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STATE OF MICHIGAN COURT OF APPEALS

CHARLES A. HARPER, SR. and CAROLINE L. HARPER, Plaintiffs/Counter Defendants/Appellants-Cross Appellees, v LESLIE ANN LAMAR and MARK W. BOURQUIN, Defendants/Counter Plaintiffs/Appellees-Cross Appellants.

UNPUBLISHED August 18, 2009

No. 282498 Clinton Circuit Court LC No. 05-009801-CH

Before: Bandstra, P.J., and Whitbeck and Shapiro, JJ. PER CURIAM. This quiet title action arises out of a dispute regarding ownership of a parcel of real property (Parcel B), which is a plot of land that was previously owned by a railroad company and then purportedly transferred to plaintiffs Charles and Caroline Harper by quitclaim deed. However, the owners of a neighboring parcel, defendants Leslie Ann Lamar and her husband Mark Bourquin, contend that they acquired Parcel B through adverse possession. The Harpers now appeal as of right from the judgment and order that quieted title of Parcel B in defendants. Defendants cross-appeal as of right from the same order denying them costs and attorney fees. Because we conclude that defendants and their predecessors failed to meet the statutory 15-year requirement necessary to establish adverse possession, we conclude that the trial court erred in quieting title to defendants based on adverse possession. We also conclude that defendants have not met the requisite elements to establish possession by acquiescence. And we conclude that because defendants are no longer the prevailing party, they are not entitled to costs pursuant to MCR 2.625. However, because questions remain regarding whether the State of Michigan might still have an interest in Parcel B due to its prior ownership as a railroad line, we order title to Parcel B be quieted in the Harpers without prejudice to parties not involved in the lawsuit. Accordingly, we reverse and remand for further proceedings. The Harpers purchased Parcel B from CSX, a railroad company, by quitclaim deed in 1994. CSX had acquired Parcel B and some other property in fee from George and Calanthe McCrumb in 1899 (the CSX Deed). It is undisputed that Parcel B was part of the railroad right -1-

of way. In 1997, CSX filed a request to abandon 1.32 miles of its railroad line, ending in Eagle, MI, which included Parcel B. After its investigation, the Federal Surface Transportation Board (STB)1 authorized CSX to abandon the line. Parcel B's northern boundary is the southern boundary of defendant's property (the Post Office Property). The Post Office Property contains the Eagle post office, which was built in 1962 and has been continuously leased to the United States Postal Service (USPS) since that time. Who originally built the post office and leased it to the USPS is unclear. Jerry VanderLaan2 testified that his family's company (VanderLaan Land Company) acquired the Post Office Property in the late 1970s or early 1980s and then leased it to the USPS. The first transfer of the Post Office Property noted in the trial court record occurred in 1992, when Margaret Lilley (Leslie Ann Lamar's mother), her husband Richard Lilley, and Harry and Sharin Holden purchased the property from VanderLaan Land Company by land contract. In 1995, the four purchasers assigned the land contract to Leslie Ann Lamar and her son. In May 1996, Leslie Ann Lamar and her son received a warranty deed from the VanderLaan Land Company for the Post Office Property in fulfillment of the land contract. Four months later, Leslie Ann Lamar and her son transferred title to the Post Office Property by quitclaim deed to Leslie Ann Lamar and Mark Bourquin.3 Each of the above title transfers identically described the Post Office Property, including that the boundary was "on the North right of way line of the C&O Railroad, said right of way being 75 feet, measured at a right angle, from the center line of the C&O Railroad tracks." As for the leases, Jerry VanderLaan testified that, although he assumed that Parcel B was part of the leased property and part of the legal description, he never reviewed the legal description. Bourquin also assumed that Parcel B was part of the leased property, but did not have the property surveyed or determine where the property lines actually were. Although references are made in the record to other leases dating back to 1960, the only lease that we could locate in the trial court record was between the USPS and defendants, for a term of years beginning in August 2003. But during closing arguments, the Harpers' counsel indicated that all of the leases were identical and that the legal descriptions included in the leases did not describe Parcel B. And defendants did not dispute this. It is also undisputed that the post office's septic system and wellhead were built on Parcel B. Before the Harpers' closing on Parcel B in 1994, they learned from a survey where the property lines were and that the Post Office Property's well and septic system were located on Parcel B. When these items were constructed, however, was in dispute. Margaret Lilley stated that when she, her husband, and the Holdens purchased the Post Office Property in 1992, they were shown the wellhead and septic system, which were in the same location on Parcel B as they

1 2

Formerly the Interstate Commerce Commission (ICC).

