Bird v. Stark

• Decision Date: 07 July 1887
• Court: Michigan Supreme Court
• Parties: BIRD v. STARK.

33 N.W. 754

66 Mich. 654

BIRD v. STARK.

Supreme Court of Michigan

July 7, 1887

Appeal from circuit court, Oakland county.

CAMPBELL C.J.

Plaintiff sued defendant in a justice's court in Oakland county in trespass for encroaching on her lands, and the case was removed to the circuit court under the statute. Judgment was rendered for the defendant in that court, and is removed here on error. The injury sued for was the removal of the division fence between the parties so as to bring it several feet eastwardly on the land of plaintiff. Defendant claimed he had put the fence where it belonged. The plaintiff's proof consisted chiefly of evidence of long possession, as well as direct acquiescence, so that she claimed a location by acquiescence, and also by adverse possession. Defendant claimed that, by a survey which he procured to be made, the boundary lay eastward of the old line fence. This survey was ex parte. There was also testimony that, instead of laying the fence on the surveyed line, he put it eastward from it. Errors are assigned only on the charges given or refused, and they apply to all of the plaintiff's theories.

The court refused to charge that a location by defendant of the fence east of the line, as surveyed by Mr. Cooley, the surveyor whom he employed to run it, would be a trespass and, on the other hand, told the jury that the inquiry was not as to the location of the new survey, but concerning the true government line; and, unless plaintiff owned the land between the two fences, she could not recover. This was erroneous. The Cooley survey was introduced by defendant himself to show where the true line was, and for no other purpose; and, except for this, it is difficult to find any testimony concerning the true line except the long occupancy. There is no testimony that we have discovered which attempts to place the true line further east. That survey was an attempt to locate it, and whether correct or not is the only proof that would justify defendant in his claim.

There was also confusion in the charges concerning rights by possession and acquiescence. It was held that a practical location of the line, and occupancy under it by both parties for more than 15 years, could only be made operative by the determination of the parties that it should be the line between them. It was further held that possession under claim of title up to the fence between her land and the 40-acre lot ...