5 N.W.2d 737 | Mich. | 1942
Plaintiffs and defendants respectively own substantial summer homes on adjoining pieces of property fronting on Lakeview avenue and extending to Lake Michigan in the village of Grand Beach, Michigan. Defendants' right to use a concrete walk approximately two feet in width between the two houses is the subject of this litigation. Defendants *163 Hunt claim an easement by prescription in this walk or right of way. It is built entirely on the land belonging to plaintiffs, who filed this bill to restrain defendants from trespassing on plaintiffs' property by using the way, and to quiet title in plaintiffs. Plaintiffs dismissed the bill as to all defendants except the Hunts. After hearing, the circuit court dismissed the bill upon its merits. From this decree plaintiffs appeal.
Defendants claim a perpetual easement appurtenant in the walk. The burden of proving the existence of an easement is upon the claimant thereof. Turner v. Hart,
Thus we are brought to the main question in the case. Can the periods of adverse user of a claimed easement appurtenant by the successive owners of the claimed dominant tenement be tacked together to aggregate the 15-year period of prescription, where no single period amounts to 15 years, in the absence of any privity between the successive owners established either by references to the easement in their conveyances or by parol transfers thereof in connection with such conveyances? We are mindful of the great number of decisions from other jurisdictions which answer this question in the affirmative. The law of this State, however, prohibits such tacking. Zemon v. Netzorg,
Nor can the way in suit be claimed as a way of necessity. The exhibits in the record show that defendants or their predecessors could always have *165 built a walk across their own land from the street to their house. Indeed, several years prior to the present suit, defendants did build such a walk.
Plaintiffs' and defendants' lands were once united in ownership. Shortly after the walk was originally laid, the two parcels were severed, the common owner conveying plaintiffs' parcel and retaining defendants' himself. The grantee of plaintiffs' land paid the common owner one-half the cost of the two houses and intervening walk (then a board walk), because both parties believed that the dividing line between plaintiffs' and defendants' lands bisected the board walk lengthwise. Later, on the same assumption, when a cement walk was substituted for the board walk, the then owners of the two parcels each paid one-half the cost of putting in the cement walk. Surveys subsequently established that the true dividing line runs so as to include the entire walk and even a few inches of one of the walls of defendants' house on land belonging to plaintiffs. Though the cost-sharing scheme is similar to that in Wilkinson v.Hutzel,
There is no merit to the claim that plaintiffs' proper remedy is ejectment. Plaintiffs are in possession of the land over which the way in dispute *166
lies. A party in possession may not bring ejectment, but must resort to a bill in equity. Beaver v. Zwonack,
In their brief plaintiffs ask that defendants be perpetually enjoined "from trespassing upon the premises of the plaintiffs either by the use of the steps and passageway or by the maintenance of the encroaching overhanging of the eaves or the outswinging screen door." No relief is asked as to the encroachment by the wall of defendants' house. The eaves, attached to the top of this wall, do, of course, project over the plaintiffs' land and passageway. Their function, as disclosed by the exhibits, is the retention and channeling off of rain water from defendants' roof. Plaintiffs' passageway is thus benefited by the eaves. Plaintiffs, in the statement of relief sought in their brief, do not ask that the very slight encroachment of defendants' wall on plaintiffs' property should be removed. The use of the eaves and of the downspout attached to defendants' house results in discharging the rain water from defendants' roof onto defendants' own property, rather than into the passageway. It is claimed that defendants have a continuous easement in the right to have the eaves overhang and that such right passed to defendants' property on the severance of the two tenements.Morgan v. Meuth,
Equity should not lend its aid to bring about a greater inequity.
"Equity looks at the whole situation and grants or withholds relief as good conscience dictates." Thill v. Danna,
On the present record, we are not disposed to order the removal of the eaves or eaves troughs or the slight encroachment by defendants' wall or building or the waterspout which is attached to defendants' *167 building. They do not interfere with plaintiffs' use or enjoyment of their property. The damage, if there be any under the conditions presented, is too trivial for us to consider. Deminimis non curat lex. Defendants, however, may not obstruct the passageway by the use of steps or an outswinging door.
Defendants raise the further point that, as this is a bill to quiet title, it is incumbent upon plaintiffs to make out a good chain of title leading to that of plaintiffs, but that one of the links therein, consisting of a will from one of plaintiffs' remote grantors to their immediate grantors, was not even probated until after the hearing in the case at bar. The will was proved before decree was entered, and probate is retroactive to the testator's death, insofar as time of passage of title thereunder is in question. Richards v. Pierce,
The decree is reversed and upon completion of the probate proceedings showing plaintiffs' title as hereinbefore indicated, plaintiffs may take a decree perpetually enjoining the defendants from trespassing upon the premises of the plaintiffs by using the steps and passageway as an easement or right of *168 way or otherwise encroaching thereon as indicated herein, with costs to plaintiffs.
CHANDLER, C.J., and BOYLES, NORTH, STARR, WIEST, BUSHNELL, and SHARPE, JJ., concurred.