LEEVER v. CENTRAL CITY LUMBER CO.

EJECTMENT-BOUNDARIES-ALLEY-DESCRIPTION.

Where plaintiffs in ejectment had conveyed to the defendant a parcel of land described as lots 15, 17, and land ly. ing east thereof, bounded on the northwest by Michigan avenue, east by Milwaukee street, formerly Albany street, on the south by Wesley street and on the west by an alley contiguous to lot 17, and no alley appeared in the original plat, as prepared for filing by the owner, and lot 17 did not have the alleged alley but included said land, described by metes and bounds, that the plat had never been filed in the office of the register of deeds and was at an early date lost, the deed from plaintiffs to defendant carried with it all the property purporting to be transferred, including the alleged alley, which did not show upon the premises and which was not in actual use, and which defendant, who had been in possession as tenant, occupied with the rest of the realty; plaintiffs' contention and evidence that because an abstract furnished to defendant after entering into a contract for the purchase of the land, contained a map with parallel lines that they alleged represented the alley across the lot, is held to be insufficient to prove title in the grantors who admitted that no open and used alleyway had ever existed on the lot,-no public or private way existing in fact. And a reservation did not result from describing the parcel as bounded on the west by an alley.1

Error to Jackson; Parkinson, J. Submitted October 12, 1915. (Docket No. 61.) Decided December 21,

1915. Rehearing denied June 23, 1916.

Ejectment by Fred O. Leever and another against the Central City Lumber Company. Judgment for defendant. Plaintiffs bring error. Affirmed.

"The effect of bounding grant on private way to carry title thereto is discussed in note in 24 L. R. A. (N. S.) 539.

Grove H. Wolcott, for appellants.

Price & Whiting, for appellee.

The action is ejectment to recover possession of a parcel of land in the city of Jackson, described in the declaration as:

"Commencing at the southeast corner of lot 17 in block 3 south of range 2 east according to Stratton's survey; thence east along the north line of Wesley street 1612 feet; thence north to the south line of Michigan avenue; thence northwesterly along the south line of Michigan avenue to the northeast corner of said lot 17; thence south along the east line of said lot 17 to the place of beginning.'

Testimony for plaintiffs tended to prove the following facts: Alonzo Bennett in 1865 acquired title by warranty deed to an undivided one-half and in 1868 to the other undivided one-half of premises described

as:

"Commencing at the southwest corner of lot seventeen (17) in block three (3) south, range two (2) east, in the city of Jackson, county of Jackson, State of Michigan; running thence north to Mill street; thence southeasterly on the south line of Mill street to Albany street; thence south on the west line of Albany street to Wesley street; thence west to the place of beginning."

Plaintiffs, as husband and wife, in 1908 took from the heirs of Alonzo Bennett a warranty deed, describing land as follows:

"Lots fifteen (15) and seventeen (17) in block three (3) south, range two (2) east, according to Stratton's survey; also a parcel of land lying east of said lot seventeen (17) bounded on the northeast side by Michigan avenue, formerly Mill street, on the east by Milwaukee street, formerly Albany street, on the south by Wesley street, and on the west by an alley contiguous to lot seventeen (17) aforesaid."

Dated December 15, 1911, a quitclaim deed was executed by the Bennett heirs to plaintiffs conveying:

"Commencing at the southeast corner of lot 17, block 3 south, range 2 east, according to Stratton's survey; thence east along the north line of Wesley street 162 feet; thence north to the south line of Michigan avenue; thence northwesterly along the south line of Michigan avenue to the northeast corner of said lot 17; thence south along the east line of lot 17 to the place of beginning. The purpose of this conveyance is to grant to the parties of the second part hereto, their heirs and assigns, all right, title, and interest which parties of the first part had in and to the above parcel of land on the 7th day of October, 1908."

Plaintiffs made a lease to defendant, dated June 10, 1908, of lots 15, 17, and 18, and the west half of lot 16, block 3 south, of range 2 east, excepting a small cottage, the lease containing the following stipulation:

"Part of said premises are at present under lease to John Middaugh whose lease of same expires May 1, 1909; * * *The part which said Middaugh occupies being lot 17 and 18.

* * * "

Under date October 26, 1911, plaintiff Fred O. Leever acknowledged in writing the receipt from defendant of a sum of money to apply on purchase price of lot 17, lot 15, and the west half of lot 16, with the exception of that part lying west of Michigan Central Railroad track, block 3 south, of range 2 west, city of Jackson, agreeing to furnish an abstract of title and convey by warranty deed. An abstract was furnished, attached to which was a plat or map. The caption to this abstract was the property abstracted as shown by recital-lots No. 15 and 17 in block 3 south, of range No. 2 east in the city of Jackson according to the recorded plat of the village of Jacksonburg;

"also a parcel of land lying east of above-described land and bounded on the northeast side by Michigan avenue, formerly Mill street, and on the east by Mil

waukee street, formerly Albany street, and on the south by Wesley street, and on the west by an alley contiguous to lot 17 aforesaid."

The deed executed by plaintiffs to defendant describes lots 15 and 17 and west half of lot 16 (with exception). The premises held by defendant as lessee of plaintiffs had for 20 years or more before this suit was begun been surrounded by a fence. Defendant used them for a lumber yard. The premises were a part of the land surveyed and platted as the village of Jacksonburg by one J. F. Stratton, which plat included the older portion of the city of Jackson and was

14

15

17

WESLEY ST.

WASHINGTON ST.

made in the year 1830. What purports to be a copy of the Stratton plat is recorded, with an affidavit which recites that the plat was made and deposited in the office of the register of deeds for Washtenaw county for record, was lost before record, and that the annexed plat is a true copy of the original. As shown by this plat as recorded, the premises appear to lie as indicated on the opposite page.

There are maps of the city of Jackson, including the territory platted as the village of Jacksonburg. Names of streets, and perhaps their courses, have been changed. New streets have been laid out. A copy of the plat which was attached to the abstract furnished defendant follows:

WESLEY ST.

ALLEY

ST.