2 N.W. 648 (Mich. 1879), Flint & P.M. Ry. Co. v. Gordon

Citation:2 N.W. 648, 41 Mich. 420
Opinion Judge:[41 Mich. 423] COOLEY, J.
Party Name:FLINT & PERE MARQUETTE RAILWAY COMPANY v. SAMUEL H. GORDON.
Attorney:[41 Mich. 421] W.M. Webber, for complainant. [41 Mich. 422] Geo. K. Newcombe, for defendant.
Case Date:October 08, 1879
Court:Supreme Court of Michigan
 
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Page 648

2 N.W. 648 (Mich. 1879)

41 Mich. 420

FLINT & PERE MARQUETTE RAILWAY COMPANY

v.

SAMUEL H. GORDON.

Supreme Court of Michigan

October 8, 1879

A bill lies at the suit of a railway company to quiet its title to its right of way as a "highway," under U.S.Rev.St. § 2477, over public lands which had been entered as a homestead before the railroad was laid out across it, though the homestead title had not been perfected until after it was built.

[41 Mich. 421] W.M. Webber, for complainant.

[41 Mich. 422] Geo. K. Newcombe, for defendant.

[41 Mich. 423] COOLEY, J.

The bill of complaint is filed in this case to quiet the title of complainant to the right of way claimed and occupied for railway purposes across a certain eighty-acre lot of land, owned and occupied by defendant, in the county of Osceola.

Page 649

The land belonged to the United States in 1868, and was entered by the defendant as a homestead in that year, and patented to him, on perfecting the proofs, in 1874. The complainant laid out its line across the land, and constructed its railway over it in 1872. Some little improvement had then been made by defendant, and a portion of this was included within the strips of land taken for railroad purposes. Defendant protested against the action of complainant in crossing his land, and, in 1875, brought action in trespass therefor, but this was afterwards discontinued, and an action of the case commenced which was pending when the bill was filed. The other facts in the case are agreed upon, as follows:

The first survey for the line of the Flint & Pere Marquette Railway was made in 1857. The line of that survey passed through the county of Osceola, and through the range of townships numbered seven west, through the northern part of township sixteen (16) north, being between six and seven miles south of the line which was afterwards adopted, and upon which the railroad was constructed through that range of townships.

The line of that survey in 1857 was the one which was filed during that year in the general land office at Washington, and which was accepted and approved by the commissioner of the general land office and the secretary of the interior, as the line of the road for the [41 Mich. 424] adjustment of the land grant which was made to the company. This line was about six miles distant from the land in controversy, and no other survey or plat of a line or road was ever filed by the Flint & Pere Marquette Railway Company in said land office till May, 1872.

Afterwards, and preparatory to construction, the company caused explorations to be made by and under the direction of William B. Sears, chief engineer, and the line of 1857 was found in that range of townships so hilly and expensive for construction that he ran other lines, but none was ever settled upon and adopted until 1870, when the survey was made upon the line where the road was afterwards constructed, which was adopted by the company as the line for construction, and upon the recommendation of the chief engineer as being the best line for cheapness of construction and operation disclosed by his explorations. No line of road was ever marked across the land in controversy, to be held by the railway company for its right of way, prior to the survey of 1870, and, when the defendant made the entry of the N. 1/2 of the S.E.

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1/4 of section 4, in township 17 north, range 7 west, in 1868, as stated in the bill, there was nothing on the land indicating a claim by the railroad company to any portion thereof. Shortly after the entry, and during the same year, he took possession of the land, and resided upon it with his family, which residence has continued without interruption until the present time.

Prior to the survey of the railroad line across this land, in 1870, the defendant had made some improvements in the way of chopping and clearing upon the north-east corner of said parcel, had built thereon a log house and barn, and had constructed a rail fence on the east side, and a brush fence on the other sides of such clearing.

The strip of land taken by the railway company, 100 feet wide, is correctly described in the bill in this cause, and the area of said strip is there correctly stated. The railway company, by its contractors and employes, took possession of said strip of land early in the year of 1871, the choppers commencing their work of clearing at that point while the snow was yet on the ground, and the grading was completed and the track laid so that trains passed across this land on the railroad as early as in September, 1871.

The railway company caused the track to be fenced at that point, the railway fences having been built also in 1871, and since the construction of the track across [41 Mich. 425] said parcel and the construction of said fences, the said railway company has been in the possession of said...

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