GREGORY A CANJAR V ROGER D COLEAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
GREGORY A. CANJAR,
May 14, 2009
Lapeer Circuit Court
LC No. 04-034319-CH
ROGER D. COLE and DARLENE L. LAMB,
Advance Sheets Version
Before: Zahra, P.J., and O’Connell and K. F. Kelly, JJ.
In this quiet title action, we must determine whether plaintiff-husband and non-party
former wife who owned property by the entirety must both have had “hostile” intent for plaintiff
to individually adversely possess property abutting the property held by the entirety. Following
a bench trial, the trial court determined that plaintiff met all the elements required to sustain a
cause of action for adverse possession, but concluded that the non-party former wife’s lack of
hostile intent during the required statutory period destroyed the plaintiff’s claim of adverse
possession and created a valid defense for defendants. Plaintiff appeals as of right, and we
reverse. We hold that an adverse possessor who seeks to append property to property that he or
she holds by the entirety with his or her non-party spouse may adequately satisfy the
requirements of adverse possession individually regardless of the intent of the non-party spouse.
I. Basic Facts and Procedural History
This lawsuit arises out of a dispute over a triangular-shaped parcel of property located
along the boundary of plaintiff’s and defendants’ properties and measuring approximately 0.46
acres. Plaintiff and his now ex-wife, Daryl Snow, had purchased a 10-acre parcel of land in 1976
and held the property as tenants by the entirety. Plaintiff and his wife began living on the
property in 1980. Defendant Darlene Lamb purchased the property to the north of plaintiff’s
property in 1988; Lamb and defendant Roger Cole had initially rented the property from the
previous owner and had resided on the property since 1984. In 1993, a warranty deed was issued
to both Lamb and Cole. A creek and tree line creates a natural boundary between plaintiff’s and
defendants’ properties. The disputed property lies on plaintiff’s side of the creek but was owned
by defendants pursuant to the terms of their deed.
Starting shortly after their purchase of the 10-acre property, plaintiff began “bushhogging” and mowing the disputed land. Plaintiff cleared and maintained his land, including the
disputed parcel, all the way to the creek and the tree line. Plaintiff knew that he was on
defendant’s property when maintaining the land all the way to the creek and tree line. Plaintiff
nonetheless continued to use the disputed property almost every day or every other day in some
way. Plaintiff had a garden on the disputed parcel for about six years, planted some trees there in
1977, had a doghouse on it for several years, burned trash there once or twice a week, and stored
various personal property, including vehicles, on the disputed land. In addition, plaintiff created
a baseball and soccer field for his children on the disputed area and his wife used the area to play
with the children and tend a strawberry garden.
A fire that occurred on the disputed property in spring 2004 precipitated the current
litigation. Plaintiff accidentally set fire to some of the trees he had planted on the disputed
property while he was burning leaves, and defendant Cole allegedly came onto the property
complaining that plaintiff had burned his trees. Cole threatened to file a complaint, and plaintiff
filed this lawsuit seeking to quiet title of the disputed parcel in himself on a theory of adverse
After a lengthy pretrial process, the matter proceeded to a bench trial. Plaintiff testified
that he conducted his activities on the property with the intent of claiming the land for his own
although he knew he did not own the parcel. Plaintiff also stated that he never saw defendants
on the disputed property, they never told him to stop using the disputed property, and they never
removed any of his personal property from the area. Plaintiff also never asked for, nor received,
permission to use the property.
Plaintiff’s friend, Richard Nash, corroborated plaintiff’s trial testimony that plaintiff used
the disputed property as his own. According to Nash, he helped plaintiff plant some large trees
in the disputed area, cleared brush with a chain saw from the land, saw vehicles on the disputed
area, and noticed that plaintiff maintained his property up to the creek. Plaintiff’s wife Snow,
whom he divorced sometime in 2002, also confirmed plaintiff’s actions on the disputed land.
Snow testified that she quitclaimed her interest in the 10-acre property to plaintiff after the
divorce, thereby destroying the tenancy by the entirety. Snow testified that plaintiff was on the
disputed property weekly since 1980, until she moved out in 2003, and that they maintained the
property all the way to the creek line to make it “look nice.” She stated that it would be open and
obvious to a casual observer that she and plaintiff were occupying the property. Snow also
testified that it was never the “spirit of [her] heart to ever take anything that was not [hers]” and
that she “never had intentions” to own the disputed property.
Lamb disputed that any vehicles had been parked on the property or that any other
personal property had been placed there. Lamb asserted that she used the property on a regular
basis and that it was never mowed until 1997. She testified that she and her children would walk
through the disputed area on “many” occasions, using it for hunting, snowmobiling, and riding
dirt bikes. She also testified that her children played in the riverbed in the summer.
