Nordberg v. Todd

• Decision Date: 01 June 1931
• Docket Number: No. 70.,70.
• Parties: NORDBERG et al. v. TODD.
• Court: Michigan Supreme Court

254 Mich. 440

236 N.W. 826

NORDBERG et al.

v.TODD.

No. 70.

Supreme Court of Michigan.

June 1, 1931.

Appeal from Circuit Court, Kent County, in Chancery; Major L. Dunham, Judge.

Suit by Alfred Nordberg and another against Jennie Todd, wherein defendant filed a cross-bill. Decree for plaintiffs, and defendant appeals.

Modified and affirmed.

Argued before the Entire Bench. Linsey, Shivel & Phelps and John H. Vander Wal, all of Grand Rapids, for appellant.

Knappen, Uhl, Bryant & Snow, of Grand Rapids, for appellees.

NORTH, J.

This bill of complaint was filed for the purpose of securing construction of a deed establishing a line between the properties of these respective parties and obtaining injunctive relief. Defendant presented a cross-bill seeking affirmative relief, including reformation of her deed to plaintiffs. On September 8, 1924, the defendant executed to plaintiffs a warranty deed of a triangular piece of property east of Grand Rapids and bordering Cascade road on the north, which deed contained the following description: ‘Beginning on the east line of and 589.3 feet south of northeast corner of southwest quarter of section five (5), said township of Cascade, thence south along the east line of premises owned by first party 1250.7 feet to Cascade road, so-called; thence northwesterly along said Cascade road 548.2 feet; thence northeasterly in a direct line 922.4 feet to place of beginning, being in all 5.4 acres, more or less, and all on section five (5), township of Cascade, Kent county, Michigan, subject, however, to all roadway rights of said Cascade road, so-called.’

About three months prior to her deed to plaintiffs defendant had released a 50-foot right of way north of the center line of Cascade road. Prior to this the north half of this highway was only 33 feet in width; but this and a like addition on the south side made Cascade road 100 feet in width. At the time of her conveyance to plaintiffs, defendant's deed for this highway widening was not recorded, but all parties concerned had full knowledge thereof. In contemplation of preparing the deed, plaintiffs employed Williams and Works to survey and stake out the parcel about to be purchased. The following from the opinion filed by the trial judge is sustained by the record:

‘These surveyors set an iron stake at each of the three corners of the property, the stake at the southwest corner being 548.2 feet northwesterly from the quarter line measuring along the edge of the old or 33-foot right of way. The surveyors at that time also set out a row of some 6 wooden stakes extending from the iron stake in the southwest corner, northeasterly to the place of beginning, on the north and south quarter line. The defendant owned the balance of the land to the west of the premises conveyed to the plaintiffs, and lived thereon.

‘At the time the deed was prepared by the defendant's attorney the parties had before them the sketch prepared by Williams and Works which showed measurements as follows, the northerly point of the triangle not being in any dispute:

‘Distance from the northerly point of beginning to the center line of Cascade road 1250.7 ft. Distance from northerly point of beginning to edge of 33-foot roadway 1202.7 ft. Distance from quarter line to southwest corner of property 548.2 ft.; measured along the edge of the 33-foot road. Distance from southwest corner of property starting on the edge of the 33-foot road, northeasterly to point of beginning 866.6 ft. This last line, extended south to the center of the road, is shown on the sketch as 922.4 feet. The sketch also showed the acreage included within the triangle, having as its base the 548.2 measurement on the edge of the 33-foot road, as 5.4 acres.

‘The plaintiffs paid for the property $1080, being 5.4 acres at $200 per acre.

‘The plaintiff took possession and occupied the land up to the surveyors' row of stakes on the west, which stakes remained standing for several months. He plowed the land to within 3 or 4 feet of this westerly line, and planted fruit trees thereon. The evidence shows that Mrs. Todd knew that the plaintiff was claiming under the deed the land to the surveyors' stakes, and that she acquiesced and consented thereto until about three years after the deed was given.

‘On or about July 1, 1929, the defendant caused to be erected the present fence on the westerly portion of plaintiffs' premises, which fence, at the southern end thereof, was 529.86 feet northwest of the north and south quarter line measuring along the edge of the 33-foot highway, (18.34 feet southeasterly of iron stake).’

It thus appears that the southerly end of the fence erected by defendant is a little more than 18 feet southeasterly of the location of the iron stake which plaintiffs claim marked the southwest corner of their parcel. The controversy presented involves a wedge-shaped piece of land lying between the two disputed westerly boundary lines of plaintiffs' property, which lines converge to a common point at the north, but diverge so at the southerly line of the property they are 18.34 feet apart. These conflicting claims arise from the fact plaintiffs assert that their southerly line coincides with the northerly line of the 33-foot highway, but defendant...