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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

BARBARA J. WAMSLEY,

Plaintiff/Counter-DefendantAppellant,

UNPUBLISHED

July 17, 2018

v No. 337943

Cheboygan Circuit Court

JAMES D. MARTIN and VIRGINIA L. 

DASCENZA,

LC No. 16-008568-CH

Defendants/Counter-PlaintiffsAppellees.

Before: RONAYNE KRAUSE, P.J., and GLEICHER and LETICA, JJ.

PER CURIAM.

At issue in this case is 7.5 feet of bank along the Indian River. The trial court quieted 

title in defendants’ favor, determining that their northern property line continued to the water’s 

edge. Plaintiff Barbara Wamsley owns a parcel which is developed on the other side of the 

street, but which continues to the river’s edge. She contends that defendants’ property line is 

marked by a fence and the edge of a building. We discern no error in the trial court’s judgment 

to the contrary and affirm.

I. BACKGROUND

James Martin and his wife Virginia Dascenza, defendants, purchased a triangular shaped 

lot along the Indian River from Juanita Widell in 2003. Defendants’ property is their private 

residence. However, the land was once part of a larger parcel (Lot 6) that was a small rental 

cottage resort. In approximately 1968, Widell and her husband erected a fence, marked in red 

below, spanning only a portion of their property, to keep their dog from wandering. The fence 

remains in place today.

The Wamsley family has owned the lot to the west of defendants since 1963. The 

property extends to the river’s edge, although Prospect Road bisects the land. The larger portion, 

on the far side of the road, is developed as a residence. A narrow strip follows the river and the 

Wamsleys have installed a dock.
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The battle between neighbors started in approximately 2012, over the area circled below.

This area is 7.5 feet long and slopes down to the river.

In 2003, the parties split the cost of professional weed removal on the point of land. Over 

the years, they worked together to keep the area mowed and weeded. It appears that the dispute 

began when defendants erected a removable, seasonal boat hoist in the area in 2012. Plaintiff, 

Barbara Wamsley, is the current owner of the Wamsley family lot. She removed and hid 

defendants’ hoist, but returned it on police orders. The neighbors also reported each other for 

trespassing on the land.

Wamsley eventually filed the current lawsuit, seeking to quiet title to the disputed piece 

of land and to enforce a 10-foot setback requirement for “structures,” such as boat hoists, under

the Cheboygan Zoning Ordinance (CZO). The parties each presented expert witnesses to 

interpret the plat map of the area. These experts gave varying opinions about the boundaries and 

dimensions of defendants’ parcel. Wamsley contended that regardless of the description of 

defendants’ property in their deed and the land records, defendants and their predecessors 

acquiesced in the Wamsley family’s sole enjoyment of the area for several decades.

Following a bench trial, the circuit court ruled that the seasonal boat hoist was not a 

structure under the CZO’s definition and therefore its erection did not violate the ordinance. The 

court rejected Wamsley’s claim to title by acquiescence and also based on the legal descriptions 

of the lots. Accordingly, the court quieted title in defendants’ favor. Wamsley now appeals.

II. PROPERTY TITLE

This Court outlined our standard of review in quiet title actions in Jonkers v Summit Twp, 

278 Mich App 263, 265; 747 NW2d 901 (2008):

We review the trial court’s findings of fact in a bench trial for clear error 

and conduct a review de novo of the court’s conclusions of law. Equitable rulings 

to quiet title, as well as questions of law in general are reviewed de novo. 
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However, we defer to the trial court’s findings of fact in an action to quiet title; 

those findings will be given weight and reversed only if they are clearly 

erroneous. The clear-error standard requires us to give deference to the lower 

court and find clear error only if we are nevertheless left with the definite and 

firm conviction that a mistake has been made. [Quotation marks and citations 

omitted.]

The circuit court did not clearly err in finding that defendants are the record owners of the 

small piece of land. Defendants’ deed describes their property’s northern border as travelling 

“from the Northeast corner of said Lot 6” for 130 feet “to the waters edge of Indian River.” The 

southern border then travels 126 feet eastward along the river’s edge. Defendants presented the 

testimony of Brian Fullford, who surveyed their property in 2006. Fullford reviewed the deed 

description, the 1880 plat map of the village of Indian River, and a 1968 survey. Fullford 

determined that defendants’ property ended in a point at the water’s edge.

George Platz testified on Wamsley’s behalf and conducted a land survey specifically for 

the litigation. Platz asserted that he found no boundary monuments on the west side of the 

property, although he found stakes on the east. Platz reviewed the 1880 plat, which depicted the 

full Lot 6 extending 198 feet along the waterfront with a northern boundary line ending at the 

water’s edge. Platz considered whether defendants’ fence could be the property boundary, but 

even he determined that the lot extended beyond that point by 2.7 feet. Platz also reviewed the 

1968 land survey and noted that it extended the dimension of Lot 6’s waterfront boundary from 

198 to 205.5 feet. Widell’s predecessor then used that measurement to transfer title of the 

western portion of Lot 6 to the water’s edge to Widell.

