Lake Shore & Michigan Southern Railway Co. v. Sterling

Ostrander, J.

(after stating the facts). 1. It may be inferred that both plaintiff’s lessor and plaintiff meant to build the fences erected by them on the boundary line of the property. It may be inferred that defendant and his grantors assumed that the fence was upon the line. Beyond this the testimony does not permit us to go in the way of establishing a boundary line by agreement and acquiescence. The controlling rule is stated in Smith v. Hamilton, 20 Mich. 433 ( 4 Am. Rep. 398 ), is a rule of property, and has been consistently adhered to. Olin v. Henderson, 120 Mich. 149 ( 79 N. W. 178 ); Sheldon v. Railroad Co., 161 Mich. 503 (126 N. W. 1056); Parsons v. Bills, 163 Mich. 415 ( 128 N. W. 721 ). Upon this subject there was no question for the jury to determine.

2. It is apparent that if defendant, who occupied the land for 8 years or more before disseised by the plaintiff, may add to his period of occupancy the periods when the land was occupied by others, he has acquired title by adverse possession. With those others, of whose periods of occupancy he claims the benefit *372 and advantage, he is in privity by deed of the adjoining land. But his own, or their, paper evidences of title do not convey the land in dispute, but exclude it. It is the rule that one having a deed of land enters, under his deed. In the dissenting opinion of Mr. Justice Moore, in Sheldon v. Railroad Co., 161 Mich. 503, 517 ( 126 N. W. 1056 ), a stronger (and somewhat similar) case is stated in favor of tacking successive possessions of successive occupants of land than can be supported by the testimony in the case at bar. But this court held, and the ruling is controlling here, that there was no unity of possession under the original hostile entry; that without privity between successive occupants the several possessions cannot be tacked together, so as to make continuity of possession.

3. The disposition of the principal questions involved hereinbefore indicated, renders discussion of other questions debated in the briefs unnecessary, and requires a judgment affirming the judgment of the court below.

Brooke, C. J., and Person, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred.