DocketNumber: Docket No. 91
Citation Numbers: 180 Mich. 66
Judges: Bird, Brooke, Kuhn, McAlvay, Ostrander, Steere, Stone
Filed Date: 3/28/1914
Status: Precedential
Modified Date: 9/8/2022
This is a suit in ejectment brought by plaintiff against defendant to recover a strip of land six inches wide on the south side of her premises
The facts in the case are that the parties to this suit own and occupy adjoining lots in the city of Muskegon located upon block 32, of Newell’s Enlarged and Corrected Plat of the city of Muskegon. This plat is not laid out according to the points of the compass, but Pine street runs through it northwesterly and southeasterly in front of these premises, and Walton street crosses Pine street on the south side of block 32, running northeasterly and southwesterly, intersecting Pine street at its southeasterly corner, and runs along the south side of said block. Plaintiff owns lot 11, and the defendant owns lots 12 and 13 next south of her lot; each of these lots being 22 feet in width, and all fronting on Pine street and extending westerly to an alley in the block. Lot 13 is in the southeast corner of the block, and its south line extends westerly along the north line of Walton street.
Defendant, in 1906, erected a two-story concrete building on lots 12 and 13 intended to cover their full width, extending from the west line of Pine street westerly about two-thirds their depth. He also built a two-story brick building west of the concrete building on these lots facing Walton street extending from the westerly end of the concrete building to the east line of the alley in the rear of these lots and in depth intended to extend from the north line of Walton street the full width of said lots 12 and 13. Plaintiff, intending to erect a building on her lot 11 facing Pine street the full width of said lot, had begun excavating and had gone down below the street line on the side
Defendant was informed of the fact that his buildings encroached upon plaintiff’s land, and he promised to remove the footings. The testimony shows there was a dispute as to whether he made this promise before or after suit was begun. The footings were not removed until some time after. During the course of the construction of the plaintiff’s building, it was found that the porch floor extended about 4 inches and the porch roof extended about 8 inches over the plain
The errors assigned relate entirely to the instructions of the court to the jury. Relative to the removal of the footings of the north wall of defendant’s concrete building, the court instructed the jury that plaintiff could not recover provided the jury found that defendant’s promise to remove these footings was made before the bringing of suit. The jury was further instructed that they had nothing whatever to do with the footings that were there at the time of the trial. Both of these instructions are claimed by plaintiff to have been erroneous.
The undisputed evidence in this case shows that the footings under the north wall of defendant’s concrete building extended several inches beyond the north side of the foundation wall onto plaintiff’s lot. Defendant so testifies, claiming that before suit was commenced he promised to remove them. No promise is claimed to have been made relative to other claimed encroachments.
There is no dispute in this case relative to the ownership of these adjoining properties. The only question involved is whether the defendant at the time of the commencement of suit against him was in the occupation of a narrow strip belonging to plaintiff’s lot next north of the north line of his lot, No. 12. That he made a promise at some time to have these projecting footings of the basement wall of his concrete building removed is not in dispute, although the time when it was made is disputed. The evidence is clear
The court, in giving the first of these instructions above stated, evidently considered that on account of the promise made by him defendant was not occupying adversely to plaintiff. In this the court was in error for the reason the plaintiff claimed that not only were the footings of this wall unlawfully upon her property, but also that the entire basement wall of the concrete building encroached upon her premises at least two inches, and that the basement wall and its footings of the brick building encroached a considerable distance further; also, for the further reason that defendant’s occupancy of any portion of her premises was unlawful even though not adverse. Rose v. Linderman, 147 Mich. 372 (110 N. W. 939, 11 Am. & Eng. Ann. Cas. 198).
If defendant was in possession at the time suit wa,s brought, plaintiff can recover even if he afterwards abandoned it. Archibald v. Railroad Co., 1 App. Div. (N. Y.) 251 (37 N. Y. Supp. 336) ; Comfort v. Ballingal, 134 Mo. 281 (35 S. W. 609).
The plaintiff was entitled to have all of the evidence in the case as to defendant's occupation of plaintiff’s premises submitted to the jury, which included a consideration of whether or not the walls of these buildings and the footings under the walls along the entire line of her lot were north of that line. The court was in error in charging the jury in the manner stated upon both propositions.
Further error is claimed, in that the court charged the jury that the true foundation line between the two lots is the line on the north line of the general foundation under the brick building that was located by Mr. Gunn. In this matter the court was in error. We do not find in the record that Mr. Gunn testified at all relative to the wall of the brick building. It
As the case must go back for another trial, it is only necessary to say, relative to the testimony of the surveyors which was taken from the consideration of the jury, that there was material testimony given by the city surveyor as to the establishment of the section line from which the survey of these premises started, which, if followed up, by the testimony of his assistants, should be considered by the jury. The county surveyor, Abbott, gave substantive testimony to the fact that the width of the concrete building of defendant north and south measured by him was 44 feet and 2 inches. It was error, in any event, to take that portion of his testimony from the consideration of the jury.
For the errors pointed out, the judgment of the circuit court is reversed, and a new trial granted.