112 Mich. 115 | Mich. | 1897
The farm of the defendant Isaac Love is north of and adjoining the farm of the plaintiff. No formal survey had been made of the division line until May, 1892; though years ago Mr. Love ran a line, and set a stone, which was called a “corner stone,” and a fence, which was treated as the line fence, had existed for a number of years. In 1892, Mr. Tuller was employed by Mr. Newcomb, Mr. Love, and others, to make a survey of the line between the farms. There was a discrepancy between the government plat and the field notes. The parties agreed in writing that the surveyor might make the survey according to the official plat, giving to each man his amount of land as sold by the official plat. The
The rule is well settled that trespass to real property cannot be maintained unless the plaintiff had actual or constructive possession of the property when the trespass was committed, and nevei when the possession of the property was in the defendant. Ruggles v. Sands, 40 Mich. 560; Carpenter v. Smith, Id. 639; Miller v. Wellman, 75 Mich. 353; Wood v. Railroad Co., 90 Mich. 212; Kinney v. Ferguson, 101 Mich. 178. The plaintiff testified, upon the examination of his own counsel, that after the Tuller survey Mr. Love took possession of the strip of land, and had occupied it ever since; that he had cropped it three times; that, on the 20th of September, he had part of it into wheat, and was at that time occupying the land; that, between the 3d and 20th of September, he had a talk with Mr. Love, who said he had possession of the land, and he calculated to hold it; and that he did maintain possession of it. After he had rested his case, he attempted to correct his testimony, by swearing that, at the time Mr. Love and his son came with the clubs, he (the plaintiff) was in possession. But in that same connection he testified that he got possession by breaking open the fence built by Mr. Love, and that, as soon as Mr. Love found him there, he threatened, with clubs in his hands, to put the plaintiff off. His testimony, taken together, indicates conclusively that Mr. Love was in the occupancy of the premises; that they were broken into by plaintiff; and that he at once was driven off by Mr. Love. There is nothing in the plaintiff’s testimony, or that of any other witness, that will warrant any other inference than that the defendants were in possession of the land at the time of the alleged trespass.