             If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                  revision until final publication in the Michigan Appeals Reports.




                           STATE OF MICHIGAN

                            COURT OF APPEALS


CHARLES C. TRUSCON, JR., and KAREN L.                                  UNPUBLISHED
ELDEVICK,                                                              March 17, 2020

               Plaintiffs-Appellants/Cross-Appellees,

v                                                                      No. 344688
                                                                       Marquette Circuit Court
JOHN E. SCHULTZ and CLARA E. SCHULTZ,                                  LC No. 16-055132-CH

               Defendants-Appellees/Cross-
               Appellants.


Before: BOONSTRA, P.J., and RIORDAN and REDFORD, JJ.

PER CURIAM.

        Plaintiffs, Charles C. Truscon, Jr. and Karen L. Eldevick, appeal as of right an order
denying their motion for a new trial. Defendants, John E. Schultz and Clara E. Schultz, cross-
appeal the same order. Plaintiffs challenge the trial court’s determination that they failed to
establish a superior interest to a disputed strip of land on the basis of acquiescence or adverse
possession. Defendants argue that the trial court erred by sua sponte granting certain easements
to plaintiffs. We affirm.

                                        I. BACKGROUND

        This matter involves a boundary dispute among the owners of adjacent lots. In 1991,
plaintiffs purchased 623 Spruce Street from the Brown family, who had resided in the home
throughout the 1980’s. William Vercauteren and Gwen Vercauteren lived to the south at 619
Spruce since 1979, until they sold the lot to Thomas Mattioli and Judy DeBoer in 2005, who in
turn sold the lot to defendants in 2011. Defendant began renovations on the property in 2015.
Among other things, the project involved removing four cedar trees on the northwest side of their
lot and replacing the former cement driveway with brick pavers. The new driveway has a wider
footprint and extends approximately 1½ feet closer to plaintiffs’ property.

       At issue in this case is a strip of land located north of the 619 Spruce driveway, as it existed
before 2015, and south of the surveyed lot line between the parties’ properties (the subject
property). The subject property lays entirely within the surveyed boundaries of 619 Spruce.


                                                 -1-
Before defendants’ renovations, the cedar trees stood on the westernmost portion of the subject
property and much of the subject property east of the trees was devoted to gardens maintained by
Eldevick. A strip of grass lay between Eldevick’s plants and the former 619 Spruce driveway. A
window well attached to the south side of plaintiffs’ home encroached on the subject property by
approximately 1.2 or 1.3 feet. Plaintiffs’ roof eaves also encroached by approximately 6 inches.
Plaintiffs filed suit against defendants in October 2016, seeking title to the subject property on the
basis of acquiescence or adverse possession. Following a bench trial, the trial court determined
that plaintiffs demonstrated a case of acquiescence with respect to the area occupied by their
window well and granted plaintiffs title to that area, as well as a maintenance easement for the
window well and an easement for the location of their roof eaves. With respect to the balance of
the subject property, the trial court determined that plaintiffs failed to make out an adequate case
of acquiescence or adverse possession. This appeal followed.

                                   II. STANDARD OF REVIEW

        We review de novo actions to determine interests in land that are equitable in nature.
Sackett v Atyeo, 217 Mich App 676, 680; 552 NW2d 536 (1996). We review the trial court’s
factual findings for clear error. Id. “A finding is clearly erroneous where, after reviewing the
entire record, this Court is left with a definite and firm conviction that a mistake has been made.”
Alan Custom Homes, Inc v Krol, 256 Mich App 505, 512; 667 NW2d 379 (2003).

                                           III. ANALYSIS

                                       A. ACQUIESCENCE

        The parties do not challenge the trial court’s ruling regarding the portion of the subject
property occupied by plaintiffs’ encroaching window well, and therefore, our analysis is limited
to plaintiffs’ claim to the balance of the subject property. Plaintiffs argue that the trial court erred
by determining that they failed to demonstrate acquiescence. We disagree.

