191 Mich. 240 | Mich. | 1916
This litigation grows out of a dispute between the parties ¡as to where a certain line fence should be located. . Complainants own the east half of the northeast quarter of section 11 in the township .of Porter, Van Burén county. Defendant Harris owns the east 20 acres of the northwest quarter of the northeast quarter, and the defendants Turner own the remainder of the west half of the northeast quarter. The division fence between these two 80’s prior to the year 1887 was a rail fence of many years’ standing. Some time in the year 1887 one Farrow, a tenant of complainant, and Munger, who was then the owner of the Harris land, agreed to and did erect,
The defendants in the trial court denied the right of complainants to relief, on the ground that- they did not have possession of the disputed strip at the time of commencing suit. They have'raised the same question in this court. The testimony- tends to show that defendant Harris had possession of said disputed strip at the time she built her wire fence in 1912. The complainants appear to have had possession for a short interval after they moved the wire fence which defendant Harris had erected. But it appears that at the time of the commencement of the suit defendant Harris had removed the fence and regained possession of the land in dispute. Inasmuch as defendant Harris claims title to the land in dispute, and appears to have had possession thereof when the suit was started, and for some time prior thereto, we are of the opinion that defendants’ position is well taken, and that the question of title is one which should be settled by a suit iq ejectment. Seymour v. Rood, 121 Mich. 173 (79 N. W. 1100); Tinker v. Piper, 149 Mich. 335 (112 N. W. 913).
The decree will be reversed, and the bill of complaint dismissed, without prejudice to complainants to settle the controversy by a suit in ejectment. Defendants will recover their costs in both courts.