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March 12, 2026 Get Citation Alerts Download PDF Add Note

Justin Duimstra v. Michigan Land and Outing Co

Michigan Court of Appeals

• Citations: None known
• Docket Number: 370431
• Precedential Status: Non-Precedential

• Disposition: Lower Court Judgment/Order Affirmed

• Opinion

• Authorities (6)

• Cited By (0)

• Summaries (0)

• Similar Cases (4.3K)

• PDF

Disposition

Lower Court Judgment/Order Affirmed

Lead Opinion

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

JUSTIN J. DUIMSTRA, STACY J. DUIMSTRA, UNPUBLISHED
JOHN A. MCAREE, JOLENE L. BENNETT, March 12, 2026
ANDREW J. GAVLEK and MARY K. GAVLEK, 11:11 AM
Trustees of the ANDREW J. GAVLEK & MARY K.
GAVLEK FAMILY REVOCABLE LIVING
TRUST,

Plaintiffs/Counterdefendants-
Appellants,

v No. 370431
Newaygo Circuit Court
MICHIGAN LAND & OUTING CO., LC No. 2021-020725-CK

Defendant/Cross-Defendant,

and

LESTER E. HALLBERG, CLAUDIA K.
HALLBERG, RODGER M. WESTERWEEL and
SHELLY M. WESTERWEEL, Trustees of the
RODGER M. & SHELLY M. WESTERWEEL
TRUST,

Intervenors/Counterplaintiffs/Cross-
Plaintiffs/Cross-Defendants-
Appellees.

Before: LETICA, P.J., and BORRELLO and RICK, JJ.

PER CURIAM.

In this appeal by right, plaintiffs challenge the trial court’s rulings holding that title to
disputed areas of lakefront property had vested with intervenors through adverse possession.
Specifically, the trial court determined that intervenors Rodger and Shelly Westerweels as Trustees
of the Rodger M. and Shelly M. Westerweel Trust (the Westerweels), and intervenors Lester and

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Claudia Hallberg (the Hallbergs), had each obtained title through adverse possession to the
disputed sections of lakeshore property on Emerald Lake in Newaygo County, Michigan. For the
reasons set forth in this opinion, we affirm.

I. BACKGROUND

This property dispute involves a portion of land designated as part of a boulevard in the
plat. The individual parties undisputedly own certain parcels in the vicinity. The layout of the
parties’ respective properties is best understood by referring to the following map that was made
in 2011 using data from the Newaygo County GIS system [Geographic Information System] and
modified to reflect the current owners of each parcel.

The Westerweels and Hallbergs each had a dock extending into the lake from this corner
of the boulevard, and they each moored a boat at their respective docks. It is evident from the
photographs in the record that the area depicted on the above map as the boulevard consists of a
road running roughly along the lakeside borders of the platted lots, with another area of land from
the road to the water’s edge. The plat dedicated the “streets, boulevards, and alleys as shown in
said plats” to “the sole and only use of the property owners.” The area of land between the road
and the water forms the basis for the instant dispute. The Westerweels claimed title by adverse
possession to the strip of land running from their dock to the road, and the Hallbergs similarly
claimed title by adverse possession to the strip of land running from their dock to the road. These
portions of the boulevard were designated respectively as the “Westerweel Beach” and “Hallberg
Beach.”

Plaintiffs initiated this action by filing an action to quiet title to the boulevard area
extending from their properties to the lakeshore. The Michigan Land & Outing Company
(MLOC), which had registered the plat in 1906 for the Michigan Land & Outing Co. Subdivision
that included the properties at issue, was the only defendant named by plaintiffs in the complaint.

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Plaintiffs alleged that this company was no longer in existence.1 Plaintiffs claimed that MLOC
had abandoned any interest it may have had in the boulevard and that plaintiffs thus maintained
ownership to the lakeshore in fee simple because their respective lots were only separated from
the lake by a right-of-way.

The trial court granted the Westerweels’ and the Hallbergs’ motions to intervene, and
intervenors advanced their claims of ownership over their respective beaches by adverse
possession. Plaintiffs contested intervenors’ adverse possession claims and moved for summary
disposition.