This is the spelling/capitalization contained in both the VanderLaan deed and land contract. However, other spellings/capitalizations within the record include Vanderlaan and VanDerlaan.
3

Thus, it appears that Leslie Ann Lamar was both a grantor and a grantee in this transaction.

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currently occupy. Bourquin averred that when he received the property and postal lease assignment, he was told that the parking lot, well, and septic system were included in the conveyance and that the lease, which included well and septic system, had been in place since 1961. However, a letter sent in 1994 by the Harpers' counsel to Harry and Sharin Holden noted that "the recent well you drilled to supply water to the U.S. Post Office Eagle Branch is on Mr. Charles Harper's property" and that "Mr. Harper is willing to supply water to you." Charles Harper testified that Richard Lilley offered to move the well and septic system onto his own property, but that he gave Lilley permission to use them. Before the Harpers' closing on Parcel B in 1994, they also learned from the survey that the Post Office Property's parking lot was located on Parcel B. Part of Parcel B was converted into a gravel parking area that was used by postal service employees for many years and was later blacktopped. Charles Harper testified that he used the paved parking lot to store vehicles for his car parts sales and salvage operation both before and after he purchased it, but the majority of the cars stored behind the post office were on other property he owned, not Parcel B. However, defendants towed several cars that the Harpers had parked on the blacktop, which sparked this cause of action. The Harpers originally sued defendants for trespass and conversion. Defendants answered, arguing that title vested in their predecessors in 1976. Defendants also filed a counterclaim to quiet title based on acquiescence to a boundary line and adverse possession and alleged that it was the Harpers who were trespassing. Both parties moved for summary disposition, which the trial court denied. The trial court concluded that although the Harpers clearly had record title, there were outstanding issues regarding whether defendants had adversely possessed the property, whether a railroad could be divested of property by adverse possession, and whether there truly was a previous dispute and subsequent agreement as to a new boundary line. At the end of the Harper's proofs, defendants moved for a directed verdict claiming, in part, that because there was a reversionary interest in the CSX Deed requiring a depot to be "always" maintained on the property, the depot's destruction divested the railroad of any interest in the property such that it had no interest to convey to the Harpers by quitclaim deed. The trial court agreed and quieted title in defendants. The Harpers objected to the proposed order, arguing that if ownership had reverted, it went back to the McCrumbs' heirs and that defendants had presented no evidence to establish any right or interest in Parcel B. The trial court amended its order to quiet title in defendants by limiting the ruling "to the parties to this action without prejudice to the rights of any party not included in this action." The Harpers appealed to this Court, which concluded that the CSX Deed created only a right of reentry and that the McCrumbs' heirs had failed to divest CSX of its interest within the statutory period such that CSX "could convey the interest to plaintiff." Harper v Lamar, unpublished opinion per curiam of the Court of Appeals, issued June 12, 2007 (Docket No. 267206), slip op p 2. This Court therefore concluded "that the trial court erred when it found that plaintiff did not have title based on the 1899 deed's reversionary interest," but noted that defendant was claiming title to Parcel B through adverse possession and acquiescence and that the trial court had heard no evidence in this regard. Id. at 2-3. It remanded the case to the trial court "to determine whether defendants' claims have merit." Id. -3-

