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STATE OF MICHIGAN
COURT OF APPEALS


CONRAD P. BECKER, JR., Plaintiff-Appellee, v BENJAMIN THOMPSON and TRUDENCE S. THOMPSON, Defendants-Appellants.

UNPUBLISHED May 23, 2006

No. 262214 Mackinac Circuit Court LC No. 02-005517-CH

Before: Sawyer, P.J., and Kelly and Davis, JJ. PER CURIAM. In this equitable action, defendants appeal by leave granted. They challenge an order of the circuit court granting plaintiff title by adverse possession to certain property and two prescriptive easements over portions of defendant's property. We affirm in part, reverse in part and remand. Defendants first argue that the circuit court erred in granting plaintiff title by adverse possession to approximately 1500 square feet of land surrounding an existing well utilized by plaintiff. We disagree. An action seeking to quiet title through a claim of adverse possession is equitable in nature. Gorte v Dep't of Transportation, 202 Mich App 161, 165; 507 NW2d 797 (1993). In equitable actions, we review a trial court's findings of fact for clear error and its conclusions of law de novo. Higgins Lake Prop Owners Ass'n v Gerrish Twp, 255 Mich App 83, 117; 662 NW2d 387 (2003); MCR 2.613(C). A factual finding is clearly erroneous where we are "left with a definite and firm conviction that a mistake has been made." Reed v Reed, 265 Mich App 131, 150; 693 NW2d 825 (2005). MCL 600.5801 provides in relevant part: No person may bring or maintain any action for the recovery or possession of any lands or make any entry upon any lands unless, after the claim or right to make the entry first accrued to himself or to someone through whom he claims, he commences the action or makes the entry within the periods of time prescribed by this section.

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The statutory period for disseisin through adverse possession is fifteen years. MCL 600.5801(4); Wengel v Wengel, 270 Mich App 86; __ NW2d __ (Docket No. 263657, issued February 28, 2006), slip op at 4. "A claim of adverse possession requires clear and cogent proof that possession has been actual, visible, open, notorious, exclusive, continuous, and uninterrupted for the statutory period of fifteen years. . . . A cause of action does not accrue until the property owner of record has been disseised of the land. Disseisin occurs when the true owner is deprived of possession or displaced by someone exercising the powers and privileges of ownership." . . . *** [A]dditionally, . . . the possession must be hostile and under cover of a claim of right. "The term `hostile' as employed in the law of adverse possession is a term of art and does not imply ill will[;]" rather, hostile use is that which is "inconsistent with the right of the owner, without permission asked or given," and which use "would entitle the owner to a cause of action against the intruder." [Id. (citations omitted).] The evidence presented below supported the circuit court's conclusion that plaintiff adversely possessed property surrounding the well at issue. The placement of the well was clearly actual and visible; plaintiff presented photographic evidence of its existence, an overflow tank and a "fish pond." It was fully open to observation, as surveys conducted disclosed its existence. Its existence was notorious as the testimony of various individuals established. Indeed, defendants were aware of its existence. Plaintiff's use was exclusive. He testified that the well was used by himself, his family and his guests; nothing in the record suggests that defendants used the well. The use was continuous and uninterrupted. Plaintiff testified that the well was sunk approximately fifty-five years previously and that his use of it continued unabated until approximately 2001. This testimony was corroborated by additional testimony concerning the well's long-term existence and its use as a "live well". The use existed for the statutory fifteen-year period. This was established by both plaintiff's and defendants' testimony. Plaintiff's use of the well was hostile. No evidence suggested that plaintiff enjoyed permission from defendants, or their predecessors in interest, to sink the well. Indeed, testimony indicated that defendants' predecessor in interest believed that plaintiff had sunk the well on his own property. Defendants and their predecessors in interest were entitled to bring a claim against plaintiff for trespassing; they did not. See Plymouth Canton Community Crier, Inc v Prose, 242 Mich App 676, 681; 619 NW2d 725 (2000), quoting 1 Restatement Property, Servitudes, 3d,

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