Lamoreaux v. Creveling

103 Mich. 501 | Mich. | 1895

Montgomery, J.

Plaintiff and the deceased, Lyman D. Swan, were owners of adjacent parcels of farm land. Plaintiff sued in ejectment for a small, triangular piece, which he claims to have shown to be a part of the government subdivision owned by him. Judgment was entered for the defendant, and, the proceedings having been revived in the name of the administrator, the case comes before ns on exceptions to the findings of fact and law.

It appears that a fence has been maintained, which has inclosed the land in dispute with that of Swan, for many years, and the circuit judge held that defendant had acquired title by adverse possession. The plaintiff contends that the testimony did not warrant the court in making' this finding of fact. The testimony offered by the defendant was that of himself and his son, George Swan. The latter testified that he had known the farm for 28 years, and1, that the fence was used as a line fence; that wood had: been cut on the strip in question by defendant, at different times, for about 24 or 25 years; that the witness could not remember when the fence was built, but that he could remember that it had been built for about 28 years. The defendant himself testified that he went upon this land in 1863; that he commenced building the fence not a great while after he bought the place; and that he had used the land to cut wood on, — and testified to other acts indicating ownership, and tending to show occupancy up to the line of the fence. We cannot say that this testimony had no tendency to show adverse and hostile possession of the land in question. Sanscrainte v. Torongo, 87 Mich. 69; Greene v. Anglemire, 77 Id. 168.

But plaintiff insists that defendant’s occupancy should not be held to be adverse for the reason that the plaintiff’s testimony tended to show that defendant admitted that the line was in dispute, and promised to join with, plaintiff in a survey to have the true line established. The plaintiff offered testimony tending to show that, some 6 or 7 years before the trial, such a conversation occurred, between the plaintiff and defendant. This is said, in plaintiff’s brief, to have been undisputed. But, on the examination of defendant, he was asked the following question:

“ Lamoreaux has said that you said to him a good many times, within the last 6 or 7 years, that you would have a surveyor come and find the line, and put the fence there. Is that so?

“A. No, sir; I never said any such thing. I never built any other fence between plaintiff and myself than the one in question. It is the same old brush fence. There has been no other fence there for the last 80 years.”

From this testimony it would appear that, at the most, it was a question of fact for the court as to whether defendant had acknowledged plaintiff’s claim to the strip in question. But at the date of this conversation the fence had been in existence, according to defendant’s testimony, and treated as a boundary line, for the statutory period. If defendant had acquired a title to the land by adverse possession, a parol agreement that he would in the future join in having a survey made to determine the true line would not — certainly, until such agreement was acted upon, and the line actually established — divest him of his title, whatever might have been the effect of a completed arrangement. The question is ruled by Burns v. Martin, 45 Mich. 22.

There being testimony in the case tending to support ihese findings of fact, we are not authorized to go into :fche testimony, to ascertain whether we would reach the ¡same result upon the facts; and, as the finding is conclusive ■of the plaintiff’s rights, it is unnecessary to discuss the uther questions involved.

The judgment will be affirmed, with costs.

The other Justices concurred.