author: McAlvay, J.

text:
    MEYERS v. MEYERS.
    1. Divorce — Judgment — Alimony — Custody of Children — Contracts.
    Where the parties to a divorce proceeding agreed upon the division of property and the custody of the children, and a provision of the stipulation permitting the husband to visit his children at reasonable times was omitted from the final decree which complainant entered without notice, the decree cannot be considered as a part of the contract, after the breach of the omitted provision of the contract by the wife, and the defendant is not chargeable with contempt for wilful disregard of the decree, in refusing to make payments after the wife’s removal from the State.
    2. Same — Modification of Decree.
    The court may modify a decree of divorce awarding the custody of the children to the wife, if changed conditions arising after the decree justify its modification.
    3. Same — Infants—Custody—Removal from State.
    After both parties remarried and the wife removed from the State taking the children with her and rendering it impossible for the father to visit them in pursuance of their stipulation, the court is justified in relieving him of further payments towards their support.

      Appeal from Kent; Perkins, J.
    Submitted February-11, 1910.
    (Docket No. 135.)
    Decided June 6, 1910.
    Bill by Myrtle B. Meyers against Lambert G. Meyers for a divorce: On petition of defendant after the entry of a decree of divorce to be relieved from contributing to the support of minor children. From an order granting the prayer of petitioner, complainant appeals.
    Affirmed.

      Charles E. Ward, for complainant.

      John J. Jackson (William B. Brown, of counsel), for defendant.

       As to liability of father for support of children after divorce, as affected by decree awarding custody to mother, see note to Spencer v. Spencer (Minn.), 2 L. R. A. (N. S.) 851.

   McAlvay, J.

This is an appeal from an order modifying a decree which had been granted in this case to complainant in the circuit court for Kent county September 29, 1903, giving her a divorce from defendant on the ground of extreme cruelty, and the custody of two sons, at that time aged 9 and 7 years, until they, respectively, attained the age of 14 years, and, among other things, requiring defendant to pay her “for the support, maintenance, and education of said children the sum of $15 every two weeks.” On September 21, 1905, complainant married a man named Charles Smith, and they moved at once to Ashland, Wis., taking these two children with them, and at the time this matter was heard they lived in North Dakota. After taking the children from the State, complainant never answered his letters nor asked for any further payments except through her attorney, a short time before bringing the contempt proceedings. Defendant paid all amounts as above decreed up to and including September 14, 1905. On October 7, 1908,- an order was made to show cause why an attachment should not issue against him, and why he should not be punished for contempt for refusal and neglect to comply with the said decree after September 14, 1905. Defendant at this time resided and worked in Detroit at his trade as a wood carver. He also had remarried.

He filed affidavits in answer to such application, and also made a motion to dismiss the proceedings. Pending these proceedings defendant filed a petition to modify the decree and to relieve him from further obligation thereunder, on the ground, principally, that, contrary to the agreement made between the parties, he has been deprived of the privilege of seeing and visiting his children, to which complainant made answer by affidavits. Adjournments were had from time to time until December 14,1908, when both matters came on to be heard. By stipulation in open court it was agreed that they be heard together. Later, after due consideration, the court, in the contempt proceedings, found that defendant had not wilfully or intentionally violated the terms of the decree, and was not in contempt, and ordered and adjudged that he was not in contempt of court, and ordered the petition dismissed and defendant discharged. Prom this order and determination of the court no appeal has been taken.

In the matter of the petition to modify the decree, the court on the same day — February 18, 1909 — ordered and decreed—

“ That the final decree made and entered in the above-entitled cause * * * be, and the same is hereby, amended, changed, and modified by striking out and eliminating from said decree each and every provision therein requiring the payment of money in any sum or at any time by said defendant, Lambert G. Meyers, from and after the date hereof.”

Said order and decree further stating:

“The above and foregoing modification of said final decree is made without prejudice to the right of complainant to make application to this court for the maintenance and support of said children or either of them named in said final decree at any time when she shall return said children to the county of Kent aforesaid, and allow and restore to said defendant the right and privilege to visit said children.”

From this decree complainant has appealed.

It is first urged that the decree is retroactive and relieves defendant from payment of all unpaid amounts which had accrued under this decree before this modification. We do not so construe the decree appealed from, but hold that, by the use of the words “from and after the date hereof,” it in terms operates only to affect payments to be made after it was granted, and was not intended to, and did not iñ any way, affect the rights of the complainant as to amounts theretofore due and unpaid. Such is the construction contended for on the part of defendant and accepted by him. The proposition need not be further considered.

The record shows that, after the divorce proceedings were instituted, the parties settled and adjusted their property interests by stipulation, between their solicitors, in writing, wherein, among other things, it was agreed that complainant would have the care and custody of the minor children, in consideration of which defendant promised to pay as temporary alimony for the support of complainant and the children the sum of $7 per week; and that if the court granted her a decree for divorce, with custody of said children, a decree might be entered requiring him to pay her for the support, education, maintenance, and clothing of said children the sum of $15 every two weeks; that he was to have notice of the final decree, and that he should have the right to see and visit his children at reasonable times. ' He was not given notice to settle a decree and the right to see and visit his children was not embodied in the decree, and he was deprived of the privilege of seeing or visiting them by their removal from the State.

It is claimed that, by the weight of the authorities, the contract (stipulation) and the decree must be treated together by the court, and it must not vacate such a decree, but will treat it as a contract binding upon the parties. We take it that this stipulation, if it is to be considered as a contract, must be taken as a whole and so accepted by the parties. Complainant saw fit to ignore the agreement when the case was ready for a decree, and omitted therefrom an important stipulation. The provision that gives a parent the right to visit his children cannot be regarded by the court as one of no consequence. On the. contrary, it should be considered of great importance. Complainant, however, insists that this decree amounted to a contract, in so far as it provided for payment to her as stipulated, regardless of the omission from such contract of the provision stated in favor of defendant. The position is not tenable, and the case is not within the authorities relied upon. The disregard of the defendant’s stipulation destroys the mutuality of the agreement, and he is now in court insisting that the stipulation was violated. He alleges all these facts, and no denial is made. The stipulation and the decree speak for themselves. He offers to care for and educate his sons, if he may have them in his family, and asks for their care and custody.

The question before the court is whether the modification made by the court should have been granted. Defendant is not seeking to avoid his duty to support his children because his wife has remarried and removed them from the State. He asks for the recognition of a mutual agreement which should have been embodied in the original decree. The decree gave complainant the custody of the children until they became, respectively, 14 years of age. The older boy is now nearly 16, and the younger will become 14 in June this year (1910). The father has not seen them since they left the State. The court, under the statute, has the power to modify this decree, provided new facts arising after the decree justify its modification. Smith v. Smith, 139 Mich. 133 (102 N. W. 631), and cases cited.

In our opinion new facts have arisen in this case which would justify a modification. Defendant did not know when a decree was entered. Nor did he know that the decree did not embody the agreement as made. The only evidence in the record bearing upon his first knowledge of that fact is that a certified copy of the decree was served upon him in Detroit on July 15, 1908, when a demand was made for amounts due and unpaid thereunder, as a basis for instituting proceedings in contempt. Within 90 days thereafter he filed this petition for modification. The present age of the boys is also a fact to be considered. They have for five years been beyond the limits of Michigan in a distant State.

In a case where the facts and the proceedings taken were practically the same as in the case at bar, this court said:

“ If any change of circumstances or new facts arising since the decree were necessary to be shown, * * * they may be found in the prolonged absence of the daughter from the State of Michigan, and the inability to visit her guaranteed to defendant by the contract, with no assurance that the daughter will ever return to this State.” Myers v. Myers, 143 Mich., at page 34 (106 N. W. 403).

In the case at bar both parties have remarried. Defendant now has a home where he is willing to provide and care for his sons. He is industrious and temperate; a citizen whose employers vouch for his character. The record shows that he is a proper person to have their custody. He has not appealed from the decree as modified which did not award custody to him. The court, however, would, in our opinion, have been justified in granting such custody. Complainant, although in the State when the petition was signed in the contempt proceedings, was not produced as a witness, nor was her deposition taken in either of the cases. Complainant’s absolute right, under the decree, to the custody of the older son has expired. As to the younger son, it will expire within 30 days. They may elect to come to their father. If they do not he should not be required to make further payment for their support, under the circumstances of this case. The older boy has for some time been of an age to contribute, at least partly, to his own support. We are satisfied that the judge who heard the case arrived at an equitable conclusion.

The decree is affirmed, without costs.

Ostrander, Brooke, Blair, and Stone, JJ., concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    BOWEN v. CLEMENS.
    1. Landlord and Tenant — Lease — Rent — Destruction of Property.
    Destruction by fire of a building leased for saloon purposes does not relieve the tenant from payment of the stipulated rent, where the lot leased was larger than the building and the lessee could have rebuilt the store, without committing trespass, although the landlord collected insurance on the property.

    2. Deeds — Conveyances—Covenants—Quiet Enjoyment.
    Accidental injuries to premises occupied under a lease do not constitute a breach of the covenant for quiet enjoyment.
    Error to Cheboygan; Shepherd, J.
    Submitted February 25, 1910.
    (Docket No. 16.)
    Decided June 6, 1910.
    Assumpsit by David Bowen against Jerome T. Clemens for rent. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      Charles B. Henry, for appellant.

      Frost & Sprague, for appellee.

       As to rights and liabilities of tenant on destruction of leased building, see note to Porter v. Tull (Wash.), 22 L. R. A. 613.

   Moore, J.