After closing arguments, the trial court quieted title in defendants. The trial court
reasoned that although plaintiff had met all the requirements of adverse possession, plaintiff’s
claim nonetheless failed because Snow did not intend to adversely possess the property. In the
trial court’s view, because plaintiff and Snow had owned the 10-acre property as tenants by the
entirety, Snow was also required to act with hostile intent in order for plaintiff to prevail on his
claim of adverse possession. This appeal followed.
II. Standards of Review
We review de novo actions that are equitable in nature, such as quiet title actions, but the
trial court’s factual findings are reviewed for clear error. Sackett v Atyeo, 217 Mich App 676,
680; 552 NW2d 536 (1996). Conclusions of law are also reviewed de novo. Ambs v Kalamazoo
Co Road Comm, 255 Mich App 637, 651; 662 NW2d 424 (2003).
III. Quiet Title Action
Plaintiff argues that the trial court erred by ruling that both husband and wife must have
the same intent to adversely possess a parcel of property adjoined to property they hold by the
entirety in order for one spouse individually to lay claim to the disputed property through
adverse possession. We agree. Because our determination addresses married individuals’
rights, the purpose of the tenancy by the entirety, as well as the nature of an adverse possession
claim, we find it necessary to first discuss these concepts as they have developed in Michigan.
A. Marriage and Individual Spouses’ Rights
It has long been recognized that a married man has the right to hold and manage property
held individually, obtained before or after marriage. See Burdeno v Amperse, 14 Mich 91, 92
(1866); Schmoltz v Schmoltz, 116 Mich 692; 75 NW 135 (1898); Trabbic v Trabbic, 142 Mich
387; 105 NW 876 (1905); Le Blanc v Sayers, 202 Mich 565; 168 NW 445 (1918). Married
women did not always enjoy these same rights because, at common law, the power and
independent authority to act was vested in the husband alone. See Snyder v People, 26 Mich
106, 109 (1872). In other words, once married, a woman ceased to have control or authority
over her actions or her property because they became subject to the control of her husband.
Burdeno, supra at 92; People v Wallace, 173 Mich App 420, 426; 434 NW2d 422 (1988). A
wife could not manage or own her own property, could not enter into contracts, and could not
sue in her own name. Burdeno, supra at 92. “In short, she lost entirely all the legal incidents
attaching to a person acting in her own right [and the] husband alone remained sui juris, as fully
as before marriage.” Id.
Eventually, however, a set of mandates came into being, termed the married women’s
property acts, which “gave married women the power to protect, control and dispose of property
in their own name, free from their husbands’ interference.” Wallace, supra at 428, citing Snyder,
supra at 107, 110. Const 1963, art 10, § 1, abolished what was known in the former common
law as “disabilities of coverture,” or a married woman’s incapacity to enter into a binding
contract. That provision provides:
The disabilities of coverture as to property are abolished. The real and
personal estate of every woman acquired before marriage and all real and personal
property to which she may afterwards become entitled shall be and remain the
estate and property of such woman, and shall not be liable for the debts,
obligations or engagements of her husband, and may be dealt with and disposed
of by her as if she were unmarried. Dower may be relinquished or conveyed as
provided by law.
Similarly, MCL 557.21(1) provides:
If a woman acquires real or personal property before marriage or becomes
entitled to or acquires, after marriage, real or personal property through gift, grant,
inheritance, devise, or other manner, that property is and shall remain the property
of the woman and be a part of the woman’s estate. She may contract with respect
to the property, sell, transfer, mortgage, convey, devise, or bequeath the property
in the same manner and with the same effect as if she were unmarried. The
property shall not be liable for the debts, obligations, or engagements of any other
person, including the woman’s husband, except as provided in this act.
See also Manufacturers Nat’l Bank v Pink, 128 Mich App 696, 699-700; 341 NW2d 181
(1983) (recognizing married women’s independent right to contract). Consequently, married
women’s rights became coterminous with that of married men’s rights and, today, each spouse
has the power and authority to independently exercise his or her rights free of the other spouse’s
interference. See MCL 557.21; North Ottawa Community Hosp v Kieft, 457 Mich 394, 406; 578
NW2d 267 (1998). And, although many legal structures remain intact for the purpose of
protecting the marital estate, e.g., the tenancy by the entirety discussed below, nothing in the law
today functions to prevent one spouse from acquiring property in an individual capacity without
the consent of the other.
B. Tenancy by the Entirety
With the rights of married spouses in mind, we now turn to the tenancy by the entirety.
