Dawson v. Falls City Boat Club

Grant, J. (after stating the facts). 1. Defendants’ counsel insist that it was error not to instruct the jury that there was no evidence that the plaintiff had title by deed. The court substantially gave this request in the language, “That the records, as offered in evidence, fail to establish the title on the part' of Mrs. Dawson to claim 106 running back to the United States government.” If we understand the contention of the counsel, it is that none of the deeds, leases, etc., of parties in possession claiming ownership, and through whom the plaintiff claims, were admissible in evidence, because of the break in the chain of title on account of the defective deed from McMurray to Mrs. Acker. Whether the court erred in rejecting the record of this deed as an ancient one, we are not called upon to determine, as plaintiff recovered, and, we cannot consider now any rulings of the court which were against the plaintiff. The grantors of the plaintiff were in possession of claim No. 106, and executed these deeds, which extended over a period of nearly 50 years, as the owners thereof. This was sufficient, in the absence of proof to the contrary, to establish in the plaintiff a title from the government, under the repeated rulings of this and other courts. Steinhauser v. Kuhn, 50 Mich. 367 (15 N. W. 513); Cook v. Bertram, 86 Mich. 356 (49 N. W. 42); Drake v. Happ, 92 Mich. 583 (52 N. W. 1023); Hoban v. Cable, 102 Mich. 207 (60 N. W. 466); Jenkins v. Trager, 40 Fed. 728. The' following charge of the court upon this point was correct: “But, she having shown a chain of title running back for a considerable term of years, if, in that connection, she shows that that title came down through persons in possession of the land claiming as owners, she would in law be presumed to be the owner, and presumed to have a title [442] which came down from the government; and in that connection, in relation to the possession of herself and those from whom she claimed to hold, the possession of part of the land, under a conveyance covering the whole of it,, would be presumed to be a possession of the whole of' it,, in the absence of anything to the contrary.” 2. It is assigned as error that the court did not instruct the jury that “there is no evidence in this cause that the plaintiff has title by adverse possession.” We do not find that such a claim on the part of the plaintiff was seriously made in the court below, or that the jury could have been misled by the failure to so instruct them. Plaintiff’s theory was that this triangular piece of land, was part of private land claim No. 106, and that defendants had obtained no title by adverse possession. The instruction of the court contains nothing to indicate that the question of adverse possession on the part of the plaintiff was submitted to the jury. On the contrary, the theory of the charge is that the land in dispute is a part of private claim 106, and is covered by her deeds. 3. Error is assigned in refusing to give the following request: “If you find that originally, and while one of the defendants’ remote grantors was in possession of the upland in dispute, such grantor built his fence along the margin of the river, and that afterwards the waters of St. Mary’s river either receded and left bare land or formed an accretion by washing of the soil up, you are instructed that it would not then be necessary for the successive occupants or grantors of Wheeler constantly to keep this river front fence extended to the waters of the river, because this accretion or bare land, whether actually inclosed or not, belongs to the owner of the shore, whether his title to the shore rests on a deed or on adverse possession for the legal time. Title to the shore carries title to the accretion of newly-formed shore.” We think this request was sufficiently covered by the charge of the court in regard to accretions. 4. Error is assigned upon refusal to give the following request: [443] “The undisputed evidence in this case shows, with, reference to the land in question, that an east fence was built by Mr. Easterday in accordance with a line run by Surveyor Carleton in 1866 or 1867 to ascertain the boundary line. If the jury finds that said east fence was acquiesced in by parties on either side having power to bind the land, and that such parties occupied up to said fence as the true boundary for a period of more than 15 years, acquiescence and occupation would have the effect of establishing the fence as the boundary line, and1 said boundary line could not thereafter be changed, except by an agreement in writing.” We think the oral charge of the court sufficiently covers this ground, in which the court said: “If the testimony satisfies you that Mr. Easterday had built a fence along the west line of his property, or where he conceived it to be, at a period more than 15 years prior to this conversation [between Mr. Gallagher and Mr. Easterday]; that that fence had been retained and maintained as a boundary line; that both parties had occupied up to it, and held possession up to that boundary line,— any mere oral agreement between Mr. Easterday and Mr. Gallagher after that time, after the expiration of 15 years, would not be binding upon them or their grantees, unless it was acted upon, and the fence then changed. It would come within the statute of frauds, and, even though they had expressly agreed, it would not be binding upon any of the parties.” It seems to us impossible to hold that a jury, from this and other parts of the charge, would not have understood that the erection of such a fence, and the possession of the land on his side of it for the statutory period,'would convey the title to the defendant by adverse possession. At the time of the conversation between Mr. Easterday and Mr. Gallagher, Easterday was the owner of claim 106, and was in possession, while Gallagher and his wife occupied claim 105 as their homestead; the title thereto being in her. 5. Error is assigned upon the refusal to give the request that “the plaintiff can only recover in this case on the strength of her title, and cannot rely for recovery on a [444] claim of weakness or want of title in the defendants.” Among other things, the court, upon this point, instructed the jury, “It is necessary for her [plaintiff] to show a title to the property before she can recover in any case.” By this instruction the jury were expressly told that the plaintiff must recover upon her own title. While this request would have been entirely proper, and is a correct statement of the law, where its substance is given the judgment will not be reversed because not given in the exact language. 6. Error is also assigned upon the refusal of the court to give the following request: “If you find that the parties to this contest and their predecessors in ownership have treated and acquiesced in the fence built by Mr. Easterday as the true boundary line for a period of 15 years prior to the commencement of this suit, then it becomes immaterial and unimportant where the actual line of the old original survey may have been. It would be now too late to disturb it, and the plaintiff would not be entitled to recover. The peace of the community requires that all attempts to distui’b lines with which the parties concerned have long been satisfied should not be encouraged, for government surveys are not always accurate, and the evidence of such survey may become indistinct or lost; and if, after a long series of years, old and well-established lines, which have been recognized as true boundaries, were set aside by new surveys, necessarily the mischief arising from such a policy would be incalculable, and titles .to property thrown into vast and endless confusion.” We think this is sufficiently covered by the oral charge. 7. Error is alleged upon the refusal to charge that “the jury are instructed that the plaintiff is not entitled to recover possession of the disputed tract as shown by the survey and plat of Surveyor Brown.” We think the court said upon Brown’s survey and the other surveys all that was essential when it instructed the jury that they were not bound by the surveys, etc. (See charge on this point.) It is not customary or good practice to select the testimony of one witness, and tell the jury that they cannot render a [445] verdict upon that testimony alone. While this might be true, the jury had a right to consider the testimony, and survey of Mr. Brown in connection with all the other testimony in the case. Errors are assigned upon the admission of testimony. The most of them refer to the introduction of deeds, leases, and contracts covering claim 106, or portions thereof. We find no error in the admission of testimony which we think of. sufficient importance to j ustify a reversal of the case. If all cases were to be reversed because of an error in admitting or rejecting testimony, the number of reversals would be largely increased. The error in such rulings must relate to some material point, and be such as would naturally tend to mislead or prejudice a jury. We find none such in this case. Judgment affirmed. The other Justices concurred.