127 Mich. 191 | Mich. | 1901
This case was commenced in 1898. It was tried by a jury, who rendered a verdict in favor of plaintiff. Prom a judgment entered upon the verdict, the case is brought here by writ of error.
The claims of the respective parties were well stated by the circuit judge in his charge to the jury, as follows:
“ This is an action of ejectment, brought by the plaintiff to determine the title to a certain strip of land, 28 feet wide at one end and 33 feet at the other, lying between the land owned by the respective parties on section 32 of the township of Alpine, in this county. The plaintiff owns, in addition to other lands, 15 acres in the northwest corner of the southeast quarter of said section, and the defendants own the northeast quarter of the section. So you see the disputed territory is where the northerly side of this 15-acre strip, belonging to the plaintiff, touches the southerly line of the defendants’ land, which would be at or near the center of the section, and extending thence easterly the entire width of the 15-acre strip, 307 feet.
“There is no contention here but that the title to the land owned by each of the parties may be traced back to the government; the plaintiff through one Wright, and the defendants through Noel Hopkins, the former owners. It is claimed on the part of the plaintiff that some time in the year 1840, and while Mr. Wright, the plaintiff’s predecessor, was the owner of the land on the south, and Noel Hopkins, the defendants’ predecessor, was the owner
“On the other hand, the defendants claim that the fence as now standing upon the premises is located upon the line which would be indicated by the government survey dividing these parties’ land; in other words, that the true line is where this fence now stands. And they further claim that, whether it is upon the true line or not, it has stood in its present location ever since the year 1841,
The defendants claim a verdict should have been directed in their favor. Their counsel say:
“The agreement, if made, as testified to by Noel Hopkins, can have no effect upon the legal rights of the parties to it, or their successors in interest. It was not an agreement to forbear any legal rights. The agreement, if made, went no further than the law itself would have gone. The agreement, as testified to, was that, if the fence was not on the true line, they would change it. The law itself, in the absence of such an agreement, would have compelled them to change it had they been diligent in discovering the error. It was simply a friendly, neighborly agreement to do what was right in the matter, and to comply with the law without any litigation or trouble. The fence was built upon the line. The parties agreed that, if they had made a mistake, they would allow it to be corrected. This was no more than the law would have compelled them to do had they acted within a reasonable time, and within the period fixed by the statute of limitations. But upwards of half a century cannot be looked upon as a reasonable time. Pierson v. Mosher, 30 Barb. 81, is a case on all fours with the case at bar. If the conclusion reached in that case is the law, it is decisive of this case.”
The case cited is very nearly, if not, on all fours with the case at bar, though counsel for plaintiff insists that it can be distinguished. If it cannot, it is not in harmony with the weight of authority. There is testimony tending to show in this case that, when the line was run in the year 1840, it was agreed by the owners of the land on each
It is claimed the court erred in charging the jury that, if the occupancy of Mr. Hopkins was permissive, it could not become adverse, even as to his grantees, without giving to the other owners notice of an intention to occupy adversely. The language used by the circuit judge was as follows:
‘ ‘ In the first place, it is contended by the plaintiff, and I charge you that the law is, that, if the defendants’ grantors obtained possession of this land by reason of an agreement to build a fence, and that the fence might be moved upon the true line at any time when it was ascertained to be not correctly located, as claimed by the plaintiff, then the possession so gained would be deemed in law to be permissive, and not adverse. And the law presumes such permission and consent to continue, and that such possession continued to be permissive, and not adverse, until some act is done or notice given that the possessor no longer holds by reason of such permission, but adversely, and with the intent to claim the land to the exclusion of the true owner, without regard to the location of the true line between them; but, in the absence of such act or notice so changing such possession from a per
We think, in the main, this was a correct charge, but some portions of it are not in accord with the law. As is. stated in the brief of counsel for plaintiff, “An intention to claim the land is necessary to the acquirement of title by adverse possession. 1 Am. & Eng. Enc. Law (2d Ed.), 789; Chapman v. Crooks, 41 Mich. 595 (2 N. W. 924).” If a grantee of Mr¡ Hopkins was informed at the time he made his purchase that the land he bought included all the land inclosed by the fence, and he entered into its occupancy without any knowledge that Mr. Hopkins’ occupancy was permissive, and with the belief that he was the owner of the land, and with the intent to occupy as an owner, his intention to claim the land might thus be shown; and, if the occupancy in all other respects met the requirements of an adverse occupancy for the requisite time to acquire title, we think it would, be sufficient.
The location of the true line was a matter of dispute. The plaintiff was allowed to introduce in evidence the
The defendants requested the court to charge:
“ Unless you find by the preponderance of evidence that the line located by Mr. Williams is on the line located by the original government survey, then the plaintiff cannot recover in any event. It will not do to permit boundaries to be disturbed and moved upon a survey made from an assumed starting point, without some proof of its being a true line, located and fixed by the original government survey. The only practical way of ascertaining the true line is by a survey made from some fixed starting point,— some monument placed under the original government survey; and, if such monuments are no longer discoverable, the question is, Where were they located? And fences of long standing, erected upon what parties have called the true line, and up to which they have improved and cultivated, are better evidence of the true line than surveys made after the monuments have disappeared.”
The judge gave part of this request in his general charge, but failed to instruct the jury upon what evidentiary effect they should give to fences that had been erected a long time. We think, under the circumstances of this case, the jury should have been instructed in this respect. Diehl v. Zanger, 39 Mich. 601; Beaubien v. Kellogg, 69 Mich. 333 (37 N. W. 691).
Other assignments of error are discussed by counsel, but they are either not well taken or are not likely to arise again.
Judgment is reversed, and new trial ordered.