Both Platz and Fullford outlined their research process and methods of measurement. 

The court had to decide which witness was most credible, or at least whose results were the most 

reliable. We must give special regard to the lower court’s opportunity to observe the witnesses 

first hand and judge their credibility. MCR 2.613(C); In re Clark Estate, 237 Mich App 387,

395-396; 603 NW2d 290 (1999). Moreover, public policy favors consistency in boundary lines. 

Jonkers, 278 Mich App at 267. Michigan law has long favored relying on natural landmarks 

over platted distances:

Nothing is better understood than that few of our early plats will stand the 

test of a careful and accurate survey without disclosing errors. . . .

. . . No rule in real estate law is more inflexible than that monuments 

control course and distance,—a rule that we have frequent occasion to apply in 

the case of public surveys, where its propriety, justice and necessity are never 

questioned. But its application in other cases is quite as proper, and quite as 

necessary to the protection of substantial rights. The city surveyor should, 

therefore, have directed his attention to the ascertainment of the actual location of 

the original landmarks . . . and if those were discovered they must govern. [Id. at 

267-268, quoting Diehl v Zanger, 39 Mich 601, 605-606 (1878) (COOLEY, J., 

concurring) (quotation marks and citation omitted in original, emphasis added).]
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When there is a conflict between a distance and a natural boundary, such as a body of water, the 

location of the boundary controls, and the boundary exists where the water actually lies. 

Jonkers, 278 Mich App at 270. Given this state of the law, we discern no error in the circuit 

court’s determination that Fullford accurately set the property’s western boundary at the water’s 

edge, giving defendants title to the contested 7.5 feet of waterfront property.

We also discern no error in the circuit court’s assessment that Wamsley did not gain title 

over the subject land through the acquiescence of defendants and their predecessors. The 

doctrine of acquiescence provides a manner for quieting title when neighbors have acquiesced to 

a boundary line between their properties. Killips v Mannisto, 244 Mich App 256, 260; 624 

NW2d 224 (2001). The claimant must establish acquiescence by a preponderance of the 

evidence. Id. “There are three theories of acquiescence . . . : (1) acquiescence for the statutory 

period; (2) acquiescence following a dispute and agreement; and (3) acquiescence arising from 

intention to deed to a marked boundary.” Sackett v Atyeo, 217 Mich App 676, 681; 552 NW2d 

536 (1996).

Wamsley asserted title under the first theory: acquiescence for a 15-year period. For this 

type of acquiescence, Wamsley was not required to establish any historical dispute regarding the 

proper boundary line; a mere mistake about the actual boundary suffices. Id. at 681-682. Proof 

that parties have treated a boundary as the property line for the statutory period suffices to prove 

acquiescence. Mason v City of Menominee, 282 Mich App 525, 529-530; 766 NW2d 888 

(2009). This mutual treatment evidences a mutual mistake, and if that mutual mistake continues 

for long enough, this newly accepted boundary line “ought not be disturbed.” Johnson v Squires, 

344 Mich 687, 692; 75 NW2d 45 (1956) (quotation marks and citations omitted). See also 

Sackett, 217 Mich App at 681; Kipka v Fountain, 198 Mich App 435, 438; 499 NW2d 363 

(1993).

Wamsley testified that she had treated defendants’ fence as the boundary between their 

properties. She weeded the 7.5-foot area on the west side of the fence and took care of the 

landscaping. However, neither defendants nor their predecessors treated the fence as the 

property boundary. Widell testified that she knew the fence was not the property boundary. 

When she owned the land, Widell cleaned up the area west of the fence, picked apples there, and 

allowed “the kids” to play there. Defendants similarly testified that they knew the fence was not 

the boundary. They actively used the property west of the fence by weeding it, landscaping it, 

paying to have it maintained, and allowing their grandchildren to use it. At most, there was 

evidence of a unilateral mistake on Wamsley’s part, which is not sufficient to constitute 

acquiescence. See McGee v Eriksek, 51 Mich App 551, 557; 215 NW2d 571 (1974). 

Accordingly, the circuit court did not err in quieting title in defendants’ favor.

III. ZONING

Wamsley also argues that the circuit court erroneously concluded that a boat hoist is not a 

“structure” under the CZO and thus is not subject to that provision’s 10-foot setback 

requirements. We review de novo a lower court’s interpretation and application of municipal 

ordinances. Great Lakes Society v Georgetown Charter Twp, 281 Mich App 396, 407; 761 

NW2d 371 (2008). “Ordinances are treated as statutes for the purposes of interpretation and 

review.” Id. Through zoning ordinances, townships have the authority to regulate the general 
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nature and natural resources of the community. Hess v West Bloomfield Twp, 439 Mich 550, 

560; 486 NW2d 628 (1992). Zoning ordinances allow townships to regulate riparian, as well as 

land, ownership. Id.