The trial court denied plaintiffs’ motion for summary disposition. The court ruled that
there was evidence establishing a genuine question of material fact whether the Hallbergs and their
predecessors had obtained title to the Hallberg beach through adverse possession by using the
beach in the manner of ownership since 1950. The court also ruled that there was evidence
establishing a genuine question of material fact whether the Westerweels owned the Westerweel
beach in fee simple as a result of being front lot owners or through adverse possession as
established by the historical use of the beach by Westerweel family members that had owned the
Westerweel parcel since 1952.

The Hallbergs subsequently filed a motion for summary disposition arguing that there was
no genuine issue of material fact that their predecessors in title had obtained title to the Hallberg
beach by adverse possession. The trial court determined that the evidence reflected no genuine
issue of material fact that previous owners of the Hallbergs’ parcel going back to 1963 had made
exclusive use of the Hallberg beach area, that this use included maintaining a dock and anchoring
boats, and that transfers in ownership of the Hallbergs’ parcel had also included the Hallberg beach
and dock. The trial court discussed evidence regarding the use of the Hallberg beach by the chain
of owners of the Hallbergs’ parcel since 1963. The Hallbergs purchased the property in 2000.
Accordingly, the trial court ruled that title to the beach area had vested in a previous owner of the
Hallberg property by 1979 through adverse possession and that the Hallbergs therefore currently
owned the Hallberg beach. The court thus granted the Hallbergs’ motion for summary disposition.

The matter proceeded to a bench trial regarding the status of the Westerweel beach. The
Westerweels’ parcel had been in their family since 1952, and the trial court discussed Rodger
Westerweel’s testimony that his family members had exclusively used and occupied the
Westerweel beach since 1958 when Rodger was a child and the property was owned by Rodger’s
grandparents. The trial court held that title to the Westerweel beach had been obtained through
adverse possession by 1974.

The trial court denied plaintiffs’ motion for judgment notwithstanding the verdict or a new
trial. Plaintiffs now appeal.

II. SUMMARY DISPOSITION

1
Michigan Land & Outing Co. is not a party to this appeal.

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On appeal, plaintiffs first argue that the trial court erred by denying their motion for
summary disposition, and granting summary disposition in favor of the Hallbergs, because neither
the Hallbergs nor Westerweels could establish the requisite elements of adverse possession.

This Court reviews a trial court’s ruling on a motion for summary disposition de novo. El-
Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 159; 934 NW2d 665 (2019).

“A party claiming adverse possession must show clear and cogent proof of possession that
is actual, continuous, open, notorious, exclusive, hostile, and uninterrupted for the relevant
statutory period.” Marlette Auto Wash, LLC v Van Dyke SC Props, LLC, 501 Mich 192, 202; 912
NW2d 161 (2018). “When the elements of adverse possession have been met, the law presumes
that the true owner, by his acquiescence, has granted the land, or interest to the land, so held
adversely.” Id. (quotation marks and citation omitted). “[S]uccessive periods of adverse
possession by different parties can be joined or ‘tacked’ to satisfy the 15-year statutory period, but
only if there was privity of estate.” Houston v Mint Group, LLC, 335 Mich App 545, 560; 968
NW2d 9 (2021).

