WENDY WANZER JONKERS V SUMMIT TWP
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STATE OF MICHIGAN
COURT OF APPEALS
WENDY WANZER JONKERS, STANLEY H.
WANZER, and GRANT B. WANZER,
FOR PUBLICATION
March 20, 2008
9:05 a.m.
Plaintiffs/Counter-DefendantsAppellees/Cross-Appellants,
v
SUMMIT TOWNSHIP and MASON COUNTY
ROAD COMMISSION,
Defendants/Counter-PlaintiffsAppellants/Cross-Appellees.
No. 272203
Mason Circuit Court
LC No. 04-000013-CH
Advance Sheets Version
Before: Whitbeck, P.J., and Jansen and Davis, JJ.
PER CURIAM.
The parties appeal as of right the trial court's order holding, in relevant part, that plaintiffs
(the Wanzers) owned certain shoreline property on Bass Lake, but also holding that defendants
(the township) had acquired ownership of a boat launch on the property through adverse
possession, and imposing certain restrictions on the use of the boat launch and on future
improvements to Bass Lake Boulevard, which runs parallel to Bass Lake between the Wanzers'
residence and the boat launch. We affirm.
"We review the trial court's findings of fact in a bench trial for clear error and conduct a
review de novo of the court's conclusions of law." Chapdelaine v Sochocki, 247 Mich App 167,
169; 635 NW2d 339 (2001). "Equitable rulings to quiet title, as well as questions of law in
general" are reviewed de novo. Richards v Tibaldi, 272 Mich App 522, 528; 726 NW2d 770
(2006). However, we defer to the trial court's findings of fact in an action to quiet title; those
findings will be given weight and reversed only if they are clearly erroneous. Davids v Davis,
179 Mich App 72, 81; 445 NW2d 460 (1989). The clear-error standard requires us to give
deference to the lower court and find clear error only if we are nevertheless "left with the definite
and firm conviction that a mistake has been made." Heindlmeyer v Ottawa Co Concealed
Weapons Licensing Bd, 268 Mich App 202, 222; 707 NW2d 353 (2005) (citations and internal
quotation marks omitted).
The property at issue in this case is riparian land on the western shore of Bass Lake, in
Summit Township, Mason County. The Bass Lake area was first surveyed by the United States
government General Land Office in an 1839 lot survey (the GLO survey). In 1856, the United
States government granted a patent conveying to James Dexter "Lot 4 of Section 26, Town 17
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North, Range 18 West, containing 54.89 acres," which was shown on the GLO survey as being
on the western shore of Bass Lake north of an outlet leading to Lake Michigan. The entirety of
the above-described property (hereinafter, Lot 4) was eventually conveyed to Wallace B. Gilbert
and Anna M. Gilbert. In 1896, the Gilberts caused the property "to be surveyed, laid out, and
platted to be known as Gilbert's Addition to Bass Lake Park." The Gilbert's Addition plat states
that "[t]he land embraced in the annexed plat of Gilbert's Addition to Bass Lake Park is
described as follows: Lot 4, Sec 26, T 17 N R 18 W."
The Wanzers own a parcel of property in Gilbert's Addition. The township operates a
boat launch on the shore of Bass Lake, directly across Bass Lake Boulevard from the Wanzers'
residence. The primary question in this case is whether the Wanzers' property includes the
shoreline land. This is not entirely straightforward because, as it turned out, the GLO survey was
not completely accurate. In 1915, another survey (the Mitchell survey) of the area was
conducted, and it is undisputed that, although it was solely for the purpose of surveying the
location of Bass Lake Boulevard and not any property lines, it correctly shows the shape of Bass
Lake. More importantly, the Mitchell survey, which even the Wanzers' expert surveyor
conceded was likely "mathematically correct," places the boundary between Section 26 and
Section 25 as lying somewhat to the west of the shore of Bass Lake, running through what is
presently regarded as Gilbert's Addition. It is also undisputed that a government lot can only be
located within one section, and the boundary depiction in the Mitchell survey would appear to
show that some portion of Lot 2 of Section 25 lies between the shore of Bass Lake and Lot 4 of
Section 26. In 1944, in apparent reliance thereon, Grace Lattin quitclaimed to the township all
land in Lot 2 of Section 25 "lying East of Gilbert's Addition to Bass Lake Park" (the Lattin
deed).