On remand, the Harpers argued that Parcel B was railroad property that could not be adversely possessed and that the parcel was subject to the exclusive jurisdiction of the STB until it was conveyed to the Harpers and the STB gave CSX an abandonment certificate in 1997. In other words, the Harpers argued that until the STB permitted CSX to abandon the line in 1997, Parcel B could not be adversely possessed by any actions of defendants' predecessors. Thus, the Harpers concluded, because defendants could not meet the 15-year adverse possession requirement, using either 1994 (when CSX conveyed the property to the Harpers) or 1997 (when the certificate of abandonment was issued), defendants had no claim. The Harpers also argued that defendants' actions on the property were not sufficient to constitute adverse possession and that there could be no acquiescence because defendants had simply drawn a random line on the survey. Defendants argued that railroad property could be adversely possessed and that they had established ownership through both acquiescence and adverse possession. The trial court concluded that there were two questions at issue: (1) whether defendants established adverse possession with clear and convincing evidence "by himself or his predecessors in title"; and (2) whether "adverse possession run[s] against a railroad before its lines are abandoned." Answering the second question first, it concluded as follows: [T]he question here . . . is whether or not adverse possession on the subsequently abandoned line can be considered during a period before the line is abandoned, and I think for purposes of our record purposes, the best I can make of it, the answer is no, that [STB jurisdiction] doesn't preclude the running of the statute of limitations on a subsequent owner's right to dispossess one claim by adverse possession. The trial court determined that record title to Parcel B was in the Harpers and that "[t]here can be no doubt that the leases don't purport to change that. There is nothing in the leases that is inconsistent with Mr. Harper having record title." It noted that "the septic and the drain field aren't the kind of open and obvious indices of claim of ownership that a well is" but that the paved asphalt was "a pretty clear indication that somebody [wa]s claiming an interest inconsistent with the railroad at the time," and that although "the railroad might have an interest in having people maintain its property because then it doesn't have to spend the money to do it . . . to pave its property, to park postal vehicles and cars on its property, to have a well on its property, to have these other sewage disposal methods on its property, all to me seems to be inconsistent with any claim that there is a lack of adverse possession." Based on its finding of adverse possession, the trial court quieted title in defendants absolutely, no longer limiting its decision as between the parties to the suit. The Harpers then appealed again to this Court. The Harpers argue that the trial court erred in quieting title to Parcel B in defendants. We agree. We review the trial court's findings of fact for clear error, and its ultimate decision de novo. Killips v Mannisto, 244 Mich App 256, 258; 624 NW2d 224 (2001). "To establish adverse possession, the claimant must show that its possession is actual, visible, open, notorious, exclusive, hostile, under cover of claim or right, and continuous and uninterrupted for the statutory period of fifteen years." West Michigan Dock & Market Corp v Lakeland Investments, 210 Mich App 505, 511; 534 NW2d 212 (1995). The party claiming title must prove adverse possession with clear and cogent evidence. See Killips, supra at 260.

