                           STATE OF MICHIGAN

                            COURT OF APPEALS



BERNARD E. FISHER and LINDA J. FISHER,                               UNPUBLISHED
                                                                     June 16, 2016
               Plaintiffs-Appellees,

v                                                                    No. 326432
                                                                     Midland Circuit Court
ALLEN SLATER,                                                        LC No. 13-009758-CH

               Defendant-Appellant.


Before: MARKEY, P.J., and OWENS and BOONSTRA, JJ.

PER CURIAM.

         Defendant appeals by right the trial court’s judgment, following a bench trial, quieting
title in favor of plaintiffs to a disputed strip of land under the doctrine of acquiescence. For the
reasons stated below, we reverse and remand for dismissal of plaintiffs’ acquiescence claim.

                   I. PERTINENT FACTS AND PROCEDURAL HISTORY

        Plaintiffs and defendant own neighboring parcels of land, with plaintiffs’ parcel situated
north of defendant’s parcel. Plaintiffs purchased their parcel in 1991, and defendant acquired his
in 2010. After a few months, plaintiffs began to complain that defendant was encroaching upon
their property. In response, defendant hired a surveyor in 2013 to establish his parcel’s boundary
lines. The surveyor found that defendant’s northern property line was the east-west quarter line
of section 9 in Lincoln Township. He also found that a survey conducted in 1992 (referred to by
the trial court as “the Ayres survey” after the company that performed it), which was
incorporated into defendant’s deed, erroneously located the boundary line between the parcels.
His survey showed that the 1992 survey line, starting at the western border, steadily veered south
off the quarter line as it traveled east and ultimately crossed defendant’s eastern border roughly
21 feet south of the quarter line. It is this “triangular area” between the quarter line and the 1992
survey line that is the subject of this action to quiet title.

       At the bench trial, plaintiff Bernard Fisher testified that he witnessed the 1992 survey
being performed, and that he believed that the survey line represented the boundary line between
the two properties, although he also testified that he believed the 1992 survey was consistent
with an earlier survey of the property performed in 1978. Further, he testified that he had never
had any issues with defendant’s predecessor in title, Randall Cramer, now deceased, concerning
the boundary line and testified that both parties knew where the line was.


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        Cheryl Slater, defendant’s wife, testified that she had a conversation about the boundary
line between the properties with plaintiff Linda Fisher, and that Linda “didn’t know who owned
what.” Linda denied having had this conversation.

         Jessie Mitchell, who performed the 2013 survey, testified that the 1978 survey and the
1992 survey did not reflect identical boundary lines between the properties. Further, Mitchell
testified that the boundary line was not visually apparent, other than by metal surveyor’s stakes
set below the ground. Mitchell also testified that a ditch on plaintiff’s property encroached
slightly onto defendant’s property as surveyed in 2013. Plaintiff’s counsel conceded that the
surveys prior to 2013 “probably weren’t correct,” but stated that “if everybody accepts those as
the boundary line and does so for a considerable period of time . . . then we’re going to respect
that even if it’s wrong.”

         The trial court issued an opinion and order following the bench trial awarding plaintiffs
title to the disputed area on the basis of acquiescence. The Court summarized its findings as
follows:

       The Court finds there was a mistaken belief as to the location of the property line
       when the Ayres survey was performed on behalf of the predecessors in title to the
       lots in this case. Plaintiffs had relied upon the location of the property line as
       represented in the survey in placing the private driveway and ditch, with some
       additional wooded property as a buffer, on which trees were planted. There was
       no objection to Plaintiff’s [sic] activities by Defendant’s predecessor in title, nor
       an objection to the encroachment of the ditch over the boundary line as the 2013
       survey would have located the properties. The court does not believe it was the
       intention of the parties to have the road run adjacent to the property line, with a
       slight encroachment onto Defendant’s property, and also to have all of the
       wooded buffer area on Defendant’s property. The Court finds the parties have
       utilized the wooded section as their buffer by the actions of their neighbors and
       unfortunately for this case they did not use an actual fence on the boundary line.

              Accordingly, the Court finds by a preponderance of the evidence there was
       a mistaken belief as to the location of the property line consistent with the Ayres
       survey, and it had existed for more than the statutorily required limitation period
       of 15 years. . . .

The court did not find that plaintiffs had suffered any damages and ordered that the legal
descriptions of the parties’ properties be modified to conform to the 1992 survey. The court
entered a judgment of quiet title to that effect on January 26, 2015, and denied defendant’s
motion for a new trial or amendment to the judgment on February 27, 2015. This appeal
followed.

                                 II. STANDARD OF REVIEW

       We review for clear error a trial court’s findings of fact following a bench trial and
review de novo its conclusions of law. Ligon v City of Detroit, 276 Mich App 120, 124; 739
NW2d 900 (2007). “The clear error standard provides that factual findings are clearly erroneous

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where there is no evidentiary support for them or where there is supporting evidence but the
reviewing court is nevertheless left with a definite and firm conviction that the trial court made a
mistake.” Hill v City of Warren, 276 Mich App 299, 308; 740 NW2d 706 (2007).

                                         III. ANALYSIS

        Defendant argues that there was insufficient evidence to support the trial court’s finding
that there was a mistaken belief regarding the location of the property line for 15 years. We
agree.