Plaintiffs contend that the trial court erred in its findings regarding the Hallbergs by
asserting that the Hallbergs failed to establish the requisite elements of “hostility” and
“exclusivity” for adverse possession. Plaintiffs, however, confine their discussion to post-1983
events, disregarding the trial court’s determination that title to the Hallberg beach vested in the
Hallberg parcel by adverse possession as of 1979. Plaintiffs do not engage with this dispositive
finding or its implications for their arguments concerning subsequent events. Their appellate brief
simply overlooks the foundation of the trial court’s decision. Assuming, arguendo, the truth of
plaintiffs’ allegations regarding events after 1983, plaintiffs fail to articulate any legal basis by
which such events could divest title already obtained via adverse possession by 1979. In Denhof
v Challa, 311 Mich App 499, 521; 876 NW2d 266 (2015), this Court held that an appellant’s
failure to address the basis of the lower court’s ruling obviates the need for appellate review.
Plaintiffs further assert, without substantive analysis, that there was no privity of estate between
the Hallbergs and their predecessors in title. Once again, plaintiffs fail to address the trial court’s
reasoning to the contrary, and, accordingly, we decline to consider granting relief on this basis. Id.
Plaintiffs’ challenge to the trial court’s summary disposition concerning the Westerweel beach is
similarly deficient. Plaintiffs do not meaningfully address the trial court’s reliance on the
extensive, decades-long use of the beach by the Westerweel family as the basis for finding a
genuine issue of material fact regarding the establishment of title by adverse possession.
Consequently, we likewise decline to address plaintiffs’ request for relief on this ground. Id.
III. BENCH TRIAL

Plaintiffs further contend that the trial court erred, following the bench trial, by concluding
that the Westerweels acquired title to the Westerweel beach through adverse possession.

“Actions to quiet title are equitable in nature, and equitable rulings are reviewed de novo.”
Houston, 335 Mich App at 557. When a bench trial has been held, we review the trial court’s
conclusions of law de novo and its findings of fact for clear error. Walters v Snyder, 239 Mich
App 453, 456; 608 NW2d 97 (2000). “A finding is clearly erroneous when, although there is
evidence to support it, the reviewing court on the entire record is left with the definite and firm
conviction that a mistake has been committed.” Id.

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As previously articulated, a party seeking to establish title by adverse possession must
present clear and cogent evidence demonstrating actual, continuous, open, notorious, exclusive,
hostile, and uninterrupted possession for the statutorily prescribed period. Marlette Auto Wash,
LLC v Marlette Oil & Gas, LLC, 501 Mich 192, 202 (2018). Plaintiffs contend that the
Westerweels failed to satisfy the element of hostility, asserting that the evidence uniformly
demonstrated permissive use of the beach in question. In support, plaintiffs rely on the testimony
of Rodger Westerweel, who indicated that neighboring property owners had reached mutual
understandings regarding the allocation of beach areas for their respective use.

At trial, Rodger Westerweel testified that his grandparents acquired the subject parcel in
1952, with title subsequently vesting in his parents and ultimately in himself and his wife. Rodger
has frequented the family cottage since the early 1960s. He indicated that the family has
maintained a dock at the same location on the lake continuously since 1952. Photographic evidence
introduced at trial depicted Rodger, his grandparents, and other family members utilizing the
Westerweel beach, dock, and boats for various recreational purposes, including fishing,
swimming, sunbathing, and social gatherings with neighbors from the mid-1960s through 2020.
While Rodger conceded on cross-examination that property owners in the area generally
maintained a mutual understanding regarding their respective portions of the beach, he also
testified that his family treated and used the Westerweel beach as their own for approximately 70
years, engaging in activities consistent with those of riparian proprietors. 2

With respect to the trial court’s finding that no member of the Westerweel chain of title
obtained permission to use the Westerweel beach or exercise riparian rights, we discern no clear
error. Walters v Snyder, 239 Mich App 453, 456 (2000). Plaintiffs further argue that the absence
of objections from neighboring property owners to the Westerweel family’s use of the beach
constitutes implied permission, thereby negating the hostility requirement for adverse possession.
However, the record demonstrates that the Westerweel family’s use of the beach was consistent
with the manner in which a riparian owner would exercise their rights, and the prolonged absence
of disputes does not, in itself, negate the hostility element of adverse possession. Michigan
jurisprudence recognizes that a riparian owner possesses exclusive rights, including the erection
and maintenance of docks and the permanent anchoring of boats, whereas nonriparian owners are
limited to reasonable surface uses such as boating, fishing, swimming, and temporary anchoring.
Astemborski v Manetta, 341 Mich App 190, 196; 988 NW2d 857 (2022).

