
    No. 873
    KELLER v. BOONE
    Ohio Appeals, 2nd Dist., Montgomery Co.
    No. 692.
    Decided May 27, 1926
    460. EQUITY — Where a party erects buildings upon his lot, and upon a portion of an adjoining owner’s lot because of an error of said owner in pointing out the boundary line; and the Common Pleas Court renders judgment in favor of said owner, the party building cannot retain the disputed tract when, during pendancy of the case in the Court of Appeals, his buildings are destroyed by fire.
    Attorneys — Sigler & Denlinger for Keller; James & Coolidge for Boone; all of Dayton.
   BY THE COURT.

Benjamin Boone instituted this action against John Keller in the Montgomery Common Pleas to recover a small tract of land which was in dispute, Boone & Keller being owners of adjoining lots. The court rendered judgment in favor of Boone for a tract described in the journal entry and awarded damages against Keller for unlawful possession of land.

Error was prosecuted and Keller claimed that when he bought his lot, Boone pointed out the boundary line thereof; and he (Keller) relying thereon, erected buildings on his lot, portions of which stand .on the tract in dispute. The Court of Appeals held:

1. Keller therefore claims that in equity he is entitled to the disputed land up to the boundary line pointed out to him; or if not, that he was entitled to retain said land upon paying rental therefor.
2. This court holds that the real title was correctly found by the court below.
3. Since that judgment, and during the pendancy of the case in the Court of Appeals, Keller’s buildings were completely destroyed by fire.
4. In view of this situation, the ownership of the property must be decided according to the actual title.

Judgment affirmed.  