        “[A]cquiescence is established when a preponderance of the evidence establishes that the
parties treated a particular boundary line as the property line.” Mason v City of Menominee, 282
Mich App 525, 530-531; 766 NW2d 888 (2009) (internal quotation marks, citation, and
emphasis omitted). The three theories of acquiescence include: “(1) acquiescence for the
statutory period; (2) acquiescence following a dispute and agreement; and (3) acquiescence
arising from intention to deed to a marked boundary.” Sackett v Atyeo, 217 Mich App 676, 681;
552 NW2d 536 (1996). At issue here is the first theory. A claim of acquiescence for the
statutory period requires a showing that the parties treated the mistaken line as the property line
for 15 years. Walters v Snyder, 225 Mich App 219, 224; 570 NW2d 301 (1997). “The
acquiescence of predecessors in title can be tacked onto that of the parties in order to establish
the mandated period of fifteen years.” Killips v Mannisto, 244 Mich App 256, 260; 624 NW2d
224 (2001). A unilateral mistake regarding the property line is insufficient to apply the doctrine
of acquiescence. McGee v Eriksek, 51 Mich App 551, 557; 215 NW2d 571 (1974).

        The trial court found “by a preponderance of the evidence there was a mistaken belief as
to the location of the property line consistent with the [1992] survey, and it had existed for more
than the statutorily required limitation of 15 years.” Because defendant acquired his parcel in
2010 and the complaint was filed in 2013, the court necessarily had to find that defendant’s
predecessor in interest, Cramer, treated the 1992 survey line as the boundary for at least roughly
12 years.

       In support of its ruling, the trial court found that plaintiffs had relied on the 1992 survey
in constructing their driveway and its ditch, the latter of which slightly encroached onto
defendant’s property line according to the 2013 survey, and in planting trees in the disputed area.
The court then noted that defendant’s predecessor in title, presumably referring to Cramer, did
not object to these activities. However, the record strongly suggests that plaintiffs constructed
their driveway before 1992 and in reliance on the survey that was performed in 1978.1


1
  Plaintiffs purchased a parcel in 1978 that was adjacent to the parcel they had purchased in
1991. Bernard testified that pursuant to a consent judgment entered in 1979, plaintiffs possessed
an easement over the parcel that they eventually purchased in 1991, and that subsequent to the
judgment they built the driveway and had ditches dug alongside it. In fact, Bernard specifically
testified that this occurred before he acquired “other property” although he did not explicitly say
that this other property was the parcel they acquired in 1991. However, his testimony that the
driveway was built while plaintiffs possessed an easement, rather than while they owned the

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Therefore, the driveway and the ditch likely were in place when Cramer purchased his parcel in
1992, and ascribing any evidentiary value to his failure to object to the ditch’s slight
encroachment onto his property is questionable. In any event, Cramer’s alleged failure to object
to the location of the driveway and ditch is not evidence that he acquiesced to a boundary line
roughly 20 feet south of that encroachment.

       Moreover, although there was testimony showing that plaintiffs had planted trees and
bushes in the disputed area, there was no definitive testimony regarding when the planting had
occurred. Bernard stated that he had “tended” to pine trees in the disputed area “for five or six
years” before defendant allegedly cut them down. But even assuming that defendant cut the
trees down when he bought the parcel in 2010, the earliest that plaintiffs planted the trees,
according to the testimony, was around 2004. And further assuming that the tree planting is
evidence that Cramer treated the 1992 survey line as the property line, it only shows
acquiescence for six years, nine years short of the required statutory period.

        Ostensibly, the most compelling evidence in support of finding acquiescence in this case
was the incorporation of the 1992 survey’s property line description into Cramer’s and
defendant’s deeds. However, the deeds themselves provide no evidence regarding how Cramer
treated the 1992 survey line. Likewise, Bernard’s testimony that he and Cramer never had a
dispute about the property line is not evidence that Cramer treated the 1992 survey line as the
correct boundary. In fact Bernard’s own testimony indicates that he considered the 1992 survey
line as consistent with the 1978 survey line, when in fact it was not.

        In sum, the record does not demonstrate that the parties and their predecessors, although
perhaps unconcerned about exactly where the boundary line fell and thus seeing no need to
dispute the issue, had a mutual mistaken belief that the 1992 survey’s boundary line was the
correct boundary between the properties, at least for the fifteen-year statutory period. Although
we reject defendant’s argument that a finding of acquiescence as a matter of law requires a
visible boundary line, see Pyne v Elliott, 53 Mich App 419; 220 NW2d 54 (1974), here, the trial
court’s finding that there was a mutual mistaken belief regarding the property line for 15 years
lacked evidentiary support and was clearly erroneous.

        Reversed and remanded for dismissal of plaintiffs’ acquiescence claim.2 We do not
retain jurisdiction.



                                                            /s/ Jane E. Markey
                                                            /s/ Donald S. Owens
                                                            /s/ Mark T. Boonstra


property outright, provides strong support for the inference that the driveway was built prior to
1991.
2
  Plaintiffs do not challenge the trial court’s grant of a directed verdict to defendant regarding
their claim of adverse possession, and we do not disturb that ruling on appeal.


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