Croucher v. Wooster

• Decision Date: 17 May 1935
• Docket Number: No. 22.,22.
• Citation: 260 N.W. 739,271 Mich. 337
• Parties: CROUCHER et ux. v. WOOSTER et al.
• Court: Michigan Supreme Court

271 Mich. 337

260 N.W. 739

CROUCHER et ux.

v.WOOSTER et al.

No. 22.

Supreme Court of Michigan.

May 17, 1935.

Bill by Arch J. Croucher and wife against Lacey E. Wooster and wife, Frank P. Klose and wife, and others. Each of the named defendants and wife filed a cross-bill against Kai J. Nielson and others. Decree for cross-complainants, and cross-defendants appeal.

Affirmed.

Appeal from Circuit Court, Kalamazoo County, in Chancery; George V. Weimer, Judge.

Argued before the Entire Bench, except NELSON SHARPE, J.

L. W. Beardsley, of Battle Creek, and Worcester & Worcester, of Big Rapids (N. A. Cobb, of Battle Creek, of counsel), for appellants.

Charles L. Dibble and Mason & Sharpe, all of Kalamazoo, for appellees.

FEAD, Justice.

Plaintiffs, claiming to be the owners in fee of certain property adjacent to and on the southerly side of Gull Lake in Kalamazoo county, filed the bill of complaint herein to restrain alleged trespasses and to clear cloud from title. In the record and briefs the parcel of land of which plaintiffs assert ownership is described or referred to as bounded by Gull Lake on the northerly side and by a highway on the southerly side. As appurtenant to this parcel plaintiffs also claim ownership of the land under the adjacent water to the north and to the center of the highway on the south. This highway is one established by user. But the record discloses that it has been surveyed on at least three different occasions. So far as disclosed these surveys were of a highway 66 feet in width. For a number of years the northerly portion of this highway adjacent to Gull Lake was occupied by the roadbed of an interurban railway. While it may not have been of absolutely unvarying width so far as user is concerned, the record thoroughly establishes the fact that the highway was 66 feet in width and in this locality immediately adjacent to the shore line of Gull Lake. All parties litigant claim to hold by mesne conveyances from John J. Freer and wife, who formerly owned the farm of which the property here in suit was a part. In 1900 Mr. and Mrs. Freer dedicated a plat of land on the southerly side of the highway, the plat being known as Bay View. It consisted of 64 lots. About half of these lots front north upon the highway. The remainder of the lots are farther to the south and do not front upon the highway above mentioned. The dedication of the plat describes it as ‘lying south of the road.’ Defendants Wooster are the owners of lot 26, and defendants Klose of lot 17; each lot fronting upon the road and being directly across from the lake. As against plaintiffs' alleged ownership of the property on the north side of the highway and directly opposite the respective lots of defendants Wooster and Klose, the latter assert that their respective conveyances vest in them a fee title or at least the riparian rights on the shore of Gull Lake opposite their respective properties; and they also assert riparian rights in common with others in that portion of the shore of Gull Lake lying north of the Bay View Plat. It is this asserted ownership on the part of defendants Wooster and Klose which plaintiffs Croucher allege constitutes a cloud upon the title to the property of which they assert ownership.

Cross-defendants Nielson claim to have a mortgage on the property north of the highway to which plaintiffs assert ownership in fee. This mortgage has been assigned as collateral security by the Nielsons to cross-defendant Deere & Co. Formerly Mr. and Mrs. Nielson asserted ownership in fee to land north of the highway. They conveyed this property to plaintiffs and took back a mortgage. This mortgage is the interest which cross-defendants now claim in the property; and, subject to certain admitted rights of easement, these cross-defendants claim the mortgage is a lien upon the lake front property opposite the lots owned by defendants Wooster and Klose, respectively. The latter deny the validity of this mortgage lien.

Plaintiffs took no part in the hearing of this case. The Nielsons and Deere & Co. were made parties defendant by the cross-bills of defendants Wooster and Klose, who seek to have their alleged riparian rights and ownership in property north of the highway and opposite their respective lots confirmed and to have it freed from the alleged lien of the Nielson mortgage. This litigation has resolved itself into a contest between defendants Wooster and Klose on the one hand, and cross-defendants Nielson and Deere & Co. on the other, and decision is dependent upon the validity of the mortgage lien asserted by these cross-defendants. By decree in the circuit court the contention of defendants Wooster and Klose was sustained, and the alleged mortgage of the cross-defendants held to be a cloud on title and cancelled in so far as it purported to be an encumbrance upon the property north of the highway and directly in front of the respective parcels owned by defendants Wooster and Klose. Cross-defendants Nielson and Deere & Co. have appealed.

Obviously decision herein turns upon superiority of title as between that asserted by defendants Wooster and Klose on the one hand, and the Nielson title on the other. All of these parties claim title from common grantors, Mr. and Mrs. Freer. Because the controlling facts are not the same in each case, the rights of defendants Wooster and defendants Klose must be considered independently of each other.

Wooster title: As noted above, both the Wooster title and the title giving rise to cross-defendants' alleged mortgage lien come from Mr. and Mrs. Freer, who dedicated the Bay View Plat in 1900. On May 6, 1904, Mr. and Mrs. Freer deeded lot 26 of Bay View Plat to Jennie R. McBeth, and on November 14, 1924, she conveyed the same property to defendants Wooster. In each of these deeds the property conveyed is described as follows: ‘Lot number Twenty-six (26) of Bay View Plat as said plat was recorded November 19, A. D. 1900 upon page 15 of Book 6 of Kalamazoo Record Book of Plats. Said parties of the first part hereby reserve for themselves, their heirs and assigns, the use of said piece or parcel of land and all appurtenances thereunto belonging for all purposes except residence purposes, said party of the second part, her heirs and assigns, to have the use of said property for residence purposes at all times and forever. Said first parties also convey to said second party the use of lake shore on the north said of said Bay View Plat, in common with others, for landing boats used for pleasure, but does not convey right to land boats for carrying freight or passengers for compensation nor the right to build docks or boathouse thereon.’

Decision herein necessitates placing a construction upon the above-noted conveyances. It is obvious that the parties thereto had in mind the transfer of property rights on both the north and the south side of the highway. As bearing upon the effect of these conveyances, it is important to note here that, regardless of what may be the condition at other points of the shore line north of the Bay View Plat, immediately opposite the Wooster lot (and also the Klose lot hereinafter considered) there is no appreciable amount of land lying between the highway and the lake. In other words, the lake shore is immediately adjacent to the north line of the highway. Nothwithstanding the above-quoted conveyance recites that the grantors reserve for themselves ‘the use of said piece or parcel of land and all appurtenances thereunto belonging for all purposes except residence purposes,’ it must be held the fee to lot 26 was conveyed subject to the restriction that the property should be used ‘for residence purposes.’ The reservation of use to the grantors was repugnant to the grant. Since lot 26 fronted upon the highway at a place where there was no land intervening between the lake and the opposite side of...