Thus, the township asserts that Gilbert's Addition—and therefore the Wanzers'
property—does not include the shoreline property on which the boat launch is located, because
that property should never have been included in Lot 4, that the Mitchell survey has been relied
on and should therefore be considered conclusive, and that the township received a valid
conveyance of that property from its true owner. In contrast, the Wanzers assert that the GLO
survey must be considered supreme, that the GLO survey has been relied on, that Lot 4 and
therefore Gilbert's Addition extend to the shore, and, therefore, that the Wanzers own the
property. The trial court found in favor of the Wanzers, and we agree.
"Public policy clearly favors consistency in ascertaining boundary lines, especially
where, as here, a multitude of boundaries has been established in reliance upon the location of
the [survey monument at issue in that case]." Adams v Hoover, 196 Mich App 646, 651; 493
NW2d 280 (1992). In Adams, this Court relied on the law as set forth by Justice Cooley more
than 100 years ago, and which is still the law today:
Nothing is better understood than that few of our early plats will stand the
test of a careful and accurate survey without disclosing errors. This is as true of
the government surveys as of any others, and if all the lines were now subject to
correction on new surveys, the confusion of lines and titles that would follow
would cause consternation in many communities. Indeed the mischiefs that must
follow would be simply incalculable, and the visitation of the surveyor might well
be set down as a great public calamity.
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But no law can sanction this course. . . . The question is not how an
entirely accurate survey would locate these lots, but how the original stakes
located them. No rule in real estate law is more inflexible than that monuments
control course and distance,—a rule that we have frequent occasion to apply in
the case of public surveys, where its propriety, justice and necessity are never
questioned. But its application in other cases is quite as proper, and quite as
necessary to the protection of substantial rights. The city surveyor should,
therefore, have directed his attention to the ascertainment of the actual location of
the original landmarks . . . and if those were discovered they must govern. If they
are no longer discoverable, the question is where they were located; and upon that
question the best possible evidence is usually to be found in the practical location
of the lines, made at a time when the original monuments were presumably in
existence and probably well known. . . . As between old boundary fences, and
any survey made after the monuments have disappeared, the fences are by far the
better evidence of what the lines of a lot actually are, and it would have been
surprising if the jury in this case, if left to their own judgment, had not so
regarded them. [Diehl v Zanger, 39 Mich 601, 605-606 (1878) (Cooley, J.,
concurring) (internal citation omitted).]
In Adams, this Court concluded that to "give effect to the technically correct but maverick"
survey that contradicted a prior survey upon which numerous boundary lines had relied would be
a "'mischief'" that could not be permitted. Adams, supra at 654-655. Justice Cooley reiterated in
Flynn v Glenny, 51 Mich 580, 584; 17 NW 65 (1883), that the conclusiveness of government
surveys depends not on their accuracy, "but it is whether they were planted by authority, and the
lots were purchased and taken possession of in reliance upon them. If such was the case they
must govern, notwithstanding any errors in locating them."
In the instant case, it is undisputed that the plat of Gilbert's Addition relied on the GLO
survey. The Mitchell survey was not even performed until 19 years later, and the surveyors
agreed that as far as they could determine, there had been no other surveys of the area in the
interim between the GLO survey and the platting of Gilbert's Addition. It appears that numerous
other properties around the Bass Lake area also relied on the GLO survey. In contrast, the only
apparent reliance on the Mitchell survey was the Lattin deed. It was also undisputed that giving
the GLO survey supremacy would only disrupt titles flowing from the Lattin deed; in other
words, only the township's claim to the boat launch. But giving the Mitchell survey supremacy
would disrupt titles and cause confusion to numerous properties within Gilbert's Addition. It is
clear that the least mischief would flow from considering the boundary of Lot 4 to be Bass Lake,
as shown on the GLO survey.
Furthermore, it is significant that the property at issue—specifically, the property that
became Gilbert's Addition—was conveyed by lot from the Federal government, not by metes and
bounds. Moreover, the property continued to be described as Lot 4 through the time it became
Gilbert's Addition; indeed, the description of Gilbert's Addition is Lot 4. The conveyance was
therefore completely based on the GLO survey; as a consequence, the boundary lines are
controlled by the boundary lines depicted in the GLO survey. Gregory v LaFaive, 172 Mich
App 354, 358-359; 431 NW2d 511 (1988). The property description of Gilbert's Addition is
coextensive with Lot 4 and, at the time Gilbert's Addition was platted, Lot 4 was considered to
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extend to the shore of the lake. Although the Gilbert's Addition plat did not explicitly state an
intention to extend its boundary to the shore, at that time plats were not required to include such
statements, and, in fact, sometimes did not. In the absence of a clearly expressed contrary
intention, "the conveyance of a parcel of land bordering on a highway contiguous to a lake shore
conveys the appurtenant riparian rights." Croucher v Wooster, 271 Mich 337, 344; 260 NW 739
(1935). Given the absence of an explicit statement, the trial court properly relied on the
unambiguous description of the property itself; and it correctly found that Gilbert's Addition is
coextensive with Lot 4, which extends to the shoreline.