2
As our Supreme Court has explained:
Riparian rights are property rights. “ ‘Riparian land’ is defined as a parcel
of land which includes therein a part of or is bounded by a natural water course,”
and the owners of such land enjoy certain exclusive rights. These rights include
the right to erect and maintain docks, as well as to permanently anchor boats off the
shore. [2000 Baum Family Trust v Babel, 488 Mich 136, 166; 793 NW2d 633
(2010) (citations omitted).]

Furthermore, although the term “riparian” is technically used to define land abutting a river
while land abutting a lake is technically defined as “littoral,” it is common practice to use the term
“riparian” for both types of land. Id. at 138 n 1.

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Furthermore, the term ‘hostile’ in the context of adverse possession is a legal term of art,
denoting use that is inconsistent with the rights of the true owner, undertaken without permission,
and sufficient to entitle the owner to bring an action against the possessor. Houston v Mint Group,
LLC, 335 Mich App 545, 559 (2021). The trial court correctly observed that there was no evidence
of efforts to oust the Westerweel family from the beach between 1958 and 1974. The adverse or
hostile nature of use arises when such use is made under a claim of right where no such right
actually exists. Astemborski, 341 Mich App at 199. On appeal, plaintiffs have failed to carry their
burden of demonstrating that the trial court’s findings regarding the Westerweels’ claims of right
to the property were clearly erroneous. Walters, 239 Mich App at 456.

Plaintiffs additionally assert that, even assuming the hostility requirement was met, the
Westerweels are precluded from invoking the doctrine of tacking to satisfy the fifteen-year
statutory period, on the grounds that the current parties did not acquire title to the cottage until
2019.
Successive periods of adverse possession by different parties may be aggregated, or
‘tacked,’ in order to satisfy the fifteen-year statutory period, provided there is privity of estate
between the successive possessors. Houston, 335 Mich App at 560. Privity of estate may be
established where: (1) the deed specifically describes the disputed property; (2) there is an actual
transfer or conveyance of the disputed property by parole statements contemporaneous with the
conveyance; or (3) the successor is ‘well-acquainted’ with the predecessor, having visited and used
the disputed property for many years prior to obtaining title. Marlette Auto Wash, 501 Mich at
203; see also Matthews v Natural Resources Dep’t, 288 Mich App 23, 39-41 (2010). In the third
scenario, privity arises from the mutual understanding that the disputed property is included in the
transfer.

In this case, the record reflects that the Westerweel property has remained within the family
for approximately seventy years, 3 with continuous use of the beach area and dock as though they
were integral to the family’s holdings. The direct familial succession renders the privity of estate
requirement indisputable. In their briefing and arguments on the issue, plaintiffs have not
established error in the trial court’s determination permitting the Westerweels to rely on tacking
to fulfill the requirements for adverse possession under these facts. Id.

Finally, plaintiffs contend that the trial court erred in denying their motion for judgment
notwithstanding the verdict (JNOV), reiterating the arguments previously advanced regarding the
court’s findings. This Court reviews a trial court’s denial of JNOV de novo. Detroit/Wayne Co
Stadium Auth v Drinkwater, Taylor, & Merrill, Inc, 267 Mich App 625, 642 (2005). JNOV is
appropriate only where, viewing the evidence and all legitimate inferences in the light most
favorable to the nonmoving party, there is insufficient evidence to create a triable issue of fact. Id.
at 642-643. Upon review, and based on our conclusions already stated herein, the record supports
the trial court’s finding that plaintiffs failed to demonstrate a lack of evidence sufficient to create

3
We note that some of the previous family members that owned the Westerweel property had
different last names, but these factual details are not pertinent to resolution of the issues on appeal.
We simply refer to them collectively as the Westerweel family for the sake of convenience.

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a factual question for the factfinder. Accordingly, plaintiffs have not shown that the trial court
erred in denying their motion for JNOV.

Affirmed. Defendants having prevailed in full are entitled to tax costs. MCR 7.219(A).

/s/ Anica Letica
/s/ Stephen L. Borrello
/s/ Michelle M. Rick

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