Evans v. Grand Rapids, L. & D.R. Co.

• Decision Date: 02 March 1888
• Citation: 68 Mich. 602,36 N.W. 687
• Parties: EVANS ET UX. v. GRAND RAPIDS, L. & D. R. CO. ET AL.
• Court: Michigan Supreme Court

36 N.W. 687

68 Mich. 602

EVANS ET UX. v. GRAND RAPIDS, L. & D. R. CO. ET AL.

Supreme Court of Michigan

March 2, 1888

Appeal from circuit court, Ionia county; VERNON H. SMITH, Judge.

This was a bill for injunction by Hiram Evans and wife, Harriet Evans, against the Grand Rapids, Lansing & Detroit Railroad Company, and William McRae, Michael Lally, John M. Lally Harry Mitchel, and William Lusk, contractors, to restrain the defendants from constructing the road-bed of defendant railroad company across the complainants' homestead. An ex parte injunction was granted by VERNON H. SMITH J., on 31st day of October, 1887, and from the order of same judge denying a motion to vacate the order of injunction the defendants appeal.

MORSE J.

The defendants appeal to this court from an order of VERNON H SMITH, circuit judge, granting an ex parte injunction, and from an order of the same judge denying a motion to vacate the same. The injunction was obtained on the 31st day of October, 1887, upon the complainants' bill alleging, in substance, as follows: The complainants are the owners in fee of a certain parcel of land in the township of Campbell, Ionia county, describing the same as 40 acres, upon which they have lived, occupying the same as a homestead, for a long space of time; and that they now live upon and occupy the same as their homestead. That their buildings are upon said homestead; including a barn, 100 feet long. That the defendant railroad company have projected their line of road from Grand Ledge to Grand Rapids; and that said line, as surveyed, passes over and across the homestead lands of complainants, entering at or near the south-east corner thereof, and passing off from the same a short distance from the north-west corner of said premises, running through the barn used by the complainants in storing their grain and other products, and as a shelter for their animals, and passing, also, within a very short distance of their dwelling-house. That said railroad company has neither purchased the right of way over said homestead, nor entered into any legal agreement to purchase, nor commenced proceedings to condemn, the same. That said company, and the other defendants, who are contractors and subcontractors of the company, have been constructing the road-bed for said line of railroad adjoining the homestead lands of complainant in both directions, but until the 30th day of October, 1887, had not entered upon their premises. That complainants posted notices in conspicuous places upon their premises to the effect that the said railroad company, and all persons acting in its behalf, were forbidden to enter upon the homestead lands, or any part thereof, for the purpose of constructing said road, and also gave like verbal notice to the agents of said company, and to their contractors. "And your orator and oratrix further show unto the court that said railroad company, and said William McRae, and Michael Lally, and John M. Lally, agent of said firm of McRae & Lally, contractors, and Harry Mitchell, subcontractor and foreman of a crew or gang of workmen and laborers, and also one William Lusk, also some sort of agent for said contractors, in the employ of said contractors, or their agents and servants, unmindful of and not regarding the rights of your orator and oratrix in their said homestead lands, on Sunday, the 30th day of October instant, at an early hour in the morning, with a force of workmen, laborers, and servants in their employ, numbering somewhere near fifty persons, with about twenty teams, plows, scrapers, carts, wagons, wheelbarrows, and a great quantity of implements and utensils of all sorts and kinds used and employed by contractors, and their workmen and laborers, in excavating, filling, and constructing road-beds for the laying of iron for a railroad, entered upon the said homestead lands of your orator and oratrix, and began to plow, dig, and scrape and draw off the earth and soil of your orator and oratrix's homestead lands along the surveyed line of said proposed railroad; and entered the barn of your orator and oratrix on their said homestead lands, which is a building nearly one hundred feet in length, and turned out all the animals of your orator and oratrix, which had been shut therein during the previous night, and carried out all the grain, hay, straw, and produce, and everything else which your orator and oratrix had stored therein, and put the same where they saw fit, and then tore down your orator and oratrix's said barn, and drew the materials off from the said proposed and surveyed line for right of way on said homestead lands, and deposited the same on said homestead lands outside of said proposed line of right of way; and committed great and serious damage and waste to the said homestead lands of your orator and oratrix by such digging, plowing, and scraping and carting away the said earth and soil along said proposed line of railroad over and across the same as aforesaid." That complainants, as soon as they discovered this, went out where the defendants were at work, and forbade their entry upon the land, and from interfering with their barn, and digging and plowing up the soil, or from committing any further waste or trespass of any kind; but defendants "hooted and yelled," and wholly disregarded such warning and command. That complainants are informed and believe that the survey and profile of said railroad line across their said homestead premises requires an excavation of the earth or cut from four to six feet in depth for nearly the entire length of said proposed line; and that such excavation or cut will cause irreparable injury and damage to their homestead lands, and nearly, if not quite, ruin the same for the purposes of a homestead. That said cut comes very near to the dwelling-house, and will, besides making a very dangerous place by reason of its proximity to their said dwelling-house, also destroy their said homestead lands, and the dwelling which is their home thereon. That they are old people, very much advanced in years. That they purchased the said premises 22 years ago for the purpose of making it their home, and have cleared it up almost from a wilderness, and there lived ever since as their home, and reared their children there; expecting and hoping to remain upon said premises, and in said home, during their declining years, to the end of their lives. That while they are possessed of 80 acres of land in all, 40 acres of which...