Reading the entire CZO in context, we agree with the lower court’s determination that a 

boat hoist does not fall within the definition of a “structure.” The parties agree that the CZO

prohibits any “building or structure” from being “located within any required setback,” and that 

the disputed property has minimum side and rear setbacks of 10 feet. See CZO, §§ 17.2.1 and 

17.2.2. At issue is whether defendants’ boat hoist qualifies as a “structure” under this provision. 

The CZO defines a “structure” as:

[a]nything constructed or erected on the ground or which is attached to something 

located on the ground. Structures include buildings, radio and TV towers, mobile 

homes, sheds and permanent signs, and exclude vehicles, sidewalks and paving. 

[CZO, § 2.2 (emphasis added).] 

The CZO defines “erected” as “signif[ying] the construction, alteration, reconstruction, 

placement upon, or any physical alteration on the premises, including the excavating, moving, 

and filling of earth.” Id. 

Wamsley argues that these definitions combine to include boat hoists as structures 

because boat hoists are placed on the ground. We must read ordinance provisions “reasonably 

and in context,” and read subsections of cohesive provisions together. Robinson v City of 

Lansing, 486 Mich 1, 15; 782 NW2d 171 (2010). No portion of an ordinance should be read in 

isolation. Id. When terms are contained in a list, they should be interpreted in light of other 

terms in that list. Manuel v Gill, 481 Mich 637, 650; 753 NW2d 48 (2008). And “where a 

general term follows a series of specific terms, the general term is interpreted to include only 

those things of the same kind, class, character, or nature as those specifically enumerated.” Neal 

v Wilkes, 470 Mich 661, 669; 685 NW2d 648 (2004).

The definition of structure includes several examples that would not include a seasonal 

boat hoist. Specifically, “[s]tructures include buildings, radio and TV towers, mobile homes, 

sheds and permanent signs, and exclude vehicles, sidewalks and paving,” See CZO, § 2.2. Only 

things of the same kind, class, and character as buildings, towers, mobile homes, sheds, and 

permanent signs should be considered structures. All of the listed examples are things that are 

permanently affixed to the land. The boat hoist is not affixed to the land and therefore is not of 

the same kind, class, and character as the examples.

Similarly, in the definition of “erected,” the phrase “placement upon” is included in a list. 

That list includes construction, alteration, reconstruction, or excavating, moving, or filling earth. 

Again, the boat hoist’s placement did not require any construction, alteration, or excavation to 

the ground. When the phrase “placement upon” is considered in context, it requires some sort of 

permanent change to the land. This seasonal boat hoist required no change to the land.

Moreover, the CZO treats boat hoists separately from docks and other structures in other 

sections, supporting that boat lifts or hoists are not structures. The CZO frequently refers to 

“boat docks, boat slips, boat wells, ramps, marinas, [and] seawalls” as structures that are subject 
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to setback requirements. See CZO, §§ 6.4.9, 7.4.9, 8.4.9, 13.4.10, 13A.4.7(b), 13B.4.2(b). 

However, CZO, § 10.4.4.8, which applies to the protected lakes and streams district, refers 

separately to boat hoists. Similarly, § 10.4.4.10 refers to “watercraft slip, mooring, or boat hoist” 

when referring to waterfront access, which is separate from CZO, § 10.4.6’s governance of 

setback requirements for “boat wells, ramps, marinas [and] seawalls[.]” If the county considered

boat hoists to be structures, it would make little sense for it to provide different rules in different 

areas to govern boat hoists separately from boat ramps or docks. Accordingly, considering the 

entirety of the CZO’s language, boat hoists are not structures.

As Wamsley observes, the county’s zoning administrator, Steve Schnell, testified that 

Cheboygan County had never cited anyone for a zoning violation regarding a seasonal boat hoist. 

Wamsley argues that the circuit court improperly treated Schnell’s testimony as binding evidence 

that a boat hoist is not a structure. “[A]gency interpretations are entitled to respectful 

consideration, but they are not binding on courts and cannot conflict with the plain meaning of 

the statute.” In re Complaint of Rovas Against SBC Mich, 482 Mich 90, 117-118; 754 NW2d 

259 (2008). However, Schnell did not offer an interpretation of the ordinance, only his factual 

observations. Regardless, the court examined the language of the CZO and determined that the 

boat hoist was not a structure because it was not constructed, erected, or attached to something 

on the ground. There is no indication that the court considered Schnell’s testimony binding. 

Wamsley also relies on the definition of “seasonal structure” in the Natural Resources 

and Environmental Protection Act (NREPA), MCL 324.30101(t). We discern no reason to read 

the NREPA and the CZO in pari materia. Plaintiff’s reliance on the NREPA definition is 

therefore misplaced. See Sinicropi v Mazurek, 273 Mich App 149, 157; 729 NW2d 256 (2006). 

We affirm.

/s/ Amy Ronayne Krause 

/s/ Elizabeth L. Gleicher 

/s/ Anica Letica