The shoreline of Bass Lake is no longer located where it is shown on the GLO survey,
and the present shoreline boundary of Lot 4 is located within the theoretical square of what
should be Section 25. However, where the boundary of a tract in a government survey is a body
of water, even if the location of that water is incorrectly described in the survey, the boundary is
nevertheless conclusively set to be the body of water wherever it actually lies. Arnold v
Brechtel, 174 Mich 147, 158-160; 140 NW 610 (1913); accord Grand Rapids & Indiana R Co v
Butler, 159 US 87; 15 S Ct 991; 40 L Ed 85 (1895). Finally, "the rule is well established that
courses and distances must give way to natural boundaries," such as natural bodies of water,
Turner v Holland, 65 Mich 453, 463; 33 NW 283 (1887), and it is equally well established that
section lines, not being physical, are not monuments of any sort. Murray v Buikema, 54 Mich
App 382, 387; 221 NW2d 193 (1974). "Even assuming that a section line is a monument it
would yield to the other monuments selected by the grantor to indicate his intention in setting the
boundaries of the plat." Id. at 387-388. Therefore, it necessarily follows that "[i]n Michigan the
law is clear that where property abuts a shore line, that shore line (as represented on government
plats by a meander line) is the boundary of the property notwithstanding its subsequent
advancement or recession." Cutliff v Densmore, 354 Mich 586, 590; 93 NW2d 307 (1958), and
this rule would take precedence over the theoretical lie of a section line.
In summary, the trial court correctly determined that Lot 4 of Section 26 had as its
eastern boundary the shore of Bass Lake, as indicated in the GLO survey; that the plat of
Gilbert's Addition, being described as coextensive with Lot 4 of Section 26, also had as its
eastern boundary the shore of Bass Lake; that the Lattin deed describes land that does not
actually exist; and that, therefore, the Wanzers' property extended all the way to the shore of
Bass Lake.
However, the trial court also found that the township had acquired ownership of the boat
launch itself, which the trial court determined to be a 30-foot-wide strip of land running
perpendicularly from Bass Lake Boulevard to the shore, through adverse possession. The
township contends that it should have acquired ownership of the entire lakefront parcel through
color of deed, or at a minimum a strip of land 55-feet wide. The Wanzers contend that the
township failed to prove the required elements of any adverse possession, or, if adverse
possession were proven, the township is entitled to no more than 18 feet. Again, we agree with
the trial court.
We first disagree with the township's argument that it acquired title to the property under
color of title, which would, if true, grant the township constructive possession of all of the
premises described in that deed. Campau v Campau, 44 Mich 31, 33-34; 5 NW 1062 (1880).
An owner of real property may lose title to some or all of the property to an adverse possessor
either "through visible, open, notorious, hostile, and continuous possession of the premises for
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the statutory period" or through an assertion of ownership "under color of deed." Adams v
Adams (On Reconsideration), 276 Mich App 704, 719-720; 742 NW2d 399 (2007). "In cases in
which the adverse claimant claims title under color of deed, disseisin occurs when the record
owner first receives notice of the adverse deed." Id. at 720.1 Notably, recordation of an adverse
deed is only notice to parties other than the record landowner, which in this case is the Wanzer
family. Id. at 720 n 8.
The Wanzers were aware since at least the 1960s, when they were told as much in a letter
from the township, that the township claimed to own the boat launch pursuant to a deed from
Grace Lattin. However, we find it highly significant that the township was not aware of the
contents of the Lattin deed until approximately 2002. Of the township officials who testified,
some did not know the basis for the township's ownership of the boat launch, and some knew
that the township had a deed but had never actually seen the deed. In fact, there was testimony
that some township officials believed that the deed only covered the boat launch. There was also
testimony that when the instant litigation was commenced, that was the first time the township
became aware of the theoretical possibility that they owned more than just the boat launch. In
fact, the township had apparently allowed property owners north and south of the Wanzers to
install docks on the Bass Lake shore because the township was unaware that it might have owned
those shoreline properties—which it would under the property description in the Lattin deed.
