Daily Development for Friday, October 1, 2004
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin Kansas City, Missouri dirt@umkc.edu

ADVERSE POSSESSION; REQUIREMENT OF HOSTILITY; ACQUIESCENCE: Where sons fence pasture land belonging to father, and use it without express permission, adverse possession will be assumed.

Goodman v. Menzies, LLC No. 00-004011-CH (Mich. App. 9/16/04) (unpublished)


The caption pretty much describes the case, or at least this aspect of it. In 1974, two sons fenced in three acres belonging to their father that was adjacent to their own single acre (which their father had given to them shortly before). They never asked for permission and the father never objected. A few years later, their father gave them an additional acre (not the property in dispute) The brothers also planted a small garden, but the issue is adequately drawn with the fenced area.

At some point in time, not disclosed by the court, father died and another person acquired the legal title to the disputed property. Apparently a third party now has acquired it. No one but the brothers has ever occupied the disputed parcel.

In a quiet title action, the brothers claim that they had obtained the land by acquiescence. The trial court found in their favor on this count, but the Michigan Appeals Court here reversed that finding. The appeals court acknowledged that Michigan does recognize title by acquiescence following possession for fifteen years, but that the doctrine is designed do resolve “cases of adjoining property owners who are mistaken about where the line between their property is.” If there is such a confusion, then fifteen years of occupancy without argument resolves it. Further, conscious agreement to resolve the dispute in favor of a given line, even without fifteen years of possession, also establishes acquiescence according to the agreed line, and acquiescence can arise from showing an intention to deed to a marked boundary, even if the deed description does not encompass the intended area.

None of these circumstances were present in this case. No one had any doubt as to where the boundary lay.

Although the court overturned the finding of title by acquiescence, it went on to conclude that the brothers had adversely possessed the property. In response to the defendant’s claim that the brothers had not shown that their possession was hostile, rather than permissive, the court stated that “hostility” does not mean that there has to be ill will between the parties. The court quoted from another Michigan case that stated “[w]hen a person possesses land up to a certain boundary line, regardless if that boundary line is the true line, the possession is hostile and adverse to the true owner.”

Comment 1: The editor first selected the case for its discussion of the acquiescence doctrine, which he thinks is little understood (indeed it is inconsistently applied from state to state.) The court’s interpretation of it here makes a lot of sense.

Comment 2: The editor is concerned about the scanty, and perhaps misleading, analysis of the adverse possession issue. Perhaps we shouldn’t expect much from an unpublished opinion that it not intended to establish precedent. Further, the court is ruling on a trial court’s conclusion following an evidentiary hearing, so we don’t know all that got said. Still the editor is concerned with the naked assertion that where a father permits his sons to pasture on his land there is a presumption of hostility.

Keep in mind that the brothers got their first acre in 1968, and began pasturing in 1974. In 1978, father gave them an additional acre, but did not deed to them the acres in the pasture, although apparently he knew about the pasturing. One would assume that this meant that he did not view his sons as the owners of the pasture. One would also assume, however, that the sons did not view themselves as stealing the property from their father, who was being generous in giving them other land. The third, and best, explanation for everyone’s conduct would seem to be that the father was permitting the sons to use the pasture gratuitously, but was not intending to give them ownership, and that the sons were not claiming ownership.

The court should have been far more analytic in discussing this little problem, and the citation to the prior authority, suggesting that possession without express permission is always adverse, probably does not accurately state Michigan law. There are many circumstances in which this rule would result in unfair and unintended results, such as where neighbors tend a yard owned by the party next door because the terrain makes it easier and preferable for things to be arranged that way. Courts normally do not find adverse possession resulting from these circumstances (although there are cases both ways).

If the father implicitly gave permission, typically this permission will also affect the sons’ possession against the father’s successor unless some more explicit evidence of hostility appears.

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