Hockmoth v. Des Grands Champ

• Decision Date: 12 October 1888
• Citation: Hockmoth v. Des Grands Champ, 71 Mich. 520, 39 N.W. 737 (Mich. 1888)
• Court: Michigan Supreme Court
• Parties: HOCKMOTH v. DES GRANDS CHAMP.

39 N.W. 737

71 Mich. 520

HOCKMOTH v. DES GRANDS CHAMP.

Supreme Court of Michigan

October 12, 1888

Error to circuit court, Macomb county.

Action of trespass to try title to lands, brought by August Hockmoth against Bartholomew Des Grands Champ.There was a judgment for plaintiff, and defendant brings error.

MORSE J.

This is an action of trespass upon lands, originally brought in a justice's court, and certified to the circuit court for the county of Macomb upon a plea of title.The plaintiffSeptember 11, 1869, acquired title by deed from one Philetus W. Norris to the E. 1/2 of the S.W. fractional quarter of section 19, in the township of Warren, in said county excepting the east 40 acres thereof.The defendant occupies the W. 1/2 of said S.W. fractional quarter, having purchased the south half of the same upon contract dated December 23 1884, and leased the N. 1/2 January 7, 1885.Previous to his occupation, the land now held by him was unoccupied and uncultivated.It was owned at the time of plaintiff's purchase of the east half by Edwin Jerome, Sr., who willed the same to Edwin Jerome, Jr., and Frank H. Jerome.Defendant acquired his title of the Jeromes.Plaintiff claims that he moved upon his land, and commenced clearing the same, in August, 1869; and that in the winter and summer of 1870he completed a fence upon his west line, which he has ever since adversely maintained, until March, 1885, when the plaintiff took it down upon the north 80 rods, and built a new fence in its place.This was done in pursuance of an agreement between them dividing the line fence; it being agreed that plaintiff should thereafter maintain the north 80 rods, and the defendant the south 80 rods, of the division fence between them.In 1885 a survey of this quarter section was made by one Charles Adair.He claims to have found the quarter post on the west side of section 19, and that its location conformed to the records of the survey of the same section made by his father, George E. Adair, in 1869.He testified that he found all the corners pertaining to the S.W. 1/4 of the section to his satisfaction.He was then asked to state if he found the corners according to the original survey of the government of this fractional quarter.Plaintiff's counsel objected, and he was not permitted to answer.This is made one of the assignments of error.In this survey Charles Adair divided the quarter section, and ran a line between the premises of the contending parties in this suit, giving to each half of said quarter section 75.49 acres.He found the plaintiff's fence at the south end, nearly, if not quite, upon the line established by him, but it ran northerly to the west, so that at the north end it was from 12 to 13 rods over the line.In November, 1885, the defendant moved his part of the line fence-the north 80 rods-over onto the line established by Adair.This was not done with the consent of plaintiff, who brought this suit.Upon the trial the accuracy of Adair's survey does not seem to have been seriously disputed, and the plaintiff rested his case entirely upon his alleged adverse occupancy of this strip of land for 15 years.The plaintiff had judgment for six cents damages.

Several errors are assigned in relation to leading questions put to Charles Hockmoth, a witness for plaintiff; but we do not consider that any harm was done to defendant by them.The same may be said of the ruling of the circuit judge in permitting Adam Bloom to state that he had examined the tract-book in the United States land-office at Detroit, and that such book gave the number of acres in this fractional quarter as 154.32.It does not appear by the record that the number of acres, as given in the original government survey of this quarter, became at all material upon the trial.The plaintiff did not claim the strip of land in dispute by reason of his title deeds, but by his adverse occupancy.The question propounded to the witness Adair would have been proper if he could have testified that he found the government monuments of the corners, or any indications upon the ground that the corners located by him were the same as located by the government survey; and we are inclined to think that he should have been allowed to answer it.It is claimed by the counsel for the plaintiff that the answer would have been only a conclusion of the witness, which was for the jury; but we are of the opinion that the question was competent.This was a matter upon which Adair was authorized to testify as an expert, and any evil resulting from it could have been remedied by a cross-examination, showing his sources of information, or by other testimony if his opinion was not correct.

Evidence was offered tending to show that after the survey by Adair the plaintiff changed his fence upon his part of the line, the south 80 rods to conform to the division line as located by such survey.This was ruled out, as we think, improperly.

It was claimed by the defense that Hockmoth did not build his fence in the first place, or maintain it afterwards, with the expectation or intent of holding or claiming all the land inclosed within it, but that he built it supposing it to be on the line; that he started correctly at the south end, but inadvertently ran it too far to the west, as it went to the northward; that he did not at any time intend to insist upon his fence as located as the true line of boundary between him and Jerome, but erected it more particularly to protect his crops, leaving the true location of the line to be afterwards established; and that the fact that, after Adair's survey, he moved his part of the fence...