Although the township clearly believed that it had a deed that granted it ownership of the
boat launch, that belief was without regard to the true contents of the deed. The trial court
correctly found that the township did not have a true claim of adverse possession under color of
deed: it is clear that the township did not have any idea of what it theoretically owned under the
Lattin deed beyond just "the boat launch." Rather, the situation in this case appears to be one
where the township occupied the boat launch in the belief that that was the true boundary line of
what it owned. Therefore, the trial court correctly found the proper analysis to be whether that
possession had been "actual, visible, open, notorious, exclusive, continuous, and uninterrupted"
for the requisite period.2 See Gorte v Dep't of Transportation, 202 Mich App 161, 170; 507
NW2d 797 (1993); Adams, supra at 719-720.
The Wanzers, in turn, argue that the township has failed to establish the requisite
elements of adverse possession. We disagree.
In the adverse-possession context, "hostility" refers to use of property without permission
and in a manner that is inconsistent with the rights of the true owner. Wengel v Wengel, 270
Mich App 86, 92-93; 714 NW2d 371 (2006). Nothing the township did on the property was
permissive. It is undisputed that the township put gravel on the boat launch, or at least
authorized gravel to be placed there, which would constitute a trespass "'entitl[ing] the owner to
1
However, even under a color-of-title claim, the claimant cannot adversely possess the disputed
property without having been in actual possession of some portion thereof. Westgate v Mathews,
31 Mich App 480, 483; 188 NW2d 1 (1971).
2
It is worth reiterating at this point that the requisite period is not disputed.
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a cause of action against the intruder,'" which is another definition of hostile possession. Id.
(citation omitted). The township considered itself responsible for helping to extract boats and
vehicles that got stuck on the boat launch, even though some neighbors also helped perform
extractions. The Wanzers argue that, because the township did not exclude them, the township's
possession was not hostile. However, analysis "of what acts or uses are sufficient to constitute
adverse possession depends upon the facts in each case and to a large extent upon the character
of the premises." Burns v Foster, 348 Mich 8, 14; 81 NW2d 386 (1957). The township's
possession was hostile in the context of these premises: the township opened up and maintained
private property for a widely recognized use by the public. Furthermore, the fact that the
township only occasionally did anything on the property is consistent with the area's character as
relatively undeveloped and predominantly seasonally occupied.
The fact that the township did not exclude the Wanzers is also consistent with the simple
fact that, as public property, the township could not exclude the Wanzers any more than any
other persons who wished to use the launch site. Equally critically, the fact that the township
never attempted to prevent the Wanzers from using other waterfront areas is immaterial: the
testimony indicated that the township did not interfere with the Wanzers because the Wanzers
were not interfering with the launch site. This is consistent with a claim of absence of a color of
title, but, particularly when combined with the testimony from the neighbors and the Wanzers
that the launch was regarded as a public site, it is also consistent with possession of the launch
that is hostile to the Wanzers' ownership thereof.
The Wanzers rely on the general, and venerable, rule that "[o]ccupation in common with
the public is not exclusive possession, neither is possession concurrent with that of the true
owner ever exclusive." LeRoy v Collins, 176 Mich 465, 475; 142 NW 842 (1913). However,
this rule is also dependent on the character of the premises. In LeRoy, the claimant was
attempting to adversely possess as private property a thoroughfare through which others
traveled. The situation in the instant case is the opposite: the claimant is attempting to adversely
possess as public property a parcel of land that was ostensibly private and thus closed to
members of the public. "Possession" refers to an exercise of dominion over the property, "and
there may be degrees even in the exclusiveness of the exercise of ownership." Murray v Hudson,
65 Mich 670, 675; 32 NW 889 (1887). When viewed in the context of the character of the
premises, the township's acts that unambiguously communicated to the public that it was the
owner of a public boat launch constitute acts of dominion over the property that excluded any
dominion the Wanzers had over the property.
The parties finally dispute how much property the township adversely possessed. It is
not disputed that the statutory cut-off period was just before the date the asphalt was put in. The
evidence was that before the paving the gravel boat launch was anywhere from 15- to 30-feet
wide, the best estimate being approximately the width of two boat trailers side by side. The
Wanzers estimate "two boat trailers side by side" to be approximately 18 feet in width.
However, there was also evidence that boat trailers could not just be backed straight in
perpendicularly from the road, and they would need some room on either side to maneuver.
When the asphalt was put in, the township apparently instructed the pavers at that time to pave
only the area that was already in use, but the township's supervisor conceded that it may have
been widened "a little bit." According to a survey performed by the Wanzers' expert, the asphalt
strip was 23.9 feet wide in 1989. With the addition of some maneuvering room, 30 feet is a
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sensible, rational, and appropriate finding of fact regarding the width of the adversely possessed
boat launch. We therefore reject the Wanzers' contention that the township adversely possessed
no more than 18 feet.