On the 9th day of October, 1905, one Carl Theis rented lot 5 in block 3 of the village of Tower, and all buildings thereon, for the term of six years from and after May 1, 1904, to be occupied for saloon purposes, at the stated price of $25 per month for the property. The lease contained the usual covenant for quiet enjoyment, and a covenant on the part of the lessee to keep the premises in the usual repair; damage by the elements excepted. After the making of this lease, the defendant entered into ’possession of the premises and occupied the same according to the terms of the lease until the 15th of January, 1908, when the building was destroyed by fire without the fault of the defendant. The lessor, Theis, assigned his right of action to plaintiff, and he brings suit to recover the stipulated rent for the period since the destruction of the building by fire.

The defendant contends that, where the property leased is destroyed by fire and rendered worthless for the purpose for which it was intended, this relieves the lessee from the payment of rent. There is a line of cases which hold that where the property leased is a portion of a building, and it is destroyed or damaged so that the lessee may not, without trespassing upon other’s rights, enter to repair or rebuild, these circumstances excuse the lessee from the payment of rent. The test seems to be whether the lessee has the right to go on and rebuild, and whether • the loss covers the land as well as the building. In the present case, there was a lot larger than the building, and it was occupied by one William Downs, a tenant of the defendant. The case in all essential particulars is ruled by our own two cases of Chesebrough v. Pingree, 72 Mich. 438 (40 N. W. 747, 1 L. R. A. 529), and Lieberthal v. Montgomery, 121 Mich. 369 (80 N. W. 115). We discover nothing to distinguish the present case from the case last cited. The suggestion that there is something in the contract relation which changes the rule is based apparently upon the covenant for quiet enjoyment. But accidental injuries to the premises from natural causes, which interfere with the lessee’s enjoyment of the premises, are not considered a breach of the lessor’s covenant for quiet enjoyment. 18 Am. & Eng. Enc. Law (2d Ed.), p. 628. The fact that the building was damaged and that the owner recovered the insurance does not release the lessee from the payment of the rent. 18 Am. & Eng. Enc. Law (2d Ed.), p. 308, and cases cited.

We think no error was committed in the case.

Judgment is affirmed.

Ostrander, Hooker, Blair, and Stone, JJ., concurred.


text:
    SHERRILL v. GRAND TRUNK RAILWAY COMPANY OF CANADA.
    1. Process — Abatement of Action — Foreign Corporations.
    Service of summons on the superintendent, on the ticket agent, and on the conductor of a railroad company organized under the laws of Canada, gives the court jurisdiction if the corporation is engaged in the transaction of local business in Michigan.

    2. Same — Motion to Quash Service — Plea in Abatement.
    It is not correct practice to try the question whether a foreign corporation is engaged in local business in Michigan, subjecting it to service of process under 3 Comp. Laws, § 10442, upon a motion to quash the service based on affidavits; the proper method being to raise an issue of fact by plea in abatement.

      Certiorari to Wayne; Murphy, J.
    Submitted February 15, 1910.
    ( Docket No. 177.)
    Decided June 6, 1910.
    Case by John Sherrill against the Grand Trunk Railway Company of Canada and others for personal injuries. An order denying a motion to quash a service of summons is reviewed by the above named defendant on writ of certiorari.
    Affirmed.

      Harrison Geer and W. K. Williams, for appellant.

      Charles Engelhard, for appellee.

       As to who may be served with process in suit against foreign corporation, see note to Foster v. Charles Betcher Lumber Co. (S. D.), 23 L. R. A. 490.

   McAlvay, J.

Plaintiff, residing in Detroit, in this State, brought suit in the Wayne circuit court in an action of trespass on the case against the Grand Trunk Railway Company of Canada, the Grand Trunk Western Railway, and the Detroit & Canada Grand Trunk Junction Railroad Company by summons. The last two named defendants have appeared, and an issue as to them has been joined. It is admitted that this appellant, the other defendant, is a foreign corporation organized under the laws of Canada, and that the accident which caused the injury to plaintiff, to recover damages for which this suit was brought, occurred in Canada. The declaration alleges that plaintiff purchased a ticket in Detroit for Liskard, Ontario, and took passage by way of Port Huron on defendant’s train; that a collision occurred between the stations of Huntsville and Novar, in Ontario, by the train of the Grand Trunk Railway Company of Canada, upon which he was being carried as a passenger, running into the rear of one of its freight trains. Service of the summons in this case made upon the putative agent of this defendant in Detroit upon motion of its attorneys was set aside and dismissed as to it. An alias summons issued, and was returned not served. A pluries summons was duly issued, and returned served upon Frank W. Egan, superintendent of defendant company, Frank B. Bradley, its ticket agent at Detroit, and also Thomas McAuliff, a conductor of said defendant running from London, Ontario, to Detroit, Mich. Defendant appeared specially, and again made a motion to quash and set aside the service of the pluries summons, and dismiss the suit as to said defendant, upon the ground that it was a foreign corporation, that the cause of action did not accrue in this State, but in Ontario, Canada, and that no lawful service of the writ had been had upon this defendant, and filed affidavits supporting such motion. Counter affidavits were filed, and the motion was heard, and the court, upon the ground that there appeared to be a disputed question of fact presented as to whether this defendant was engaged in business within this State upon which an issue should be joined, denied the motion, without prejudice to the defendant, with leave to it to put in a proper plea within 15 days. Defendant later moved to set aside this order, and, upon the denial of this motion, the case was removed to this court for review by writ of certiorari.

Appellant says that the question presented is whether the court below could, by means of the service of the summons, acquire jurisdiction of this defendant for a cause of action which accrued to plaintiff in Ontario, on account of an injury caused as charged, claiming that there were in force in this State on the date of the accident no statutes that enabled plaintiff to secure jurisdiction of this defendant by writ of summons. Reliance is placed by defendant upon the decisions of this court in construing certain statutes relative to the commencement of suits against corporations, viz.: Section 10468, 3 Comp. Laws, holding that it applied to domestic corporations. Grand Trunk R. Co. v. Wayne Circuit Judge, 106 Mich. 248 (64 N. W. 17). Section 10022, relative to service on railroad corporations, holding this section to be supplementary to section 10468, and applies to domestic corporations. Grand Trunk R. Co. v. Wayne Circuit Judge, supra. Section 10442, relative to commencement of suits against, and service of process on, foreign corporations. Showen v. J. L. Owens Co., 158 Mich. 321 (122 N. W. 640).

Particular attention is called to the case last cited, from which the following quotation is made:

“We are of the opinion, therefore, that section 10442, 8 Comp. Laws, should be limited in its application to foreign corporations transacting interstate commerce business in this State.”

Defendant gives the following construction to this excerpt :

In other words, section 10442 applies to service of process upon all foreign corporations transacting local business in Michigan, and does not apply to foreign corporations transacting an interstate commerce business ” — and its conclusion is that this section does not authorize plaintiff to bring this suit.

If it should appear as a matter of fact, that this defendant was engaged in transacting “local business in the State ” under the decision in Showen v. J. L. Owens Co., supra, plaintiff has by summons given the court jurisdiction over it in this case. The disputed question of fact which the court below recognized and refused to determine on affidavits is the question which will determine this case.

In that case the question was raised by a plea in abatement, and the fact was found by the court that the defendant was engaged in business in Kent county, Mich. Our conclusion, therefore, is that the court below was not in error in denying defendant’s motion. Courts should refuse to try disputed questions of facts upon affidavits. The proper practice is to frame an issue by a proper plea.

The judgment of the circuit court is affirmed.

Hooker, Moore, Brooke, and Stone, JJ., concurred.


text:
    WHEALY v. VILLAGE OF IMLAY CITY.
    Municipal Corporations — Negligence—Highways and Streets.
    Although the contractor for the construction of walks for a municipality builds a cement sidewalk following the agreement of the corporation to buy the brick in the previously existing walk, if the owners will construct the new walk at their own expense, the village is not liable for his negligence in leaving gravel in the street, where the owners paid for the walk, in the absence of evidence that he was requested to build it by the municipal officers or received pay from the village for his work.

    Error to Lapeer; Smith, J.
    Submitted February 18, 1910.
    (Docket No. 63.)
    Decided June 6, 1910.
    Case by Minnie E. Whealy against the village of Imlay City for personal injuries. A judgment for plaintiff is reviewed by defendant on writ of error.
    Reversed, and no new trial ordered.

      B. F. Heed and Flmer Skumar, for appellant.

      Herbert W. Smith and Geer, Williams & Halpin, for appellee.

       As to which of two or more persons is the master of another who is conceded to be the servant of one of them, see note to Hardy v. Shedden Co. (C. C. A. 6th C.), 37 L. R. A. 33.

   McAlvay, J.

Plaintiff brought this suit against defendant to recover for injuries which she claimed she had suffered by being thrown from her buggy within the limits of the municipality, on account of a pile of gravel negligently left upon one of its streets by a person claimed to be an employe of the village, while engaged in building a cement sidewalk under its authority. Defendant insisted that the walk built at the time was being constructed by the lot owners and not by the village; that a petition by these owners asking the village to construct this walk had been denied and the owners had contracted with a sidewalk builder, who at the time of the injury complained of was in the execution of his contract with them, and was not in the employment of the village in any respect with reference to such sidewalk, nor was it in any way responsible or liable for any acts of negligence claimed to have been committed by him.