        Statutory acquiescence occurs when adjoining property owners acquiesce to a boundary
line and treat that line as the boundary for at least fifteen years. MCL 600.5801(4); Killips v
Mannisto, 244 Mich App 256, 260; 624 NW2d 224 (2001). The person claiming ownership over
real property has the burden of proving acquiescence by a preponderance of the evidence. Id.
Although there is not an explicit set of elements necessary to establish acquiescence, the key
inquiry is whether the evidence, when viewed as a whole rather than examining various
occurrences in isolation, establishes that the parties treated a particular boundary line as the
property line. Walters v Snyder, 239 Mich App 453, 457-458; 608 NW2d 97 (2000).

        Plaintiffs first argue that the trial court erred by beginning its analysis in 1991, when
plaintiffs acquired 623 Spruce, despite the unrebutted evidence presented at trial that the Brown
family, their predecessors in title, planted the cedar trees in 1981 or 1982, and maintained the
subject property. 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, 244 Mich App at 260. Any
error arising from the trial court’s failure to consider the time frame before 1991 is harmless
because the trial court properly found that the parties and their predecessors in title were



                                                  -2-
inconsistent in their opinions and patterns of use of the subject property, and that this inconsistency
was fatal to plaintiffs’ claim.

         Viewing the evidence as a whole, plaintiffs failed to demonstrate acquiescence to a
different boundary line. Walters, 239 Mich App 458. There was no express agreement as to the
location of the boundary line, nor do the residents’ actions demonstrate that they consistently
recognized or respected an alternative boundary line. Sackett, 217 Mich App at 677-679; Walters,
239 Mich App at 459-460. The residents mutually used the subject property throughout the years,
without concern for the location of the actual boundary. Only Gwen Vercauteren testified that she
believed plaintiffs owned the subject property. William Vercauteren was unsure where the
boundary was located, but reasoned that it was probably “split in some fashion.” Mattioli believed
the boundary ran in a straight line from the parties’ garages to Spruce Street. DeBoer thought that
the lattice fence marked the boundary line. William, Mattioli, and DeBoer did yard work on the
subject property over the years and did not otherwise treat the subject property as belonging to
plaintiffs. The joint use of adjoining property by neighbors who once were friendly and
cooperative does not support a claim of acquiescence. Aalsburg v Cashion, 384 Mich 236, 243;
180 NW2d 792 (1970).

       Plaintiffs also argue that the trial court erred by considering the former 619 Spruce
residents’ opinions regarding where the boundary line was located. Plaintiffs contend that
opinions that were never communicated to them are not relevant to refute their acquiescence claim.
We disagree.

        Under the theory of acquiescence, the relevant inquiry is whether the parties treated a
particular boundary line as the property line, and therefore, the focus is on the parties’ conduct,
not their actual knowledge or subjective beliefs. Walters, 239 Mich App at 458. However, an
unexpressed personal belief is not irrelevant to this inquiry because subjective belief gives context
to a party’s conduct. See, e.g., id. at 459-460 (considering the plaintiff’s personal belief regarding
the disputed property line); Kipka v Fountain, 198 Mich App 435, 439; 499 NW2d 363 (1993)
(considering the parties’ actual knowledge regarding the disputed property line).

       Next, plaintiffs argue that the trial court erred by rejecting their alternative acquiescence
theory premised on the historical intent to deed to a marked boundary at the time the legal
description for 623 Spruce was created. We disagree.

       Acquiescence by intention to deed to a marked boundary does not merely require a marked
boundary inconsistent with some other boundary; it arises from a grantor’s intention to describe in
the deed the boundary marked on the ground by a common grantor. Daley v Gruber, 361 Mich
358, 363; 104 NW2d 807 (1960).

       Plaintiffs argue that historical documents presented at trial demonstrated that the person
who first established the Hewitt addition plat intended that the 623 Spruce lot be larger than the
50-foot wide lot described in the deeds for the property. A 1928 warranty deed given to Kate
Mitchell—the then-current resident of 623 Spruce—stated that the deed was given for the purpose
of confirming her title to the premises that she already occupied. The 1928 deed was the first
instrument to use the legal description referring to a 50-foot wide lot. Plaintiffs also presented a
Sanborn map from 1917 that depicted a house with the same footprint as the existing structure and


                                                 -3-
a much larger lot than recent surveys reflected. The 1917 Sanborn map showed a substantial
distance between the dwelling on 623 Spruce and the line separating 623 Spruce from 619 Spruce.

