222 Mich. 369 | Mich. | 1923
This action is in ejectment and involves a strip of land on the boundary line between lots'4 and 5 of Baldwin’s addition to the city of Pontiac. From a judgment entered on a verdict for the plaintiff, the defendant has appealed. On a former trial plaintiff also recovered a judgment which was reviewed and reversed by this court in 210 Mich. 537, where the facts are fully stated. It was there held that the verdict was against the great weight of the evidence. The record in the instant case presents the same question raised by motion for a new trial, exceptions and assignments.
It is conceded that the question in' issue is the boundary line between lots 4 and 5. All of the original monuments marking this line are gone but there was an old fence between the lots which had existed for more than 15 years, and which was torn down at the time the building was constructed. As the original monuments have disappeared the location of this fence is determinative of the line.
To maintain the issue on their part the plaintiffs produced five witnesses, one of whom was a surveyor. None of these witnesses except the surveyor made any measurements. None of them knew where the old fence was. Those who remembered it had only casually observed it. They based their judgment on certain old posts which they assumed to be on the old line. The uncertain character of this testimony is well illustrated by the admission of the witness Ziedick, who, after testifying that the northeast corner of defendant’s building encroached on plaintiffs’ lot to the extent of three or four feet, said on cross-examination, ‘T never made any measurements, the fence might have been over three feet, from where in my judgment I think it was, I don’t think it was over ten feet.”
The railroad crosses lots 4 and 5 diagonally somewhere near the center of the lots. The only portion of lot 5 owned by the company is east of its right of way. The land on the west is low and swampy. The
“Q. Well, how did you know, how did you know in this soft mucky soil, that these posts which were over farthest were not on the original or on the true line, how did you know?
“A. I was not there when the fence was built.
“Q. And, of course, you don’t know, that’s why I am asking you this question. Now, you found several posts there in mucky soil, which had been there, as you think, for some time, and you took those, assuming those were on the true line, didn’t you, in sighting through?
“A. Yes, sir.”
This testimony was evidently admitted on the theory, supported by the testimony of other witnesses for the plaintiffs, that the line fence when it was .standing was in a straight line from one end of the lot to the other. The surveyor also testified to measurements made on the basis of the original plat. For these he had no fixed starting point. There was no definite monument shown by the plat. Counsel for the defendant objected to the testimony of this witness and later made a motion to strike it all out. The motion should have been granted.
See, Hustina v. Refining Co., supra, and cases therein cited.
All of the positive testimony as to the exact location
“Under our practice, this court must exercise its judgment as to the weight of the evidence in the instant case. We are satisfied upon this record that the verdict was against the clear weight of the evidence. We do not see how any other conclusion is possible. The instant case is of that class occasionally before the courts where, for some reason, not always apparent, justice has miscarried, and a verdict has been found against the weight of the evidence. Brassel v. Railway Co., 101 Mich. 5; Gregory v. Railway, 138 Mich. 388; Crowe v. Railroad Co., 142 Mich. 696.”
Judgment is reversed and a new trial granted. Defendant will have costs.