City of Boyne City v. Crain, Docket No. 108858

• Decision Date: 20 October 1989
• Docket Number: Docket No. 108858
• Citation: 446 N.W.2d 348,179 Mich.App. 738
• Parties: CITY OF BOYNE CITY, Plaintiff-Appellee, v. Elmer F. CRAIN and Clara M. Crain, Defendants-Appellants. 179 Mich.App. 738, 446 N.W.2d 348
• Court: Court of Appeal of Michigan — District of US

Page 348

446 N.W.2d 348

CITY OF BOYNE CITY, Plaintiff-Appellee, v. Elmer F. CRAIN and Clara M. Crain, Defendants-Appellants.

Docket No. 108858.

179 Mich.App. 738, 446 N.W.2d 348

Court of Appeals of Michigan.

Submitted June 14, 1989.

Decided Aug. 22, 1989.

Released for Publication Oct. 20, 1989.

[179 MICHAPP 739] McTaggart & Arner by William R. McTaggart, Boyne City, for plaintiff-appellee.

Mark M. Muniak, Charlevoix, for defendants-appellants.

Before HOLBROOK, P.J., and SAWYER and GRIFFIN, JJ.

PER CURIAM.

Defendants appeal from a judgment of the circuit court vesting fee title in property to the City of Boyne City, adjudicating the property free of any easement for a railroad right-of-way and permanently enjoining defendants from trespassing on the property. We affirm.

The trial court succinctly set forth the facts of [179 MICHAPP 740] this case in its opinion and we adopt that statement as our own for purposes of this appeal. The trial court stated the facts as follows:

There are two parcels of land owned by the City involving the issue of the defendants [sic] interest in the railroad property. These two parcels are depicted on plaintiff's Exhibit No. 1. The plaintiff's title to Parcel No. 1 begins with a 1941 deed to the City of Boyne City from the State of Michigan of tax reverted lands.

The City's title to Parcel No. 2 as depicted on plaintiff's Exhibit No. 1 commences with deeds from Vera Posch, dated 1959 and 1973.

The defendants claim title to the railroad right of way across Parcel No. 1 through a deed from William H. White as reflected in the chain of title. The defendants claim interest in the railroad right of way over Parcel No. 2 from a 1984 [sic--1894?] deed from Ernest Bachman as reflected in the chain of title. The defendants acquired their interest in both Parcels No. 1 and No. 2 by virtue of a 1985 deed from the estate of Dennis Caughey. The defendants also received other interest in railroad property from the Caughey estate.

The railroad in question goes back to the lumbering era at the turn of the century. It basically ran from the City of Boyne City to Boyne Falls, where it connected with an interstate railroad. That interstate railroad has been completely abandoned. The railroad operating out of Boyne City was formerly a freight railroad and operated successfully until approximately the closing of the tannery operation in Boyne City. In 1976, a group was formed and an attempt was made to save the railroad as a tourist attraction. That effort lasted until approximately 1979 or 1980 when it was disbanded for economic reasons. The group that operated the railroad as a tourist attraction sold the assets and dissolved the corporation. All of its rolling stock was sold. The tracks and the ties were liquidated for scrap and the revenue thus [179 MICHAPP 741] generated was used to pay creditors. The shareholders received about one-half of their investment. The largest shareholder was Dennis Caughey, now deceased, who received the right of way in lieu of payment for his shares in the defunct corporation.

It is undisputed that Mr. Caughey conveyed the easterly end of the right of way from Dam Road to Boyne Falls to the Boyne Mountain Resort, an abutting landowner. This portion constituted approximately one-half of the six miles of roadbed between Boyne City and Boyne Falls. So far as this portion of the railroad is concerned, it is also undisputed that the conveyance severed the only continuity of the right of way between Boyne City and Boyne Falls. This renders it impossible to reestablish the former railroad. Following Mr. Caughey's death, his estate, by his personal representative, Arthur Rouse, quit claimed the remaining westerly portion of the railroad to the defendants in 1985. It is a portion of this remaining westerly portion that runs through Parcels No. 1 and No. 2, as depicted on plaintiff's Exhibit No. 1.

