Allen v. Bay County Drain Commissioner

160 N.W.2d 346, 10 Mich. App. 731, 1968 Mich. App. LEXIS 1474

• Court: Michigan Court of Appeals
• Decided: April 2, 1968
• Docket: Docket No. 3,891
• Status: Published

Opinion

Burns, J.

Defendants appeal a judgment for plaintiffs holding that a drain easement not recorded with the local register of deeds is void as to subsequent purchasers without notice.

The Bay county drain commission obtained an easement for drain purposes from M. Seth Babcock and his wife on September 6, 1917. The easement was recorded at the drain commissioner’s office, but it was not recorded in the register of deeds office. The easement covered the following property:

“A strip of land described as follows: The north 4 acres of the N 1/2 of the NE 1/4 of section 13, T14N, R4E, also the east 2 acres of the N 1/2 of the NE 1/4 of section 13, T14N, R4E, except 66 ft square in the NE corner thereof, also the east 2 acres of the N 1/2 of the NE 1/4 of section 13-14-4E,”

Open ditch drains were constructed in 1917 on that portion of the drain right-of-way which lay almost entirely within a road right-of-way and were maintained until the time of this action.

Plaintiffs purchased the property in question in 1943 from one Adamowsld who had farmed the land and utilized all of the land up to the drainage ditches.

In 1963 the drain commissioner acted upon a petition of the road commission to relocate the drain onto land which was included in the original easement but claimed by the plaintiffs.

Plaintiffs filed action to enjoin the defendants from constructing the new drain and to quiet title. The trial court granted a temporary injunction, but it was dismissed by stipulation. The case proceeded to trial for the purpose of quieting title and determining money damages, if any.

The trial court held that a drain easement not recorded with the register of deeds in accordance with CL 1948, § 565.29 (Stat Ann 1953 Rev § 26.547) was void as to subsequent purchasers without notice even though it was recorded in the drain commissioner’s office. The court also found as a matter of fact that the plaintiffs did not have actual notice of the easement.

The defendants claim that the recording of the easement in the drain commissioner’s office in accordance with CL 1948, § 262.10 (Stat Ann 1952 Rev § 11.15) as re-enacted as CLS 1961, § 280.30 (Stat Ann 1960 Rev § 11.1030) was sufficient notice to protect their interests. Defendants also claim that the trial court erred in its finding that the plaintiffs did not have knowledge of the easement.

This case is controlled by Peaslee v. Saginaw County Drain Commissioner (1961), 365 Mich 338, which held that such an easement if not recorded with the register of deeds office is void against subsequent purchasers in good faith.

The trial court found that the plaintiffs did not have actual or constructive notice of that portion of the easement which supposedly extended beyond the edges of the drains. We do not set aside findings of fact made by the trial judge unless clearly erroneous. G-CK 1963, 517.1 There was sufficient evidence to support the trial judge’s conclusion.

Judgment affirmed. No costs, a public question being involved.

J. W. Fitzgerald, P. J., and Neal Fitzgerald, J., concurred.