Lot 41 of Duffield's subdivision of part of park lots 80 and 81 in the city of Detroit has a frontage on Duffield street of 43.33 feet. For some time prior to 1902 it was owned by William H. Flynn. On September 8, 1902, Flynn conveyed the easterly 20 feet of the lot to Addie M. Somerville, through whom plaintiffs claim title. At the time of this conveyance there was a brick house occupying the easterly 19.33 feet of the lot. On July 28, 1904, Flynn conveyed to one Rosenthal the westerly 23.33 feet of the lot. Rosenthal conveyed the same description to one Welch, and in 1906 Welch entered into a contract with James C. Martin to sell him "the westerly 24 feet more or less of lot 41." This description was used in all subsequent conveyances including the ones to defendants. There was at the time Flynn conveyed the westerly part of the lot a frame dwelling house on it. The exact date does not appear, but probably *Page 402 some time in 1922, defendants commenced the erection of a substantial store building on the westerly 24 feet of the lot. Some time after the store building was completed plaintiffs employed a surveyor to establish the line and thereafter this action of ejectment was instituted involving a strip occupied by part of the wall of the store building claimed by plaintiffs to be about nine inches in width. The trial judge directed a verdict for the plaintiffs and we must under such circumstances accept the testimony most favorable to defendants. Unquestionably plaintiffs hold the record title. Defendants claim two defenses were sufficiently made by the testimony to take them to the jury: (1) Acquiescence, and (2) adverse possession.
1. There is testimony in the case to the effect that for upwards of 15 years a board fence has been maintained from the alley at the rear of the lot extending into the lot some 19 feet. The exact location of this fence and the continuity of its maintenance are matters in dispute. Defendants' claim is, and there is testimony to sustain it, that the fence is and always has been maintained on a line with the west line of the main portion of the brick house and that the store building is west of the line of the fence. But there is no testimony in the case that the fence was erected pursuant to any agreement between the owners of the adjacent premises, or that there had ever been a bona fide dispute between them as to where the true line was which was compromised and a line thereafter acquiesced in. Under these circumstances the trial judge correctly held that the defense of acquiescence, standing alone, was not available to defendants. Smith v. Hamilton, 20 Mich. 433 (4 Am.Rep. 398); Lake Shore, etc., R. Co v. Sterling, 189 Mich. 366.
2. We are persuaded from an examination of this record that the trial court was in error in entirely withdrawing the question of adverse possession from *Page 403 the jury. At least as to that portion of the premises adjacent to the fence there was testimony that defendants and their predecessors in title had used and occupied adversely such premises and all of them up to the fence for more than the statutory period. Acquiescence and adverse possession are not so interwoven that a failure to establish one necessarily fails to establish the other. Indeed, they are materially different defenses. Plaintiffs' counsel insists that defendants' testimony as to the location of the fence and the use made of the backyards is discredited upon this record. But we can not, as the question is now presented, weigh or measure the testimony. Its credibility in the first instance was for the jury.
For this error the judgment must be reversed and a new trial granted. Defendants will recover costs of this court.
McDONALD, C.J., and CLARK, BIRD, SHARPE, and MOORE, JJ., concurred. STEERE and WIEST, JJ., concurred in the result.