DAVID P TAGGART V TERRY L TISKA
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Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Justice
Justices
Maura D. Cor rigan
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
Opinion
____________________________________________________________________________________________________________________________
FILED APRIL 2, 2002
DAVID P. TAGGART and
BONNIE J. TAGGART,
Plaintiffs/Counter-
Defendants-Appellants,
v
No. 118206
TERRY L. TISKA,JAK
CONSTRUCTION, INC., and
KEITH SMITH, jointly and
severally,
Defendants/Counter
Plaintiffs/Appellees.
________________________________
PER CURIAM
This is a real estate case.
Owners of adjoining parcels
each claim ownership of a strip of land near the border of the
two parcels.
The circuit court granted summary disposition
for the defendants on the ground the plaintiffs’ suit was
tardily
filed
because
MCL
600.5868
provides
a
one-year
limitation period. The Court of Appeals affirmed. We reverse
the judgments of the circuit court and the Court of Appeals
because those courts misinterpreted MCL 600.5868.
We remand
this case to the circuit court for further proceedings.
I
This is a dispute between adjacent owners of rural
property in St. Clair County.1
9055 Stone Road.
The plaintiffs own the lot at
To the east is a parcel at 9057 Stone Road.
The defendants include the current and former owners of the
9057 property.
The dispute concerns a triangle of property,
with the point of the triangle on Stone Road and the base to
the north, along the back property line. A surveyor confirmed
that the disputed property lies within the legal description
of 9057.
At all pertinent times, the 9055 property has contained
a residence.
From the late 1950s until 1979, it was owned by
Edward F. Compton and his wife, whose name does not appear in
the record.
She was awarded the property when the Comptons
divorced in 1979.
In 1980, she sold it to plaintiffs David P.
Taggart and Bonnie J. Taggart.2
The 9057 property was undeveloped until 1996.
been owned by Lawrence W. David and Nellie I. David.
It had
As it
happens, Ms. David was Mr. Compton’s kindergarten teacher.
1
The circuit court granted the defendants’ motion for
summary disposition. For purposes of this opinion, we accept
as true the facts alleged by the plaintiffs.
Where
appropriate to supplement this narrative, we have drawn other
uncontested facts from the record.
2
We are told that the Taggarts’ purchase of the 9055
property occurred in November 1980.
2
Ms. David passed title to the couple’s children, Lawrence N.
David and Diane D. Shafer.
They, in turn, conveyed the
property to Keith Smith,3 who is the owner and president of
defendant JAK Construction, Inc.4
Mr. Smith built a house on
the lot in 1996 (the house is not on the disputed strip), and
then sold the 9057 lot to defendant Terry L. Tiska.
Ms. Shafer and Mr. Compton have filed affidavits in which
they state that Mr. Compton long ago cut and cleared the
disputed area in order to push back mosquitos that lived on
9057. When he began, his former kindergarten teacher told him
to stop, lest he someday claim the property as his own.
She
and he then agreed that he could clear the strip if, at his
own expense, he obtained and signed a lawyer-drawn document
stating that the use was permissive and could never be the
basis for a claim that he owned that portion of 9057.
Neither
Ms. Shafer nor Mr. Compton can locate a copy of that document.
In their complaint, the Taggarts say that, since 1980,
they
“have
been
in
actual,
visible,
open,
notorious,
exclusive, continuous, and uninterrupted possession of [the
disputed strip of property].”
The Taggarts further state5
that they have cleared brush, cut trees, gardened, maintained
3
The David family’s sale of the 9057 property apparently
occurred in December 1995.
4
The papers at hand sometimes speak of a conveyance to
JAK. In this opinion, references to Mr. Smith include his
company.
5
These assertions are found in a paper designated
“affidavit” and signed by Mr. Taggart, but not notarized.
3
a picnic area and horseshoe pit, constructed a burning pit
with concrete blocks, and generally treated the disputed
property as their own.
The current dispute arose in 1996, when Mr. Smith began
preparing the 9057 property for construction of the house and
its later sale to Ms. Tiska.
While it appears that the
Taggarts did not contest every step taken, they did make their
displeasure
known
and
they
did
protest
Detroit
Edison’s
installation of an electrical line through a trench in the
disputed area.6
In December 1997, the Taggarts filed suit. The complaint
was filed more than a year after the defendants had entered
the disputed strip and had begun using it as their own, and
more than a year after the plaintiffs had complained to
Detroit Edison.
