Posts Tagged ‘boundary by acquiescence’

Platted village streets constitute “public highway” for purpose of defense to acquiescence claim

January 7th, 2015

by Hannah Dankbar

Haynes v Village of Beulah
Michigan Court of Appeals, December 9, 2014

The Haynes argue that they are entitled to two strips of land within the platted rights-of-way of Lake Street and Commercial Avenue in the Village of Beulah citing the theory of acquiescence. The Haynes own Lots 10,11 and part of Lot 7 in Block 2. These lots are bordered by Lake Street on the northwest side and Commercial Avenue on the southwest side. Before 1968 the prior owners of the Haynes’ property installed railroad ties along Lake Street, separating the portion of the road used for travel from the grass and trees. On the southwest, a rock wall was installed in the 1950s to separate the part of Commercial Avenue used for travel from landscaping plants, a portion of the Haynes’ driveway, a maple tree and a strip of grass owned by the Haynes.

In 2012, the Village of Beulah introduced plans to create angled parking, a new sidewalk and a streetscape in the platted right-of-way of each street and would occupy land owned by the Haynes. The Haynes brought suit to prevent this action. The trial court granted the Village of Beulah’s motion for summary disposition based on MCL 247.190.

MCL 247.190 provides as follows:

 All public highways for which the right of way has at any time been dedicated, given or purchased, shall be and remain a highway of the width so dedicated, given or purchased, and no encroachments by fences, buildings or otherwise which may have been made since the purchase, dedication or gift nor any encroachments which were within the limits of such right of way at the time of such purchase, dedication or gift, and no encroachments which may hereafter be made, shall give the party or parties, firm or corporation so encroaching, any title or right to the land so encroached upon.

Plaintiffs argued that MCL 247.190 does not apply to platted village streets or property acquiescence claims.  The issue in this case is the definition of “public highways,” which is not defined in the statute. “Highway” has been defined through multiple cases and multiple legal dictionaries before the enactment of MCL 247.190. These definitions encompass a broad reading of the term “highway.” Because of this, the Court of Appeals found that the trial court did not err in broadly construing the term to include village streets.

The Haynes also argued that MCL 247.190 does not apply to property acquiescence claims, but the Court of Appeals disagreed. MCL 247.190 provides, “no encroachments” on a public highway “shall give the party or parties, firm or corporation so encroaching, any title or right to the land so encroached upon.” Nothing in the statute permits the court to distinguish between different legal theories used to assert a private right or claim to any portion of a public highway.  A claim for acquiescence constitutes an encroachment.

The Haynes also argued that the unimproved portions of platted right-of-ways are not “public highways” that are entitled to protection under MCL 247.190. The Court of Appeals disagreed with this assertion, as well.  It is sufficient for the spending of public funds on a road in a dedicated right-of-way to constitute public acceptance of the entire width, and therefore have the entire width constitute “public highway,” even if the municipality never improves the specific strips of land within the right-of-way.

Judgment for the Village of Beulah was affirmed.

Highways, Michigan courts, Plats, Property law, public roads and highways , , ,

Landowner could not limit access of easement holder to one specific route

November 28th, 2011

by Victoria Heldt

Enbridge Energy, LP v. Donovan Dyrdal, et al.
(Minnesota Court of Appeals, October 24, 2011)

The Dyrdals own agricultural property that is subject to easements held by Enbridge Energy.  The easements were granted in 2009 by the power of eminent domain and allowed Enbridge “rights of ingress and egress as are reasonably necessary or convenient in the exercise of such easement rights.”  Enbridge, a public-service corporation, installed and maintained pipelines in the easement.  Soon after completing the pipeline installation, Enbridge discovered problems at two locations, so the crew began working to correct them in January of 2010.  They used a field road on the Dyrdal property to access the two spots.  In response, the Dyrdals placed large hay bales across the field road and in the ditch between the problem sites, preventing Enbridge from accessing their work site.  Enbridge claimed this delay cost them an additional $28,697.80 in project costs.

Enbridge sought a declaratory judgment and injunctive relief in district court alleging a breach of easements and a violation of the eminent-domain order, among other things.  They also moved for a temporary injunctive relief to prevent the incident from reoccurring during litigation, which the court granted.  The Dyrdals countered with a claim of immunity under Minnesota’s statute preventing strategic litigation against public participation (SLAPP).  The statute’s goal is to prevent parties from using the threat of costly litigation to silence those who want to debate public issues.  The district court eventually granted Enbridge’s motion for summary judgment on the issue of declaratory relief, finding Enbridge did indeed have the right to access the property to maintain the pipelines.

The Dyrdals appealed, their first claim being that the district court erred when it denied their request for partial summary judgment on the grounds of Minnesota’s anti-SLAPP statutes.  The anti-SLAPP statute can be used to dismiss claims that relate to public participation.  The Court noted that public participation is defined as “speech or lawful conduct that is genuinely aimed in whole or in part at procuring favorable government action.”  The Dyrdals argued that, since Enbridge gained access to the property by means of an eminent-domain procedure, it was acting as a government agent in its actions.  Consequently, they claimed that the anti-SLAPP statue was applicable.  The Court disagreed.  They noted that the power of eminent domain does not make the entity a government agent once the power has been exercised.  In addition, they found that Enbridge was exercising its rights as an easement owner, not a government agent, in accessing the property.  Further, the Dyrdals previously claimed that they placed the hay bales on the road in order to load them and not to interfere with Enbridge’s work.  If that is true, then their conduct was not to “procure favorable actions from Enbridge,” but for their own private farming operations.  As a final note, the Court noted that it had recently found that a preexisting legal relationship could limit a party’s ability to file an anti-SLAPP claim.