The material facts necessary to be stated are as follows: Three owners of adjoining lots on the north side of Fourth street in said village, where a brick walk had already been laid, presented a petition to the common council requesting it to direct the street commissioner to build a cement walk in front of their premises, to raise the grade and furnish the filling, for which they individually agreed to pay, provided the village would buy the brick then in the walk at |14 per thousand. On May 7, 1907, at a meeting of the council, the committee on streets and sidewalks, to which this petition had been referred, reported to the council, recommending that the brick in the old walk be purchased by the village at the price named, provided the property owners replaced the old walk with a cement walk at their own expense. This recommendation of the committee was thereupon adopted. This is the only action the council ever took upon this petition. The village authorities never took any steps under its sidewalk ordinance (an exhibit in the record), to require these owners to construct this sidewalk, nor gave any notice that in case it was not constructed within the time specified in the notice it would be constructed by its street commissioner, and the expense assessed against the abutting property, as, by the terms of said ordinance, should have been done had such walk been ordered by the village. Mr. Foster, a cement sidewalk builder and contractor during the year 1907, and for several years prior, had upon his bid been awarded the contract to build cement sidewalks for the village when ordered by the authorities. He was the contractor who built the walk in question, and upon this fact plaintiff relies in fixing liability upon defendant village for claimed injuries. The gravel or earth pile placed in the street about five o’clock in the afternoon of the day on which the accident occurred, over which plaintiff’s buggy was driven later in the evening, was put there by Mr. Foster in the execution of this work. It is claimed that the record shows that he was acting for defendant. This claim is based upon the facts already given, and the fact that Mr. Foster was the only person who laid cement walk in the village that year, and the claim that he had no contractual relations with the abutting owners.

The case, under the charge of the court, was submitted to the jury, and a verdict was rendered for plaintiff. Defendant by writ of error has brought the case here for review and seeks a reversal of the judgment entered upon the verdict. We will consider the error assigned, upon the refusal of the court to direct a verdict for defendant, on the ground that there was no evidence that on the date of the accident the defendant village was engaged in the construction of this particular walk, or that the contractor Foster was then acting as the agent or servant of the village. That Foster’s bid to perform services for the village to construct cement walks for it had been accepted, and his bond given to faithfully perform such services, is not denied. Nor is it disputed but that the village was authorized by statute to require the construction of sidewalks by abutting owners, under certain conditions. The liability of the city in this case, defendant contends, depends upon whether, in constructing this walk, Foster was acting as agent of the village. The record shows that the parties desired the village to construct this walk. This was refused, but it agreed to and did take the brick, provided the owners would build this walk at their own expense. This was acquiesced in by the owners. Mr. Foster, who at the time was the only cement contractor in the village, testified:

“Mr. Hazelton came to me and said they were ready any time and Mr. Forsythe came and spoke to me and said to go ahead and put the walk down, and Mr. Hazelton said the sooner the better; he was anxious to get it in.”

He also testified that no officer of the village ever directed him to build the walk; that as soon as completed this walk was measured and paid for by the owners; that he was paid by them for constructing the whole of it; that in all other cases where he built walks the village paid one-half upon his bill; that for this walk he never presented any bill to the village.

Whether the action of the village officials in regard to building other walks referred to in the record was within the authority of the statute, and its ordinance, is not material to this case. We find that no attempt was made by them to undertake this work, that they refused to do so, as their records show. We find no evidence in this case of any connection of the village with this walk, except granting permission to the owners to build it on the terms already stated. The evidence clearly shows that this sidewalk was built under a contract with the owners, and will warrant no other construction, and defendant village was not liable for any negligence of the contractor. Thompson v. West Bay City, 137 Mich. 94 (100 N. W. 280). The reasoning of the case cited is particularly applicable to the case at bar, for the reason that the powers granted by the statute to the municipality, relative to the sidewalks are similar to those in the charter construed. The court should have instructed a verdict for defendant as requested. This disposes of the case.

For the error pointed out, the judgment is reversed, and no new trial ordered.

Hooker, Moore, Brooke, and Stone, JJ., concurred.


author: Stone, J. Moore, J.

text:
    SHELDON v. MICHIGAN CENTRAL RAILROAD COMPANY.
    1. Adverse Possession — Tacking Successive Possession.
    Adjacent owners who occupy successively a portion of a right of way, not fenced in as a part of their property or by the railroad company which has fenced in the remaining portion owned by it, do not have such continuous possession, without including the disputed portion in the several deeds in their chain of title or without agreeing by parol to transfer the possession, as to constitute a'continuous adverse possession.
    2. Same.
    Separate successive disseisins cannot be tacked so as to constitute one and a single continuous possession, unless there is privity of estate between the successive parties in possession, each coming in as the transferee of the possessory rights of his predecessor.
    3. Same — Conveyances.
    Where the grantee relies upon his deed to show privity of estate, he cannot have the benefit of the grantor’s possession of lands which are not conveyed by the deed.
    4. Same — Presumptions—Evidence.
    Evidence of adverse possession must be strictly construed, and every presumption is in favor of the true owner.
    5. Same — Railroads—Right oe Way — Abandonment.
    Fencing in slightly over half of its right of way is not evidence of an abandonment of the remaining portion by the railroad company.
    6. Boundaries — Line Fence — Agreement.
    The doctrine of established boundaries does not apply unless the line is in dispute and the parties in settlement build a fence or determine the boundary pursuant to agreement.
    7. Estoppel — Boundaries—Acquiescence.
    A railroad company which is not guilty of any fraud or other inequitable conduct is not estopped from questioning the title of an adjacent owner who claims a portion of its right of way by adverse possession, without color of title, under the description in his deed.
    8. Same — Pleading.
    Estoppels which form the foundation of relief asked and tend to defeat a legal title must be alleged.

      9. Same — Real Property — Improvements.
    Where the complainant made valuable improvements by erecting buildings on property which he supposed was his, and no value is proved, he should be permitted to remove them within a reasonable time.
    Appeal from Cheboygan; Shepherd, J.
    Submitted January 20, 1910.
    (Docket No. 105.)
    Decided June 6, 1910.
    Bill by Frank B. Sheldon against the Michigan Central Railroad Company and the Jackson, Lansing & Saginaw Railroad Company to restrain a trespass upon and to quiet title to certain land. Defendants filed an answer in the nature of a cross-bill to quiet title to said land. From a decree for complainant, defendants appeal.
    Reversed, and decree entered for defendants.

      Benjamin & Quay, for complainant.

      Frost & Sprague, for defendants.
   Stone, J.

It appears from the pleadings and proofs in this case that the complainant is the owner of lot 16 in, block 2 in R. Patterson’s first addition to the village (now city) of Cheboygan, county of Cheboygan, excepting, however, all that part of the above-described piece or parcel of land heretofore conveyed by Stanislaus Legault and wife to the Jackson, Lansing & Saginaw Railroad Company by deed dated the 18th day of September, 1880. The defendant Jackson, Lansing & Saginaw Railroad Company, a corporation, is the. owner of a railroad right of way in a side, or spur, track running from the main line to what is known as the “McArthur Dock.” The defendant, the Michigan Central Railroad Company, is lessee of the railroad right of way of the Jackson, Lansing & Saginaw Railroad Company. The Jackson, Lansing & Saginaw Railroad Company’s title to the right of way across complainant’s land is evidenced by two deeds, one a quitclaim from Robert Patterson and wife, dated September 15, 1880, and recorded April 1, 1885, and the other a warranty deed from Stanislaus Legault and wife, dated September 18, 1880, and recorded April 1, 1885. These deeds grant to the defendant Jackson, Lansing Sc Saginaw Railroad Company 100 feet in width, 50 feet on each side of the center line of the route of said spur track as the same had been surveyed, laid out, and located upon and across said lot and other lands mentioned in said deeds. The last-named railroad company, about the year 1881, built a fence inclosing a part of this right of way along the entire length of this spur track. Instead, however, of building its fence 50 feet from the center of the railroad track, as surveyed and laid out, it built fences on each side of the spur track, some 25 or 30 feet from the center.

It is the claim of the complainant that the fence on the easterly side of defendants’ right of way formed the westerly boundary of his lot, and other lots in the immediate neighborhood. Tracing the title from Stanislaus Legault and wife down to complainant through mesne conveyances, we have the following: A warranty deed from Stanislaus Legault and wife to Gilbert Joslin, dated June 29, 1881, duly recorded, of lot 16 in block 2 in R. Patterson’s first addition to the village of Cheboygan according to the plat thereof, except, however, that part of said above-described pieces or parcels of land heretofore conveyed by grantors to the Jackson, Lansing Sc Saginaw Railroad Company by deed dated the 18th day of September, 1880. A warranty deed from Gilbert Joslin and wife to Polycarp L. Lapres dated October 9, 1884, and duly recorded, containing the same description, together with precisely the same exception as the previous deed. A warranty deed from Polycarp L. Lapres and wife to Samuel C. Bell, dated February 24, 1894, and duly recorded March 12, 1894, containing precisely the same description and exception as the prior deeds. The next and last conveyance is a warranty deed from Samuel C. Bell and wife to Frank R. Sheldon, the complainant herein, dated May 16, 1904, recorded May 17, 1904, containing the same description and exception as in the prior deeds.

It seems that Gilbert Joslin was the first purchaser to take possession of this property, which he did in 1881; and it appears that the fence above referred to had then been erected. He built a house thereon and remained in possession for a time. One Wedge, a tenant for Polycarp L. Lapres, seems to have built the barn, which was entirely on the disputed strip. Bell, while in possession, built an addition to the house and added a wagon shed to the barn, called by him a “lean-to.” The barn, shed, and a part of the kitchen are on the disputed strip of land.