As indicated, the plaintiffs sought ejectment and the
defendants
counterclaimed
to
quiet
title.7
Among
other
claims, the defendants asserted that the plaintiffs’ suit was
6
The parties disagree about many of the facts. Among
the points of controversy are the extent to which the
Taggarts’ usage was permissive, the dates of the key events of
1996, the timing and significance of negotiations to resolve
this matter by quitclaim deed, the significance of everyone’s
failure to survey the land for many years, and the extent to
which trees and other features of the land would reasonably
suggest a natural boundary.
7
The parties submitted a variety of claims by complaint,
countercomplaint, and third-party complaint.
However, the
claims mentioned above (ejectment and quiet title) are all
that we consider in this opinion.
4
untimely
under
MCL
600.5868,
which
the
defendants
characterized as a one-year statute of limitation.
The circuit court granted a defense motion for summary
disposition, agreeing that the plaintiffs’ suit was untimely.
The circuit court thus ruled that Ms. Tiska, as holder of the
recorded title, was the owner of the property.
The court did
not address the merits of the question whether the Taggarts
had gained ownership by adverse possession.
The Court of Appeals affirmed.
242 Mich App 688; 619
NW2d 731 (2000).8
The Taggarts have applied for leave to appeal in this
Court.
II
This case concerns the proper interpretation of MCL
600.5868.
Specifically, the issue is whether the following
provision states a one-year period of limitation barring the
Taggarts’ ejectment suit:
No person shall be deemed to have been in
possession of any lands, within the meaning of this
chapter merely by reason of having made an entry
thereon, unless he continues in open and peaceable
possession of the premises for at least 1 year next
after such entry, or unless an action is commenced
upon such entry and seisin, within 1 year after he
is ousted or dispossessed of the premises.
We stated our standard of review earlier this year in
Hanson v Mecosta Co Rd Comm’rs, 465 Mich 492, 497; 638 NW2d
396 (2002):
8
Reh den by unpublished order, entered November 21, 2000
(Docket No. 219498).
5
This case involves a review of a decision on a
motion for summary disposition, and presents an
issue of statutory construction, both of which we
review de novo. Hazle v Ford Motor Co, 464 Mich
456, 461; 628 NW2d 515 (2001); Brown v Michigan
Health Care Corp, 463 Mich 368, 374; 617 NW2d 301
(2000).
III
In its opinion of affirmance, the Court of Appeals
explained its conclusion that MCL 600.5868 provides a one-year
limitation period.
The Court stated:
We note that in this case the statute’s
wording causes its meaning and intended application
to be less than perfectly clear, and we urge the
Legislature to revisit and clarify this provision.
However, this section is contained in the portion
of the Revised Judicature Act[9] governing the
limitation of actions and it is well established
that a plaintiff who is aware of his right to bring
a cause of action may not sit idly by and later
bring an untimely suit. Therefore, in light of the
intent of the Legislature to generally limit
untimely actions, and the language of the statute
at issue in this case, we conclude that the statute
requires an action for recovery of property to be
commenced within one year after a person has
reentered the property after being ousted. [242
Mich App 690-691.]
Because the Taggarts filed their complaint more than a year
after Mr. Smith began work on the 9057 property and more than
a year after a trench was dug across the disputed strip, the
Court of Appeals concluded that the suit was untimely filed
more than one year after the Taggarts had been ousted.
The Court of Appeals erred in its conclusion that MCL
600.5868 is a one-year statute of limitation for persons who,
after becoming owners by adverse possession, need to enforce
9
MCL 600.101 et seq.
6
their rights of ownership.
Although the language of the
statute is less than perfectly clear, a proper understanding
of MCL 600.5868 can be gained by examining this Court's
application of this statutory language.
In Donovan v Bissell, 53 Mich 462; 19 NW 146 (1884), the
unanimous opinion of Chief Justice COOLEY explains the nature
of this provision.
Daniel Donovan and Augustus A. Bissell
were adjacent landowners.
By error, Mr. Donovan erected a
fence that encroached fifty feet onto the land owned by Mr.
Bissell.
More than twenty years later (i.e., after the
statutory period for gaining ownership by adverse possession
had run10), Mr. Bissell's successor in interest tore down the
fence, prompting Mr. Donovan to sue for trespass.
evident
that
possession
Mr.
unless
Donovan
his
had
acquired
twenty-year
title
period
of
by
It was
adverse
continuous
possession had been interrupted when Mr. Bissell tore the
fence down on one earlier occasion.
