F.H. Wolf Brick Co. v. Lonyo

• Decision Date: 27 January 1903
• Citation: 93 N.W. 251,132 Mich. 162
• Court: Michigan Supreme Court
• Parties: F. H. WOLF BRICK CO. v. LONYO.

93 N.W. 251

132 Mich. 162

F. H. WOLF BRICK CO. v. LONYO.

Supreme Court of Michigan

January 27, 1903

Appeal from circuit court, Wayne county, in chancery; George S Hosmer, Judge.

Action by the F. H. Wolf Brick Company against Andrew Lonyo. From a judgment dismissing the complaint, plaintiff appeals. Reversed.

Complainant and defendant own adjoining lands. The bill of complaint alleges that the line fence between them has been established for more than 20 years; that complainant purchased its land in 1886; that the line fence was then worn out and broken down in some places, and it erected another fence in place thereof; that such fence has remained ever since, and been recognized by the parties as the true line; that on July 17 1901, defendant attempted to tear down this fence, and did in fact tear down about 100 feet thereof, with the intention of erecting a new line fence 6 feet easterly of the old fence that complainant is informed that defendant claims that the true line commences at a point 6 feet east of the present line fence; that complainant immediately notified defendant of its rights, and not to interfere with or move the fence. The prayer is for a perpetual injunction against the defendant prohibiting the removal of the fence. The bill was filed July 18, 1901. Defendant answered, denying all the material allegations of the bill, alleging that said fence was not on the line; that it had been moved, removed shifted, and rebuilt a number of times; that some of the ground (removed for the purpose of making brick) had been taken away and the fence rebuilt, 'but not upon any line that had been established by survey, agreement, or otherwise.' The answer further admits that the defendant did, on July 17th, tear down a part of said fence near the south end, and erect the same upon what he claimed to be the true line, and that he intended to take up all the old fence, and place it upon the line which he claimed to be the true one. Replication was duly filed and proofs taken in open court. The court did not pass upon the merits of the controversy, but dismissed complainant's bill upon the sole ground that the jurisdiction of a court of equity had not been properly invoked by the complainant.

Edwin F. Conely and Orla B. Taylor, for appellant.

Richard I. Lawson, for appellee.

GRANT J. (after stating the facts).

1. The court did not find that complainant was not in possession but dismissed the bill upon the sole ground that there was a dispute as to the boundary line, which should be tried in a suit at law. That complainant was in possession on the 17th day of July, when defendant commenced to remove the fence, is clearly established by the evidence. It, being in possession, could not bring an action of ejectment; the defendant could. It was his clear duty to do so, rather than to attempt by force to remove this old fence to the line which he claimed. Wilmarth v. Woodcock, 66 Mich. 331, 336, 33 N.W. 400. Complainant was under no obligation to stand by, see the defendant build the fence upon another line, and then bring an action of ejectment. Defendant could not prevent complainant from maintaining this action by the removal of a small portion of the fence. It invoked the aid of the court to restrain this unjustifiable action on the part of the defendant as soon as it learned that he had commenced such removal. It moved seasonably. The right to maintain this action is clearly sustained by the following decisions of this court: Stewart v. Carleton, 31 Mich. 270; Wilmarth v. Woodcock, 58 Mich. 482, 25 N.W. 475; Vier v. City of Detroit, 111 Mich. 646, 70 N.W. 139; Campbell v. Circuit Judge, 111 Mich. 575, 70 N.W. 141. In Campbell v. Circuit Judge, in an opinion by my Brother Montgomery, the cases relied upon by the defendant to sustain his contention are distinguished from cases like this. Counsel for defendant cited and rely upon Bresler v. Pitts, 58 Mich. 347, 25 N.W. 311, and Andries v. Railway Co., 105 Mich. 557, 63 N.W. 526. In Bresler v. Pitts the express object and prayer of the bill were to settle the boundary lines of complainants' estate. The bill alleged that 'the location of the 40-feet line [the line in dispute described in the deed as 'a line 40 feet above the border of the river at high-water mark'] is uncertain, and difficult of determination, and that the parties dispute their boundaries.' It was properly held that a bill in equity will not lie for the sole purpose of settling disputed...