City of Detroit v. Detroit and Milwaukee Railroad Co.

• Decision Date: 07 July 1871
• Citation: 23 Mich. 173
• Court: Michigan Supreme Court
• Parties: The City of Detroit v. The Detroit and Milwaukee Railroad Company

23 Mich. 173

The City of Detroit v. The Detroit and Milwaukee Railroad Company

Supreme Court of Michigan

July 7, 1871

Heard May 2, 1871; May 3, 1871. [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Appeal in chancery from Wayne circuit.

The bill avers in substance:

1. That on May 24, 1836, Antoine Dequindre, then owner of the Dequindre farm, and the Detroit and Pontiac railroad entered into the agreement in writing, set out as Schedule A (a copy of which appears in the opinion).

2. That on April 2, 1836, said railroad company had acquired from the owners of the Witherell farm a right of way, fifty feet wide, along the westerly line of said farm.

3. That on June 11, 1836, said Dequindre, then being sole owner of the Dequindre farm, made a plat of that part of his farm between Larned street and the Detroit river, by which a strip eighty feet wide, half on the Witherell farm and half on the Dequindre farm, was left unsubdivided and marked and designated "Dequindre street;" along the center of which strip as marked out on said plat, one-half on each of said farms, is marked the track of a railway (a copy of which plat is annexed and marked "Schedule C 1"), with intent to dedicate the same to the public for a street in accordance with the true intent of his said agreement, "Schedule A."

4. That as early as the year 1838, said railroad company, under and by virtue of, and in accordance with, the said grant of the right of way and said agreement with Dequindre, laid down their track one-half on each of said farms, from the north line of the city to Jefferson avenue; and from Larned street to Jefferson avenue, said track ran on the line marked for a railway on the plat aforesaid.

5. That in October, 1836, Dequindre conveyed to Peter J. Desnoyers, subject to the said agreement, the whole of said farm, in trust, for his creditors, and that, on February 24, 1840, said Desnoyers and Dequindre made and duly acknowledged another plat of said farm, from North street to the Detroit river, upon which was a strip of land eighty feet wide, extending from North street to the river--forty feet on each of said farms--marked "Dequindre street," with the line of the railway in the center as in the above plat (a copy of which plat is annexed and marked "Schedule C"), with intent to dedicate the streets, alleys and public places on said plat to the public.

6. That from the time of the dedication of Dequindre street, as aforesaid, said strip of eighty feet was used by the public as a street, subject to the user by the railroad company, under said agreement, of its track therein, without let, hindrance, obstruction or interference from any one, until 1851, when the railroad encroached on the use of the public, as hereinafter stated.

7. That said railroad company has now its track on said line between said two farms, from the north side of the city to Gratiot street; has had the exclusive and undisputed possession of forty feet off the east side of the Dequindre farm down to Gratiot street, from 1838 down to the filing of the bill of complaint; also the undisturbed possession of fifty feet off the west side of the Witherell farm, till 1851, when further arrangements with the owners of the Witherell farm were made, as hereinafter stated; that they ran their cars by horse-power over said track on Dequindre street down to Jefferson avenue until 1842, when they took up their track below Gratiot street, and did not relay it until the year 1851 or 1852, when they relaid it under the circumstances hereinafter stated; and that neither the possession nor the right of possession, by said company and your orator, of any part of the entire line of said Dequindre street, from the north line of the city to Detroit river, has ever been obstructed, questioned or disputed by the owners or any one interested in said Dequindre farm, from the time of date of said Schedule A till the time of filing this bill of complaint, except the claims of your orator, as herein stated, of your orator's rights under the said Schedule A and the dedications aforesaid.

8. That in 1843 Dequindre died intestate and insolvent, without having made any other disposition of said farm; that in 1843, by the consent of said Desnoyers and of all others interested in said farm, and through proceedings of the administratrix of the estate, a plat of that portion of the Dequindre farm north of North street was made, which left unsubdivided a strip forty feet off the easterly side thereof, with the words "Center of Detroit & Pontiac R. R." marked in its outer edge; that said last portion of said farm had all been sold according to said plat before the deed of the heirs of Dequindre to John Watson, hereinafter mentioned, and the heirs of Dequindre had also before that time sold all their interest in all the lots, blocks and sections of the entire Dequindre farm according to the plats hereinbefore mentioned and set forth.

9. That, early in 1852, said railroad company, under claim of title by quit-claim deed, bearing date December 27, 1851, from John Watson, who as agent of said company, had procured during the two previous years quit-claims from the Dequindre heirs of the strip forty feet wide along the easterly side of the Dequindre farm, resumed possession of their old line and track from Gratiot street to Jefferson avenue and extended it as far down as Woodbridge street, claiming to enter under said pretended title adversely to the city; and they sunk their track below the level of the street as it had been previously enjoyed by the city, and made excavations and embankments which utterly destroyed said street as a highway, rendering it impassable and useless as a street; that they turned off at Woodbridge street, laid their track down to Brush street, and established their depot there; that at this time they commenced running with steam engines instead of horse-power, and from that time have claimed to exclude, and have actually excluded, the public from the use and enjoyment of every part of the street.

10. That in 1851, after such re-entry, the railroad company released and quit-claimed to the owners of the Witherell farm, their right of way on said farm, except as to twenty feet along its west side, and in return received from said owners a release of the right of way to said last mentioned strip; that said owners had previously dedicated to the public by plats, duly acknowledged and recorded, the last mentioned twenty feet strip, on which plats said twenty feet, together with the easterly forty feet of the Dequindre farm, were designated as "Dequindre street;" that Dequindre street, as a street sixty feet wide, has been left open and dedicated to the public by the owners of said farms, with intent to dedicate the same as a street, which said dedication has never been revoked, vacated or annulled, or in any way interfered with by the owners aforesaid.

11. That the twenty feet so released by said railroad company has been sold by the owners of the Witherell farm, and has been since that time and is now held as private property in defiance of the rights of complainant by said purchasers thereof.

12. That the Detroit & Pontiac Railroad Company has become the Detroit & Milwaukee Railroad Company.

13. That both of said farms were embraced in the city limits prior to the time of the platting and dedication aforesaid, and still are within said limits.

14. That the defendant claims said forty feet of the Dequindre farm under said deed from said Watson; has excluded the public from the same and obstructed the same by laying its track, ditching, embankments and fencing; has claimed and exercised the privilege of running steam engines whereas the deed of said John Watson, as to the premises south of North street, is a nullity, and also to the part north of North street, conveyed only the legal title, subject to the legal obligation of Schedule A; that defendant, being in possession under Schedule A, could not by its own act acquire any title in derogation thereof, and that the deed of said Watson conveyed no title except in subordination to the rights of the complainant.

15. The prayer is that the defendant may be decreed to specifically perform and execute the stipulations, covenants, agreements and trusts in Schedule A, in which complainant is interested; to open Dequindre street eighty feet wide, forty feet on each of said farms, with its railroad track in the center, and devote and keep the same so that it shall remain a public street forever; to procure from the owners of said Witherell farm so much as shall be necessary to make such street, or, if unable to do so, to make compensation in damages; to remove all obstructions to the use, occupation and enjoyment by complainant of said strip eighty feet wide; to fill up all excavations on said street, and in every needful manner to protect complainant in the use of said street, consistent with the right of defendant to use the center thereof for its railway track, by the erection and maintaining of all suitable walls, bridges, street crossings, cattle-guards and other precautions necessary to the safety of the public; that the defendant be enjoined from the use of steam power in propelling its cars within the city limits and the boundaries of the said Dequindre and Witherell farms, and that the complainant have such other relief as is fit.

The answer in substance is as...