In 1985, the City purchased any interest that the defendant [sic] had in the railroad right of way by quit claim deed regarding property owned by the City and proposed for the development of an industrial park. It was necessary for the City to immediately acquire clear title so as to not lose a corporate prospect that contemplated the construction of a factory in the industrial park. This conveyance effectively cut off any access to the disputed right of way by the defendant [sic] from the southeast. The defendant [sic] placed several cedar posts at the end of the disputed right of way, adjacent to the City's airport runway. Those cedar posts triggered this litigation as it was claimed that they created a hazard to airport traffic. The posts were removed by the City and the defendants agreed not to reinstall the posts pending the outcome of this litigation.

The defendant, Elmer F. Crain, testified that he planned to start a miniature railroad on the portion[179 MICHAPP 742] of the right of way remaining that has not been sold to others. While it is not clear just how much right of way the defendants acquired, the testimony does establish that they paid Twelve Thousand Dollars ($12,000) for it. The defendants have sold off portions of the property, including the sale of the above mentioned portion to the City for a consideration of Ten Thousand Dollars ($10,000). The defendant testified that it was his intention to create a miniature railroad that would cater to tourists.

Some of the right of way property conveyed to the defendants by the Caughey estate conveyed fee title as a result of the original source of title. Other portions of the conveyance conveyed a mere easement as previously determined by this Court on a motion for partial summary disposition regarding Parcels No. 1 and No. 2.

Defendants first argue that the trial court erred in determining that the deed which granted the railroad right-of-way located on Parcel No. 2 conveyed only an easement for use of the right-of-way to operate a railroad rather than fee title to the right-of-way. We note that, prior to trial, the trial court granted partial summary disposition in favor of plaintiff, concluding that the deed granting the right-of-way to the railroad with respect to Parcel No. 2 created a mere easement rather than a grant of fee title. Thereafter, the court concluded that the right-of-way had been abandoned and, therefore, the easement had been extinguished.

The question whether a deed for a railroad right-of-way conveys a fee interest or merely an easement was discussed by the Supreme Court in Quinn v. Pere Marquette R. Co., 256 Mich. 143, 150-151, 239 N.W. 376 (1931):

"Right of way" has two meanings in railroad parlance: the strip of land upon which the track is [179 MICHAPP 743] laid, and the legal right to use such strip. In the latter sense it may mean an easement. But in this State and others the character of the title taken to the strip depends upon the language of the conveyance.

Where the grant is not of the land but is merely of the use or of the right of way, or, in some cases, of the land specifically for a right of way, it is held to convey an easement only. Hickox v Railway Co, 78 Mich 615 [44 N.W. 143 (1889) ]; Mahar v Railway Co, 174 Mich 138 [140 N.W. 535 (1913) ]; Putnam v Railway Co, 174 Mich 246 [140 N.W. 554 (1913) ]; Matthews v Railway Co, 110 Mich 170 [64 Am St Rep 336) [67 N.W 1111 (1896) ]; Jones v Van Bochove, 103 Mich 98 [61 N.W. 342 (1894) ]; Blakely v Railway Co, 46 Neb 272 (64 NW 972) [1895]; Louisville & Nashville R Co v Covington, 65 Ky 526 [1866]; East Alabama R Co v Doe, 114 US 340 (5 Sup Ct 869) [29 L.Ed. 136 (1885) ]; Lockwood v Railroad Co, 43 CCA 202 (103 Fed 243) [CA 4, 1900].

Where the land itself is conveyed, although for railroad purposes only, without specific designation of a right of way, the conveyance is in fee and not of an easement. The distinction was pointed out by Mr. Justice Sharpe in Epworth Assembly v Railway, 236 Mich 565, 573 [211 N.W. 99 (1926) ]:

"On the face of these deeds it would appear that a determinable fee had been created. In neither deed is the land conveyed for a right of way, although an inference would doubtless be drawn that it was, from the description used. The first deed provides that the land shall 'be used for railroad purposes only,' and the second that if the land shall 'cease to be used for railroad purposes' for 'one year or longer' it shall revert to the grantor. Had not these provisions been inserted, it seems clear that an unqualified title in fee would have passed to the grantees."

Thus, we must look to the 1894 deed which conveyed the right-of-way over Parcel No. 2. That document was entitled "Deed of Right of Way" [179 MICHAPP 744] and granted "a strip of land for a RIGHT OF WAY" and provided in pertinent part as follows:

Said strip to include all land within lines drawn twenty-five feet from, on either side of, and parallel to the center line of said railroad, as now or hereafter to be located and constructed, on and across said above described premises, said center line...