Miller v. Shumway

Carpenter, J. Plaintiff owns the east half of the west half of the northeast quarter of section 18, in the township of Dallas, Clinton county. Defendant owns the land adjoining him on the east. The boundary line which separates their land is disputed. Plaintiff brings this ejectment suit to recover the possession of a strip of land about nine feet in width. The disputed strip is separated from the land occupied by plaintiff by a line fence built about 30 years ago, and has been in defendant’s possession since that time. The testimony of the plaintiff tends to prove that this fence is not on the true line; that it was erected under an arrangement that at some future time the true line would be ascertained by a survey, and the fence placed thereon. Defendant claims that the fence was on the true line, and that, if not, he had acquired title' by adverse possession. The issue was submitted to the jury, who found for the plaintiff. "We are asked to reverse the judgment of the court below on numerous grounds, which will be stated and discussed. It is contended that the court erred in not striking out the testimony of Charles Eddy, a surveyor, who testified on the part of the plaintiff that he ascertained that the fence in question stood several feet over on plaintiff’s land by measuring from a stone located at the northeast corner of the section. It is claimed that there was no testimony tending to show that this was a proper starting point. To this we cannot agree. While it is quite clear that the stone was not set at the time the original survey was made, the fact that it stands very near, if not at, the center of two highways, and the fact that it is properly situated [657] with, reference to a re-established quarter-section post, furnished evidence of its proper location. Complaint is made because this witness was permitted to use a copy of the minutes of his survey instead of the original, which had been turned over to the county surveyor, to refresh his recollection. We cannot say that defendant was prejudiced by this ruling. It is fairly to be inferred from the record that the witness did not, on direct examination, testify to anything which he did not remember independently of this copy. Complaint is also made because the witness was permitted to testify about a former survey in which he took no part. Such testimony was brought out on the cross-examination of the witness, and this complaint is based on no assignment of error. It is also urged that the testimony of witness Eddy should have been stricken out because in making his survey of the disputed strip he failed to observe all the requirements of law. We think it may fairly be inferred from the testimony of this witness that a correct measurement was made from the starting point; and, if it was, it afforded evidence of the proper location of the disputed line, even though he did not observe all the requirements of law in making his survey. It is claimed that the- court erred in striking from the record the testimony of John W. Shumway, defendant’s father and grantor, respecting the building and repairing of the fence in question and occupancy in relation thereto. The fence in question was built, and presumably maintained, under an arrangement made with plaintiff’s deceased grantor. Most of the testimony stricken out was therefore inadmissible under section 10312, 3 Comp. Laws. Defendant claims, however, that the statute does not extend to testimony respecting matters of public notoriety, such as the occupation of land. See Wright v. Wilson, 17 Mich., at pages 200, 201; Chambers v. Hill, 34 Mich. 523. Assuming this claim to be well grounded, the trial court erred in striking out that part of the witness’ testimony. [658] But we do not think this error — if error it was — was prejudicial to defendant. The testimony in the case all tended to prove, and the court in submitting the matter to the jury charged, that defendant was in possession of this strip of land for more than 15 years before the commencement of this suit. Plaintiff was permitted to prove declarations by his grantor asserting his ownership of the disputed strip, and that he signed a petition for a resurvey. We do not think this evidence was admissible, but we do not think that defendant properly objected to its admissibility. When it was offered, defendant’s counsel objected to it as incompetent and immaterial. Plaintiff’s counsel replied, “It is as competent to show what Green said as to show what Shumway said.” (Defendant, Shumway, had been permitted, notwithstanding plaintiff’s objections, to prove declarations of ownership of the disputed strip, made by him, not in the presence of plaintiff or of plaintiff’s grantor.) Thereupon the court admitted the testimony. Later the court asked counsel for defendant, “Do you claim the statements of Andrew Green are incompetent ?” to which counsel replied: “I am not so certain what the rule is. My brother objected to testimony on the same line. I thought I would save an objection;” and thereupon further testimony of like character was admitted. It will thus be seen that the court, in admitting this testimony, had a right to act, and did act, upon the assumption that, if the evidence already introduced on the part of defendant was admissible, then the evidence under consideration was. Defendant’s counsel said, in substance, to the trial judge, “Tf you were right in admitting our testimony, you should admit this testimony.” Under these circumstances, there was nothing for a fair-minded judge to do but to admit the testimony. Complaint is made because the court did not permit- defendant to prove that it was generally understood in the neighborhood that he owned the land in controversy. It is claimed that this testimony was competent upon the [659] issue of adverse possession. In Sparrow v. Hovey, 44 Mich., at page 64 (6 N. W. 93), defendant was permitted “to prove that the land was generally understood to be and called his in the neighborhood,” on the ground that it “ tended to establish the notoriety of defendant’s possession and claim of title, which were important facts in his defense.” In that case “the distinctness and notoriety of defendant’s possession were the very things in controversy. ” That case has been followed by the similar case of Whitaker v. Shooting Club, 102 Mich. 454 (60 N. W. 983). In the case at bar, however, there is no controversy •about the distinctness and notoriety of defendant’s possession. His possession is conceded to be distinct and notorious. Its hostility is denied. The general neighborhood understanding of defendant’s ownership would be justified by his possession, and would have little, if any, tendency to prove the notoriety of a hostile claim asserted by him. If there was any error in excluding this testimony, we cannot think that it was prejudicial to defendant. Defendant was not permitted to answer these questions: “At the time you put the fence there, was there any intent on your part ever to change it ?” “ Have you, at any time since this fence was built, intended to change this fence ?” It is contended that, as bearing on the question of defendant’s adverse possession, he had a right to show his intent. See Pugh v. Schindler, 127 Mich. 191 (86 N. W. 515). The line fence referred to was built under some arrangement between defendant and plaintiff’s remote grantor, since deceased. As heretofore stated, plaintiff claims that that arrangement was to remove it to the true line when ascertained. Defendant denies this. As defendant could not, concededly, under the statute (section 10212, 3 Comp. Laws), testify to the arrangement, I do not think he could testify to his intent at the time. Such testimony would be an evasion of the statute. Neither do I think he could testify to his subsequent intent. If the subsequent intent is the same as the intent with which the .fence was erected, it is subject to the same objection as [660] testimony respecting that intent. If it is a different intent, it has no bearing on the controversy, unless known to plaintiff or to his grantors. See Pugh v. Schindler, 127 Mich. 191 (86 N. W. 515). It is urged that the court erred in not directing a verdict for the defendant. There is testimony whióh indicates that, as early as 1885, plaintiff’s grantor, Green, knew that defendant was holding the land in controversy in hostility to his claim. If this were the only testimony bearing upon the subject, we think that defendant would, have been entitled to a verdict. See Pugh v. Schindler, 127 Mich. 191 (86 N. W. 515). But there was testimony of admissions by defendant that, when the suit was commenced, he had not occupied the land adversely to plaintiff sufficiently long to make it his. From this testimony the jury might have inferred thqt defendant had not held under a hostile claim for the statutory period. The issue-was therefore properly submitted to the jury. Complaint is also made because the court did not charge-the jury that, if plaintiff’s grantor, Green, knew as early as 1885 that defendant asserted a hostile claim to the land in controversy, he was entitled to a verdict. It is a complete answer to this complaint to say that no such charge was requested, and we cannot say that it was error for the court to fail to cover the point. We do not think that defendant’s brief points out any reversible error. The judgment of the court below is. therefore affirmed. The other Justices concurred.