Order Denying Rehearing
In this cause an application for rehearing together with a brief in support thereof is filed by third party defendants-appellees, MacGregor, and an answer and brief in opposition thereto having been filed by plaintiffs-appellants, Aalsburg, and a motion for leave to file delayed application for rehearing together with a brief in support thereof having been filed by defendants-appellees, Barnes, and due consideration thereof being given by this Court by dealing with the 3 stated grounds for rehearing as asserted by third party defendants-appellees, MacGregor, vis:
1. The method of allocation of the lakeshore adopted by the Court was not pleaded or proposed by any party and the issues with respect thereto were not tried, briefed or argued.
a. GCR 1963, 801.1 provides for the “method of review” by the Court of Appeals and states in part:
“This rule refers only to the method of review and does not restrict, enlarge or change the right or scope of review provided by law except as explicitly set out in these rules.”
*102b. 5 CJS, Appeal & Error, § 1462(a) states in part:
“The appellate court may weigh the evidence in equity cases in which it has all the evidence before it, and the competent evidence will be considered, and this without reference to the ruling of the lower court thereon.”
Maginn v. Cashin (1917), 196 Mich 221 is given as support for the last clause.
c. 5B CJS, Appeal & Error, § 1874(a) states in part:
“On appeals in equity cases, as shown supra, § 1462, the higher court has somewhat broader powers of review than on appeals in actions at law tried before a jury, and further it generally has the benefit of findings of fact made by the trial court. Accordingly, on such an appeal, where the court can see from the record what the rights of the parties are, it not only has the power to render such a decree as ought to have been rendered below, without remanding the case, but it is also held to be its duty to do so; and in such jurisdictions it is the invariable practice to render final judgment, and not remand the case for further proceedings, but in other jurisdictions such practice apparently does not obtain. The modification of a decree amounts, generally, to an affirmance and specified exceptions.”
d. And 5B CJS, Appeal & Error, § 1835(b) states in part:
“In a proper case and for a sufficient reason the court, on appeal in an equity or chancery case, may remand the case to the court below for further proceedings therein, in accordance with the opinion of the court.”
Where the Court of Appeals is reviewing an action involving equitable matters and has before it *103all the evidence, it may modify or change the trial court’s decree and may remand for further proceedings not inconsistent with its determination on appeal.
1. There is no need for testimony, briefing or argument on the equitable “method of allocation” determined by the Court of Appeals.
ii. There is no need for testimony or argument on the side lot lines in determining the points of beginning in applying the equitable “method of allocation;” if there is, such might be made within the scope of remand to the trial court.
iii. The parties sought equitable settlement and they have received it — there is no basis now for complaint because they may have received something or lost something they didn’t specifically desire.
2. The Court failed to determine third party defendants’ MacGregors’ claim of title by adverse possession of the property between his side lot lines extending to the 1946 shoreline, although the evidence in support of said claim is substantially undisputed.
The trial court considered the issues of both adverse possession and acquiescence and found acquiescence. This Court in reviewing the evidence stated:
“The testimony shows no definite established boundary lines but only a dive and let live’ course of conduct, i.e., both parties using the same land from time to time during those years as well as during the following years until the 1960’s.”
This conclusion precludes any finding of adverse possession.
3. The decision of the Court goes beyond the pleadings and in particular grants relief against *104third party defendants that was not pleaded or demanded in the third party complaint.
a. The relief requested by third party defendants (Barnes) in their complaint asks that:
“The court also determine the north boundary of defendants’ property to be the line drawn from the northeast corner of said metes and bounds description to the center of Silver Lake.”
The request for relief and the equitable “method of allocation” propounded by the Court of Appeals are not totally opposite. Third party defendants could not foresee what relief might be forthcoming and protected itself by stating the pleaded request. The relief given is equitable, and does not extend beyond the scope of the pleadings.
This Court confined itself as did the trial court to determining the common lot lines between the Barnes’ and MacGregors’ properties and the Barnes’ and Aalsburgs’ properties; and is in accord with relief requested by all parties to this action.
It is ordered that the application for rehearing of defendants-appellees MacGregor be, and the same is hereby denied, for lack of merit in the grounds presented;
It is further ordered that the motion for leave to file delayed application for rehearing of defendants-appellees Barnes be, and the same is hereby denied for lack of merit in the grounds presented.
This order has taken into consideration all the supplemental pleadings filed subsequent to the issuance of the opinion of this Court.