         This theory of acquiescence arises only when a common grantor marked a boundary on the
land, but mistakenly conveyed property inconsistently with the marked boundary. Daley, 361
Mich at 363. Because plaintiffs’ claim of error does not involve an inconsistency between the
original legal description and physical monuments placed to designate the boundary line, this
theory of acquiescence cannot be applied to the circumstances at hand. Moreover, even if
plaintiffs’ argument fit within the legal framework for this type of acquiescence, professional
surveyor Glenn Van Neste explained that Sanborn maps are created to show the relative location
of nearby structures for purposes of fire insurance and do not depict actual property lines. Thus,
the trial court did not clearly err by finding that the 1917 Sanborn map was insufficient evidence
of an intention to create a boundary that differed from the legal lot line.

                                   B. ADVERSE POSSESSION

      Plaintiffs next argue that the trial court erred by denying their adverse possession claim.
We disagree.

        “A party claiming adverse possession must show clear and cogent proof of possession that
is actual, continuous, open, notorious, exclusive, hostile, and uninterrupted for the relevant
statutory period.” Marlette Auto Wash, LLC v Van Dyke SC Props, LLC, 501 Mich 192, 202; 912
NW2d 161 (2018). The statutory period for an adverse possession claim is 15 years. MCL
600.5801(4); Canjar v Cole, 283 Mich App 723, 731; 770 NW2d 449 (2009). The trial court
determined that plaintiffs had not demonstrated superior title to the subject property by way of
adverse possession because they failed to establish the exclusivity requirement in light of the joint
and cooperative use of the subject property by the residents of 619 and 623 Spruce.

        The necessary degree of exclusivity varies depending on the character of the property at
issue. Jonkers v Summit Twp, 278 Mich App 263, 274-275; 747 NW2d 901 (2008). As a general
rule, possession is not exclusive when shared with the public at large or the true owner. Id. at 274,
citing Le Roy v Collins, 176 Mich 465, 475; 142 NW 842 (1913); Plaintiffs focus on the exclusive
maintenance of the cedar trees by themselves and the Browns, and ignore the multiple examples
of mutual use discussed above. W Michigan Dock & Mkt Corp v Lakeland Investments, 210 Mich
App 505, 511; 534 NW2d 212 (1995) (mutual use or occupation of property with the owner’s
permission is insufficient to establish adverse possession).

         Plaintiffs take issue with the trial court’s reliance on the placement of the lattice fence as
evidence negating the exclusivity requirement. Regardless of who built the fence or the purpose
intended to be served by its location, the position of the fence suggested that plaintiffs did not
exclude their neighbors from the subject property. Instead, they silently permitted a fence to stand
in a location that left the subject property entirely open to the 619 Spruce residents while
simultaneously hampering plaintiffs’ own direct access, which was already limited by the location
of a wrought iron fence that stood in plaintiffs’ front yard, just north of the subject property. Thus,
the trial court did not err by giving weight to the location of the fence.




                                                 -4-
        Plaintiffs also challenge the trial court’s interpretation of a statement made by Truscon
during his deposition. According to the deposition transcript, Truscon stated, “There was a general
agreement with the prior owners that we mutually used that strip of lane.” At trial, Truscon denied
the existence of any such agreement regarding the subject property and explained that he was
referring to the 619 Spruce driveway when he used the word “lane.” The trial court rejected
Truscon’s explanation for two reasons. First, having reviewed the video recording of Truscon’s
deposition, it was evident that he said “strip of land.” Second, the trial court determined that the
context of Truscon’s statement made a purported reference to the driveway illogical because
Truscon was discussing an area where plants and vegetables were grown. The trial court’s
interpretation of Truscon’s statement was well-reasoned, and to the extent it involved a credibility
determination, the trial court is entitled to deference on appeal. Elahham v Al-Jabban, 319 Mich
App 112, 126; 899 NW2d 768 (2017). We are not left with a definite and firm conviction that the
trial court erred in this regard, and Truscon’s admission was highly relevant to plaintiffs’ claim
because permissive use cannot support a claim of adverse possession. Kipka, 198 Mich App 438.
See also Ruggles v Dandison, 284 Mich 338, 342; 279 NW 851 (1938) (peaceable occupation or
use by acquiescence or permission of the owner cannot ripen into title by adverse possession).

