Sanscrainte v. Torongo

• Decision Date: 28 July 1891
• Court: Michigan Supreme Court
• Parties: SANSCRAINTE v. TORONGO.

49 N.W. 497

87 Mich. 69

SANSCRAINTE v. TORONGO.

Supreme Court of Michigan

July 28, 1891

Error to circuit court, Wayne county; GEORGE S. HOSMER, Judge.

Action of ejectment by Antoinette T. Sanscrainte against Cecelia Torongo. Verdict and judgment for plaintiff, and defendant brings error. Affirmed.

Geo. H. Prentis, for appellant.

Hoyt Post, for appellee.

LONG J.

This is an action of ejectment brought in the circuit court for the county of Wayne, where, upon a trial before a jury, the plaintiff had verdict and judgment. Defendant brings error. The declaration is in the usual form under the statute claiming the fee of the land. The land in the township of Ecorse, Wayne county, is about 8 feet wide on the southerly end, and 14 feet on the northerly end, and 588 feet in length. The controversy grows out of the question as to the true location of the boundary line between the parties to this record. The declaration describes the land in controversy as situate in the township of Ecorse, county of Wayne, state of Michigan, known and described as follows "A strip of land fronting on the St. Cosme line road (so called,) 8 feet in width on said road, and extending in a northerly direction from the north line of said road 588 feet, and beng 14 feet in width on the north or rear end of said strip of land, off from the west side of a certain piece and parcel of land described as follows, to-wit: Situate on the south end of private land claim No. 114, beginning at a post standing in the south line of said claim, (called the 'St. Cosme Line,') the corner of said line, of lands formerly owned by James Cicott and Francis Cicott; thence running north, 70 degrees 30 minutes west, on said line, 8.64 chains, to a post, the corner of lands belonging to the estate of T. J. Campau, deceased; thence north, 29 degrees east, along a fence, the present east boundary of said estate, 11 chains, to the center of the north branch of the River Ecorse; thence south, 52 degrees 25 minutes east, down the center of said river, 6.60 chains; thence north, 29 degrees east, 8.40 chains, to a post in the north edge of the marsh bordering said river; thence south, 61 degrees east, 2.51 chains, to the west line of land formerly owned by Francis Cicott; thence south, 29 degrees west, along said west line, 15 chains, to the place of beginning; containing 9.69 acres of land,-as per the report made by the commissioners on partition appointed by the judge of probate for the county of Wayne in the matter of the estate of Simon B. Rosseau, deceased, filed with said judge of probate on May 12, 1876, and by him approved and confirmed on May 13, 1876, recorded on page 97 of Liber 104; which said premises the plaintiff claims in fee." The declaration alleges that on or about the 16th day of August, 1888, the defendant entered upon said premises, and ejected the plaintiff therefrom, and unlawfully withholds from the plaintiff the possession thereof. The plea was the general issue. The plaintiff, to maintain the issue on her part, on the trial offered in evidence a deed from Charles Larabelle and wife to Simon B. Rosseau. This is a deed of warranty, and bears date October 12, 1830, and describes the premises as follows: "A certain tract or portion of land on the south-west side of Mill creek, on the back part of his farm, and being part of the farm which the said Charles purchased of James Cicott, and comprehending the whole of the land of said farm lying south-west of said Mill creek, and containing 8 or 10 acres, be the same more or less." To the introduction of this deed in evidence objection was made by defendant's counsel, for the reason that it did not describe the land in controversy in this suit. It was admitted in evidence by the court, upon the statement of counsel for plaintiff, that it would be shown that it did cover the land in controversy. To this ruling defendant excepted. Plaintiff then offered in evidence a report of the commissioners on partition in the estate of Simon B. Rosseau. This report was also objected to by defendant's counsel, upon the ground that it did not describe the lands in controversy. This report was received in evidence upon the statement of counsel that it covered the lands in controversy. It appeared from this report that the commissioners partitioned the land described in the proceeding among the children of Simon B. Rosseau, by which partition it is claimed the plaintiff, who is a daughter of Simon B. Rosseau, had partitioned to her the lands described in the declaration in this cause. The land described in this report is as follows: "All the certain portion of land situate on the south end of private land claim No. 114, beginning at a post standing in the south line of said claim, (called the 'St. Cosme Line,') the corner of said land, of land formerly owned by James Cicott and Francis Cicott; thence running north, 70 degrees 30 minutes west, on said line, 8.64 chains, to a post, the corner of lands belonging to the estate of T. J. Campau, deceased; thence north, 29 degrees east, along a fence, the present east boundary of said estate, 11 chains, to the center of the north branch of the River Ecorse; thence south, 52 degrees 25 minutes east, down the center of said river, 6.60 chains; thence north, 29 degrees east, 8.40 chains, to a post in the north edge of the marsh bordering said river; thence south, 61 degrees east, 2.51 chains, to the west line of land formerly owned by Francis Cicott; thence south, 29 degrees west, along said west line, 15 chains, to the place of beginning; containing 9.69 acres of land."

