Miller v. Beck

• Decision Date: 05 January 1888
• Citation: 68 Mich. 76,35 N.W. 899
• Court: Michigan Supreme Court
• Parties: MILLER v. BECK et al.

35 N.W. 899

68 Mich. 76

MILLER v. BECK et al.

Supreme Court of Michigan

January 5, 1888

Error to circuit court, Ingham county; G.T. GRIDLEY, Judge.

The plaintiff, John P. Miller, brought this action against Rebecca Beck and others, in ejectment, to recover possession of a strip of land in the city of Lansing. The cause was tried to a jury, and verdict and judgment for defendants. Plaintiff brings error.

H.B Carpenter, for appellant.

Frank L. Dodge, for appellees.

MORSE J.

This is an action of ejectment to recover possession of a strip of land in the city of Lansing, a few inches wide, upon which rests the outer and rear wall of a brick store owned by the defendant Rebecca Beck. Samuel Beck purchased in 1869 a parcel of land off the north end of lot 6, block 100, in the city of Lansing, 20 feet north and south by 66 feet east and west. This is now the property of Rebecca, his widow. When Samuel bought the land there was a wooden building upon it which was burned in August, 1870 or 1871. The year it was burned, Samuel Beck erected a three-story brick building, 20 feet wide by 60 feet long. The six feet remaining at the rear was excavated, and used as an area to give light to the cellar. A wall was built around this area. The brick building so erected by Samuel Beck was burned in 1885 and in the spring of that year a two-story brick building was erected on the site of the former store, but it was built six feet longer, thus occupying the space before used for an area. Plaintiff owns a parcel of land next south and adjoining the Beck lot, and also owns 22 feet further east and also a lot 20X22 feet east of the Beck store. He claims that the rear or east wall of the defendant's store was placed in part, by mistake, upon his land to the extent of from three and one-half to five inches. On the ninth day of September, 1886, he brought this suit.

The defendants claim that the rear or east wall of the brick store does not encroach upon the land of plaintiff, but that, if it does, the few inches of land in dispute have been occupied adversely by Samuel Beck and his grantee, the defendant Rebecca Beck, for a sufficient length of time to bar the plaintiff's rights therein. The testimony shows that this rear wall was built exactly in the same place occupied by the old wall of the area. Louis Beck, son of Samuel and Rebecca, testified that he thought the first brick store and the area wall was built in the fall of 1870, but was not sure but it might have been in 1871. No other testimony appears as to the time it was built. It seems to be undisputed that from the time the area wall was built the land occupied by it was held and claimed by the Becks, and occupied by them without interruption, until the commencement of this suit.

The jury found a verdict for the defendants. The only errors assigned are directed against the charge of the court. It is submitted that the court erred in permitting the jury to find title in the defendants by adverse user and possession--First, because the statute of limitations relied upon was not pleaded; and, second, because it was not certain from the testimony of Louis Beck when the occupation began. If it was in 1871, the 15 years of the statute had not expired when this suit was brought. Neither of these objections are tenable. A plea of the general issue is sufficient, in an action of ejectment, to admit, without notice, the defense of title...