We likewise reject the township's claim that it adversely possessed approximately 55 to
60 feet, which was based on the fact that an "open area" was routinely and undisputedly used by
members of the public for a wide variety of activities, ranging from fishing and picnics to
bonfires. The township only held itself out to be operating a boat launch. All the testimony
indicated that the premises were a boat launch that members of the public, to the consternation
of neighbors, often used for other purposes. The fundamental purpose of the property was to put
boats into the water at the only spot on the lake where that could be done. The only control the
township exercised over the area before the paving was the occasional placing of gravel and the
occasional extraction of a boat or vehicle stuck in the gravel—both of which pertain only to the
actual boat-launch ramp, not to the remainder of the "open area." The lack of exercised control
over the entirety of the "open area" is inconsistent with adverse possession thereof. In the
absence of action by the governmental entity, the mere fact that members of the public used a
parcel of property is insufficient to establish a public easement. Kempf v Ellixson, 69 Mich App
339, 343-344; 244 NW2d 476 (1976). The principle here is sufficiently similar so that the same
analysis should apply.
The Wanzers argue that the township cannot claim adverse possession of property for
which it assessed taxes to be paid by the Wanzers. This Court explained in Bachus v West
Traverse Twp (On Remand), 107 Mich App 743; 310 NW2d 1 (1981), and Bachus v West
Traverse Twp, 122 Mich App 557; 332 NW2d 535 (1983), that it would be intolerable and
unjust3 for a governmental agency to claim adverse possession of property while simultaneously
including that property in the tax description of the dispossessed landowner. But in the instant
case, the township's tax assessments of the Wanzers' property and of the boat-launch area is
consistent with its good-faith belief that the township owned the boat-launch area. The township
kept a separate tax parcel for what it believed to be its separately owned land on the shore of
Bass Lake, and there was testimony at trial that the Wanzers' property and the surrounding
properties were taxed at 80 percent of the rate applicable to lakefront property. Again, we find
that the Wanzers' property description in fact extends to the lake, and the township's property
description therefore does not exist. But the township believed otherwise, and the trial court did
not clearly err in finding that the township made no attempt to "double dip."
We find no clear error in the trial court's determination that the township adversely
possessed a 30-foot-wide strip of land from Bass Lake Boulevard to Bass Lake.
Finally, the township objects to language in the trial court's judgment that states,
"Defendants shall not expand the width of Bass Lake Boulevard adjacent to the boat ramp in a
manner inconsistent with the full length of Bass Lake Boulevard." It is undisputed that the
3
The Bachus opinions discussed the concept of "chutzpah," which is the kind of gall shown by a
defendant who, after being convicted of killing his or her parents, seeks a lenient sentence
because he or she is an orphan.
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purpose behind this language was to prevent the township, or any subentity thereof, from
retaliating against the Wanzers or from finding a creative way to exercise its discretion to
circumvent the trial court's order. Moreover, the township recognizes this purpose to be
appropriate. The township is concerned that there may someday be a legitimate need to perform
some kind of road maintenance, including widening the road, on Bass Lake Boulevard in front of
the boat launch but not elsewhere, and furthermore that the trial court's order interferes with its
ability to properly manage the roadway pursuant to its constitutional authority and responsibility.
However, the township suggests no alternative way to accomplish the trial court's
concededly warranted goal, and, in any event, we do not share the township's interpretation of
the trial court's language. Nothing in the trial court's order was intended to prevent the township
from doing whatever needs to be done to the road, but, rather, only to ensure that the area in front
of the boat launch did not receive any modifications that were not strictly for road purposes, as
opposed to boat-launch purposes. The township's interests in the road and in the boat launch are
very different. The township owns the boat launch in fee through adverse possession, but its
interest in the road is much more limited: platted public roads convey either a mere public
easement or, at most, a "base fee" that amounts to little more than nominal title and no beneficial
ownership whatsoever. Village of Kalkaska v Shell Oil Co (After Remand), 433 Mich 348; 446
NW2d 91 (1989). The trial court's use of the word "inconsistent" in its order does not forbid the
township from making necessary improvements to the road, but, rather, only from making
improvements to the road that are not for roadway purposes. In any event, if a future
controversy arises, the parties can petition the court for direction with regard to this issue as
applied to a specific modification.
Affirmed.
/s/ William C. Whitbeck
/s/ Kathleen Jansen
/s/ Alton T. Davis
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