Joyce v. Williams

• Decision Date: 08 January 1873
• Citation: 26 Mich. 332
• Court: Michigan Supreme Court
• Parties: Thomas Joyce v. Morris L. Williams

26 Mich. 332

Thomas Joyce v. Morris L. Williams

Supreme Court of Michigan

January 8, 1873

Heard October 29, 1872

Appeal in chancery from Wayne circuit.

Complainant recovered his costs in both courts, and record remitted to the court, for the execution of this decree.

Theodore Romeyn, for complainant.

George H. Prentis, for defendant.

OPINION

Christiancy Ch. J.

This was a bill in the Wayne circuit court in chancery to establish the boundary between the easterly and westerly halves of lot number two, in block thirty, on that part of the "Cass farm," so called, lying between Fort street and Michigan avenue, in the city of Detroit.

The north half of this block consists of six lots, all fronting northwardly on Howard street, beginning at the east side with number one (at the corner of Second and Howard streets), and numbering westwardly, two, three, four, five, and six (the latter being at the corner of Third and Howard streets). By the recorded plat, these lots were each fifty feet front on Howard street, and extending, of the same width, one hundred and thirty feet back, southwardly, to an alley.

Complainant owns the east half, and defendant the west half, of this lot two. Both parties derive title from General Lewis Cass, the proprietor of the plat--complainant by a conveyance directly from him, the defendant through a deed from General Cass to John Martin, and thence, by several mesne conveyances bringing the title down to himself.

Complainant first took a contract for the purchase of the whole lot from General Cass, in the winter of 1848 and 1849, or 1849 and 1850, but Martin, who was the brother-in-law of complainant, was equally interested in the purchase. Both soon after went into possession, and built a double kitchen, divided in the middle by a partition, intending the same for two kitchens, one for each, for the dwelling house which each intended to build in front, Martin himself building both, and complainant paying him for one half. Before erecting the kitchens, Martin procured a surveyor, with the assent of the complainant, to locate and divide the lot into eastern and western halves, so that one could have one half and the other the other, but, as yet, it was not determined which should have either half. Complainant was not present at this survey, but assented to the division on subsequently seeing the stakes. Martin, in building the kitchens (both of which had the same continuous roof), placed the partition (made of studding, and lathed and plastered on both sides) directly on, and along, this dividing line between the two halves of the lot, the center of the sill of the partition corresponding with the line of division, as thus ascertained. Soon after the kitchens were up, Martin also built, for himself and complainant, a division fence between the two halves of the lot, extending from the kitchen back to the rear of the lot on the alley, and, not long after this, took down a piece of the fence next the alley and built his barn there, the easterly end of which corresponded with the fence, and thus formed part of the division line.

When the two kitchens were completed--which seems to have been some time in August, or forepart of September, 1850--Martin offered complainant his choice of either the east or west half of the lot and the kitchen (or half of the double kitchen) thereon; complainant chose the east half and eastern kitchen, and Martin took the west half and west kitchen; and the original contract for the whole lot was either surrendered and a new one taken by each from Gen. Cass for his half of the lot, or some such arrangement was made, so that the conveyances were afterwards made separately to each, of his respective portion of the lot, Martin taking a deed for the west, and complainant for the east half.

Complainant moved into his kitchen on the east half, in August, 1850. In June 1851, he commenced building his house in front of his kitchen, and fronting on Howard street; but before doing so wishing to be sure of the line, he procured Mr. Mullett, the same surveyor who had originally surveyed the plat for Gen. Cass, to come and survey the lot, which he did with the knowledge and consent of Martin, putting down a stake in front of the dividing or center line, which corresponded with the line as previously ascertained and fixed by Martin, or the surveyor first employed by him, and on which he had already placed the partition between the kitchens; and no alteration of the division line was required to be made in consequence of this survey. It is not entirely clear that Mullet, at this time, fixed the line of division at the rear of the lot; but this is quite immaterial, as the division fence was then standing on the line previously established between them, and no alteration was claimed or required by either. Complainant then proceeded to erect the front, or main building of his house, placing the west part of it along the division line, so that the base board or water table on the outside should come just up to the line as it had thus been ascertained by the surveyor, and adopted by him and Martin; and Martin, soon after, either the latter part of the same year, or the forepart of the next, commenced building his house in front of his kitchen, and immediately adjoining the house of complainant, the roof between the two, where they adjoined, being made water tight. This house was soon after finished, and Martin continued to reside in it with his family some five or six years; and complainant has continued to reside in his, down to this time, occupying his portion of the lot according to the division so made between them. And neither Martin nor any of the three subsequent owners of the west half (prior to defendant) ever disputed the correctness of the division line. The defendant, after his purchase in April, 1869, was the first to question it. He, soon after his purchase, procured two surveys to be made of the lot, one by Mr. Robinson, the city surveyor, and one by Mr. Munro, both, doubtless, very competent surveyors. These surveys, which agree mainly with each other, locate the entire lot (two) about six inches farther east than previously located by complainant and Martin, or the surveyors employed by them as already explained, placing the west...