Ziska v. Schutt

10 Ohio Cir. Dec. 289

• Court: Cuyahoga Circuit Court
• Decided: December 4, 1899
• Status: Published

Opinion

Caldwell, J.

In this case the plaintiff claims that the defendant disputes his title to a small strip of land lying on the south side of his lot, and he wants his title to this strip quieted.

The defendant claims that the plaintiff has all the land he bought without the disputed strip, and is not entitled to that portion of it in triangular form, bounded by two sides running along the sides of their lots and the line on the west side of Genesee ave., commencing fifty feet south of the north line of J. H. Wade’s property, described in his deed of purchase of lands of which the land in dispute is a part, measured along said east line of Genesee ave. and extending one foot along Genesee ave. and forming the east side of the triangle. The said north line of the Wade purchase is well defined by monuments, and the surveyors, called as witnesses, agree to its location so far as they have traced it.

Hessenmueller & Bemis, for plaintiff. Squire, Sanders & Dempsey, for defendant.

Mr. Wade intended his north line to be the north line of his allotment. The party owning and alloting the land north of the Wade north line, and bounded on the south by it, has fixed this line the same as the surveyors testify as to its location in this case. If this line is taken as the north monument and boundary of the Wade allotment, then the’ plaintiff has all the land he is entitled to without the disputed triangle.

It is said that the north line of the allotment as actually surveyed and laid out does not coincide with the north line established in Wade’s deed of purchase, and notes of the original surveyor of the allotment are offered as proof. The notes are merely tentative and show no place of' beginning, and are in and of themselves very imperfect proof.

The monuments only at the northwest corner of the allotment, the north line, and the one in Genesee ave. are well defined and nothin dispute. The distances fully agree. All that can be claimed is that the recorded distance on the street line does not agree with the measured distance and that the angles do not agree.

There is no disagreement as to distance, if the recorded distance is. measured from the said north line.

There is a dispute as to a disagreement of angles. However this-may be, if there is a disagreement, then the monuments will control. By this rule no injustice is done plaintiff, as we feel, certain he can hold: on the north to said original north line.

The plaintiff is refused any affirmative relief. There may be judgment against him for costs.