121 Mich. 410 | Mich. | 1899
We gather from the record that in 1835 a piece of ground called the “Porter Farm” was platted into lots, or at least that a plat purporting to lay said ground into lots was recorded in the register’s,office. We have a sketch of said plat in the record, and infer that each lot was to be 600 feet square. There is nothing upon the plat or in the proof that indicates where the Porter farm was, or that the lots were ever staked out. Some years later another plat was made, and purports to be the subdivision of lots 51, 50, 47, and N. of 46, Porter farm,
Plaintiff’s theory is that the south boundary of lot 1 was an old fence, called the “ Lord Fence,” which marked the north boundary of premises owned by Lord, and that giving to lots 1 and 2 the width shown upon the plat brings the disputed line where he claims it to be. The defendant claims that the distance from the street called “Lambie Place,” or “Leverette Street,” along the north side of the block, shown by the plat, to the Lord fence, is actually three feet more than is shown on the plat, and that this surplus either belongs to lot 1, which adjoins the Lord fence, or that it was not included in the land platted. There is nothing on the face of the plat to show that the subdivision was intended.to extend to the Lord fence or line, unless we are able to say that the south line of the parcel platted extended to such fence or line. The evidence does show conclusively that between Lambie place and the old fence, as they exist upon the ground, there is more land than the plat shows to be contained in the intervening six lots. The defendant maintains that, if the surplus belongs to the plat, it increases lot I beyond the width shown in the plat; if it does not belong to the plat, the south line of lot 1 is three feet north of the Lord fence; and that in either case the boundaries of lots 2 and 3 are
It is obvious that, if it could be conclusively shown that these lots were staked out when platted, such monuments would be conclusive of the question; and if this cannot be shown, but other monuments establishing any given points as platted can be found, such monuments would furnish starting points to aid in arriving at the true boundary between these lots. In the absence of either, old monuments indicating user may be resorted to for light upon the subject. There is testimony, which is undisputed, that stakes were found driven in the ground, marking the points at which the defendant claims this line to be. It is shown that they were old stakes, made of timber not used recently for such purposes, and such stakes as surveyors recognize to be those used by the early surveyors. Nothing indicates any other purpose in driving these stakes than to mark that line. Moreover, at intervals, conforming to the other lot lines as shown by the plat, were other stakes,— some similar, some evidently placed there by later surveys. Taken together, these are cogent evidence of the location and perpetuation of those lines. While this proof does not amount to demonstration, it is ample to support a verdict; and, unless met by testimony tending to show that the lines were elsewhere, a verdict should have been directed for the defendant. If there was such proof, it was a question for the jury; but the fact that the proof of the defendant was not demonstrative proof would not justify submission to the jury.
We must therefore examine the case to ascertain if there was contradictory proof. It may be said that there is evidence tending to show that the Lord fence marked the north line of the Lord property; but that does not
We are of the opinion that the proof tended to establish the line as asserted by the defendant, and that there was no testimony to the contrary. The judgment is reversed, and a new trial ordered.
The other Justices concurred.