“A tenancy by the entirety is a type of concurrent ownership in real property, which is unique to
married persons.” Tkachik v Mandeville, 282 Mich App 364, 370; 764 NW2d 318 (2009). This
type of concurrent ownership, which also derived from English common law, is intended to
protect the martial estate. Id. This Court discussed the nature of property held by the entirety in
Rogers v Rogers, 136 Mich App 125, 134; 356 NW2d 288 (1984):
The classic basis for the tenancy by the entireties was the concept that “the
husband and wife are but one person in the law”. In a true tenancy by the
entireties, each spouse is considered to own the whole and, therefore, is entitled to
the enjoyment of the entirety and to survivorship. When real property is so held
as tenants by the entireties, neither spouse acting alone can alienate or encumber
to a third person an interest in the fee of lands so held. Neither the husband nor
the wife has an individual, separate interest in entireties property, and neither has
an interest in such property which may be conveyed, encumbered or alienated
without the consent of the other. [Citations omitted.]
Stated more succinctly, when a husband and wife choose to hold property by the entirety, neither
spouse may individually convey, encumber, devise, or alienate that property without the consent
of the other spouse. Rather, the property is protected from one spouse acting alone to
accomplish these types of transactions.
C. Adverse Possession
Whereas the tenancy by the entirety is a type of concurrent ownership, adverse
possession is a type of claim. This doctrine was adopted in our legal system from English
common law. Sprankling, The antiwilderness bias in American property law, 63 U Chi L R 519,
537-540 (1996). The underlying philosophy of a claim for adverse possession is to encourage
land use, as it favors the productive use of land over its disuse. Id. The import of this doctrine,
as this Court has recognized, “is against a party who has had rights that have not been asserted
for an extended period of time to the detriment of another.” McGee v Eriksen, 51 Mich App 551,
559; 215 NW2d 571 (1974).
Accordingly, Michigan law has sanctioned a claim that permits the otherwise unlawful
taking of property initially owned rightfully by another. MCL 600.5801. In order to establish a
claim of adverse possession, a plaintiff must provide “clear and cogent proof that possession has
been actual, visible, open, notorious, exclusive, continuous, and uninterrupted for the statutory
period of fifteen years.” Kipka v Fountain, 198 Mich App 435, 439; 499 NW2d 363 (1993).
The fifteen-year period begins when the rightful owner has been disseised of the land. MCL
600.5829. “Disseisin occurs when the true owner is deprived of possession or displaced by
someone exercising the powers and privileges of ownership.” Kipka, supra at 439. In addition,
a plaintiff must also show that the plaintiff’s actions were “hostile” and “under claim of right,”
meaning that the use is “inconsistent with the right of the owner, without permission asked or
given, and which use would entitle the owner to a cause of action against the intruder.” Wengel v
Wengel, 270 Mich App 86, 92-93; 714 NW2d 371 (2006) (quotation marks and citation omitted).
Turning to the instant case, plaintiff argues that the trial court erred by quieting title in
defendants because it found that Snow did not have the hostile intent necessary to adversely
possess the disputed property, which, in the trial court’s view, was necessary because plaintiff
and Snow owned the adjoining property by the entirety. We agree with plaintiff.
The trial court concluded that plaintiff had met all the requirements, except that his
former wife had expressed no hostile intent or claim of title,1 and therefore plaintiff’s claim
failed. The trial court reasoned as follows:
We note that defendants did not cross-appeal the trial court’s other factual findings and,
therefore, we do not address the validity of those findings on appeal.
The Court is satisfied that based upon the testimony here that anyone
driving up the driveway of the Canjar residence . . . would make the natural
assumption that that parcel of property belongs to the Canjar’s [sic] living at 3203
Muir Road. They mowed it. They took care of it. They did all things necessary
to exercise dominion, control and everything else over that particular piece of
property. The Court is satisfied that the property was down a hill or slope. There
was a tree line. They really didn’t see it. It was difficult for them to see even
though they may have driven by on a regular basis because they lived right there.
The Court is satisfied that . . . the Canjars exercised visible open, notorious,
exclusive possession of that property.
The issue now becomes was there a claim of right. The Court’s position
in this matter is that the property that this .46 acres is to be appended to is
property that is owned by the entireties by Mr. and Mrs. Canjar at the time they
bought the land, . . . and the case law is ample where under Michigan law both the
husband and wife have a single cause of action for damages to entireties property.
Neither the husband nor wife, acting alone, may convey or contract to convey to a
stranger, property held by both of them as tenants by the entireties.
The reason that’s important is because one of the owners of the 10 acres
. . . , Miss Daryl Canjar, now known as Daryl Snow, clearly testified that she
knew the Coles had superior title, that she only took care of it to make it look
nice, to make it look neat, to have someplace for the children to play, even some
of the Cole children played on it. She was clear in regard to that. So the owner of
the property has to have—the claim has to be hostile in regard to both. And she
acknowledged that it wasn’t hostile. She knew they had a claim of right. . . . So
with that said, with her position and based upon the Rogers case, the St[e]rrett
case and all the other things I’ve talked about, there is no 15 years . . . .
Again, in order to have the entire 15 years of adverse possession tacked,
that’s one thing. Now, again, Mr. Canjar, I know your argument is that if the
property was located somewhere else and Mr. Cole drove to a cottage—that’s not
the issue. The issue is that piece of property is abutting the property that was held
by the entireties. The fact that Mrs. Canjar did not have the same state of mind as
being notorious, hostile, claim of right, defeats your client’s 15 years in regard to
this matter. . . .
Again, I heard your argument about the husband’s claim and people
mowing the grass. I hope you were being facetious, Mr. Canjar, because those
See Rogers, supra; Estate of Sterrett v Watson, unpublished opinion per curiam of the Court of
Appeals, issued January 15, 2004 (Docket No. 241996).
aren’t the facts the Court is looking at here. So in regard to those positions the
Court is satisfied that the 15 years have not been met because the owners of the
entirety did not, together, express notorious, exclusive or hostile or claim of right
to said .46 acres.
The trial court erred. The doctrine of adverse possession simply does not require an
analysis of how other owners, who own other land in conjunction with a plaintiff and which
property abuts the disputed parcel, treated the disputed land.3 Significantly, the elements of
adverse possession are silent with respect to whether the adverse possessor owns other land,
adjoining or not, and whether the adverse possessor holds such land jointly, by the entirety, or
singly. In our view, it cannot be more plain that the entire focus of a claim for adverse
possession is the adverse possessor’s actions on, and intent with respect to, the land he or she
seeks to adversely possess during the statutory period, as well as the rightful owner’s actions and
uses with respect to the disputed land. See Kipka, supra at 439; Wengel, supra at 92-93. Thus,
whether the adverse possessor owns other land to which he seeks to append the disputed property
is immaterial and, consequently, irrelevant to an adverse possession analysis. Further, nothing in
the doctrine of adverse possession is inconsistent with permitting one spouse individually to
adversely possess land abutting land that is owned by the entirety, although the other spouse may
not have had the same hostile intent.
Equally significant is that nothing in the character of the tenancy by the entirety justifies
the trial court’s conclusion of law. Nothing in the intent and purpose of this type of concurrent
ownership permits us to conclude, as the trial court did, that both spouses must meet the
requirements of adverse possession in order for one spouse to individually append an adjacent
parcel of property to property that is held by the entirety. The nature and purpose of this type of
concurrent ownership do not support this proposition. Rather, because the additional property is
outside the boundaries of the entirety property, the principles applicable to entirety property
requiring that spouses act jointly, see Rogers, supra at 134, simply do not apply and are
irrelevant. As such, this type of concurrent ownership provides no restriction on the acquisition
of additional property through adverse possession by one spouse, regardless of whether the
disputed parcel is attached to the entirety property, or whether the non-party spouse agrees with
the other spouse’s activities in attempting to adversely possess property.
Accordingly, we hold that in order for one spouse to claim adverse possession of property
that abuts property owned by the entirety, it is not necessary that both spouses have the same
intent to adversely possess the parcel as long as the plaintiff can singly satisfy all the elements of
adverse possession. A decision contrary to our holding would imply that married persons cannot
acquire property as individuals, which is obviously contrary to established law that each spouse
is free to acquire property independently and without the interference of the other spouse. See
Const 1963, art 10, § 1; MCL 557.21; North Ottawa Community Hosp, supra at 406. Thus,
We note that if Snow had been a plaintiff, there is no question that her intent would matter.
plaintiff certainly did not need his spouse’s permission, consent, or even complicity to adversely
possess the disputed parcel. Plaintiff’s actions alone were sufficient. As the trial court found,
plaintiff satisfied the hostility requirement, as well as all other elements of adverse possession.
The judgment quieting title in defendants was entered in error.
Lastly, we note that the court’s statement that Michigan caselaw provides that “both
husband and wife have a single cause of action for damages to entireties property” and that
neither may act alone in conveying or contracting to convey entirety property is clearly
inapplicable to the present matter. Plaintiff’s claim did not involve a claim of damages, or
conveyance, or encumbrance with respect to the 10-acre property.
In light of our conclusion, it is unnecessary for us to address plaintiff’s remaining claims.
However, to the extent that defendants were awarded $517.48 because they were the prevailing
parties, we vacate that award because defendants are no longer the prevailing party.
Reversed. Remanded for entry of an order quieting title to the disputed property in
plaintiff. We do not retain jurisdiction.
/s/ Brian K. Zahra
/s/ Peter D. O’Connell
/s/ Kirsten Frank Kelly