Pelton v. O'Keefe

Hooker, J. The plaintiff, being the owner of a triangular parcel of land at the junction of Eleventh and Water streets, in the city of Port Huron, brought an action of ^trespass against the defendants, under section 11206, 3 Comp. Laws, which reads as follows: “ If any person shall be ejected or put out of any lands •or tenements in a forcible and unlawful manner, or being put out, be afterwards holden and kept out by force, [426] or with strong hand, he shall be entitled to maintain an. action of trespass and shall recover therein three times the amount of damages assessed by the jury or .a justice of the peace in the' cases provided by law.” She alleged title in her declaration, and the case was certified to the circuit court by the justice, where a verdict for the defendants was rendered. Plaintiff has appealed. The defendants are the superintendent of public works, the city engineer, two policemen, and a sidewalk contract- or in Port Huron. There are many assignments of error, but the defendants’ counsel maintain that the court should have directed a verdict for the defendants, and that therefore they should not be considered. Whether this is a correct conclusion or not, it is proper to consider that, question first. The plaintiff bought the premises in 1888. At that time they were used for a pasture, and had a fence along the street, which had stood there some years, and was out of repair. This fence was at once removed by plaintiff’s husband, who proceeded to build a house upon the lot. The posts of the fence were taken out, with the exception of a few which were sawed off close to the surface of the ground. About 14 years before the trial the plaintiff’s husband built a sidewalk three feet wide, the east side of the walk being three feet west of .the line-of the fence referred to, which plaintiff claims to have-marked the line of her lot. This action grew out of the building of a new cement sidewalk, in place of the old wooden one; the same having been ordered by the common council, and plaintiff having neglected to comply with the ordinance, notice having been served upon her. An ordinance was in force, fixing, the outer edge of walks at seven feet from the street line, and we understand that defendants claim to have adhered to this rule in laying this walk. In doing so, according to plaintiff’s testimony, .the new walk extended beyond the line of the fence and covered the posts remaining in the ground. Plaintiff offered testimony tending to show that the space? [427] between the walk, when completed, and his house, was only a foot or fourteen inches. That he had graded and sodded the land between the old walk and the house, and had some vines and shrubs, and one evergreen tree, growing upon it, which were disturbed and destroyed by excavating for the walk. He offered testimony tending to show that, upon learning that the men were at work upon the walk, he drove them off with a revolver. At that time his wife was away from home, and the house was locked. He then went to his shop in another part of town, but returned later and a second time pulled up the stakes and forms that he claimed to be on her premises, and while so engaged was told by a policeman to desist, or he would be taken care of, and stopped him under threat of arrest. Plaintiff added to the foregoing the following testimony: “After they got through with their operations there, my line on the west side of the house 102 feet long and 5 feet wide on the inside of the walk and about 9 feet wide on the outside of the walk was all déstroyed, and in order to fix it I had to spend time and labor to draw off the dirt, and the grass was all dead and spoiled.” The new sidewalk lapped over plaintiff’s west lot line about 14 inches. The defendants assert: 1. That the testimony does not show that the lot line was on the line of the fence removed in 1888. 2. That the plaintiff’s occupancy of the strip of land was not inconsistent with the use of the street by the public, and was not therefore adverse. 3. That, whether the preceding claims are warranted or not, the facts do not support an action under the statute. 4. That a verdict should have been directed for the defendants upon plaintiff’s own showing. It is conclusively established that the center line of Eleventh street was surveyed through this ground at the time of platting. It was in line with certain alleged •monuments supposed to be in the center of Eleventh street. It is unimportant whether these monuments were [428] designed to mark the center of Eleventh street when set. The projection of that line, whatever it was, became the center line of the extension of Eleventh street, as shown by the plat, and as surveyed on the ground. The plat shows an attempt to dedicate 33 feet on each side of the line, and other testimony that it was so surveyed and staked and the street has been since used. The land in dispute is within the 33 feet, and at one time was fenced, as shown, for a few years, but plaintiff removed the fence in 1888, and since that time her occupancy has not been clearly inconsistent with the public rights. There being in the record no evidence except the alleged possession to show that the plaintiff had title to the land, and that possession, such as it was, not being inconsistent with the recognition of the public rights, the court might, with propriety, have so instructed the jury. This renders a discussion of the other questions unnecessary. The judgment is affirmed. Carpenter, C. J., and Grant and Montgomery, JJ., concurred with Hooker, J.