#### Annie Kilgannon v. John Jenkinson.

*Bill to quiet title*— Possession—Jurisdiction.

One who is not in possession cannot maintain a bill to quiet title, and an» averment in tbe bill tbat defendant bas entered upon tbe premises, and by personal force and violence bas prevented complainant from occupying or using them, bas tbe effect of negativing a fact tbat is^ necessary to tbe theory of tbe bill.

Equity cannot take cognizance of a dispute as to tbe true location of tbe boundary between tbe premises of parties, if tbe settlement of such dispute leaves no question as to the title to tbe property on either • side; tbe remedy is at law.

Tbe comparative means of the parties to a boundary dispute are immaterial to tbe question whether tbe case should fall within tbe jurisdiction of law or of equity.

Appeal from St. Clair. (Stevens, J.)

June 22.

July 2..

Bill to quiet title. Defendant appeals.

Reversed.

*Ghadwich & Gli/ne*for complainant.

*B. G. Farr and*and *Wm. T. Mitchell*for defendant.

A court of chancery will not try titles to land: *Dwcmx v. Detroit*Har. Ch. 98; *Moran v. Palmer*13 Mich. 367; *Barry v. Shelby*4 Hayw. 229 ; unless there is an equity against the adverse claimant: *Lange v. Jones 5*Leigh 192; *Wake v. Gonyers*1 Eden 331; and some objection to a suit at law: *Payne v. Piley*4 Dana 38 ; as that the boundary cannot be found: *Miller v. Wammington*1 J. *& W.*464; a bill to quiet title cannot be maintained if it shows that com*241plainant is in possession: *Barron v. Bobbins*22 Micb. 35; naked pretence of title will not support it: *Torrent v. Mus-kegon Booming Go.*22 Micb. 354.

Geaves, 0. J.

Tbis bill was filed ontbe supposition that it contained a case for the jurisdiction to quiet title, and the circuit judge conceded to it that character and granted relief. Was the decree authorized?

A brief reference to the pleadings is proper. Complainant substantially alleges that she owns in fee, and for more than ten years has occupied, lot 3 in block 7 of the plat of the subdivision of the Fort Gratiot Military Reservation in the city of Port Huron, and caused it to be fenced in; that defendant owns adjoining lot 7, on what is known as “ Cemetery Grant; ” that in May, 1882, he asserted a claim to the west ten feet of her lot, and under such claim forcibly tore down the fence and entered upon said ten feet and by “ actual personal force and violence has prevented her from occupying or using the same or rebuilding her fence.”' Defendant admits being owner of lot 7 and that complainant is owner of lot 3 and that the east line of “ Cemetery Grant” corresponds to the west line of lot 3 and the east, line of lot 7. But he denies that the ten feet claimed by complainant belongs to lot 3, and avers that it is a part of lot 7. He admits tearing down the fence, and that he means to repeat the act in case a fence is again put up on his land; but he denies having committed any trespass.

The statement jnst cited from the bill is such as to warrant special notice. It amounts to an allegation, and almost in terms, that defendant expelled complainant from the ten feet of land in question and is keeping her out of the occupation ; which is the same as saying that she is not in possession, but is kept out by the defendant.

The effect of this allegation is to negative a fact which is necessary for the theory of the bill. *Barron v. Robbins*22 Mich. 35 ; *Blackwood v. Van Vezt*11 Mich. 252; *Methodist Church of Newark v. Clark*Mich. 730.

But this is not all. The showing by evidence falls to *242make out a possession in complainant at tbe time sbe began the suit. The only inference admissible is either that the defendant was then in possession or that the locus in quo was vacant.

Passing this ground of objection, another difficulty is noticeable. A full review of the proceedings makes it entirely clear that the fundamental dispute is abóut the correct position of the line between lots 3 and 7. The case is not one where a complainant in possession of a specific piece of land, and a defendant out of possession, but claiming some right or title, are contending as to which one has the better right to that same parcel; but it is a case where' the titles are not opposed, and the basis and existence of all right and claim depend simply upon where the original line runs. When that is once settled there can remain no semblance of claim or cloud to be passed on, and the issue on that particular question is one regularly triable at law.

The distinction in these cases between the jurisdiction of law and equity depends in- no manner on the comparative means of the parties, and the suggestions in the bill respecting the ability-of defendant and the inability of complainant have no pertinence on this point.

The result is that the case in the record is not one of which a court of equity is authorized to take cognizance. The grievance implies legal 'remedies, and there are no elements to divest the jurisdiction at law and entitle equity to deal with the controversy. *Wykes v. Ringleberg*49 Mich. 567.

The decree should be reversed and the bill dismissed with costs.

The other Justices concurred.