ON MOTION FOR REHEARING.
Ostrander, C. J.In this cause an opinion reversing the judgment went down September 27, 1917. In November, 1917, appellee moved for an order allowing a new trial, and the motion was granted December 28, 1917. The appellee (plaintiff) moved March 9, 1918, for a rehearing, the brief in opposition being filed March 23. The motion is based upon alleged misstatements of fact in the opinion and the argumentative conclusion that had the facts not been misapprehended the judgment would have been affirmed. The opinion will be found ante, 582.
A re-examinatipn of the record discloses the fact that the opinion contains at least one misstatement of fact, for which reason the motion, tardily made, is considered. The first misstatement pointed out is that in the opinion it is stated with reference to a certain deed purporting to convey lots 11 and 12 that the shore line of the lots was described indefinitely, as “more or less.” The description is correctly set out in the statement of facts in the opinion, the shore line being described as “thence southerly along the high water *600mark 200 feet.” This was a deed made to defendant’s grantor, who conveyed to defendant lot 11 by a deed in which the shore line is described as “thence southerly along high water mark 100 feet more or less.” It is probable that the mistake occurred by some confusion of these descriptions taken from copies of the deeds.
The other alleged misstatement of fact pointed out is in the concluding paragraph of the opinion where it is said:
“The court should have excluded Exhibit J, since it is admitted that it is not a record of a survey made by the surveyor who made it. Its effect was that of hearsay evidence.”
Exhibit J seems to be first referred to on page 33 of the record. The witness Slater, who was on the witness stand when the plat, Exhibit J, was introduced in evidence, was asked by counsel for plaintiff, whose witness he was, “What did you do, if anything, in regard to drawing that?” meaning Exhibit J. He testified that he drew it, and with care, and entered into details. The objection to the offer was that it was not “the original plat, as being so altered as not to be accurate.” The point is, not whether the witness made the plat, but whether it represents a survey which he made of the land. In the original brief for appellant,- it is said upon this point,
“Slater testified that his employer’ gave him a plat to work from when surveying in 1907, and that he himself made Ex. J. ‘patterned after the plat Bird had.’ We can only conjecture that Bird’s plat was, and Slater’s testimony is not positive and definite enough to warrant the admission of Ex. J, as a copy of another plat that was not produced nor accounted for in any way by plaintiff.”
On the other hand, in the brief for appellee it was said, among other things, and referring to a page of *601the record (28), which does not seem to contain anything upon this subject, that Slater testified that this plat was made from actual survey on the ground that it is a correct production of his notes. The matter will, in any event, be corrected as the facts warrant, upon a new trial. But as I before read and do now read the record, Exhibit J is an embellished copy of an old, unauthentic.ated plat, not produced in court, and is not a record of a survey made by the surveyor who was giving testimony.
It is further urged that the record was misapprehended as is evidenced by the statement in the opinion,.
“The testimony is that the contour of the shore line varies and that it has changed and is changing, not greatly, but to some extent.”
It is asserted that
“three survéyors who made surveys running from the year 1907 to the year 1914 all of them testified that the same amount of land was included on the lake shore and their surveys of the lake shore between the same given points correspond to the foot so that the actual testimony in the record is to the effect that the shore line has not changed whatever.”
But the testimony of the first of the surveyors to which counsel refers is:
“Experience has taught me that water front lines are changeable,” and “in surveying I would always take a parallel line in preference to water front line which I regard as a non-positive or indeterminate line.”
Another surveyor to whose testimony counsel refers testified: .
“I did not survey according to the shore line but measured according to the parallel line * * * I never measured any of the- shore measurements accurately.”
It is not perceived how this testimony requires an *602amendment of the statement that “the contour of the shore line varies and that it has changed and is changing, not greatly, but to some extent,” especially when one of plaintiff’s principal witnesses testified:
“From my experience I can say that the water fronts on all inland lakes change from time to time. Changes are caused by course of water, naturally the water recedes and the line will go out. Ice changes the shore line continuously to a certain extent. In the course of a year it is possible for the shore line of an inland lake to change considerably.”
It might be added that it is matter of common knowledge that in the course of the seasons the contour of the shore line of inland lakes, in this latitude, varies.
The opinion will be amended so as to correct the admitted misstatement therein first above mentioned.
The second ground upon which a rehearing is asked *is stated in the motion therefor in the following language:
“The opinion of this court that the trial court erred in not granting a new trial is based upon the possibility that the testimony of Burch may throw some light upon his possession actual or constructive of the disputed strip. Our contention is that plaintiff is entitled to maintain his action on his paper title irrespective of any possession actual or constructive by Burch. We spent considerable time in our brief to prove that a grantee under a quitclaim deed may bring ejectment whether or not the grantor was in actual or constructive possession of the premises, provided that the grantor had a legal title and a right to possess. Burch had such title and right to possess here because he took title to all of the undisposed of parts of the Coates farm, including. Scarborough Beach, by warranty deed from Maclnnes and transferred this same right to the plaintiff Bird. (See deeds Burch to Bird, Exhibit A, R. p. 80, and Maclnnes to Burch, Exhibit B, R. p. 82,) (See our brief pp. 13-16 for discussion of the above point.) This *603question is one of the questions which was expressly left to the Supreme Court for decision and we would like a ruling upon it for the purpose, if no other, to guide the trial court in a new trial for the reason that whatever the testimony of Burch may be as to his possession, constructive or otherwise, we will contend that plaintiff is entitled to maintain his action of ejectment on his paper title.
“The following authorities from our brief are respectfully called to the attention of the court again,”
giving 18 citations to statutes, text-books and reported cases. It is enough to refer to the opinion itself, not only to precisely answer the criticism here made, but to indicate the lack of consideration which the point has received.
It remains to consider whether the conclusion that the judgment should be reversed and a new trial should be had is affected by the erroneous assumption of fact. It must be apparent upon a reading of the portion of the opinion in which the assumed fact is stated in connection with the whole opinion that if all reference to the particular deed had been omitted the conclusion must have been the same.
The rehearing is denied.
Bird, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.