       We conclude that under the circumstances presented in this case, the trial court correctly
concluded that plaintiffs cannot establish the exclusivity requirement necessary to maintain their
claim of adverse possession. Le Roy, 176 Mich at 475 (shared use with the true owner of a disputed
property does not establish the exclusivity requirement).

                                         C. EASEMENTS

         On cross-appeal, defendants argue that the trial court erred by granting easements in favor
of plaintiffs because plaintiffs’ complaint did not allege the need for an easement, describe the
property as to which plaintiffs sought an easement, or set forth facts showing the superiority of
their interest as required by MCR 3.411(B). We disagree.

       MCR 3.411(B) governs the complaint in actions to determine an interest in land and
provides as follows:

               (1) The complaint must describe the land in question with reasonable
       certainty by stating

               (a) the section, township, and range of the premises;

               (b) the number of the block and lot of the premises; or

             (c) another description of the premises sufficiently clear so that the premises
       may be identified.

               (2) The complaint must allege

               (a) the interest the plaintiff claims in the premises;

               (b) the interest the defendant claims in the premises; and



                                                 -5-
               (c) the facts establishing the superiority of the plaintiff’s claim.

        In their complaint, plaintiffs identified the parties’ properties by legal description and
identified the property at issue in the case as the property situated between the surveyed boundary
line and the north side of defendants’ driveway, as it existed before it was renovated. 1 The
easements at issue fall within the area of the subject property. Plaintiffs sought to quiet title to the
subject property in their favor, alleging a superior interest in the property on the basis of adverse
possession or acquiescence. Thus, the complaint satisfied the requirements set forth in MCR
3.411(B).

        Defendants take issue with plaintiffs’ failure to specifically request the easements they
received. However, MCR 3.411(B) contains no requirement that a plaintiff allege entitlement to
the precise form of relief that is ultimately granted. Indeed, such a requirement would be contrary
to MCR 2.601(A), which provides that “every final judgment may grant the relief to which the
party in whose favor it is rendered is entitled, even if the party has not demanded that relief in his
or her pleadings.” (Emphasis added.)

        Defendants rely on caselaw limiting a plaintiff’s ability to amend a complaint to add new
claims at a late stage in the proceedings when the amendment would prejudice the defendant. See,
e.g., Weymers v Khera, 454 Mich 639; 563 NW2d 647 (1997) (affirming denial of motion to amend
complaint to add claim for pulmonary injury where complaint alleged kidney injury and the
defendant did not have reasonable notice of the pulmonary claim before the eve of trial).
Defendants’ argument is misplaced because the easements granted by the trial court did not require
amendment of the complaint. Although it is true that “[a] trial court does not have authority to
grant relief based on a claim that was never pleaded in a complaint or requested at any time before
or during trial,” Reid v Michigan, 239 Mich App 621, 630; 609 NW2d 215 (2000), relief on the
basis of an unpleaded claim is distinguishable from granting different or additional relief on the
basis of a claim that is properly before the court, Weymers, 454 Mich at 663-664.

        It is well-settled that trial courts are not bound by the remedies sought by the claimant in
actions that are equitable in nature. Madugula v Taub, 496 Mich 685, 711; 853 NW2d 75 (2014).
Instead, “the court has broad power to fashion relief as the circumstances require . . . .” Id. at 712.
“[O]nce a court of equity acquires jurisdiction, it will do what is necessary to accord complete
equity and to conclude the controversy.” Draggoo v Draggoo, 223 Mich App 415, 428; 566 NW2d
642 (1997) (quotation marks and citation omitted). Thus, a trial court is free to grant relief that is
germane to the issues presented by the pleadings, even when the relief it orders is not specifically
requested. Swan v Ispas, 325 Mich 39, 45; 37 NW2d 704 (1949). Accordingly, the trial court was
free to exercise its equitable discretion to fashion appropriate relief.

                                        IV. CONCLUSION




1
  Plaintiffs later clarified that the subject property was limited to the area east of the parties’
garages.


                                                  -6-
        The trial court did not err by finding that plaintiffs failed to establish a superior interest to
the subject property on the basis of acquiescence or adverse possession. Nor did the trial court err
by granting easements to plaintiffs. Affirmed.

                                                                /s/ Mark T. Boonstra
                                                                /s/ Michael J. Riordan
                                                                /s/ James Robert Redford




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