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Failing to object to placement of fence not sufficient to establish acquiescence

Noting that "having no objection to a feature on property is not the same as recognizing that feature as the boundary[,]" the court held that the plaintiff failed to establish acquiescence for the statutory period. Thus, it affirmed the trial court's order granting the defendants summary disposition in this quiet title action. The parties owned adjoining lots 154 and 155 in a subdivision. Plaintiff acquired lot 154 in 2008. Defendants acquired lot 155 from S in 2009. When S bought lot 155 in 1995, it was vacant. S stated in an affidavit that "when she purchased the lot, the fence and concrete walkway between lots 154 and 155 already were in existence. She averred that '[a]t no time did my former husband and I have any objections to the existing fence and walkway.'" Defendants obtained a survey in 2011, "which revealed that the fence and walkway encroached onto their lot anywhere from 1.6 feet to 1.7 feet. Plaintiff then obtained a survey, which produced similar results." In support of his claim that he acquired title to the disputed strip of land via acquiescence, plaintiff relied on S's affidavit. However, the court found that the required specificity as to the actions and intent of S and her husband was lacking from her affidavit. "Did they mow up to the fence? Did they ever utilize or maintain the walkway that was on the other side of the fence? In short, did they treat or respect the fence as the property line?" The affidavit was "silent on these vital matters." Thus, the court concluded that "plaintiff's reliance on Walters is misplaced." Further, assuming that S's affidavit was adequate to prove that she and her husband treated the fence as a boundary, plaintiff's evidence was still deficient. They only owned lot 155 for 14 years. In order to prove acquiescence for the 15-year statutory period, plaintiff had to present evidence establishing that defendants, who were their successors, treated the fence and walkway as a boundary for at least a year after they acquired the lot from the Ss. "But no evidence submitted shows how defendants treated these features." Also, there was "no evidence to show how plaintiff's predecessors during that same period treated the fence" - he had to "show that all parties acquiesced to the boundary." While defendants, as the prevailing parties, may tax costs pursuant to MCR 7.219, the court denied their motion to recover damages, ruling that while unsuccessful, plaintiff's appeal was not "vexatious or frivolous."


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