It appears that Bell went into possession in 1889 under a contract to purchase from Lapres, although, as we have seen, he did not obtain his deed until February, 1894. He lived in the house continuously for 11 years from 1889, after which the property appears to have been leased for some 2 years, when it was purchased upon contract by complainant, who went into possession in 1902, and has lived continuously on the lot up to the time of the hearing in this case, although he did not obtain his deed until 1904. Complainant paid $700 for the property.

On or about the 8th of November, 1906, the defendant Michigan Central Railroad Company, by its servants, started to tear down the fence on the westerly side of complainant’s alleged land, and commenced to dig post holes on what complainant claims was his own premises easterly from the location of said fence, and 50 feet from the center of the track. Upon request of one of complainant’s solicitors, the said defendant railroad desisted from moving the fence, and immediately thereafter complainant filed his bill to quiet his title.

By his bill he claims that the premises were inclosed by a fence, and that he was, at the time of filing the bill, in actual possession of said described premises and that part thereof inclosed by the fence, and that he and his grantors had been in actual, open, notorious, visible, hostile, and continuous possession thereof for 15 years and upwards. He represents by his bill that the claim of the defendants is a cloud upon the title of complainant, and tends to depreciate the value of the property. He prays that the court may decree that he has a clear, free, and perfect title to the aforesaid premises, including the land up to said fence as heretofore stated, and the defendants have no title or interest in any part thereof; and he prays for a perpetual injunction restraining defendants from setting up or asserting any claim or interest in said premises as then occupied by complainant, including all the land up to said fence.

The defendants, jointly answering, admit that complainant is in possession of said premises, and that part thereof is inclosed by said fence; but they deny that said complainant and his grantors have been in actual, open, notorious, visible, hostile, and continuous possession thereof for 15 years and upwards. They further admit that they claim to own, and have the right to the possession of, the part of the premises then occupied by complainant, and inclosed by said fence, and claim to own the property conveyed to them by the aforesaid conveyance of September, 1880. They deny that complainant has any title to that portion of said premises described in the said deeds, and they assert that complainant has no title to said disputed premises whatever; that is, so much of the fenced portion as is within the lines of defendants’ right of way. Defendants also, by way of cross-bill, set up by metes and bounds á description of their said right of way over the premises; assert that they claim to own the same, and that the claims and assertions of the said complainant constitute a cloud upon their title; and they pray that by decree their title may be quieted and the right of possession be adjudged to the defendants.

By a decree bearing date 28th of July, 1909, the circuit judge found that complainant had established by testimony the fact that he and his grantors had had the continuous, hostile, adverse, notorious, and visible possession of the disputed strip of land up to the fence for more than 15 years before bringing suit, and ordered complainant’s title to be quieted.

In the printed brief of complainant appears the following statement:

"The important question in this case is whether or not the complainant has the right to tack his adverse possession of the strip of land in dispute to that of his predecessors and grantors, Samuel C. Bell and Loretta May Bell, husband and wife. It is not disputed that the adverse possession of said Samuel C. Bell did not continue for the full statutory period of 15 years; but, if the possession of the complainant can be tacked to that of his grantors, this would constitute the full time of 15 years, provided, however, that the exception in the deed from Samuel C. Bell and wife to complainant of this right of way did not break the continuity of the possession and did not stop the running of the statute of limitations.”

As we understand the position of defendants, they do not dispute the fact that the actual and continuous possession of the disputed strip of land, as held by the complainant and his grantor, Samuel C. Beil, exceeds the term of 15 years, but they contend:

(1) That the acceptance by complainant of the deed, excepting from said lot 16 in block 2 the entire right of way as conveyed to the defendant Jackson, Lansing & Saginaw Railroad Company by Stanislaus Legault and wife, in September, 1880, amounts to a declaration of acquiescence in defendant’s title, thereby admitting that his own holding was not adverse.
(2) That as the deed to the complainant did not contain a description of the disputed piece, he has no right to tack to his own possession the possession of his grantor Bell,, because there was no privity of estate between the parties as to the said described strip.

It is important to bear in mind that in every conveyance of the several grantors of the complainant, after the deed of right of way was given to the defendant Jackson, Lansing & Saginaw Railroad Company, there was the following exception:

“Except, however, all that part of said above-described piece or parcel of land heretofore conveyed by Stanislaus Legault and wife to the Jackson, Lansing & Saginaw Railroad Company by deed dated the 18th day of September, 1880.”

It clearly appears from this record that there is no evidence of any parol permission, or authorization of any kind, given by the grantor Bell to the complainant, to take the place of the said Bell in the wrongful possession which Bell held of the strip of land in controversy in this case. Nor is there any evidence in the record of any parol permission, or authorization of any of the grantors in the deeds hereinbefore referred to, to their grantees, to take the places of their grantors in the wrongful possession of said described strip of land. The record also shows that there was no parol agreement, understanding, permission, or authorization respecting the premises which complainant’s grantor had held, or would deliver; and this applies, not only to the strip of land in dispute, but also to that conveyed in the deed. The record shows that complainant took possession. There is not a syllable of any verbal authorization of delivery whatever. He testified as follows:

“I took possession of the premises after I bought from Mr. Bell.
"Q. When?
“A. Why, just as soon as I bought on contract; just as soon as I got the contract I moved in and took possession of it. I moved in, I think, in 1902, and got the deed of it in 1904.
“Q. When you bought the premises, did you inquire how far your lot went ?
“A. No, sir.”

The complainant contends that, under the authority of the case of Illinois Steel Co. v. Budzisz, 106 Wis. 499 (81 N. W. 1027, 82 N. W. 534, 48 L. R. A. 830, 80 Am. St. Rep. 54), he has the right to begin the running of the statute of limitations from the time his grantor. Bell, took possession in 1889, and to tack his possession upon that of Bell’s. We doubt the applicability of the case cited to the state of facts existing here.

It is not necessary for us to decide whether any oral agreement to surrender a wrongful possession to the successor, so that where the continuous possession exists 15 years, would defeat an action to recover possession by the owner. Not a scintilla of evidence is shown in this record of any parol transfer of Bell’s possessory rights to the strip of land in litigation, and what is true as between Bell and the complainant is equally true as to all prior grantors. There was no transfer of any mere possessory right to the strip of land in litigation here, if any existed. No permission or authorization by Bell to Sheldon to take his place in possession of said litigated strip of land appears. The exception in the deed negatives such transfer, permission, or authorization, and the record contains no other testimony of any such transfer, permission, or authorization. Indeed, it may be said that the testimony establishes the very opposite. Bell could not transfer possessory rights of the strip without intending to do so; he could not intend to do so without knowing that he had such possessory rights; and he testified that he did not know whether he occupied- any of the railroad company’s land, and never thought anything about it. And so complainant could not have acquired Mr. Bell’s possessory rights in the strip by parol, or other agreement, bargain, or understanding without having some knowledge of the subject; and his testimony shows that when he bought he had no knowledge that the railroad company owned this strip of land, and consequently he could have had no knowledge of Bell’s possessory rights therein.

As we have already said, in buying, complainant did not even inquire as to the extent of the lot he was buying. It being conceded that complainant has not had possession of the disputed strip of land long enough to acquire title thereto by his adverse possession, we are brought to the question whether or not he has the right to tack to his own possession the possession of his- grantor, Bell. It seems to be undoubted that separate successive disseisins cannot be tacked so as to constitute one and a single continuous possession, unless there is privity of estate between the successive parties in possession, each coming in as the transferee of the possessory rights of his predecessor.

It seems to us to be very clear that the complainant cannot rely upon his deed to show privity of estate, because the disputed premises are not mentioned in the deed. Where the grantee relies upon the deed to show privity of estate, he cannot have the benefit of the grantor’s possession of lands which are not mentioned in the deed. 1 Am. & Eng. Enc. Law (2d Ed.), p. 845, and cases cited in note 4. The general rule is that possession cannot be tacked to make out title by prescription where the deed under which the last occupant claims title does not include the land in dispute. It must clearly appear in the deed that the particular premises were embraced in the deed, or transfer, in whatever form it may have been made. 1 Cyc. p. 100?, and note.

It was held in the case of Humes v. Bernstein, 72 Ala. 546, that when a vendor conveys by deed lands particularly designated, or described by metes and bounds, the purchaser acquires title, or color of title, only to the lands within the designated numbers and boundaries; and if he claims adverse possession under color of title of the adjoining lands outside of those numbers and boundaries because his vendor was in possession thereof at the time his conveyance was executed, he must show that the possession thereof was delivered to him as a part of the lands sold and conveyed; otherwise he cannot tack his vendor’s prior possession to his own subsequent possession for the purpose of making out a title under the statute of limitations.

In Erck v. Church, 87 Tenn. 575 (11 S. W. 794, 4 L. R. A. 641), where it appeared that the purchaser, by mistake, inclosed land not conveyed in his deed, and held the land thus inclosed as his own for less than the statutory period, and then conveyed to B. by a deed containing the description identical with his own deed, and B. went into possession of the whole and held it as his own long enough to make out the period of limitation by tacking his possession to that of A., it was held that the possession of the land inclosed by mistake could not be tacked.

In Witt v. Railway Co., 38 Minn. 122 (35 N. W. 862), where A. entered and occupied the land, which consisted of several lots, and the land was subsequently sold for taxes, and still later the owner of the tax title conveyed his interest in some of the lots to A., who subsequently conveyed to B. by a description which recited, “intending to convey only those lots which had been quitclaimed to said parties of the first part, or either of them, by a conveyance of tax titles,” it was held that the possession of B. must be referred to the deed, and that as to those lots not included in the tax deed there was not privity between him and A., he merely succeeding to the possession of the lots; but there was no unity of possession under the original hostile entry by A. To the same effect are the following authorities: Ablard v. Fitzgerald, 87 Wis. 516 (58 N. W. 745); Allis v. Field, 89 Wis. 327 (62 N. W. 85); Sheppard v. Wilmott, 79 Wis. 15, 20 (47 N. W. 1054); Pioneer Wood Pulp Co. v. Chandos, 78 Wis. 526 (47 N. W. 661); Ryan v. Schwartz, 94 Wis. 403 (69 N. W. 178); Graeven v. Dieves, 68 Wis. 317 (31 N. W. 914); Fairfield v. Barrette, 73 Wis. 463, 468 (41 N. W. 624).

