[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 656 Plaintiff in chancery had decree against defendants "that plaintiff, Frank J. Warner, is the owner in fee simple of premises in the township of Lawrence, Van Buren county, Michigan, described as: "commencing at a point 25 feet west of the northwest corner of lot 10 Harold E. Abrams Christie Lake subdivision, thence southerly to the southwest corner of said lot 10, thence northerly to the northwest corner of said lot 10, thence west to beginning, being a part of the southeast fractional quarter of section 26, town 3 south, range 15 west; by reason of his distinct, continuous, notorious, hostile, visible and actual possession of said premises for more than 15 years;" that defendants forthwith quitclaim and release unto plaintiff all their apparent right, title and interest in and to the above described premises, and, in default thereof, plaintiff have leave to record a copy of the decree to operate as such quitclaim or release; that the apparent right or interest of defendants to the above described premises was null, void, and of no force and effect as against the rights of plaintiff. From this decree, defendants appeal claiming the trial court erred in holding plaintiff was the owner of the real estate in *Page 657 dispute by adverse possession; in holding as above indicated that defendants' interests in the disputed premises were null and void; in not deciding the disputed territory was defendants' property; and in not dismissing plaintiff's bill of complaint.
1. The bill of complaint alleges that plaintiff's land is described as lot 10, Harold E. Abrams subdivision, section 26, town 3 south, range 15 west, according to the recorded plat thereof. It alleges that defendants are the owners of lot 11 of Harold E. Abrams Christie Lake subdivision, section 26, town 3 south, range 15 west, Van Buren county, Michigan, according to the recorded plat thereof. It alleges defendants lay claim to a part of lot 10 and trespass thereon, and the bill asks for an injunction restraining defendants from entering upon lot 10, or removing or carrying away dirt, earth or other materials, et cetera, and from interfering with or encroaching upon plaintiff's peaceful possession of lot 10.
Defendants admit plaintiff is the owner of lot 10 and that they are the owners of lot 11 according to the recorded plat thereof.
In their answer to the original bill of complaint, defendants waived all technicalities and averred they desired a final and binding determination upon the merits as to the true location of the line between lots 10 and 11. Plaintiff then amended the bill of complaint, claiming by adverse possession the premises described in the decree for the statutory period. Plaintiff included in his amended bill of complaint a paragraph which incorporates each and every allegation contained in the original bill of complaint therein. Defendants answered the amendment to the bill of complaint to plaintiff and in that answer there is no attempt to stipulate as to the jurisdiction of the court. *Page 658
Where plats are referred to in a description of real estate, they are to be regarded as incorporated into the description.McEvoy v. Loyd, 31 Wis. 142; Boehner v. Hirtle, 46 N. S. 231; Wilson v.Chicago Lumber Timber Co., 74 C.C.A. 529 (143 Fed. 705); 9 C. J. pp. 220, 221.
2. There is no conflict as to the record title; no cloud upon title sought to be removed. No conveyances are asked to be modified or cancelled. There is no dispute here, except where the true boundary line is between the premises of plaintiff and defendants. According to the recorded plat, defendants are occupying only that to which they have title. Plaintiff claims he is entitled to a part of lot 11 according to the recorded plat thereof.
When the true location of the boundary line between the premises of the parties is settled, that ends the matter. Under such circumstances, a court of chancery has no jurisdiction.
"The substantial controversy is merely a difference about the legal ownership of a narrow piece of ground, and is rightly cognizable at law. Wykes v. Ringleberg,49 Mich. 567.
The fundamental dispute is about the correct position of the line between lots 10 and 11. When that is once settled, there can remain no semblance of claim or cloud to be passed on and the issue on that particular question is one regularly triable at law. Kilgannon v. Jenkinson, 51 Mich. 240. Ejectment is the proper remedy. Drake v.Happ, 92 Mich. 580. The rule is settled by repeated adjudications that the equity court has no inherent jurisdiction to determine boundary lines. Dolan v.Smith, 147 Mich. 276. The bill of complaint describes plaintiff's land according to the recorded plat thereof. It avers plaintiff's ownership. It avers that defendants are the *Page 659 owners of lot 11 according to the recorded plat thereof. It alleges defendants are asserting ownership to a part of lot 10. Under such averments, equity has no jurisdiction and the rights of the parties should be determined by suit at law in ejectment. Kilgannon v. Jenkinson, supra;Nicholls v. Boyne City Lumber Co., 157 Mich. 234.
"While it is recognized that courts of equity may pass upon a disputed boundary when incidental to and connected with other issues properly coming under some recognized head of equity jurisprudence, the rule is well settled that equity courts have no inherent and independent jurisdiction to determine the true location of disputed boundaries. * * * Ejectment and trespass are the customary, and ordinarily adequate, remedies at law by which disputed boundaries are settled." Weissert v.Fuller, 188 Mich. 327.
"Where, as here, the sole question in dispute is the location of the true boundary line between parcels of land, the title to which is not involved, equity has no jurisdiction. The controversy is a legal one to be determined in an action at law." Argus v. Johns, 243 Mich. 595.
