Marshall, C. J.,
¶1
dissenting. I concur- without reserve in the declarations of law contained in the syllabus in this case, but I dissent from the judgment reached, because I deny that those principles of law can properly be applied in any case involving real estate described as city lots without description by metes and bounds. In this case the judgment of the court takes from the party who holds title by deed a portion only of the lot and establishes an irregular line between the parties, where the deed called for a straight line. Under all the facts of this case, whatever line is established should in my opinion be a straight line. 1 cannot, therefore, concur in the judgment.
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Case posture Posture CERTIFIED by the Court of Appeals of Franklin county.
This case comes into this court upon certificate from the Court of Appeals of the Second Appellate District, finding that its judgment is in conflict with two judgments pronounced upon the same question by the Court of Appeals of the Fifth Appellate District, and that therefore the matter is certified to this court for review and final determination.
The facts out of which the controversy grows are briefly as follows:
Edward P. Zipf, the original defendant, is the owner of lot No. 49 in a certain subdivision in the city of Columbus, with house thereon, at No. 1243 Oak street, and Mary E. Dalgarn, the original plaintiff, is the owner of lot No. 50 in the same subdivision, with house, at No. 1249 Oak street. The lots, as shown on the plat, were originally 31 feet front by 137 feet in depth.
The plaintiff, Mary E. Dalgarn, purchased the lot in question owned by her from John Boyd and Edith A. Boyd on the 25th day of September, 1905, and has occupied the premises ever since that date. Said Boyd had owned the premises in question for more than three years theretofore.
The defendant, Edward P. Zipf, purchased the lot owned and occupied by him, to wit, lot No. 49, from one Simon Platt and wife, by deed under date of May 23, 1921, said Platt having purchased the property from one Martha C. Bruner, in 1909, who owned and occupied the premises in question from March, 1895, 14 years. At the time Martha C. Bruner purchased these premises it seems that there was a wire fence on the east side of her lot. This wire fence for some reason was replaced by a new one erected on the line of the old fence, it being claimed that the same post holes were used. This fence originally extended from the rear of the lot to Oak street. This old fence, it is claimed, was not upon the true lot line, but was some 16 inches over on lot 49. After the erection of the house on lot 50, which was built approximately in 1904 or 1905, the front end of the fence was removed and lattice or wing fences were built by
the respective owners from the corners of their buildings up to the line fence, and no partition fence appears to have been maintained upon the property at the north or front end thereof, at least from the street line back to the so-called wing fences.
The controversy in the present instance arose by reason of Zipf placing a garage on the rear of his lot, upon the 16 inches claimed by the plaintiff, Mrs. Dalgarn, and the subsequent removal by Zipf of the fence extending from the back line northerly to the so-called lattice or wing fences, and the casting of the same over and upon the property of the plaintiff, Mrs. Dalgarn; whereupon Mrs. Dalgarn began a proceeding in equity in the court of common pleas seeking to enjoin Zipf from committing these acts and asking that the fence, which had stood upon the line claimed by her by prescriptive right for more than 21 years, be restored, and that so much of Zipf's garage as stood upon her property be removed. A temporary injunction was secured, and an answer was filed by the defendant, Zipf, which was in the nature of a general denial. Trial was had upon the issues tendered, the decree of the court was rendered in favor of the defendant, Zipf, and the temporary injunction was dissolved. Appeal was prosecuted to the Court of Appeals, which found that the plaintiff by adverse possession had acquired title up to the line of the old fence, which extended from the alley to a point between the two houses, where the lattice or wing fences stood; that the defendant wrongfully tore down said fence and moved his garage across the line. The court awarded to Mrs. Dalgarn the land in question
up to the line of occupation from the rear of the lot to the point where the old fence torn away by the defendant ended, and from that point the court found that the dividing line should jog over to the true line on the front of the property, as established by the testimony of certain surveyors.
The case is certified as above noted and is before this court for determination. Source: CourtListener
Court Parallel citations 151 N.E 174 4 OhioLaw.Abs. 182 