaintiffs’ acquiescence and easement-by-necessity claims. I further concur with
the majority’s determinations that the trial court did not err by relying on the Axford affidavit
and that plaintiffs have failed to establish plain error with respect to the denial of their motion for
judicial disqualification. I must respectfully dissent, however, from the majority’s conclusion
that the trial court erred by granting summary disposition for defendants with respect to
plaintiffs’ adverse possession and prescriptive easement claims.
Plaintiffs contend that they acquired title to the westerly ½ of Outlot C by way of adverse
possession, that title to the westerly ½ of Outlot C should have been quieted accordingly, and
that the trial court therefore erred by granting summary disposition in favor of defendants with
respect to their adverse possession claim. I cannot agree. “To establish adverse possession, the
claimant must show that its possession is actual, visible, open, notorious, exclusive, hostile,
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under cover of claim or right, and continuous and uninterrupted for the statutory period of fifteen
years.” West Michigan Dock & Market Corp v Lakelands Investments, 210 Mich App 505, 511;
534 NW2d 212 (1995). The plaintiff in an adverse possession action must present “clear and
cogent” proof of the requisite elements. Kipka v Fountain, 198 Mich App 435, 439; 499 NW2d
363 (1993).
In the instant case, plaintiffs’ adverse possession claim depends upon the tacking of their
own period of possession to the possessory period of their predecessors in title. See Connelly v
Buckingham, 136 Mich App 462, 474; 357 NW2d 70 (1984) (observing that “[a]n adverse
claimant is permitted to add his predecessor’s period of possession if he can establish privity of
estate by mention of the disputed lands in the instrument of conveyance or parol references at the
time of the conveyance”). Based on the record evidence presented in this case, I fully
acknowledge that the requisite privity of estate existed between plaintiffs and their predecessors
in title, the McPhersons, with respect to the westerly ½ of Outlot C.1
I nonetheless conclude that plaintiffs’ bare ability to tack their own period of possession
to that of the McPhersons is of no real significance in the present dispute because the
McPhersons’ possession of the westerly ½ of Outlot C was not “notorious, exclusive, hostile,
under cover of claim or right, and continuous and uninterrupted for the statutory period of fifteen
years.” West Michigan Dock, 210 Mich App at 511. William McPherson unambiguously
testified at his deposition that he and his wife had not owned the westerly ½ of Outlot C.
William McPherson acknowledged that when he bought the property in question, he was fully
aware that the driveway on the westerly ½ of Outlot C was not part of what he was purchasing.
Moreover, he testified that when certain individuals asked him in the mid-1990s whether they
could park on the driveway on the westerly ½ of Outlot C, he had told them, “[I]t’s fine with me,
it’s not my property any how.” Lastly, McPherson testified that he and his wife had told
plaintiffs at the time plaintiffs purchased the property that the driveway on Outlot C “did not
belong to us.” Thus, irrespective of whether plaintiffs believed that the McPhersons had owned
the westerly ½ of Outlot C, it is clear that the McPhersons, themselves, had at all times known
that they did not own it.
When an individual such as William McPherson openly and publicly admits to others that
a parcel of land is not his own, it can scarcely be said that he has notoriously and hostilely
possessed it under cover of a claim of right. See id. In light of William McPherson’s deposition
testimony, no reasonable finder of fact could conclude that the McPhersons possessed the
westerly ½ of Outlot C in a hostile manner and under a claim of right. See West v Gen Motors
Corp, 469 Mich 177, 183; 665 NW2d 468 (2003).
1
I doubt whether the requisite privity of estate existed between plaintiffs and the McPhersons
with respect to the remainder of Outlot C—i.e., that potion of Outlot C not consisting of the
concrete driveway. However, this issue is not before us, as plaintiffs have identified and
addressed only the westerly ½ of Outlot C in their statement of the questions presented. MCR
7.212(C)(5); Ypsilanti Fire Marshal v Kircher (On Reconsideration), 273 Mich App 496, 553;
730 NW2d 481 (2007).
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In short, the McPhersons knew at all times that the westerly ½ of Outlot C was not theirs.
They merely used the strip of land with the permission or acquiescence of the true owner.
“Peaceable occupation or use by acquiescence or permission of the owner cannot ripen into title
by adverse possession, no matter how long maintained. Hostility is of the very essence of
adverse possession.” King v Battle Creek Box Co, 235 Mich 24, 35; 209 NW 133 (1926). Thus,
despite plaintiffs’ ability to tack their period of possession to that of the McPhersons, plaintiffs
simply cannot demonstrate that the westerly ½ of Outlot C was used notoriously, hostilely, and
under a claim or right for the statutory 15-year period. West Michigan Dock, 210 Mich App at
511. Plaintiffs were unable to satisfy their burden of proof on this adverse possession claim as a
matter of law. See Kipka, 198 Mich App at 441; see also McQueen v Black, 168 Mich App 641,
645 n 2; 425 NW2d 203 (1988). Consequently, even viewing the evidence in a light most
favorable to plaintiffs, I conclude that the trial court correctly granted summary disposition in
favor of defendants with respect to the adverse possession claim.
For similar reasons, I conclude that the trial court properly granted summary disposition
for defendants with respect to plaintiffs’ prescriptive easement claim. “An easement by
prescription results from use of another’s property that is open, notorious, adverse, and
continuous for a period of fifteen years.” Plymouth Canton Community Crier, Inc v Prose, 242
Mich App 676, 679; 619 NW2d 725 (2000). The requirements for an easement by prescription
are similar to those for adverse possession, with the exception of exclusivity. West Michigan
Dock, 210 Mich App at 511. This Court has equated the prescriptive-easement element of
“adverse” use with the adverse-possession element of “hostile” use. Goodall v Whitefish
Hunting Club, 208 Mich App 642, 646; 528 NW2d 221 (1995). The burden is on the party
claiming a prescriptive easement to show by satisfactory proof that the use of the defendant’s
property was of such a character and continued for such a length of time that it ripened into a
prescriptive easement. Plymouth Canton Community Crier, 242 Mich App at 679. “Mere
permissive use of another’s property . . . will not create a prescriptive easement.” Id. As with
adverse possession, “[a] party may ‘tack’ on the possessory periods of predecessors in interest to
achieve [the] fifteen-year period by showing privity of estate.” Killips v Mannisto, 244 Mich
App 256, 259; 624 NW2d 224 (2001).
Our Supreme Court has explained that “permissive use of a driveway, no matter how
long continued, will not result in an easement by prescription.” Banach v Lawera, 330 Mich
436, 440-441; 47 NW2d 679 (1951). If such a use was permissive at inception, its permissive
character will continue, and no adverse use can arise until there is a distinct and positive
assertion of a right hostile to the true owner. Id. at 442. Because the McPhersons’ use of the
westerly ½ of Outlot C was permissive, and not hostile to the rights of the true owner, plaintiffs
simply cannot rely on the McPhersons’ period of use to establish the requisite hostile and
adverse use for the statutory 15-year period. Id.; Plymouth Canton Community Crier, 242 Mich
App at 679. Even viewing the evidence in a light most favorable to plaintiffs, I conclude that the
trial court properly granted summary disposition in favor of defendants with respect to the
prescriptive easement claim.
For these reasons, I would affirm the rulings of trial court in full.
/s/ Kathleen Jansen
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