The rule is that evidence of adverse possession must be strictly construed, and every presumption is in favor of the true owner, and that the plaintiff entered under his deed, and that his possession is only coextensive with his title, and restricted by the premises described in his deed. Cooper v. Ord, 60 Mo. 420; Smith v. Reich, 80 Hun (N. Y.), 287 (30 N. Y. Supp. 167). Adverse possession must be continuous, and, when one person seeks to unite his possession to the possession of the prior occupants, the several titles must be connected by purchase or descent. Without some privity between the successive occupants, the several possessions cannot be tacked together so as to make continuity of possession. In that case the court said:

“ If Mary Cordts had been shown to have occupied the land in dispute, Mrs. Reich could not avail herself of that occupation to make up the 20 years necessary to establish an adverse possession, for the reason that the description in her deed excluded the land, and, consequently, she had not acquired Mrs. Cordts’ title. A different case would have been presented had the description in that deed included the land in question.”

In Ward v. Bartholomew, 6 Pick. (Mass.) 410, it was held that disseisins do not aid one another in creating a title by possession. Thus, where the disseisor conveys part of the land, and the grantee, under color of the deed, enters upon the whole, the possession of the first disseisor will not avail the grantee in regard to the part not embraced in the deed. Fell & Throp Co. v. Railroad Co. (N. J.), 20 Atl. 63.

In Maher v. Brown and Ely v. Same (heard together), 183 Ill. 575 (56 N. E. 181), E., being the owner of lot 15, his homestead, inclosed therewith a strip of 14 feet, and afterwards conveyed to his wife lot 15, and continued to live there with her. It was held that, he thereafter having no actual possession of the strip, any subsequent possession of his could not be joined to his prior possession to give title by adverse possession to the strip, and, there being no privity of estate between him and her, any possession of hers could not be tacked to his prior possession, to give title to either by adverse possession.

Messer v. Hibernia Savings & Loan Society, 149 Cal. 122 (84 Pac. 835). This case holds that a claimant of land by adverse possession cannot tack to the time of his possession that of a previous holder, where the land in dispute is not included in the boundaries in the deed from such holder, and cites Vicksburg, etc., R. Co. v. Le Rosen, 52 La. Ann. 192 (26 South. 854).

Many more authorities might be cited in support of this doctrine. It has been supposed that the case of Davock v. Nealon, 58 N. J. Law, 21 (32 Atl. 675), is in conflict with the doctrine hereinbefore set forth; but an examination of the case will show that it is easily distinguished. That is a case where one holding a legal paper title to a piece of land, in inclosing it, includes within the inclosure a piece of adjoining land, and enters into the possession of the entire inclosed tract, and then transfers his paper title to another, who goes into possession of the entire inclosed tract; and it is held in such a case that the grantee may tack his possession.

There is no claim here that this complainant, holding a legal paper title to his lot, inclosed within his inclosure a piece of adjoining land and entered into possession of it. The inclosure or fence in the case we are considering was built by the defendant, the Jackson, Lansing & Saginaw Railroad Company. This defendant had a right to inclose so much of its land as it saw fit. The fact that it only embraced 50 or 60 feet within its inclosure, when it might have embraced 100 feet, is no evidence of an abandonment of that portion not fenced.

“The boundary line must have been, first, a disputed boundary; secondly, the fence must have been built pursuant to a mutual agreement between the adjoining proprietors to settle such disputed boundary. Unless these elements appear, the doctrine of boundaries cannot apply.”

When this fence was built, there was no dispute as to the boundary line between the railroad company’s right of way and the adjoining proprietor. Neither has there been any dispute of such true boundary line at any time. Had this fence been built approximately near the line, there would have been some plausibility in the position that it was intended as a line fence; but a difference of 30 or 40 feet shows that the defendants never could have intended it as a line fence. We do not think it can be said that there has been acquiescence in a boundary line here. Nor can it be said that the fence in question has been located by the parties as the line boundary. As we have already said, the defendant Jackson, Lansing & Saginaw Railroad Company never intended this fence for a line. It inclosed a part of its premises. Hence Case v. Trapp, 49 Mich. 59 (12 N. W. 908), and Bird v. Stark, 66 Mich. 654 (33 N. W. 754), are not applicable. The fence was neither located by the authority of the village, nor treated by the parties as a division fence within the holdings of Wilmarth v. Woodcock, 66 Mich. 331 (33 N. W. 400), and Beaubien v. Kellogg, 69 Mich. 333 (37 N. W. 691), cited by complainant. The rule applicable to boundary lines is well defined in the following cases: Cronin v. Gore, 38 Mich. 381; De Long v. Baldwin, 111 Mich. 469 (69 N. W. 831); Olin v. Henderson, 120 Mich. 150 (79 N. W. 178); Turner v. Angus, 145 Mich. 681 (108 N. W. 1100).

But it is further contended by complainant that the doctrine of equitable estoppel should be applied to this case. There is no evidence in this record that the defendants, or either of them, have been guilty of fraud, or have held out any inducement to the complainant, or his grantors, to enter into possession of their property. Even if silence and acquiescence can sometimes estop a party from asserting a claim to real estate, there is no evidence in this case that warrants the application of the rule. The defendants have occupied the railroad track, the deed to complainant asserted their boundary, and the mere fact that they have not fenced in all their holdings does not give complainant a superior equity, in view of the fact that he was bound to look at the description in his deed. Had the deeds to complainant and his grantors contained the disputed strip of land, a different question might arise. One certainly cannot he estopped from asserting a title against a party who has always known of and always recognized it, as complainant did in accepting his deed. First Nat. Bank of Kalamazoo v. McAllister, 46 Mich. 397 (9 N. W. 446). Here the evidence of title was of record. Shaw v. Cham bers, 48 Mich. 355 (12 N. W. 486). The defendants have not been guilty of any fraud in language or conduct which would give the complainant a superior equity. This is not a case where the defendants have stood by and knowingly allowed their land to be sold, without disputing the validity of the sale, for the reason that the sale did not embrace their land. The bill bases the claim of the complainant upon an adverse possession. Hence no claim of an equitable estoppel can be asserted. It was held as early as the case of Moran v. Palmer, 13 Mich. 368, that estoppels, where they formed the foundation of the relief asked, and are relied upon to defeat a legal title, cannot be proved unless alleged. And the earlier case of Cicotte v. Gagnier, 2 Mich. 381, is cited in support of the proposition. It will be noted in this case complainant makes no claim of an estoppel. So, in any view of the case, it seems to us that the complainant had the mere naked possession of the land in dispute, without title, or color of title, and the defendants, having the absolute title thereto, might lawfully make peaceable entry thereon and remove the fence, or do any other lawful act. It appears to us that the claim of complainant cannot be maintained; and that he, not having been in adverse possession for the statutory period, must be held to be a mere trespasser upon this disputed strip of land.

The defendants ask for affirmative relief, and that their right and title to the disputed strip be quieted. There is no evidence in this record of the value of the improvements which have been placed upon this disputed strip by the complainant and his grantors. Nor is there any evidence as to how much, if at all, the premises have been enhanced in value by reason of the buildings erected thereon. It seems to us, however, that the complainant and his grantors having been allowed to place these buildings on this disputed strip, probably in the mistaken belief that they owned the same, they should have the right to remove them within a reasonable time. The entire controversy should be settled in this suit. The complainant has not been in possession for six years. Neither can it be said that he has been in possession for less than six years under color of title. We are of the opinion, however, that he should have the right to remove the buildings from the disputed territory within six months, and upon that condition we will grant the relief prayed for by the defendants in their cross-bill.

The complainant’s bill of complaint should be dismissed, and the defendants’ title to the premises should be quieted upon the condition already indicated, and the decree of the lower court should be reversed, with costs of both courts.

Ostrander, Hooker, McAlvay, Brooke, and Blair, JJ., concurred with Stone, J.

Moore, J.

(dissenting). I cannot agree with the conclusion reached by Justice Stone. This case was tried in open court by a judge who lived in the little town where the property in controversy is located. He had the great advantage of hearing and seeing the witnesses. He was of the opinion that the proof established the continuous, adverse, actual, notorious, hostile, and visible possession of complainant and his grantor for more than 15 years before bringing suit. I think this conclusion is abundantly justified by the record.

The railway company got its deeds of right of way in September, 1880. They were not put upon record until April, 1885. In 1881 fences were built inclosing a right of way, but the entire strip deeded was not inclosed. In June, 1881, Gilbert Joslin obtained a deed of lot 16 from the same parties who had deeded to the railroad company, and when he took possession under the deed the fence of the railway company was erected, though its deed was not recorded until four years later. Mr. Joslin, supposing the fence was the boundary line of his lot, took possession up to the fence and built a house upon the lot. In October, 1884, Mr. Joslin deeded to one Lapres, who had as a tenant one Wedge, who repaired the railroad fence by making it a tight board fence so as to keep chickens out of his garden. Mr. Wedge also built a barn on the inclosed premises, but entirely upon the disputed strip of land. Mr. Lapres deeded to Mr. Bell in 1894, though Mr. Bell went into possession under a land contract from Mr. Lapres in 1889. His possession extended over the strip in question. He lived on the premises until 1900. He then leased it for a time, and then sold it on contract to one Bourrie, who assigned his contract to the complainant, Mr. Sheldon, who went into possession in 1902, and obtained his deed in 1904.