Under the facts as disclosed by the testimony, equity has no jurisdiction and the bill of complaint should be dismissed. Jurisdiction of the subject-matter cannot be given by consent.Allen v. Carpenter, 15 Mich. 25;Kirkwood v. Hoxie, 95 Mich. 62 (35 Am. St. Rep. 549); Hull v. Hull, 149 Mich. 500;Maslen v. Anderson, 163 Mich. 477;People v. Meloche, 186 Mich. 536;Carpenter v. Dennison, 208 Mich. 441; 17 Am. Eng. Enc. of Law (2d Ed.), p. 1060. The question of jurisdiction may be raised at any time, Greenvault v.Farmers' Mechanics' Bank of Michigan, 2 Doug. (Mich.) 498; Farrand v. Bentley, 6 Mich. 281;Attorney General, ex rel. Lockwood, v.Moliter, *Page 660 26 Mich. 444; Adams v. Hubbard, 30 Mich. 104;Woodruff v. Ives, 34 Mich. 320;Horton v. Howard, 79 Mich. 642 (19 Am. St. Rep. 198); Tromble v. Hoffman, 130 Mich. 676;Attorney General, ex rel. Wolverine Fish Co., v.A. Booth Co., 143 Mich. 89; and if want of jurisdiction appears this court is bound to recognize it.Mansfield, Coldwater Lake Michigan R. Co. v.Swan, 111 U.S. 379 (4 Sup. Ct. 510); Morris v. Gilmer, 129 U.S. 315 (9 Sup. Ct. 289); 15 C. J. p. 852.
3. The proof in this case shows that when the houses were built upon lots 10 and 11, there was no survey of the premises, that the carpenter went on the premises and built the houses on what he supposed to be the respective lots. There was no claim by either party that they owned anything except the lots mentioned and described in their respective deeds according to the recorded plat thereof. There was no claim and no intention to claim upon the part of either party anything except the lots and premises which they had acquired by deed and to assert title to the true line between the premises.
Where the possession is up to a fixed boundary under a mistake as to the true line and the intention of the parties is to hold only to the true line, such possession is not hostile and will not ripen into title, 2 C. J. S. pp. 519, 632; and where the element of hostility is absent, there can be no adverse title acquired. 2 C. J. S. p. 568. Nor is possession which is permissive adverse possession. 2 C. J. S. p. 624. The possession must be actual, visible, open, notorious, exclusive, continuous, uninterrupted for the statutory period, hostile, and under cover of claim of right. 2 C. J. S. p. 520.
The trial court held that though the parties may have been mistaken as to the true line, plaintiff took *Page 661 possession of the disputed strip, erected a cottage, assumed such control and use of the premises as was consistent with the character of the property, used it for the purpose for which it was adapted, believed it to be his own, a belief shared by Thompson and acquiesced in by defendants until 1932, and he has held adversely for 15 years and, therefore, has title by adverse possession.
There was no mutual agreement as to the true boundary line, nor was there ever any adverse or hostile holding. The land in question was surveyed and platted and the parties claimed and plaintiff by his bill of complaint claims according to the recorded plat thereof. The corners of the lots were marked by iron stakes. The land was otherwise uninclosed, but was valuable for recreational and resort purposes. Before the parties built their cottages they sighted from one stake to another and thought the line which they sighted was the correct one. It is undisputed they sighted through from the wrong stake on the plat and as a result thought the line was where it was not. There was no mutual agreement between the parties that this was the line. There was no concession by one to the other that the disputed strip belonged to one party or the other. Each of the owners claimed to the true line. The predecessors in title of defendants claimed to the true line. The fact seems to be undisputed that plaintiff and defendants' predecessor in title made a mistake in locating the line and that they did not ascertain where the true line was until they had the plat surveyed and monuments in the ground located and determined that defendants did not have the land which they bought and paid for, that they did not have possession of the whole of lot 11 according to the recorded plat thereof. Under such a state of facts, *Page 662 there was no hostility between the claims of the respective parties by which a finding of adverse possession may be sustained.
The basis of the rule that boundaries may be fixed by verbal agreement, long acquiesced in, and the theory of acquiring title by adverse possession are diametrically opposed to each other. The theory of ownership to an agreed boundary proceeds upon the ground there has been a bona fide dispute as to the true boundary line and the parties have by peaceful agreement made a friendly settlement of this dispute which has been acquiesced in, carried out and performed by the respective parties. The theory of adverse possession is the antithesis of the doctrine of friendly settlement and peaceful acquiescence. It proceeds upon the ground of open, notorious, antagonistic acts of unremitting hostility under a claim of right to the claim of rights of the adverse party. And it must be continued for a period of 15 years. It does not appear that the situation of the parties hereto, as disclosed by the testimony, warrants a decree for plaintiff on the basis of title acquired by adverse possession.
The bill of complaint is dismissed, with costs.
WIEST, C.J., and BUSHNELL, SHARPE, CHANDLER, and NORTH, JJ., concurred with POTTER, J.