106 Mich. 144 | Mich. | 1895
Plaintiff brought trespass in justice’s court, describing his close as “Lot No. 10, and the adjoining portion of lot 12, occupied and owned by said plaintiff, in the Pusey plat in said village, and being the lot and land occupied as a homestead by said plaintiff.” Defendant gave notice:
“That the title to lands will come in question, and that, before the committing of the said supposed acts complained of in the plaintiff’s declaration, the village of Dundee had purchased a strip of land on lot 12 for a highway, and that whatever of the acts of the defendant complained of by the plaintiff were committed under and . by the authority of said village.”
Upon the trial in the circuit court,-plaintiff disclaimed all interest in lot 12.
The plat was recorded in'1869. A section of said plat, excepting the dotted lines and the words “Proposed Street,” and omitting figures denoting distances, is as follows:
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The land in question is the northerly portion of the proposed street. The dotted lines in lots 5, 6, 8, and 10 represent the lines of actual occupancy of lots 5, 6, and 8. Pusey conveyed lot 8 to one Snyder in 1870, and, within a year or two afterwards, conveyed lot 10 to one Collins. Snyder testified that he bought lot 8 22 years ago ; that Pusey at that time showed stakes on the north and south lines of his lot; that he then planted cherry trees upon the lines indicated by the stakes; that the lines so indicated are the dotted lines upon the plat, and" that he occu
Defendant insists that the plat must control the description given in the declaration; that what plaintiff’s evidence tends to show is that he has by adverse possession acquired title to a portion of lot 12, and under his declaration and disclaimer he cannot recover, in view of the rule in Twogood v. Hoyt, 42 Mich. 609, 613. It clearly appears, however, that the north line of the plat was not the old fence line in Tecumseh street, but the actual southern boundary of the highway; that the removal of that fence was contemplated; and it is evident that the measurements made by Bartlett were from the north line of the plat. The lots were sold from north to south. Pusey, as lots 8 and 10 were sold, assisted in locating the boundaries. He, as each was located, owned the lots south of the boundaries so fixed. The question in the present case is, what is the southern boundary of lot No.
‘‘The evidence offered upon this point would, however, be admissible as tending to show the location of the lands described in the declaration.”
In Diehl v. Zanger, 39 Mich. 601, it was held that a resurvey, made after the monuments of the original survey have disappeared, is for the purpose of determining where they were, and not where they ought to have been; that a long-established fence is better evidence of actual boundaries settled by practical location than any survey made after the disappearance of original monuments; and that long practical acquiescence in a boundary between the parties concerned may constitute such an agreement on it as to be conclusive, even if it had been erroneously located. In Flynn v. Glenny, 51 Mich. 580, it was held that resurveys cannot be allowed to unsettle the lines of town lots after the lot owners have established such lines in accordance with stakes found planted, and in reliance on which they have purchased. The rule is well settled in this State that when parties by mutual agreement, and for that express purpose, meet and fix a boundary line, and thereafter acquiesce in- the line so established, such line will be considered the true line, although the period of acquiescence fall short of the time fixed by the statute of limitations for gaining title by adverse possession. Smith v. Hamilton, 20 Mich. 433; Joyce v. Williams, 26 Mich. 332; Stewart v. Carleton, 31 Mich. 270; Burns v. Martin, 45 Mich. 22; Jones v. Pashby, 67 Mich. 459; Wilmarth v. Woodcock, 66 Mich. 331.
A number of assignments of error are predicated upon the theory that there was no testimony tending to show that Bartlett, ever made a survey with reference to determining the location of lot 10, or that Collins ever
Defendant moved for a new trial on the ground of newly-discovered evidence. The court denied the motion, and it is claimed that therein the court abused its discretion. The testimony suggested by the affidavits is principally cumulative. It was not claimed that Collins procured the Bartlett survey; oh the contrary, the testimony tended to show that the survey had been made before Snyder bought. Collins says in his affidavit thal in building the fence he was guided by stakes that he found standing. The testimony suggested is that of former owners of lot 10. We discover no abuse of discretion in the denial of the motion.
The judgment is affirmed.