It is true all of the deeds excepted the right of way as granted by the deed dated September 18, 1880; but it is equally true that each of the grantees supposed the land deeded to them included all of the land up to the fence which was erected by the railroad company in 1881. Acting upon this supposition, they went into possession of the disputed strip. This possession was indicated since 1884 by making each year on the front portion of the disputed strip a garden, by the building of a barn thereon earlier than 1889, and continuing the use thereof; by the erection and maintenance of the fences on the front and rear of lot 16, all the way to the railroad fence; by the construction and repair of the sidewalk front of lot 16, all the way to the railroad fence; by the erection of a kitchen, part of which was on the disputed strip; and by other acts of possession. When this possession began in 1881, the railroad fence had been built; but the deed to the railroad company of the right of way was not upon record, and was not recorded until nearly four years later. The case of Illinois Steel Co. v. Budzisz, 106 Wis. 499 (81 N. W. 1027, 82 N. W. 534, 48 L. R. A. 830, 80 Am. St. Rep. 54), is in point. Marshall, J., speaking for the court, said that one of the questions to be decided was:

"Did the possession of the second occupant, under the circumstances, continue the possession of his predecessor so as to satisfy the statutory call for an uninterrupted 20 years’ continuous adverse possession ? ”

In answering the question affirmatively the following language was used:

“ Is a paper transfer, evidencing a change of possession by succession, necessary to blend the first possession into the second — tack them to each other, as it is called ? In that, we adhere to what was said by the court, speaking by Mr. Justice Pinney, in Allis v. Field, 89 Wis. 327 (62 N. W. 85), and Ryan v. Schwartz, 94 Wis. 403 (69 N. W. 178), to the effect that, though the possession of several distinct occupants of land, lasting for a continuous period of 20 years, cannot be united to satisfy the limitation statute, successive possessions, each reaching to and uniting with the one that follows it, by privity between the occupants, so as to render the possession of the property continuous from the first entry to the end of the period of 20 years, satisfies the statute, and a parol transfer of possession by one to another, as the former goes out of and the latter goes into possession, satisfies the essential of privity to tack the possessions together. The authorities all agree that privity between successive possessors is all that is necessary to render them continuous, if the possession be in fact actual and adverse. That privity may be created in any way that will prevent a break in the adverse possession and refer the several possessions to the original entry. It may be created by lease, as between landlord and tenant, or by descent by operation of law from ancestor to heir, or by conveyance, either by parol or otherwise, from vendor to vendee. 1 Am. & Eng. Enc. Law (2d Ed.), p. 842, and cases cited in the notes; McNeely v. Langan, 22 Ohio St. 32; Haynes v. Boardman, 119 Mass. 414; Witt v. Railway Co., 38 Minn. 122 (35 N. W. 862); Low v. Schaffer, 24 Or. 239 (33 Pac. 678); Vance v. Wood, 22 Or. 77 (29 Pac. 73); Crispen v. Hannavan, 50 Mo. 536; Weber v. Anderson, 73 Ill. 439; Faloon v. Simshauser, 130 Ill. 649 (22 N. E. 835); Menkens v. Blumenthal, 27 Mo. 198. The above cases, many of which are referred to in the briefs of counsel, are but a few of the authorities that might be cited to support the doctrine stated. It seems to be conceded by appellant’s counsel that many of such authorities are directly contrary to its position, but claim is made that they do not apply by reason of the statute (section 2302) which, as we have indicated, does not apply to the facts of this case. Only a few authorities that can be found are out of line with those cited. They are in harmony with elementary principles as laid down in the text-books. The doctrine is found as clearly stated, perhaps, as anywhere, in 2 Ballard’s Annual of the Law of Real Property, § 25, cited by respondents’counsel; the following language being used:
“ ‘Successive possessions may be tacked together so as to form a continuous and uninterrupted possession for the essential period of time. There must be a privity existing between the parties transferring the possession. Such possession may begin in parol without deed or writing and may be transferred from one occupant to another by parol bargain and sale, accompanied by delivery. AU that the law requires is continuity of possession where it is actual; and this continuity and connection may be effected by any conveyance or understanding which has for its object a transfer of the rights of the possessor or of his possession, when accompanied by an actual delivery of the possession.’
“ The doctrine is stated in 2 Pingrey on Real Property, § 1193, thus:
“ ‘Continuity is an indispensable element of adverse possession; but several possessions may be tacked together where they can be referred to the original entry. No paper evidence of a transfer of possession is necessary when the holding is under claim of the first entryman.’
“The discussion of this subject and citation of authorities might be continued to great length. It will be noted that in. every treatment of the matter, whether by text-writers or in judicial opinions, it is said that all that is necessary, where there is continuity of possession in fact, to connect the several parts of it, where there are such parts, so as to blend them into one term, continuous from first to last, is that there be privity between the persons as one succeeds to the other. Privity in such a case is the same as in any other, and it may be created in the same way. It is merely a succession of relationship in the same right to the same thing. 1 Greenleaf on Evidence, §§ 189, 523; Hart v. Moulton, 104 Wis. 349 (80 N. W. 599, 76 Am. St. Rep. 881). All that is necessary to privity between successive occupants of property, and in regard thereto, is that one receive his possession from the other by act of such other or by operation of law.”

See Matthews v. Railway Co., 110 Mich. 170 (67 N. W. 1111, 64 Am. St. Rep. 336), and the cases cited therein; Schafer v. Hauser, 111 Mich. 622 (70 N. W. 136, 35 L. R. A. 835, 66 Am. St. Rep. 403), and the cases cited therein.

If title by adverse possession was not acquired in this case, I cannot conceive of a case where it should obtain.

I think the decree should be affirmed, with costs.


author: Blair, J.

text:
    GRANT BROS. AUTO CO. v. COTTER.
    1. Interpleader — Bill in Nature op Interpleader.
    A bill of complaint by the bailee of an automobile for storage against his bailor and a stranger claimant, averring the commencement of replevin by the second and trover by the first, for the machine, and praying that they be required to inter-plead, is a strict bill of interpleader, not a bill in the nature of interpleader.
    2. Same — Demurrer—Answer.
    On demurrer to a bill of complaint, the pleading must rest on its own averments distinct from any allegations of the answer of a joint defendant.
    3. Same — Pleading.
    The bill should state distinctly the nature and character of the conflicting claims.
    4. Same — Parties.
    A strict bill of interpleader can only be filed by one in possession or control of the fund or thing in dispute.
    5. Same — Title.
    The bailee could not maintain the suit against his bailor and a stranger, not claiming through a common source.
    6. Same — Equity—Adequate Remedy at Law.
    In such a case, complainant has an adequate remedy at law under 3 Comp. Laws, § 10675, permitting either of the parties in replevin to set ¡up a special property in the goods seized, and requiring judgment to be rendered accordingly.

      Appeal from Wayne; Murfin, J.
    Submitted April 8, 1910.
    (Docket No. 42.)
    Decided June 6, 1910.
    Bill of interpleader by the Grant Bros. Auto Company against John F. Cotter, special administrator of the estate of Septimus Gauthier, deceased, and Grace B. Hughes to determine the ownership of an automobile. From an order sustaining the demurrer of defendant Cotter, complainant appeals.
    Affirmed.

      Devine & Snyder, for complainant.

      John F. Cotter (Henry C. Walters, of counsel), for defendants.
   Blair, J.

The bill of complaint avers that prior to July 16, 1909, complainant received for storage from defendant Grace B. Hughes, and had in its possession on that day, an automobile upon which it had a lien for the sum of $495.58; that on the day last mentioned, the defendant Cotter, claiming to be the owner and entitled to the possession of the automobile, took it upon a writ of replevin and sold it for the sum of $1,850, out of which he paid to complainant the amount of its lien; that on the 19th day of July, 1909, the defendant Hughes commenced an action of trover against complainant to recover the value of the automobile; that complainant has no interest in the automobile, and, before the commencement of said suits, was unable to determine which of said defendants was legally entitled to the possession thereof, and has at all times been willing to turn the same over to such person; that, if required to defend both suits, complainant—

“Would be unnecessarily molested, vexed, harassed, and annoyed by a multiplicity of suits about the matter in which neither it nor its predecessors have or ever have had any interest whatsoever outside of a lien for a small portion of the purchase money which was duly paid by the said John F. Cotter, special administrator, etc., upon the retaking of the aforesaid automobile under his writ of replevin; that it would be put to a great and unnecessary-expense in defending the aforesaid suits at law; that it would become liable to costs, none of which it could recover from any one person; and that by reason thereof it would suffer irreparable loss and injury. Your orator further represents that it does not in any respect collude with either of the aforesaid defendants touching the matter in controversy in this cause, nor is it in any manner indemnified by the defendants, or either of them, nor has it exhibited this, its amended bill of complaint, at the request of the defendants, or either of them, but merely of its own free will and to avoid being molested, vexed, and harassed, touching the matter contained herein.”

The prayer for relief, among other things, asks that defendant Cotter pay the net result of the said sale ($854.42) into the hands of the register of the court to await the final disposition of the case; that complainant be discharged from further liability.

