Klinker v. Schmidt

Ladd, J. The petition contains the averments usual in an action for the recovery of real property, and as required by section 4187 of the Code. John Schmidt alone is made-defendant, and is .alleged to be in the wrongful possession of a strip of land fourteen feet wide along the westerly side of the east thirty-five feet of lot 12, in block 1, of West Cascade* The ownership of the east thirty-five feet of this lot is alleged to be in plaintiff, and the west twenty-five feet in Schmidt.The answer of the latter was a general denial. Lot 12 is-sixty feet wide and one hundred and twenty feet long. It faces National street on the south, and is at the corner bordering East street. West of this lot, and, with it, constituting the-south half of block 1, are lots 11, 10, 9, and 8, in the order-named. The defendant filed an amendment to his answer- and a cross petition, in which he made the owners of all these-lots parties defendant, and alleged his ownership of a portion of lot 12, describing the same by objects and localities; that his possession had been adverse for more than ten years under color of title and claim of right; that for more than ten years 72 the boundary lines between him and plaintiff had been indicated by a fence and buildings, and during that time accepted as and considered the true line. He also alleged that he was unable to describe his lines better bedause the owners of the block have held it in disregard of the lines; that each of the co-defendants is the owner in severalty of some portion of the block; that the land so owned is marked by fences, walls, buildings, or other visible monuments which have been accepted as indicating the true boundary lines regardless of lot lines and descriptions contained in the deeds; that granting the plaintiff’s petition will compel the defendant and each of his co-defendants, if they shall desire to hold portions of said block, to bring and maintain actions against his neighbor. The prayer is for the dismissal of plaintiff’s petition, that inquiry be made as to the respective ownerships of the several defendants, and the respective interests of all parties be ascertained and described, and for such other equitable relief as may be proper. On motion the cause was then transferred to the equity side of the calendar, and each of- the co-defendant filed answers, asking relief peculiar to his particular case. The plaintiff objected to the filing of the amendment to the petition bringing in new parties defendant, and also resisted the motion to transfer to the equity side of the calendar. I. The plaintiff filed an assignment of errors to the effect that the court erred in permitting the defendants other than Schmidt to be brought in by Schmidt, and also in transferring the cause to the equity side of the calendar. It may be wrell to say by way of explanation, although this does not clearly appear in the petition or amendment, that the building of plaintiff extends in East street about fourteen feet, and that each lot owner to the west is apparently over fourteen feet on his neighbor’s land to the east; and the owners of lot 8, instead of thirty-two feet, the width of their lot, occupy about forty-six feet front. Now, the question arises whether the other lot owners are so interested in fixing the line between plaintiff and defendant Schmidt that they are proper or neces 73 sary parties. No other actions were pending, and none threatened. Merely the possibility of controversies between other lot owners is made the ground for bringing them into this case. The answer and amendment thereto did not raise any issue in which the co-defendants of Schmidt were interested. If the other owners were occupying the block regardless of boundary lines, in what way would that justify Schmidt in retaining land belonging to the plaintiff? Unless he established one of the defenses interposed by him, the record title of Klinker must prevail. The mere fact that the plaintiff might recover of Schmidt would not indicate that he in turn would be entitled to recover a similar amount of land from his neighbor beyond. If the owners of lot 10 were occupying fourteen feet of lot 11, it would not follow that because of the recovery of the fourteen feet by Klinker, the owner of lot 11 would be entitled to maintain an action for a similar amount of land from the owners of lot 10. As well say, when the line between the north quarters of section 6 is in controversy, all the owners of land in the north half of the upper tier of sections across the township or county must be made parties to the action. The defenses would not necessarily be the same. One might plead adverse possession, another an agreement fixing the boundary, and still another settlement by conveyance or otherwise. It is not a case of avoiding a multiplicity of suits, but of forcing others to participate in litigation in which they are not directly concerned. The owners of other portions of the block were in no way interested in the subject-matter of the ■ controversy between Schmidt and Klinker, nor was the latter concerned in the adjustment of the lines between owners on the west of him. Suppose separate actions were pending between owners of the adjoining lots, putting in issue the right to each strip of land overlapping, could such actions be consolidated? Certainly not, because the subject-matter in each would not he identical, nor would the parties or issues. We think the owners of the land in this block other than the plaintiff and defendant were not concerned in the con 74 troversy, and ought not to have been made parties to the suit. The litigation might settle the principles of law applicable to their situation, but in other respects would not be in any way controlling. The answer and amendment put in issue plaintiff’s title, and set up as affirmative defenses— First, adverse possession; and, second, the establishment of the line by acquiescence and agreement. These were matters proper for the consideration of the jury, and the plaintiff had the right to have the issue submitted for such determination. After the introduction of the evidence, another amendment to the petition was filed, pleading an estoppel, but this also raised an issue at law-. Because of the errors of the court in permitting otlier parties not interested to be made defendants, arid in transferring the cause to the equity side of the calendar, and there hearing it as an action in equity, the decree-is reversed, and the cause remanded for proceedings in harmony with this opinion. — Reversed.