Breakey v. Woolsey

Grant, L (after stating the facts). It is the contention of the learned counsel for the complainant that the deeds were made with reference to the original plat and monuments, and they must control. If the location of the original monuments and stakes was conclusively established, there would be some force in this contention. But the judge expressly finds that it was not, and that, in the absence of such location,'the fences and other monuments, erected and established about that time, and ever since recognized, are better evidence of the actual location of the lot lines than are surveys based upon uncertain monuments. The evidence fully sustains his finding. The distance between the foundation walls of the two houses is 19 feet. The present driveway as it has always existed, and, as apparently agreed to by the Lynns and Mr. Woolsey, is 6 feet 10 inches wide, 6 feet 2 inches from the Breakey house, and 6 feet from the Woolsey house. The location of the driveway, as contended by the complainant, if of sufficient width for the passage of loads of hay (and it is conceded that such was the intention),' would, as found by the circuit judge, necessitate the moving of the defendant’s residence. No stakes of the original survey were found. The westerly fences of complainant’s lot and other fences and monuments were established not long after the survey and plat were made. It was said in Carpenter v. Monks, 81 Mich. 103: “Fences of long standing, erected upon what parties have called the true line, and up to which they have improved and cultivated, are better evidence of the true line than surveys made after the monuments have disappeared.” [90] This feature of the case is ruled by that case, and also by Flynn v. Glenny, 51 Mich. 580, and other cases therein cited. We are also of the opinion that the Lynns and Mr. Woolsey established a boundary line by agreement, and thereafter acquiesced in it, and so did the parties to this litigation, until the complainant believed that the original survey and plat would give her more land. Such an agreement is binding, although the line established is not the original one. Brown v. Bowerman, 134 Mich. 695; Manistee Manfg. Co. v. Cogswell, 103 Mich. 602; F. H. Wolf Brick Co. v. Lonyo, 132 Mich. 162. The decree is affirmed, with costs. Carpenter, Blair, Montgomery, and Ostrander, JJ., concurred.