“That the said defendants may severally set forth to which of them the said automobile did of right belong and who was entitled to the possession thereof on the aforesaid 16th day of July, 1909, when the said automobile was taken from the possession of your orator by and under the aforesaid writ of replevin, and to which of them the aforesaid sum of $854.42 does of right belong and who is entitled thereto, and how in particular each of them makes out his claim thereto; that the said defendants may interplead and settle and adjust their demands between themselves, and this court may determine to which of them the said automobile did of right belong on the said 16th day of July, 1909; and that the said sum of money be paid over and surrendered to whomsoever shall, in the judgment of the court, it appear of right to belong.”

The bill also prays for a temporary and permanent injunction against the further prosecution of the suits at law and prays for general relief.

On August 20, 1909, the defendant Grace B. Hughes filed her answer, substantially admitting the averments of the bill of complaint and alleging title to the automobile and the right to its possession by gift causa mortis from Septimus Gauthier, subject to a lien of complainant for a portion of the purchase price:

“ This defendant further shows that she is satisfied that the amount received from the sale of said automobile by the said John F. Cotter, special administrator, etc., to wit, the sum of $1,350, is adequate, and that she is satisfied with, and consents to, the payment to said complainant of the said sum of $495.58 in payment of the balance of the purchase price of and the repairs to said automobile. All of which this defendant is ready to aver, maintain, and prove as this court shall direct, and she prays the benefit of a cross-bill against the defendant John F. Cotter, special administrator, etc., of the estate of Septimus Gauthier, deceased, and asks that this court may order that the said sum of $854.42, which was received by said John F. Cotter, special administrator, etc., on the sale of said automobile, may be paid to the register of this court, subject to the order of this court during the pendency of this suit, and that upon the final hearing of this cause this court may decree that the said sum of $854.42, being the balance of the purchase price of said automobile, may be paid to this defendant, and that the said John F. Cotter, special administrator of the estate of Septimus Gauthier, deceased, may be decreed to have no right, title, or interest therein, or in any part thereof, and that the said John F. Cotter, special administrator, etc., may be decreed to pay all and singular the costs of this suit, as well those taxed in favor of the complainant as those of this defendant in this behalf sustained, and for such other and further relief as in equity she is entitled to.”

On September 9, 1909, the defendant Cotter filed a demurrer, stating the following grounds therefor:

“ (1) That the complainant has not in and by its said bill made or stated such a case as does or ought to entitle it to any such relief as is hereby sought and prayed for against this defendant.
“ (2) That the said complainant has a full, complete, and adequate remedy at law.
“(3) That the interest of said complainant in the subject-matter of the suit is such an interest as to defeat its claim of right to interplead this defendant.
“ (4) That said complainant has possession of no fund or property, and therefore is not entitled to the relief of interpleader as prayed for.
(5) That there is such a privity of contract between the complainant and defendant Grace B. Hughes, namely, that of principal and agent, as to deprive complainant of the neutral character necessary in an interpleader.
“(8) That there is not a sufficient statement of the facts upon which the claim of ownership of defendant Grace B. Hughes is based so as to show any right on the part of said Grace B. Hughes to demand possession of the subject-matter in suit.
‘ ‘ (7) That said court has no jurisdiction over the person of the defendant John F. Cotter, acting in his official capacity as special administrator- of the estate of Septimus Gauthier, deceased.”

The demurrer was sustained by the circuit court, upon the ground that the bill was a bill of strict interpleader, and that such a bill could not be maintained by bailees as to a controversy between their bailor and a stranger. Complainant has appealed to this court.

The bill appears upon its face to be a strict bill of inter-pleader, and not a bill in the nature of interpleader. Stephenson v. Burdett, 56 W. Va. 109 (48 S. E. 846, 10 L. R. A. [N. S.] 748); 11 Enc. Pl. & Prac. p. 479.

As against the demurrant, we cannot consider the allegations of the answer in support of the bill, but must determine the issue from the bill alone.

The bill should state distinctly the nature and character of the conflicting claims. 11 Enc. PL & Prac. p. 464. The present bill does not state the nature of the claim of either claimant.

A bill of strict interpleader can only be filed by one in possession or control of the fund or thing in dispute. 11 Enc. Pl. & Prac. p. 460. The present bill avers that complainant is not in possession of the thing or the fund derived from the sale thereof.

As this bill does not show a claim of title by the claimants through a common source, the bill was not maintainable, for the reasons stated by the circuit judge. 11 Enc. Pl. & Prac. p. 452, and cases cited in note and in the opinion of the circuit judge.

We are also of the opinion that the complainant has an adequate remedy through his defense to the replevin suit and can fully protect his interests and rights therein. 3 Comp. Laws, § 10675; Long v. Barker, 85 Ill. 431.

The decree is affirmed, with costs, but without prejudice to complainant’s defense of the suits referred to.

Moore, McAlvay, Brooke, and Stone, JJ., concurred.


text:
    SELLING v. BERGER.
    Appeal and Error — Saving Questions for Review.
    The Supreme Court will not consider the constitutionality of Circuit Court Rule 14 on error, where the plaintiff took judgment on inquest after a compliance with the rule, and the objection relied on was not made by defendant’s counsel who appeared at the inquest, and was not raised until the filing of a motion for a new trial.
    Error to Wayne; Murfin, J.
    Submitted April 6, 1910.
    (Docket No. 6.)
    Decided June 6, 1910.
    Assumpsit by Bernard B. Selling against Emanuel T. Berger upon a promissory note. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      Eugene A. Walling, for appellant.

      Edwin S. Bartlett, for appellee.
   Blair, J.

A suit was begun in assumpsit by the plaintiff in the above-entitled cause against the defendant by declaration on the common counts, setting forth specifically a promissory note given to the plaintiff by the defendant in 1905, on which declaration was indorsed a rule to plead and service of which was duly had. On June 2, 1909, defendant appeared by his attorney and pleaded the general issue, giving express notice of special defenses. Thereafter, on the following day, June 8, 1909, more than 14 days before the first day of the July term (July 6, 1909), plaintiff served upon defendant’s attorney a note of issue on the general printed form used in the city of Detroit, and interlined in ink on the notice for demand of trial the words “on inquest.” After the words “trial by jury ” in the note of issue were inserted the words, clearly and distinctly, “No, on inquest.” And “on inquest” also appeared in the notice of trial. According to defendant’s testimony, his counsel saw the words “ on inquest,” but read the words “on argument.” Subsequently, and several days after the first day of the July term, plaintiff came before Hon. James O. Murfin, circuit judge, with request that judgment be entered in his favor, of which fact the defendant’s attorney was notified several days in advance. An affidavit of merits signed by the defendant was on the day of the hearing filed and served, and the case adjourned for two days, owing to the absence of the defendant from the city. Finally, on the 17th day of July, A. D. 1909, plaintiff again appeared before Hon. James O. Murfin, circuit judge, and both the defendant and his attorney were in court. Thereupon the following occurred, as shown by the record:

“The Court: I am familiar with the conditions of the pleadings and all that. Do you know of any way whereby I can permit you to make a substantial defense to this action ?
“Mr. Berger: I do not.
“The Court: I don’t either, and, because of that, shall not do it. If I could find any way, I would let you do it.
“Mr. Berger: That is the unfortunate part of it, Mr. Hawley’s ignorance of the inquest proceedings. Not having referred it to me, of course I am precluded—
“The Court: Do you wish to cross-examine Mr. Selling after his computation ?
“Mr. Berger: Absolutely not at all.
“The Court: Yery well. Enter judgment for $2,-981.60.”

A motion for a new trial, based upon the unconstitutionality of Circuit Court Rule 14 was overruled, and defendant has removed the record to this court for review upon writ of error. The assignments of error challenge the constitutionality of said Rule 14.

Although we are entirely satisfied that there is no merit in defendant’s contention that Circuit Court Rule 14 is invalid, as depriving litigants of their constitutional right to defend suits against them, as depriving them of their property without due process of law, we must decline to consider the question upon this record, in view of defendant’s response to the questions of the trial judge. People, for use of Holmes, v. Grant, 117 Mich. 613 (76 N. W. 99).

The judgment is affirmed.

Moore, McAlvay, Brooke, and Stone, JJ., concurred.


text:
    VANCE v. VILLAGE OF PEWAMO.

      1. Dedication — Streets and Highways — Intent.
    The intent to dedicate land to the use of the public, followed by acceptance and user, is essential to a dedication.
    2. Same — Evidence.
    Where owners of land fence off a strip continuing a street, and use it for a lane and for access to their property without making any declaration of a dedication to the public, and the municipality in which it is situated makes no formal acceptance, and no continued user by the public is shown, plowing the strip to a small extent, and performing road work thereon at one time, do not show a sufficient dedication and acceptance to create a public street.
    3. Same.
    The facts and circumstances relied upon to prove the existence of an intent on the part of a dedicator, and acceptance by the public, must be of a positive and unequivocal character.
    4. Same.
    Acceptance and user may give rise to a presumption of intent to dedicate.
    Appeal from Ionia; Davis, J.
    Submitted April 5, 1910.
    (Docket No. 3.)
    Decided June 6, 1910.
    Bill by Chauncey B. Vance and Mary A. Vance against the village of Pewamo to restrain a trespass upon certain land. Defendant filed an answer in the nature of a cross-bill claiming such land by virtue of a dedication for a highway. From a decree for defendant, complainants appeal.
    Reversed, and decree entered for complainants.

