REMI COOLSAET JR V JAN MANS

 Annotate this Case
Download PDF
STATE OF MICHIGAN COURT OF APPEALS REMI COOLSAET, JR., and PATRICIA A. COOLSAET, UNPUBLISHED September 22, 2005 Plaintiffs/CounterdefendantsAppellees/Cross-Appellants, v No. 260210 Wayne Circuit Court LC No. 03-317423-CH JAN MANS, Defendant/CounterplaintiffAppellant/Cross-Appellee. Before: Fitzgerald, P.J., and Cooper and Kelly, JJ. PER CURIAM. The parties own adjoining lots along the Detroit River in Trenton, Michigan. Defendant's property contains a boathouse that has encroached on the neighboring lot by about three feet since the 1940s. Plaintiffs were aware of the encroachment when they purchased the adjoining lot in 1989. In 2003, defendant began to renovate the boathouse. Plaintiffs filed this action alleging claims for trespass and nuisance based on various alleged zoning violations. Defendant filed a counterclaim, claiming title to the property by adverse possession. The parties filed crossmotions for summary disposition. The trial court denied defendant's motion, holding that defendant could not establish the requisite hostility to prevail on a claim for adverse possession. As a result, the court concluded that plaintiffs prevailed on their trespass claim. The court also held, however, that plaintiffs could not establish a public nuisance. The trial court declined to impose any remedy until after the Trenton Zoning Board of Appeals decided whether defendant's boathouse violated any local zoning ordinances. This Court granted defendant's application for leave to appeal, and plaintiffs subsequently filed a cross appeal. We affirm in part, reverse in part, and remand. Defendant argues that the trial court erred in denying her motion for summary disposition on her adverse possession claim. This Court reviews a trial court’s decision on summary disposition de novo. Spiek v Dep't of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). It is apparent that the trial court considered defendant’s motion under MCR 2.116(C)(10). A motion under MCR 2.116(C)(10) tests the factual support for a claim. The court must consider the pleadings, affidavits, depositions, admissions, and other documentary evidence submitted by the parties. MCR 2.116(G)(5). Summary disposition should be granted if, except as to the amount of damages, there is no genuine issue of material fact and the moving -1- party is entitled to judgment as a matter of law. Babula v Robertson, 212 Mich App 45, 48; 536 NW2d 834 (1995). "To establish adverse possession, the claimant must show that its possession is actual, visible, open, notorious, exclusive, hostile, under cover of claim or right, and continuous and uninterrupted for the statutory period of fifteen years." West Michigan Dock & Market Corp v Lakeland Investments, 210 Mich App 505, 511; 534 NW2d 212 (1995). "Mutual use or occupation of property with the owner's permission is insufficient to establish adverse possession." Id. "[W]here a landowner possesses the land of an adjacent owner with the intent to hold to the true line, the possession is not hostile and cannot establish adverse possession." Gorte v Dep't of Transportation, 202 Mich App 161, 170; 507 NW2d 797 (1993). But "where a person possesses the land of another intending to hold to a particular recognizable boundary regardless of the true boundary line, the possession is hostile and adverse possession may be established." Id. The parties disagree whether plaintiff established the element of hostility. The trial court recognized that the element of hostility does not require ill will, but rather that the claimant's use of the property is inconsistent with the original owner's rights. The court initially concluded that the encroachment of the boathouse onto plaintiffs' property was inconsistent with plaintiffs' ownership. The court also recognized that the boathouse had encroached on the property for at least fifteen years before plaintiffs acquired the property in 1989. Nevertheless, the court determined that the element of hostility was lacking because plaintiffs appeared to have impliedly given defendant permission to keep the boathouse on their property after plaintiffs acquired their land in 1989, despite plaintiff Remi Coolsaet's testimony at his deposition that he never gave defendant such permission. The trial court also concluded that because defendant never expressly informed the prior owners of plaintiffs' property of her claim of ownership to the disputed property, she could not establish hostility, because the prior owners may have simply been mistaken about the boundary. The trial court held that defendant was required to perform some affirmative act to show hostile intent, and that, once plaintiffs acquired the property in 1989, defendant was required to place plaintiffs on notice that the placement of the boathouse was an exercise of dominion, not a permissive borrowing of the land. The trial court also appeared to conclude that the parties had some informal agreement, because they had a harmonious relationship and defendant was not aware that plaintiffs disagreed with her about the property line. We conclude that the trial court erred in holding that defendant failed to establish the necessary element of hostile intent. The undisputed facts disclose that the boathouse has remained on the disputed property since the 1940s. Defendant was aware of this encroachment as early as 1970, and continued to keep the boathouse in the same location, knowing that it was not on her property. Notwithstanding the lack of any actual knowledge of the encroachment by the true owner of the property, the possession was open, visible, and notorious to raise a presumption of notice to the world that the rights of the true owner had been invaded. This was sufficient indication of defendant's hostile intent to establish a claim of adverse possession. Burns v Foster, 348 Mich 8, 14-15; 81 NW2d 386 (1957); see also Walker v Bowen, 333 Mich 13, 22-23; 52 NW2d 574 (1952) (the construction of buildings on neighboring property is considered an unequivocal assertion of a claim of right to the property and an expression of the -2- intent to take and hold that land). In addition, there is no factual basis in the record for the trial court's conclusion, when denying defendant's motion for reconsideration, that the boathouse was only a temporary structure. The trial court also erred to the extent that it found that plaintiffs' predecessors in title gave permission for the boathouse to remain on the disputed property, thus eliminating any hostile use of the property by defendant. The record is devoid of any factual support for this conclusion. We agree with plaintiffs that defendant had the burden of proving adverse possession, Burns, supra at 14-15, but the burden was on plaintiffs to prove that any use of the property by defendant was permissive, Reed v Soltys, 106 Mich App 341, 346; 308 NW2d 201 (1981). Plaintiffs did not offer any evidence that their predecessors in title gave permission for the boathouse to remain on their land. Because there is no evidence that the boathouse was originally constructed, and allowed to remain, on the adjoining lot with the property owner's permission, the trial court erred in concluding that plaintiffs met their burden of proof with respect to permissive use. The trial court also appeared to believe that defendant could not prove adverse possession because plaintiffs' conduct after acquiring the property in 1989 reflected that they gave defendant permission to keep the boathouse on their property. But because the evidence established defendant's hostile possession of the property against plaintiffs' predecessor in title for the requisite fifteen-year period before plaintiffs acquired the property in 1989, defendant's title to the property by adverse possession had already vested by the time plaintiffs purchased the property. Gorte, supra at 168-169. Contrary to the trial court's conclusion, defendant was not required to express an intent to claim the disputed property. As previously discussed, placement of the boathouse on the property was enough notice of defendant's hostile intent to claim that property. In Connelly v Buckingham, 136 Mich App 462, 470-472; 357 NW2d 70 (1984), this Court explained that it is the conduct of the claimant that establishes whether there is a hostile intent to claim title. The Court, quoting Mumrow v Riddle, 67 Mich App 693, 697-698; 242 NW2d 489 (1976), explained: "The term 'hostile' as employed in the law of adverse possession is a term of art and does not imply ill will. Nor is the claimant required to make express declarations of adverse intent during the prescriptive period. Adverse or hostile use is use inconsistent with the right of the owner, without permission asked or given, use such as would entitle the owner to a cause of action against the intruder." [Connelly, supra at 472 (citation omitted).] Thus, defendant was not required to express to either plaintiffs or their predecessors in interest an intent to claim the property in the absence of evidence of permissive use. In sum, the submitted evidence demonstrates that there is no genuine issue of material fact that, even before