Andries v. Detroit, G.H. & M. Ry. Co.
| Decision Date | 04 June 1895 |
| Citation | 105 Mich. 557,63 N.W. 526 |
| Parties | ANDRIES v. DETROIT, G. H. & M. RY. CO. |
| Court | Michigan Supreme Court |
Appeal from circuit court, Wayne county, in chancery; Joseph W Donovan, Judge.
Bill in equity by Catherine Andries against the Detroit, Grand Haven & Milwaukee Railway Company to restrain defendant from interfering with complainant's rights in certain lands. From a decree for defendant, complainant appeals. Affirmed.
Jonas B. Houck and Robert Parker, for appellant.
L. C Stanley, for appellee.
The complainant is the owner of lots 53 and 55 of the Dequindre farm in the city of Detroit. These lots abut upon the west side of defendant's right of way, commonly called "Dequindre Street," and are situate between Gratiot avenue and Jay street. She and her grantors have been in possession of them for many years. The bill in this case is filed to restrain the defendant from preventing or in any manner interfering with the complainant's passing over and along said Dequindre street, to and from her said lots; and also from moving back upon her lots a certain fence, which complainant contended is now erected upon the true line of her said lots. The complainant claims that on September 10, 1892, the defendant with a force of men, entered upon these lands, and commenced to tear down and move back the said fence some three feet upon her lots. She also claims that a sidewalk had for more than 30 years existed along the said Dequindre street, next to her said lots, which had been used by her and her grantors and others of the public for ingress and egress to and from said lots to Gratiot street, and that said way was the only way thereto; but that about 8 years before filing her bill the defendant filled said street with earth, covering said walk, but that complainant and others of the public have continued to use said street as of right to such ingress and egress for more than 30 years, and therefore have acquired a right of way by user, which defendant now threatens to close against her and others of the public. The defendant denies that the premises have been held adversely to it. It appears that prior to 1836 one Antoine Dequindre was the owner of land extending from the Detroit river to the westerly line of the city of Detroit. These lots were a part of these lands. Adjoining these lands on the east was a 40-foot strip. On May 24, 1836, a written agreement was entered into between Dequindre and the Detroit & Pontiac Railway Company, by which the said company acquired this strip for a right of way for its track. The railway company at once entered into possession of this entire strip, and leaving no portion thereof open to street travel. In October, 1836, Dequindre conveyed the other lands to Peter J. Desnoyes, in trust for creditors, subject to the railway company's right of way. In February, 1840, Dequindre and Desnoyes made a plat of the Dequindre farm, which plat, it appears, was not properly executed and acknowledged, and never became entitled to record; but by said plat Dequindre and Desnoyes attempted to dedicate said 40-foot strip to street uses, in utter disregard of the rights of the railroad company. In 1843, Dequindre died intestate, and in 1845 Desnoyes reconveyed to the Dequindre heirs all that part of said lands not disposed of. Partition proceedings were thereafter had and said lot 55 allotted to John Watson. No part of the 40-foot strip was partitioned. The lots partitioned were not described as abutting on any street, but as bearing certain numbers in certain blocks of the Dequindre farm, according to the plat. In 1851, Watson and some of the Dequindre heirs claimed to own said strip of land discharged of the claims of the Detroit & Pontiac Railroad Company, whereupon the said railroad company purchased from Watson and others all their claim and title to said strip; and since December 27, 1851, the defendant railroad company, claiming all the rights of the Detroit & Pontiac Railroad Company, have actually occupied the entire strip as owner, and its possession thereof has been open and notorious. All of the lots so platted, except five, from the Dequindre farm, were made to front on streets, among which were the complainant's lots. These lots were accessible by interior alleys, and no other lots were so accessible. The complainant's grantors well knew the situation of these lots at the time of their allotment and purchase by them. In 1871 the abutting owners of lots along this 40-foot strip and the city of Detroit set up a claim that this strip was a public street. The city filed a bill against the defendant company in the Wayne circuit, in chancery, to enjoin its use by the company. The cause was heard on appeal in this court, and a decree entered here, holding that the strip was not a public street, but the private property of the railroad company. Detroit v. Detroit & M. R. Co., 23 Mich. 173. At the time the father of the complainant purchased lot 53, the railroad company was in possession of the strip, using it as its right of way, and...
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