      F. G. Miller and Lyon & Moinet, for complainants.

      L. A. Hawley, for defendant.
   McAlvay, J.

The dispute in this case arises between these parties upon the question as to whether a certain strip of land claimed by complainants is a public street. The village of Pewamo, located on sections 12 and 13 in the township of Lyons, Ionia county, was platted by two men named Blanchard, who owned the lands included therein July 25, 1859, and a map of such platting was on that date duly recorded. This map contained lots numbered from 1 to 194, inclusive, and was divided by certain streets, running north and south and east and west. There were also other lots, called “ outlots,” included in the map, located both on the north side and on the south side of the body of lots above described, and beyond and entirely outside of the street lines of the map. These out-lots were 16 in number, and were of various sizes. Out-lots Nos. 1 to 5, inclusive, were located north of the 194 lots and on the north side of North street. Outlots Nos. 10 to 16, inclusive, were located on the south side of the 194 lots and on the south side of Washington street. North and Washington streets ran east and west. Hig-

.man street was one of the streets which ran north and south, beginning at the south line of North street, opposite to outlots 2 and 3, and extending south to the north line of Washington street, opposite to outlots 12 and 13. It did not extend south beyond Washington street between outlots 12 and 13. These outlots 12 and 13 were each about 16 rods square.

The dispute in this case involves only outlots 12 and 13. 'The title of complainants to the west one-half of lot 12, through successive mesne conveyances, is not disputed ■except as to the strip hereafter mentioned. Complainant Chauncey B. Yance purchased the “west one-half of out-lot 12 of the village of Pewamo ” according to the recorded plat, April 26, 1883, for a consideration of #1,400; the grantor reserving the new portion of the barn located thereon, with the right to remove the same within three months. This, grantor purchased in 1868, and took possession in 1869. He built a house and barn and continued in possession until he sold to complainant. The strip of land in dispute is about four rods wide, one-half on either side of the line between outlots 12 and 13, and extends south from the south line of Washington street to the south line of the lots.

The diagram shows the location of these outlots and the disputed strip.

The following, briefly stated, is the claim of complainants : This strip was opened by Mr. Trask, complainants’ grantor, and Mr. Pennington, the owner of outlot 13, at or about the time they purchased, in 1868, by each putting up a fence on his side of, and two rods from, the north and south line between these lots. Trask built his barn towards the south end of his lot, near the strip, and used it as a lane to his barn. There was a fence across the south end of this strip, in which was a gate, which was used by Pennington to go to land he owned next south, and by complainants to go to the farm to the east owned by Mr. Vance. Said complainant has, during the time since his purchase, erected pigpens within its limits, and several times built fences across it, provided with bars or gates. It is at present entirely covered with sod, and has been used by him for calf yard and horse grazing. There are several maple trees on the strip; located about the middle is a large one. Under these trees complainant has, for years, habitually sat with his family and friends, and used and mowed it as his lawn. This strip has never been all turnpiked or plowed. A few furrows have been plowed along the west side, next to Pennington’s fence, which Mr. Vance claims was done before he purchased. There is a dispute as to who did this plowing and when it was done. More than twenty years ago complainant put in a cellar tile drain down and across this strip from the house to an open ditch in Pennington’s field south of it. He also put in on Washington street, under the approach to this strip, a tile drain or culvert to allow the water on that street to pass along.

Defendant village was incorporated in 1871. In May, 1896, the village council passed a resolution that all fences on streets belonging to the municipality be removed. Notice of this resolution was served on complainants, and they refused to remove their fence across this strip. It was torn down by the village authorities, and immediately rebuilt by complainants, who gave notice to the village officers that they were trespassers, and forbade further interference with their property. Fences were pulled down and replaced at least twice after this, and then complainants filed their bill of complaint, and were granted an injunction in this suit. They claim to be the owners in fee of this strip of land, and ask the court to so declare, and to enjoin defendant and its officers from trespassing thereon and interfering with their peaceable possession.

Defendant filed its answer and cross-bill, claiming that this strip was 39 years before opened and dedicated by the owners to the public as a public street, and has so continued ever since, and that defendant accepted such dedication, and the same has been used as a public highway for that length of time and always kept open for public use. Said cross-bill asks affirmative relief, and an injunction against complainants, from obstructing or closing such street.' Complainants answered the cross-bill, denying its allegations and all right to relief. The case was heard upon the issues joined. The court denied relief to complainants, and found that the strip in dispute was a .public street as claimed by defendant, and granted relief as prayed in its cross-bill. Complainants have appealed. Defendant relies upon the claim that there was, in 1868 or 1869, a common-law dedication of this strip of land by the owners to the public use as a highway, and that such dedication was accepted; and also claims by prescription and adverse user, or by both such dedication and acceptance and adverse user.

The claimed dedication is based upon the fact that this strip was opened by the owners with intent to dedicate. Such intent cannot be inferred from that fact alone. The inference that it was for private use and convenience is equally strong. Much stress is also placed upon the fact that the strip was of equal width with Higman street and a prolongation of it. That it extended south from Washington Street opposite Higman street is of no force in support of the theory of dedication. The line between the outlots of these owners, by mere chance, began at the south line of Washington street at a point which would be in the center of Higman street, if extended. At no other place could these adjoining owners have opened a common lane for their personal use. This strip extended south 16 rods. The fields south of it were farming lands, not platted, but divided, as usual, into fields. There was no public way farther south. This strip was a cul-de-sac, and from the time of its opening was used by these owners, and at once became a necessity to complainants’ grantor, and has so continued for complainants ever since, and is the only access to the barn, as well as affording convenient access to the side entrance of the house. This strip was opened before defendant existed, and there is no evidence in the case that the township authorities ever exercised any control over it. The owner of outlot 13 owned and cultivated adjacent fields, and Mr. Trask owned his farm to the east, going to and from it through the south gate, and these outlots were practically acreage lots. A barn was soon built by Mr. Trask, complainant’s grantor, near this strip towards the south end. For two men engaged in farming, a lane four rods in width cannot be presumed to be unnecessarily wide, considering the vehicles usually owned by farmers, which it would be necessary to drive in and out through it and turn around upon it and also leave in the lane, as occasion might require. From its width the inference would not arise that it was dedicated to the public use.

In this case no declaration of these parties is shown that a dedication was intended. The vital principle of dedication is the intention to dedicate.” Acceptance and user by the public completes a dedication, and the intent to dedicate may be presumed by that fact. There is no record of any action by the village accepting this strip, nor any record whatever of anything done in regard to it. If there was any acceptance, it must have been by continued user by the public, and such exercise of control over it by the authorities from which an acceptance could be reasonably inferred. Upon this proposition the record shows that after the strip was opened some plowing was done along the west fence and some dirt taken out. Mrs. Pennington testified that many years ago men with plow and scraper were working there. She did not know who they were nor connect them with the village. Two witnesses for defendant testified that plowing was done near the west fence during the year 1891. One does not connect this work with the village, and admits that he is not on good terms with complainants. The other testified that he worked upon this strip, with a Mr. Lyon, the road tax for his brother, about half a day, under the street commissioner, plowing and scraping. He could not give the name of this officer, and Mr. Lyon testified that he never worked with him at that time or place. The other claimed control and regulation of this strip by defendant relates to cutting weeds there by a witness employed by the village in 1904. This was after the fences had been twice torn down and replaced and the present dispute begun, and is o£ no probative force upon the question of acceptance and control. It is quite noticeable that no officer of the village is produced as a witness to make this proof. The foregoing contains all we are able to find in the record relative to any control of this strip by the public authorities.

The facts and circumstances relied upon by defendant, to prove an intent on the part of these owners to dedicate this land to the public use, do not show a clear intent to dedicate, but, on the contrary, this evidence is of little force, and not convincing.

“The facts and circumstances relied upon to prove the existence of an intent on the part of the dedicator must be of a positive and unequivocal character. Since, by the dedication, valuable rights in lands pass from the owner, no presumption of the intent to dedicate arises, unless it is clearly and expressly shown by his acts and declarations, or by a line of conduct the only reasonable explanation of which is that a dedication was intended.” 9 Am. & Eng. Enc. Law (2d Ed.), p. 38, and cases cited.'

In this State this rule was first announced in People v. Jones, 6 Mich. 176, and has been consistently followed ever since.

The questions of dedication and acceptance are always so closely connected, both being essential to establish a common-law dedication of land to the public use as a highway, that it is natural and usual to consider both together. The same unequivocal and convincing proof is required to establish both facts. Diamond Match Co. v. Village of Ontonagon, 72 Mich. 263 (40 N. W. 448); Chapman v. City of Sault Ste. Marie, 146 Mich. 23 (109 N. W. 53), and cases cited.

The right to this strip of land by adverse and continuous user on the part of the public has not been established. The great weight of the evidence, much of it undisputed, is to the contrary. The evidence of its public use, as shown by the record, was so rare that if adds to the weight of the evidence to the contrary, and we may say that no general use of this way by the public has been shown. Wears satisfied from this record that this way was opened in 1869 by the adjoining owners for their own convenience and not for the public use. That the use of it by complainant Vance, since his purchase in 1883, has been continuously of the same character, and has been absolutely inconsistent with a public use, and the use by the Penningtons of the other half has been of like character as long as they used it. It appears that complainants claimed a few years ago to own the whole strip, and forbade them its use. While complainants’ occupancy of the entire strip has for some years been exclusive, yet we do not think that this has continued for a sufficient length of time to cut off the Pennington title.

The decree of the court below is reversed, and a decree will be entered in this court in favor of complainants and against defendant, determining that this strip of land is not a public street, but a private way in which the defendant has no right or interest, and that complainants, as the owners in fee of the east one-half, are entitled to the possession and enjoyment thereof, and perpetually restraining defendant village, its officers and agents, from trespassing thereon or in any way interfering therewith. Complainants to recover costs of both courts.

Moore, Brooke, Blair, and Stone, JJ., concurred.