Cromwell v. Hughes

Grant, J. (after stating the facts). The record is in a very unsatisfactory condition for the proper determination of the rights of the parties. One McBain, the original owner of the N. W. {? of section 30, platted the village of Owens; When it was platted is not stated in any of the pleadings or shown by the evidence. When this house was built does not appear. It does appear, according to the evidence on the part of complainant, that when Mr. McBain platted this village on the N. -J- of the N. W. \ he left a strip on the south part of said N. -J outside the village plat; that a street was established on the south side of said plat running the entirelength of the village, called Elm street; that Mr. McBain placed a fence on the south side of Elm street more than 15 years before the commencement of this suit, inclosing the disputed strip with the S. i of said N. W. J; that said fence has re [5] mained as originally located and the land south of it occupied as one parcel; that'Mr. McBain mortgaged the S. % of said N. W. i; that the mortgage was foreclosed in 1898, and upon the sale the Dewey Stave Company bought a part of it and complainant the other part; that defendant obtained his title from the Dewey Stave Company ; that soon after the- purchase by complainant and the stave company he discovered that the plat did not include the entire N. \ of said N. W. and that this strip of land was not a part of the S. -J- according to the government survey. He thereupon obtained deeds from the heirs of Mr. McBain conveying to him all that part of the N. -J of the N. W. £ of section 30 which was not included within the village limits. He testified that he had a parol arrangement with the Dewey Stave Company by which it was to have title to that part of said strip opposite the land owned by it. Meanwhile the Dewey Stave Company sold to the defendant. Defendant purchased this land in the belief that the north boundary line was the south line of Elm street. Probably the house and buildings were built with that understanding. The only access to said land during all this time was from Elm street. An access to a public highway could be obtained on the west by crossing a railroad. Under the decree complainant has obtained title to the dwelling house, including that part located on defendant’s land. If it should be determined that complainant owned this strip of land and the boundary line had run through the center of the house, who would own the house? Certainly the complainant obtained no title to that part of the house located on defendant’s land. Defendant was in possession. An action of ejectment was the proper remedy, where the question of improvements might be litigated, under 3 Comp. Laws, §§ 10994-10996. The effect of this decree is to oust one in absolute possession, claiming title, by a decree in equity to restrain waste. We, think, under this record, the only appropriate decree would have been the restraint of waste, pending a de [6] termination of the title in the appropriate action of ejectment. The decree will be so modified, with costs to the defendant. McAlvay, Blair, Montgomery, and Moore, JJ.„ concurred.