Beecher v. Galvin

• Decision Date: 05 October 1888
• Citation: 39 N.W. 469,71 Mich. 391
• Court: Michigan Supreme Court
• Parties: BEECHER v. GALVIN ET AL.

39 N.W. 469

71 Mich. 391

BEECHER v. GALVIN ET AL.

Supreme Court of Michigan

October 5, 1888

Error to circuit court, Wayne county; WILLIAM LOOK, Judge.

Ejectment by Luther Beecher against Dennis Galvin, Thaddeus Galvin, and Nicholas Hickey, for land in the city of Detroit. Verdict and judgment for defendants, and plaintiff brings error.

SHERWOOD C.J.

This suit was an action of ejectment by the plaintiff, who owns property on the Lognon farm, against the defendants, who own property on the Woodbridge farm, adjoining on the east. The Galvins were the owners, and Hickey was their tenant, occupying the strip of land in dispute, and the same being a parcel 12 feet in width and about 130 feet in length lying in the city of Detroit. The declaration was the usual one in ejectment; the plea the general issue. The plaintiff claims the strip was a part of the Lognon farm, and the defendants insist it was a part of the Woodbridge farm. The plaintiff also claimed that the defendants had moved their west fence from the dividing line between the two farms over on the Lognon farm at some time less than the period of 15 years before the plaintiff brought his suit. Upon the trial the plaintiff claimed to hold by adverse possession, under claim of title, and an acquiescence on the part of defendants and those under whom they claim. It was claimed by him that a certain fence east of the ditch on said land was the line, as established by them, and the acquiescence of the parties and their grantors. On the contrary, the defendants insisted the center of said ditch was the division line between the parties' parcels of land. The suit was commenced November 25, 1879, and the trial of the cause was closed on the 20th day of November, 1887, and the defendants prevailed. The plaintiff brings error The record shows that the cause has been tried five times.

The question presented upon this trial was one of possession entirely as it went to the jury, and whether such possession was adverse in the plaintiff. J. Wilkie Moore was called to the stand by the plaintiff, and gave testimony in answer to plaintiff's questions that he was 73 years old, and had known the premises about 50 years, and knew the Lognon farm and knew of Lognon and the Spechts when they occupied the farm, and knew Gov. Woodbridge when he lived on his farm, and saw the old fence between the two farms as early as 1835 or 1836; that the Spechts then claimed to own the Lognon farm and occupied it as far east as the fence; and from the time he first knew the premises the Lognons and the Spechts occupied up to the fence, down to the time Beecher bought. On cross-examination by defendants' counsel, he said he also knew of the ditch; that it was from five to seven feet wide that it was there when he first knew of the premises; that he recollected talking with Gov. Woodbridge about the lines of the farms; that the ditch was on the west side of the fence that there were three lines,-that is, there was a fence, a ditch, and a row of trees. Counsel then put the following question: "What will you say as to the ditch being the dividing line of occupation between the two farms?" This was objected to by plaintiff's counsel as incompetent, and "it is not pretended that the witness has any knowledge of any survey or anything to show where the dividing line was." The objection was overruled, and the witness was allowed to answer. "I supposed the ditch was a line; yet at the same time there was the fence, and the ditch, and the row of trees about five feet on Woodbridge lot, and the ditch the other way. I don't know as this is proper, but I supposed the ditch was on the line, and the fence was put over." Witness was then asked by counsel for the defendants the following question: "You say the ditch was the line. It was generally supposed the ditch was the line, was it not?" This was objected to as "incompetent under any theory of the plaintiff's case. It is immaterial where the line is. The question is whether they occupied up to the fence." The objection was overruled, and the witness answered, (the question being repeated is substance,) "I think it was." This testimony was incompetent. What the witness supposed was generally understood, or what he supposed or thought in the matter, was clearly inadmissible, and especially as it is quite apparent from all his testimony he knew nothing of the line whatever. This witness' age and long acquaintance with the premises gave an importance before the jury to his testimony, which, in this particular instance, was entirely misleading, and undoubtedly prejudicial to the plaintiff's case, if he had any, and the objections should have been sustained. The following question, put to William Woodbridge was clearly objectionable as calling for a conclusion, of a most mischievous tendency, viz.: "What can you say as to the ditch being...