The Dyrdals also alleged that the district court abused its discretion when it granted temporary injunctive relief.  In evaluating whether a temporary injunction is appropriate, the Court considers five factors:  1) the nature and background of the relationship between the parties; 2) the balance of harm to the parties; 3) the likelihood that the party seeking the injunction will prevail on the merits of the action; 4) wither there are public-policy considerations; and 5) whether there are any administrative burdens involved in judicial supervision and enforcement of the temporary injunction.  After analysis, the Court found that the first three factors favored Enbridge, while the last two were neutral.

The Dyrdals focused mainly on the third factor.  The Court had reasoned that the language in the eminent-domain ruling showed Enbridge had a clear right to access the property and that constituted a showing that they would most likely win on the merits of the case.  The Dyrdals claimed that the real-estate doctrine of practical location limited Enbridge’s right of entry to one specific route.  The boundary by practical location can be established by acquiescence if one party chooses a specific route and the other agrees accepts it over a period of time.  The Dyrdals contend that an alternative route (and not the field road) that was previously used had been established by acquiescence.  The Court noted the plurality in the phrase “rights of ingress or egress” that appeared in the eminent-domain ruling.  It found that the ruling did not prescribe one specific route of access, so the Dyrdal’s claim was insufficient to disprove the likelihood of Enbridge’s success in a claim.  Additionally, the practical location by acquiescence doctrine requires acquiescence over a period of time.  In this case, the easement was relatively new and substantial time had not passed in which to establish a route by acquiescence.  The Court affirmed the district court’s decision regarding the temporary injunction.

Easements, Minnesota courts , , ,

Knowledge that fence was not on boundary not necessary to establish boundary by acquiescence

May 12th, 2011

by Melanie Thwing

Georgia Pacific Gypsum v. National Gypsum Company
(Iowa Court of Appeals, February 9, 2011)

Georgia-Pacific, L.L.C. (GP) and National Gypsum Company own adjoining properties in Webster County, IA. Since the 1950’s a wire fence had separated the south property, owned by National, and the north property, owned by Georgia-Pacific. In 2000 National had the property surveyed and found the  fence was encroaching on their property.  In 2007 National removed the fence even though GP objected. Then, in 2009 GP filed a petition under Iowa Code chapter 650 to establish the fence line as the boundary line between the properties.  In support of its position GP cited Iowa Code 650.14 which states:

If it is found that the boundaries and corners alleged to have been recognized and acquiesced in for ten years have been so recognized and acquiesced in, such recognized boundaries and corners shall be permanently established.

In response to GP’s petition National submitted an affidavit stating: (1) there was never any knowledge that GP was claiming the fence as a boundary, (2) there was no consent to the treatment of the fence as a boundary line. Finding that from 1952 to 2000 both parties recognized the fence line as a boundary, the district court granted summary judgment for GP.  National then filed a motion to modify findings, but after the district court denied the motion National appealed to the Iowa Court of Appeals.

The Court of Appeals observed that under 650.14, acquiescence has always been defined as adjoining landowners having mutual recognition for more than ten years of a line dividing them. This line is clearly marked by a fence or in some other manner. Landowners do not need to have specific knowledge that the fence is not located on the legally defined boundary line.  When the mutual recognition of the boundary persists for more than ten years that line becomes the true boundary even if a survey shows otherwise.

National argued that GP did not prove acquiescence because in its affidavits GP never claimed the fence to be anywhere other than the legal boundary line. The Court of Appeals rejects this claim. Both GP and National demonstrated maintenance and usage of only land on their respective sides of the fence.

Secondly, National argued that their affidavits created an issue of material fact. National had paid property taxes and insured the legally defined propertu. The Court of Appeals rejected this argument. The court states that, “tax and insurance bills are typically based on legal descriptions; if that consideration were dispositive, it would be difficult to conceive any case where acquiescence could be found.” Further, even though National recognized the legal boundary line in 2000, it does not preclude that National acquiesced in the fence-line boundary before 2000.

National then argues that it never agreed to treat the fence as a boundary line. The Court of Appeals rejects this claim as well. The claim does not set forth, “specific facts showing that there is a genuine issue for trial.” It is undisputed that GP exclusively maintained and used the land to the north, and that National was fully aware of this usage and never objected to it.

Finally, National argues that the claim of acquiescence is barred by the statutes of limitations in Iowa Code §614.1(5) and §614.17A.  §614.1(5) states that actions for recovering real property must be brought within 10 years after their cause accrues. §614.17A holds, “providing that an action shall not be maintained to recover or establish an interest in or claim to real estate if the action is based upon a claim arising more than ten years earlier.”

The Court of Appeals dismisses this claim as well. Chapter 650 is a special action to establish lines or corners, and that prior caselaw has settled that the statutes of limitations cited by National do not apply to any actions under chapter 650. The district court’s decision in favor of GP was affirmed.

Iowa Court of Appeals, Property law ,