Lamoreaux v. Creveling

• Citation: 103 Mich. 501,61 N.W. 783
• Court: Supreme Court of Michigan
• Decision Date: 04 January 1895
• Parties: LAMOREAUX v. CREVELING.

61 N.W. 783

103 Mich. 501

LAMOREAUX v. CREVELING.

Supreme Court of Michigan

January 4, 1895

Error to circuit court, Kent county; Allen C. Adsit, Judge.

Action of ejectment by Andrew J. Lamoreaux against Lyman D. Swan. Pending the action, defendant died, and Nicholas Creveling his administrator, was substituted in his stead. Judgment was rendered in favor of defendant, and plaintiff brings error. Affirmed.

Frank G. Holmes, for appellant.

Frank A. Rodgers (M. L. Dunham, of counsel), for appellee.

MONTGOMERY J.

Plaintiff and the deceased, Lyman D. Swan, were owners of adjacent parcels of farm land. Plaintiff sued in ejectment for a small, triangular piece, which he claims to have shown to be a part of the government subdivision owned by him. Judgment was entered for the defendant, and, the proceedings having been revived in the name of the administrator, the case comes before us on exceptions to the findings of fact and law.

It appears that a fence has been maintained, which has inclosed the land in dispute with that of Swan, for many years, and the circuit judge held that defendant had acquired title by adverse possession. The plaintiff contends that the testimony did not warrant the court in making this finding of fact. The testimony offered by the defendant was that of himself and his son George Swan. The latter testified that he had known the farm for 28 years, and that the fence was used as a line fence; that wood had been cut on the strip in question by defendant, at different times, for about 24 or 25 years; and that the witness could not remember when the fence was built, but that he could remember that it had been built for about 28 years. The defendant himself testified that he went upon this land in 1863, that he commenced building the fence not a great while after he bought the place, and that he had used the land to cut wood on; and testified to other acts indicating ownership, and tending to show occupancy up to the line of the fence. We cannot say that this testimony had no tendency to show adverse and hostile possession of the land in question. Sanscrainte v. Torongo, 87 Mich. 69, 49 N.W. 497; Greene v Anglemire, 77 Mich. 168, 43 N.W. 772.

But plaintiff insists that defendant's occupancy should not be held to be adverse for the reason that the plaintiff's testimony tended to show that defendant admitted that the line was in dispute, and promised to join with plaintiff in a survey to have the true line established. The plaintiff offered testimony tending to show...