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Opinion Date: 07/30/2013
e-Journal Date: 08/08/2013
Full Text Opinion

Practice Area(s):   Real Property

Issues: "Acquiescence" to a boundary line; Sackett v. Atyeo; Acquiescence for the statutory period; Kipka v. Fountain; MCL 600.5801; West MI Dock & Mkt. Corp. v. Lakeland Invs.; Killips v. Mannisto; Mason v. City of Menominee; Walters v. Snyder; "Agency" relationship; Meretta v. Peach; Whether the trial court properly allowed the defendant to amend her counterclaim to assert a claim of "prescriptive easement" as to the placement of her seasonal dock; Boylan v. Fifty Eight LLC; MCR 2.118(C)(1) & (2); Zdrojewski v. Murphy; Whether the prescriptive easement issue was tried by the "implicit consent of the parties"; Whether defendant was entitled to a prescriptive easement; "Hostile"; Plymouth Canton Cmty. Crier, Inc. v. Prose
Court: Michigan Court of Appeals (Unpublished)
Case Name: Andrews v. Alter
e-Journal Number: 55169
Judge(s): Per Curiam – Borrello, Jansen, and M.J. Kelly

The court held that the evidence showed the existence of a line that the parties treated as the boundary line for the statutory period, and that the evidence established the elements of a prescriptive easement as to the placement of the seasonal dock. Thus, the court affirmed in part and reversed in part the trial court's judgment, and remanded for entry of a judgment for the defendant. The parties own adjoining parcels of lakefront property. The court concluded that there were undisputed facts showing that they treated the alleged acquiescence line - a line extending from an elevated metal pole in the seawall on the lake to a narrow point between their driveways at the road - as the boundary line. The evidence was undisputed that "(1) the parties or their respective agents mowed to the purported acquiescence line from 1988 to 2008, (2) plaintiffs never objected to this manner of mowing for 20 years, (3) the deck and driveway encroachments existed when defendant bought her property in 1988, and (4) plaintiffs did not object to the encroachments from 1988 to 2008 . . . ." Thus, the court held that the trial court erred in concluding that defendant failed to establish her acquiescence claim. The evidence established that the parties treated the acquiescence line as the boundary line for longer than the 15-year statutory period. The court also concluded that the issue of the existence of a prescriptive easement for defendant's placement of her seasonal dock was tried by the parties' implied consent. Further, the trial court did not err in ruling that she was entitled to a prescriptive easement. It was "uncontested that defendant's dock was placed outside her riparian property lines," as both parties' surveyors concluded that it encroached on plaintiffs' riparian property. Defendant testified that she had not "changed the location or direction of the dock since buying the property in 1988, other than adding a platform that she later moved to the side of the dock away from plaintiffs' property at their request." The evidence was also undisputed that plaintiffs did not object to defendant's placement of her dock from 1988 to 2008. Thus, it was "beyond contention that defendant used plaintiffs' riparian land openly, notoriously, and continuously for a period in excess of 15 years." Further, the court held that the trial court correctly concluded that the use was hostile to plaintiffs' title given that the use of the dock on their riparian land was inconsistent with their rights as owners, there was no evidence permission was granted, and the dock placement would have provided the grounds to file an action for trespass during the statutory period.

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