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Defendants admit that they had not owned the Post Office Property for a period of 15 years and that, in asserting adverse possession of the adjacent Parcel B, they were relying on the actions of their predecessors in title to the Post Office Property. Defendants' counsel contended at oral argument that this "tacking" issue was not preserved. This proposition ignores that defendants had the burden to prove all of the elements of adverse possession, including the requisite period of 15 years. Because defendants admitted that their only basis for achieving the 15-year period was through tacking, the issue of tacking is necessarily before this Court in order to determine whether the trial court properly concluded that defendants had acquired title through adverse possession. [I]t has long been the rule in Michigan that the statutory period of possession or user necessary for obtaining title by adverse possession or easement by prescription is not fulfilled by tacking successive periods of possession or user enjoyed by different persons in the absence of privity between those persons established by inclusion by reference to the claimed property in the instruments of conveyance or by parol references at time of conveyances. [Siegel v Renkiewicz Estate, 373 Mich 421, 425; 129 NW2d 876 (1964).] Thus, in order to tack their time onto their predecessors' time, defendants must show that Parcel B was included in each conveyance of the Post Office Property during the tacking period. To do so, defendants must show either that Parcel B was included in the instruments of conveyance, or that there was parol evidence that Parcel B was being conveyed at the time of each conveyance. It is undisputed that Parcel B is not contained in any of the legal descriptions in defendants' chain of title to the Post Office Property. Indeed, it is explicitly excluded because the southern boundary of the Post Office Property is defined as being "on the North right of way line of the C&O Railroad, said right of way being 75 feet, measured at a right angle, from the center line of the C&O Railroad tracks." Because none of the deeds in defendants' chain of title to the Post Office Property include Parcel B, there is no privity of estate, such that there can be no tacking and no adverse possession based on inclusion in the deed. The Post Office Property lessee's continued use of Parcel B since 1962 does not change this. It is true that tenants can adversely possess property for the benefit of their landlord where the lessee believes the right to occupy passed to him under the lease. See Capps v Merrifield, 227 Mich 194, 201; 198 NW 918 (1924). However, in Siegel, the Michigan Supreme Court held that even though the same tenant used the disputed property from 1928 until 1960, "neither plaintiff nor any of his predecessors in title enjoyed possession or user of the parcels in question for the necessary 15-year period." Siegel, supra at 425-426. As is true in this case, Siegel involved a property that had been leased to the same tenant for more than the statutory period, but ownership of the leased property had changed. Id. at 423. Thus, the United States Postal Service's continued leasing of Parcel B from 1961 until 1994 under identical leases cannot establish privity of estate to constitute continued possession of the property for the 15-year statutory period. Accordingly, defendants can only tack to their predecessors in title if they can establish privity "by parol references at time of the conveyances." Siegel, supra at 425. Margaret Lilley's affidavit indicated that representations about the ownership of Parcel B were made at the time she acquired the Post Office Property. Bourquin provided a similar -5-

affidavit that stated that he was "advised by the sellers that the conveyance included the entire property including the parking area, well and septic system." However, Bourquin's affidavit is contrary to his testimony at trial that he "assumed that it was part of the property." Nevertheless, even if we take the two affidavits as evidence of a parol reference, defendants' tacking argument still fails. Parol reference creates privity between the parties to whom the reference is made. Here, Lilley's affidavit provides privity between VanderLaan Land Company and Margaret Lilley in the 1992 execution of the land contract. Bourquin's affidavit provides privity between defendants and Leslie Ann Lamar and her son in the execution of the 1996 quitclaim deed. But there is no privity shown between either Margaret Lilley and Leslie Ann Lamar and her son in the 1995 assignment of the land contract or between VanderLaan Land Company and Leslie Ann Lamar and her son in the 1996 deed in fulfillment of the 1992 land contract. Thus, defendants failed to show that there was parol evidence that Parcel B was being conveyed at the time of each conveyance in the tacking period. Because defendants failed to show either inclusion in the deed or parol evidence that Parcel B was being conveyed at the time of each conveyance in the tacking period, defendants could not tack their asserted ownership of Parcel B to that of their predecessors in title. Therefore, because defendants failed to meet the statutory 15-year requirement, defendants have not obtained title to Parcel B through adverse possession. Accordingly, defendants' adverse possession claim must fail, and the trial court erred in quieting title to defendants based on adverse possession.4 Although not considered by the trial court, defendants also made a claim for acquiescence. Unlike adverse possession, proof of privity is not required "to employ tacking of holdings to obtain the 15-year minimum under the doctrine of acquiescence." Siegel, supra at 426. Additionally, a claim of acquiescence for the statutory period does not require that the possession be hostile or without permission, and the evidentiary standard is lessened. Walters v Snyder, 239 Mich App 453, 456, 458; 608 NW2d 97 (2000). Thus, a finding of acquiescence merely requires that defendants demonstrate by a preponderance of the evidence that the parties treated a particular boundary line as the property line. See id. The doctrine of acquiescence operates under the principle that a boundary line that has been accepted by the parties should stand. Id. at 457-458. There are three forms of

Because we find that defendants cannot establish the requirements for adverse possession, we decline to consider whether railroad rights of way can be subject to adverse possession. We note, however, that in Modern Handcraft, Inc

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