Smith v. Hamilton

Michigan Supreme Court

Smith v. Hamilton

20 Mich. 433, 1870 Mich. LEXIS 70

CourtMichigan Supreme Court

DecidedMay 13, 1870

StatusPublished

Cited by46 cases

This text of 20 Mich. 433 (Smith v. Hamilton) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Smith v. Hamilton, 20 Mich. 433, 1870 Mich. LEXIS 70 (Mich. 1870).

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Opinion

Campbell, Oh. J.

The action of ejectment in this case was brought to recover a small portion of land lying between the true government survey boundary of plaintiff’s lands, and a line settled by agreement a little less than twenty years before the suit was begun. It appears from the finding that in 1845, the adjoining proprietors, being satisfied that the corner post fixed by a previous survey was not correctly placed, employed a surveyor who ran the line for them so as to change the location of one end about six rods; and the parties on both sides immediately set their fences in accordance with the new line, and have, as their grantees also have, ever since acquiesced in that location. The Court below found as matter of law that they were bound by that acquiescence.

We think the ruling was correct. It has been held very generally, that when there has been an honest difficulty in determining the lines between two neighboring proprietors, and they have actually agreed by parol upon a certain boundary as the true one, and have occupied accordingly with visible monuments or divisions, the agreement long acquiesced in shall not be disturbed, although the time has not been sufficient to establish an adverse possession. Where the transaction has not been such as to amount merely to an honest attempt to determine a doubtful line, the authorities have not permitted an agreement to stand which would operate as a violation of the statute of frauds. But where the parties have only tried to find the true boundary, it has been held that the statute was not infringed, and the line was fixed by acquiescence. The case of Terry v. Chandler, 16 N. Y., 354, points out the distinction, and the previous cases of Jackson v. Van Corlaer, 11 J. R., 123, and Jackson v. Ogden, 7 J. R., 238, covered the same ground which is insisted on in the present case. The principle has been recognized in many other cases, and, confined within these [439]*439limits is, we think, the law of New York. In Massachusetts the same rule was adopted in Kellogg v. Smith, 7 Cush., 375.

There is no doubt some conflict elsewhere, and there are some difficulties attending those cases which involve additional elements. It has been said in some cases, that the rule was one of equity rather than of law. But estoppels in pais are not unknown to the common law. And where in addition to a mere estoppel there have been such acts as would induce a court of equity to grant specific performance of a parol contract, we are quite willing to adopt those precedents which have transferred cognizance of such complete rights into courts of law. There is no good reason for refusing to recognize them in an action of ejectment.

We think the judgment should be affirmed with costs.

The other Justices concurred.

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Campbell, Oh. J.

The action of ejectment in this case was brought to recover a small portion of land lying between the true government survey boundary of plaintiff’s lands, and a line settled by agreement a little less than twenty years before the suit was begun. It appears from the finding that in 1845, the adjoining proprietors, being satisfied that the corner post fixed by a previous survey was not correctly placed, employed a surveyor who ran the line for them so as to change the location of one end about six rods; and the parties on both sides immediately set their fences in accordance with the new line, and have, as their grantees also have, ever since acquiesced in that location. The Court below found as matter of law that they were bound by that acquiescence.

We think the ruling was correct. It has been held very generally, that when there has been an honest difficulty in determining the lines between two neighboring proprietors, and they have actually agreed by parol upon a certain boundary as the true one, and have occupied accordingly with visible monuments or divisions, the agreement long acquiesced in shall not be disturbed, although the time has not been sufficient to establish an adverse possession. Where the transaction has not been such as to amount merely to an honest attempt to determine a doubtful line, the authorities have not permitted an agreement to stand which would operate as a violation of the statute of frauds. But where the parties have only tried to find the true boundary, it has been held that the statute was not infringed, and the line was fixed by acquiescence. The case of Terry v. Chandler, 16 N. Y., 354, points out the distinction, and the previous cases of Jackson v. Van Corlaer, 11 J. R., 123, and Jackson v. Ogden, 7 J. R., 238, covered the same ground which is insisted on in the present case. The principle has been recognized in many other cases, and, confined within these [439]*439limits is, we think, the law of New York. In Massachusetts the same rule was adopted in Kellogg v. Smith, 7 Cush., 375.

There is no doubt some conflict elsewhere, and there are some difficulties attending those cases which involve additional elements. It has been said in some cases, that the rule was one of equity rather than of law. But estoppels in pais are not unknown to the common law. And where in addition to a mere estoppel there have been such acts as would induce a court of equity to grant specific performance of a parol contract, we are quite willing to adopt those precedents which have transferred cognizance of such complete rights into courts of law. There is no good reason for refusing to recognize them in an action of ejectment.

We think the judgment should be affirmed with costs.

The other Justices concurred.

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Bluebook (online)

20 Mich. 433, 1870 Mich. LEXIS 70, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-hamilton-mich-1870.

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