plaintiffs acquired their property in 1989, defendant occupied the disputed property for more than fifteen years with an intent hostile to the adjoining landowners' rights. Thus, the trial court erred in denying defendant's motion for summary disposition with respect to her adverse possession claim. We therefore remand for entry of judgment in favor of defendant on her claim for adverse possession. Furthermore, in light of our decision on this issue, plaintiffs cannot establish that defendant’s occupation of the land acquired by adverse possession -3- constitutes a trespass. The trial court should have denied plaintiffs' motion for summary disposition in this regard. In their cross appeal, plaintiffs argue that they were entitled to summary disposition with respect to their public nuisance claim because defendant's boathouse violates existing zoning ordinances. We agree with the trial court that plaintiffs do not have standing to allege a public nuisance claim. As this Court explained in Cloverleaf Car Co v Phillips Petroleum Co, 213 Mich App 186, 190; 540 NW2d 297 (1995): A public nuisance is an unreasonable interference with a common right enjoyed by the general public. The term "unreasonable interference" includes conduct that (1) significantly interferes with the public's health, safety, peace, comfort, or convenience, (2) is proscribed by law, or (3) is known or should have been known by the actor to be of a continuing nature that produces a permanent or long-lasting, significant effect on these rights. Wagner v Regency Inn Corp, 186 Mich App 158, 163; 463 NW2d 450 (1990). A private citizen may file an action for a public nuisance against an actor where the individual can show he suffered a type of harm different from that of the general public. Adkins v Thomas Solvent Co, 440 Mich 293, 306 n 11; 487 NW2d 715 (1992). Plaintiffs alleged that the boathouse adversely impacts the value of their property and obstructs their view of the Detroit River. Plaintiffs' allegations regarding the alleged zoning violations relate to the repair or reconstruction of the boathouse. As the trial court noted, plaintiffs' allegations of special damages are not predicated on any alleged zoning violations because the boathouse is generally situated in the same location as it was before the renovation work was performed. Accordingly, we conclude that the trial court properly dismissed plaintiffs' claim for public nuisance. Further, if plaintiffs have a remedy for the alleged zoning violations, it must first be pursued through their city officials. See Towne v Harr, 185 Mich App 230, 233; 460 NW2d 596 (1990). The trial court declined to impose any remedy until plaintiffs exhausted their right to relief before the Trenton Zoning Board of Appeals. When an administrative procedure is provided, a party must exhaust that remedy before a court can review the case. Michigan Supervisors Union OPEIU Local 512 v Dep't of Civil Service, 209 Mich App 573, 576-577; 531 NW2d 790 (1995). We agree that the Trenton Zoning Board of Appeals, given its expertise concerning its own ordinances, should first decide any issues regarding zoning violations. We disagree with plaintiffs that they do not have a remedy before the board. Because the city issued defendant a building permit to repair the boathouse, the board has jurisdiction in this matter and Trenton's zoning ordinances provide that plaintiffs may pursue any remedy they might have before the zoning board. While we agree with plaintiffs that the trial court erred by addressing a claim for private nuisance, given that plaintiffs never raised such a claim, its discussion of this issue was extraneous to its consideration of plaintiffs' properly raised claims and, therefore, did not affect plaintiffs’ rights. -4- Plaintiffs' additional claim that defendant violated various local ordinances by allegedly rebuilding the boathouse are dependent on whether the boathouse is subject to the zoning ordinances in the first instance. If the boathouse was only repaired, it may be exempt from the ordinances as a nonconforming structure when the ordinances were adopted. We believe that the trial court properly deferred jurisdiction on this question to the Trenton Zoning Board of Appeals. For the same reason, we decline to address the merits of plaintiffs' argument that the boathouse is a nuisance per se that must be abated under MCL 125.587. Affirmed in part, reversed in part, and remanded. We do not retain jurisdiction. /s/ E. Thomas Fitzgerald /s/ Jessica R. Cooper /s/ Kirsten Frank Kelly -5-

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.