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Opinion Date: 05/23/2013
e-Journal Date: 06/11/2013
Full Text Opinion

Practice Area(s):   Real Property

Issues: The plaintiffs' action to quiet title to the disputed land; Whether the plaintiffs (Arbours) established their claim of adverse possession of the disputed area; Gorte v. Department of Transp.; Burden of proof; Yatczak v. Cloon; Beach v. Lima Twp.; Rozmarek v. Plamondon; MCL 600.5801(4); Kipka v. Fountain; "Clear and cogent evidence"; McQueen v. Black; Taggart v. Tiska; Hamilton v. Weber; "Acquiescence"; Killips v. Mannisto; Sackett v. Atyeo; Mason v. City of Menominee
Court: Michigan Court of Appeals (Unpublished)
Case Name: Arbour v. Albert
e-Journal Number: 54668
Judge(s): Per Curiam - Ronayne Krause, Gleicher, and Boonstra

The court held, inter alia, that there was clear and cogent evidence from which the trial court could determine that the plaintiffs-Arbours' possession of the disputed area was not exclusive and that the parties did not acquiesce to a new boundary line. Thus, the court deferred to the trial court's determination as to the weight of the evidence and the credibility of the witnesses and affirmed the trial court's judgment for defendant-Albert. Plaintiffs purchased a lot along a river in 1994. Because "untrained individuals' imprecisely divided and described the lots decades earlier, the Arbours believed that their northern border was a triangle marked by a copse of trees." That piece of land actually belonged to the Arbours' northern neighbors, currently defendant. In 2010, after two years of disagreement as to the boundary, the Arbours filed suit to quiet title to the disputed area. They claimed title by adverse possession, or in the alternative that the neighbors had acquiesced to a new border for the statutory period. During a bench trial (where the trial court actually viewed the property) the parties presented conflicting evidence as to their historical use of the disputed land and the dates on which significant events occurred. The trial court gave greater weight to defendant's evidence and concluded that the Arbours' use of the land was neither exclusive nor continuous for the required 15-year period. While the trial court clearly erred in finding that the Arbours' possession of the land was not continuous for the statutory period, there was clear and cogent evidence from which the trial court could determine that their possession was not exclusive and that the parties did not acquiesce to a new boundary line. The court noted that in 1989, M and L Albert purchased a rectangular lot along the river. The Arbours bought the lot to the south in 1994. In the spring of 1995, the Arbours moved a house to their property and began extensive work on their land. The Arbours installed a large garden that extended 36 feet into the triangle-shaped disputed area. They leveled a sand hill on that area to use as fill for their home. They also created a small garden to grow horseradish and asparagus. M Albert created a pet cemetery and put up a satellite dish on the land. Both parties also planted trees on the land. Later, the Alberts used sand from the disputed area to fill in an outhouse pit. The property passed to the defendant. The parties could not agree on the property line and defendant consulted a surveyor. The survey was conducted in 6/09, and definitively established that the disputed area was part of the Alberts' land. Plaintiffs sued. The court noted that the 2009 land survey conclusively resolved that the copse of trees was not the boundary as claimed by the Arbours. Any prior acquiescence in the border ended after 13 to 14 years, which was before the Arbours could meet the required statutory period. Affirmed.

Full Text Opinion

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State Bar of Michigan
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