The plaintiff claims that the property described in the declaration is a part of the property set off to her by the report of said commissioners. The estate of Simon B. Rosseau was administered and closed. The plaintiff's testimony tended to show that her father, Simon B. Rosseau, took possession of the lands described in the Larabelle deed some time prior to the year 1849; that he worked the lands, and had sole and uninterrupted control and possession of them, from that time up to the year 1875, at the time of his death; that his possession was open and notorious during all those years; and that at his death, after the partition proceedings were had, the plaintiff went into immediate possession of her portion of the Rosseau lands, and that she has continued in possession thereof ever since. It appears, further, that in the year 1849 Joseph Campau was the owner of the lands adjoining the lands in controversy upon the west; that in the year 1849 one Hubert Champagne leased these lands from Joseph Campau; and that, before his going upon the Campau premises, a rail-fence had been erected on what was called the line between the Rosseau lands and the lands of Joseph Campau. The claim of the plaintiff is that this rail-fence occupied the true boundary line between her father's lands and the Campau lands, and that from that time forward the fence continued upon that line up to the year 1888, at which time the defendant in this suit and her husband removed it, and erected a board fence, starting at a point 8 feet east, at the south end and at the St. Cosme line road, and running north to a point 14 feet east of the rail-fence at the north end, and inclosing with the defendant's lands the lands in controversy in this suit; that this was done without plaintiff's knowledge or permission. That a better view of the premises and their position may be had, the following map is inserted:

RPT.CC.1891004410.00010

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The defendant's claim upon the trial was that the plaintiff's proofs failed to show ownership in plaintiff's father to the lands in controversy, and that the only claim that plaintiff asserted was by occupancy; that the deed from Larabelle and the probate proceedings did not show title in the plaintiff; and that the court was in error in holding that 15 years' possession, without any title and claim of right, would make title in the plaintiff. The defendant also sought to show upon the trial that the board fence erected in 1888 was on the true line between the Rosseau and Campau lands. For that purpose he put in evidence a deed made by Augustus T. Chapaton and wife to the defendant, dated August 29, 1885. This deed described lands as follows: "That portion of lot No. 11 of the subdivision of private claim No. 114 described as follows to-wit: 'Beginning at a point in the westerly line of said lot where said westerly line intersects the center line of the "St. Cosme Line Road," (so called;) thence easterly, along the center line of said St. Cosme line road, to the easterly line of said lot No. 11; thence northerly, along the easterly line of said lot No. 11, to the center line of the "Pepper's Road," (so called;) thence westerly, along the center line of said Pepper's road, to the westerly line of said lot and claim; thence southerly, along the said westerly line, to the place of beginning,-it being the intention to convey all that portion of said lot lying between said St. Cosme line road and the Pepper's road, containing 5.53 acres, be the same more or less."' The defendant called as a witness Mr. E. J. Goodell, a surveyor, who gave testimony tending to show that private claim No. 114 was divided into 11 lots several years ago; that he knew the lands claimed by defendant in her deed, and about a year before the trial of the cause; had surveyed it out; and that the board fence stood upon the easterly line of defendant's land. This surveyor claims to have found the original stake at the southwest corner of private claim 114, and to have taken that as a starting point in making his surveys; and that, starting at that point, the board fence was put upon the true boundary line between plaintiff's and defen...