The Court explained:
At that time Mr. Bissell, according to the
testimony, after having asserted his right to the
land in dispute, in an interview with the
plaintiff, went upon the land with assistance, and
tore down a fence built by the plaintiff where the
fence more recently torn down was afterwards
constructed. How long the fence remained down is
not shown; but it seems to have been some days, and
may have been for a considerable period. But it
does not appear that Mr. Bissell took possession
for a single day or hour except for the purposes of
this act of destruction.
The circuit judge instructed the jury that if
Bissell made to the plaintiff a claim of right to
10
The limitation period is now fifteen years.
600.5801(4).
7
MCL
the premises, and went out to them and pulled down
the fence in pursuance of this claim, such acts
would break the continuity of the possession; that
the possession must be continuous, and if thus
broken, the plaintiff could claim nothing by
adverse possession.
The judge was in error. The act proven by
the defendants was a mere trespass upon the
plaintiff's possession and worked no disseizin. It
might, perhaps, have constituted a sufficient entry
at the common law; but a mere entry is not
sufficient in this State to stop the running of the
statute of limitations, unless the party making it
"shall have continued in open and peaceable
possession of the premises for at least one year
next after such entry, or unless an action shall be
commenced upon such entry and seizin within one
year after he shall be ousted or dispossessed of
the premises." How. Stat. § 8705. Mr. Bissell did
not bring himself within the terms of this statute.
The judgment [for the defendants, who claimed
title under Mr. Bissell] must be reversed and a new
trial ordered. [53 Mich 463-464.]
This Court similarly applied the predecessor of MCL
600.5868 in Place v Place, 139 Mich 509, 510; 102 NW 996
(1905).
In Place, the question was whether a title holder's
occasional
exercise
interrupted
an
of
rights
otherwise
of
ownership
continuous
possession by his former spouse.
period
effectively
of
adverse
Place held that "these
disturbances of her possession would not interrupt the running
of [her period of adverse
possession]."
Id.
To restate the holding of Place in the words of the
statute,
the
ex-husband
was
not
deemed
to
have
been
in
possession of the disputed land merely by reason of having
made an entry thereon, unless he either continued in open and
peaceable possession for at least a year following the entry,
or, if ousted by the adverse possessor, filed suit within a
8
year after she ousted him.
He did neither, and so the running
of her adverse possession was not interrupted.11
IV
In the present case, the Taggarts allege that they became
owners of the disputed strip before 1996 as the result of many
years of uninterrupted adverse possession.
Defendants Smith
and Tiska pose various defenses, including that the Taggarts'
use was permissive and never adverse.
These issues were not
tried because the circuit court applied MCL 600.5868 as a one
year statute of limitation on the Taggarts' claim.
However,
if the Taggarts did indeed gain ownership through adverse
possession, their claim is governed by the same fifteen-year
period12 as any other owner.
MCL 600.5868 is not a one-year statute of limitation on
the Taggarts' ejectment suit.
Instead, it is relevant in
determining whether an adverse possessor's hostile possession
11
The predecessor of MCL 600.5868 is also noted in
Riopelle v Gilman, 23 Mich 33, 35 (1871). Dealing with an
issue that concerned “a remnant of the old real estate law,”
Chief Justice CAMPBELL did not elaborate on the meaning of the
language now found in MCL 600.5868. However, his treatment is
consistent with our holding today.
12
In pertinent part, MCL 600.5801(4) provides:
No person may bring or maintain any action for
the recovery or possession of any lands or make any
entry upon any lands unless, after the claim or
right to make the entry first accrued to himself or
to someone through whom he claims, he commences the
action or makes the entry within the periods of
time prescribed by this section.
And:
. . . the period of limitation is 15 years.
9
of land was interrupted before the expiration of the fifteen
year
period
possession.
necessary
to
establish
ownership
by
adverse
If pertinent to this case at all, MCL 600.5868
will assist in the application of this limitation period by
clarifying the circumstances that constitute a continuous
possession of land.13
For these reasons, we reverse the judgments of the
circuit court and the Court of Appeals.
We remand this case
to the circuit court for further proceedings on the unresolved
claims of the parties.
MCR 7.302(F)(1).
CORRIGAN , C.J., and CAVANAGH , WEAVER , KELLY , TAYLOR , YOUNG , and
MARKMAN , JJ., concurred.
13
In this respect, the function of MCL 600.5868 is
somewhat similar to that of the preceding section, MCL
600.5867, which states certain presumptions regarding
possession of land.
10
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