On Petition for Rehearing.
Opinion by
Mr. Chief Justice Eakin.Counsel for defendant contends that the deed from Genger to Collins, through which defendant claims title, conveys all the land owned by him not conveyed to the church people, which, he says, grants the very strip in dispute. But the statement assumes that the strip in dispute is not in the tract conveyed to the church people which can be made to appear only by proof of the location of the west line of the church tract. The only evidence that that line is other than the location of the old fence is the evidence of Germond, the surveyor, which is not the evidence of any fact, but the opinion of a witness.
Defendant contends that this evidence, not being objected to, was relevant and material, and sufficient to prove the fact. He does not testify to the facts, but gives his conclusion, based upon a former survey made by himself, without the facts upon which it is based, viz., the correct starting point of the survey and the correct courses and distances. We must be enabled to follow in the footsteps of the surveyor. Aside from the authorities cited in the opinion, it is said in Stewart v. Carleton, 31 Mich. 273:
“It appears to have been supposed that the surveyors are competent, not only to testify to measurements and distances, but also to pass judgment themselves, and on *563information of their own choosing, upon the position of lines and starting points. This is not the only case in which we have encountered such evidence on important private rights; and surveyors seem to have the idea that they may act entirely upon their own judgment in determining public and private rights. This is very dangerous error. * * But the determination of facts belong exclusively to courts and juries.”
To the same effect are Radford v. Johnson, 8 N. D. 182 (77 N. W. 601); O’Brien v. Cavanaugh, 61 Mich. 368 (28 N. W. 127). In Burt v. Busch, 82 Mich. 506 (46 N. W. 790), it is said that “they (surveyors) may detail facts, but, when they have no knowledge of facts, their opinions or conjectures cannot control to establish or disturb boundaries. * * The question of location of a starting point for a surveyor is one of fact for the jury, and not one of theory to be determined finally upon the opinion of surveyors or experts.” In Olin v. Henderson, 120 Mich. 149, 154 (79 N. W. 178), the following instruction given to the jury was approved:
“It is for you to fix that (the starting point of the survey) by the evidence in this case; and the fact that a surveyor unless he has the original monument to start from has made a survey, and what he believes or claims to be the property, is no evidence of that property, except such as you may find that he has started from the original point.”
So, also, Reast v. Donald, 84 Tex. 648 (19 S. W. 795). A surveyor can testify to any fact within his knowledge, but his opinion or conclusion of facts based upon a survey made by him is not competent, at least without giving the details of the survey. Therefore, even though the evidence of the surveyor was not objected to, it was not evidence of a fact but the conclusion of the witness, and, as stated in the opinion, there is no proof that the west line of the church property is other than where the old fence was located. It necessarily follows that there *564is no evidence that any of the land east of that west fence of the church property was included in the deed from Genger to Collins. The east line of defendant’s property is only fixed by the west line of the church property. Without the identification of that line as being east of the old fence, defendant has shown no right to any of the ground sued for. And, unless a better title is shown by defendant, plaintiff’s possession at the time he was ousted is sufficient to entitle him to recovery.
The petition is denied.
Affirmed: Rehearing Denied.