Hoffman v. Harrington
| Decision Date | 23 June 1880 |
| Citation | 6 N.W. 225,44 Mich. 183 |
| Court | Michigan Supreme Court |
| Parties | HOFFMAN and others v. HARRINGTON and others. |
Possession under color of title is, as against a trespasser, sufficient. Order of proof is discretionary with the trial court, and not reviewable except for abuse. One who is not a surveyor, or one who has not assisted in a survey, may testify as to the boundaries of land. Certain instructions as to the sufficiency of possession and title, as against a trespasser held sufficient.
Error to St. Clair.
Whipple & Voorhies, for plaintiffs in error.
O'Brien J. Atkinson, for defendants in error.
Plaintiffs in error were sued in trover for cutting and removing certain timber from off the lands of Daniel B. Harrington. That they were mere naked trespassers was not seriously questioned. They insisted, however, that the plaintiffs below were bound to show a clear and undisputed title to the lands trespassed on in order to recover. It is sufficient to say that Harrington was in possession under claim and color of title and this as against a trespasser was sufficient. The validity of the conveyances to him are hardly open to question in the present case, and we shall, therefore, express no opinion thereon. Error is also alleged because the court permitted a witness to use a map of the lands, and point out thereon the place where the trespass was committed. Objection was also made to the court permitting certain questions to be asked which assumed the existence of facts not proved.
The order in which proofs are introduced cannot ordinarily be subject to review on error, and it cannot always be considered as erroneous for a court to permit questions to be asked, although facts not proven are therein assumed. Such matters in general may well be left to the discretion which a trial judge must exercise, and a court of review would only interfere when there clearly had been an abuse of such discretion to the prejudice of the party. No such claim could be made in this case. It was not necessary that a map correct in every respect, should have been produced to enable a witness to point out thereon the location of the trespass. It could only be used in connection with the testimony of the witness for the purpose of enabling the jury to understand clearly the facts testified to. So, a person testifying to the lines and boundaries of certain lands may do so from the knowledge he possesses,...
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