Bird v. Stimson

Ostrander, J. (after stating the facts). The first difficulty experienced in a study of the record is in concluding, upon any phase of the testimony, that there exists between the lines of lot 10 and lot 11, as they are called, a strip of land of any size, title to which remained in plaintiff’s grantor. It is a maxim of the law of ejectment that a plaintiff must recover upon the strength of his own title, and not upon the weakness of the title of his adversary. As the trial court instructed the jury, the burden rested upon plaintiff to establish the fact that there was a piece of land as [596] contended by him, in the place stated, to which he had obtained a title. Suppose it is true that if one measures along the shore line to the north 405 feet, pursuant to the distance calls in the old plat, he will reach a point 28 feet south of the north line of lot 11 as occupied by defendant. Does it follow necessarily that the owner of lot 11 has 28 feet more of frontage than belongs to him? Does it follow that the original proprietor or proprietors retained title to any 28 feet of the shore frontage? The testimony is that the contour of the shore line varies, and that it has changed and is changing, not greatly, but to some extent. The testimony is that the lake front of lots 14, 13, 12, and 11 is bold and high, and that in an earlier day, at least, there was undergrowth and various difficulties in the way of accurate measurement of the shore line. Beyond this, who can now tell how the shore line was measured? It is evident, and is a point upon which the jury was cautioned, that if a little bay extended into the land on any one or more of these lots, or if a cape ran out into the lake, the actual shore line, at high-water mark, might, at a given time, be double the length of the lot lines on the highway. The only use which can be made in this case of the old plat is to discover from it, if possible, how the original proprietor bounded each description of land. No one. is bound by it, and it does not appear that any land was ever conveyed merely by reference to it. There are in it calls other than the shore line distances. There are the distances on the highway and, inferentially, the side lines, parallel, in appearance, with the section lines. There is no presumption that the proprietor designed to narrow any lot on the highway and enlarge it on the water; that his measurements on the highway were inaccurate and those on the water front accurate. The material fact to be gathered from this plat is that in it he described all of the land between [597] the east and west eighth and quarter lines, intended to embrace every foot of land on the highway, and on the water, in the plat. If he had sold it by reference merely to the lots, by number, he would have had nothing left. But because in the details of his plan are some figures which, considered alone, mathematically treated, do not account for quite all of the land, it is assumed and asserted that there was some land for which the plat does not account. Mr. William Richardson had an equal right with Mr. Coates, the deviser, to convey the land by such description as he pleased. Mr. Richardson, owning all that Coates had not conveyed, did convey lots 11 and 12 — he intended to — and a reference to his deed will show that in bounding what he conveyed he began at a point on the highway, stated a distance or distances on the highway, and expressly described the side lines as being parallel with the section lines, describing the shore frontage indefinitely as “more or less.” I find no evidence tending to' prove that if this description is followed, defendant will have any land not conveyed by this deed. It is said that by referring in the deed to the plat the calls of the plat were adopted by reference. But which calls? The expert testimony is to the effect that the shore line distances marked on this plat cannot be found if other calls of the plat are followed. It is a general rule that if courses and distances do not agree, courses will govern. Like all rules, it must be understood and applied reasonably. I do not hold that by force of this rule defendant must be held to be entitled to judgment, but rather that in considering the old plat and all deeds of the land embraced therein which are in evidence, and considering also the rule, plaintiff has not as matter of law made out his case. If I have not misapprehended the record, if the conveyance by Richardson of lots 11 and 12 em [598] braced all the land defendant claims to own, then it is my opinion that the trial judge should have directed a verdict for defendant. If there is in fact a surplus of land, the surplus lying between lots 10 and 11, defendant does not occupy it, and the undisputed evidence is that it has been occupied under claim of ownership for more than 20 years. As in any event I think the court erred in refusing a new trial and the judgment must be for reversal and a new trial ordered, it is important to consider another phase of the case presented by the assignments of error. Appellant contends that in any event plaintiff cannot maintain this action because he was never dispossessed, and took from one never in possession by quitclaim deed. Upon this point, it is apparent that upon a new trial something material may be added to the record. Mr. Burch, plaintiff’s grantor, was not a witness at the trial. His affidavit appears among others offered in support of the motion for a new trial. In this affidavit he states, among other things, that he was asked to give a warranty deed of the disputed strip to plaintiff and declined to do so— “because of the fact that deponent was in doubt as to the existence of any parcel of land answering such description and because he had never had possession of any such parcel of land.” Independent of what may be developed upon a new trial upon this point, it is the law that the grantee in a quitclaim deed acquires the right and title which his grantor had, and no other. Messenger v. Peter, 129 Mich. 93 (88 N. W. 209). If Mr. Burch might have maintained the action, then plaintiff may do so. Legal titles only are involved. The testimony of Mr. Burch may develop the fact that he could not himself have maintained this action. But appellant’s contention that Burch, because of conveyances made by his grantor and his own deed, might not have constructive posses [599] sion of any actually unsold and unconveyed land is not sustained. The criticisms made of the charge of the court do not appear to be warranted. Considering the case as presenting questions of fact for a jury, the charge fairly presented the issues. Appellant’s fourth assignment of error has been considered. The court should have excluded Exhibit J, since it is admitted that it is not a record of a survey made by the surveyor who made it. Its effect was that of hearsay evidence. Reversed, with costs to appellant. Kuhn, C. J., and Stone, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.