Flint & P.M. Ry. Co. v. Gordon

• Decision Date: 08 October 1879
• Citation: 41 Mich. 420,2 N.W. 648
• Parties: FLINT & PERE MARQUETTE RAILWAY COMPANY v. SAMUEL H. GORDON.
• Court: Michigan Supreme Court

2 N.W. 648

41 Mich. 420

FLINT & PERE MARQUETTE RAILWAY COMPANY v. SAMUEL H. GORDON.

Supreme Court of Michigan

October 8, 1879

A bill lies at the suit of a railway company to quiet its title to its right of way as a "highway," under U.S.Rev.St � 2477, over public lands which had been entered as a homestead before the railroad was laid out across it, though the homestead title had not been perfected until after it was built.

W.M. Webber, for complainant.

Geo. K. Newcombe, for defendant.

COOLEY, J.

The bill of complaint is filed in this case to quiet the title of complainant to the right of way claimed and occupied for railway purposes across a certain eighty-acre lot of land owned and occupied by defendant, in the county of Osceola.

The land belonged to the United States in 1868, and was entered by the defendant as a homestead in that year, and patented to him, on perfecting the proofs, in 1874. The complainant laid out its line across the land, and constructed its railway over it in 1872. Some little improvement had then been made by defendant, and a portion of this was included within the strips of land taken for railroad purposes. Defendant protested against the action of complainant in crossing his land, and, in 1875, brought action in trespass therefor, but this was afterwards discontinued, and an action of the case commenced which was pending when the bill was filed. The other facts in the case are agreed upon, as follows:

The first survey for the line of the Flint & Pere Marquette Railway was made in 1857. The line of that survey passed through the county of Osceola, and through the range of townships numbered seven west, through the northern part of township sixteen (16) north, being between six and seven miles south of the line which was afterwards adopted, and upon which the railroad was constructed through that range of townships.

The line of that survey in 1857 was the one which was filed during that year in the general land office at Washington and which was accepted and approved by the commissioner of the general land office and the secretary of the interior, as the line of the road for the adjustment of the land grant which was made to the company. This line was about six miles distant from the land in controversy, and no other survey or plat of a line or road was ever filed by the Flint & Pere Marquette Railway Company in said land office till May, 1872.

Afterwards and preparatory to construction, the company caused explorations to be made by and under the direction of William B. Sears, chief engineer, and the line of 1857 was found in that range of townships so hilly and expensive for construction that he ran other lines, but none was ever settled upon and adopted until 1870, when the survey was made upon the line where the road was afterwards constructed, which was adopted by the company as the line for construction, and upon the recommendation of the chief engineer as being the best line for cheapness of construction and operation disclosed by his explorations. No line of road was ever marked across the land in controversy, to be held by the railway company for its right of way, prior to the survey of 1870, and, when the defendant made the entry of the N. 1/2 of the S.E.

1/4 of section 4, in township 17 north, range 7 west, in 1868, as stated in the bill, there was nothing on the land indicating a claim by the railroad company to any portion thereof. Shortly after the entry, and during the same year, he took possession of the land, and resided upon it with his family, which residence has continued without interruption until the present time.

Prior to the survey of the railroad line across this land, in 1870, the defendant had made some improvements in the way of chopping and clearing upon the north-east corner of said parcel, had built thereon a log house and barn, and had constructed a rail fence on the east side, and a brush fence on the other sides of such clearing.

The strip of land taken by the railway company, 100 feet wide, is correctly described in the bill in this cause, and the area of said strip is there correctly stated. The railway company, by its contractors and employes, took possession of said strip of land early in the year of 1871, the choppers commencing their work of clearing at that point while the snow was yet on the ground, and the grading was completed and the track laid so that trains passed across this land on the railroad as early as in September, 1871.

The railway company caused the track to be fenced at that point, the railway fences having been built also in 1871, and since the construction of the track across said parcel and the construction of said fences, the said railway company has been in the possession of said strip of land as and for its right of way, and has run trains thereon to the present time, as stated in the bill. Of the 3.12 acres taken for right of way, about one-half had been chopped and cleared by the defendant before the construction of the road at that point was commenced, the other half being yet uncleared.

The company, by its contractors and employes, entered into possession of said strip of land against the will and under the protest of the defendant, the said railway company claiming (under the acts of congress and the legislature of Michigan mentioned in the bill) a right to take possession of and use said strip of land for right of way, as the owner under the grants aforesaid, and against the protest of the said defendant, which claim of right and ownership the company has continued to the present time.

The railway company, after the construction of its road, offered to pay the defendant the value of the labor expended by him in clearing the land. The defendant, however, claimed that he was the owner of that strip of land, and by the construction of the railway thereon had suffered other injuries, and refused to negotiate on the basis proposed by the railway company, and has, ever since the company has been in possession, continued to make claim against the company as an intruder upon his rights.

Prior to the taking of possession and the construction of the road across this parcel of land there had been no map filed by the officers of the company in the general land office at Washington, showing the line of the road adopted across this parcel of land. Afterwards, and in the month of May, 1872, the railway company caused to be filed in the office of the commissioner of the general land office at Washington a plat showing the line which was adopted and upon which the road had been constructed through the county of Osceola, including the land in question.

The said Flint & Pere Marquette Railway was constructed, and the governor's certificate of such construction, made at the time in that behalf, stated in the bill.

Hersey, to which point the road was constructed prior to the sixteenth day of December, 1871, is, by the line of the road, about fifteen miles west of this parcel of land where the defendant resides, and the road was constructed from the east to the west.

The patent for said land was issued and delivered to defendant, and bears date February 20, 1874, as stated in the bill, and in the patent there is no exception of any strip for right of way; but the patent on its face is absolute for the entire 80 acres. The strip of land in controversy was, at the time of filing the bill in this cause, of a value in that behalf stated in the bill. The court below decreed that complainant be quieted in its title to the strip of land occupied as and for a right of way across defendant's land, and that defendant release to complainant all claim thereto so long as complainant shall desire to use the same for railroad purposes, saving to him only the right of reversion in case of non-use by complainant. Defendant appealed.

1. The right of complainant to file a bill in equity is denied on the ground that the remedy at law is ample, and all its rights might be determined and protected in the suit at law which was pending when the bill was filed. It is true that a court of equity is not a proper tribunal to determine the title to lands, (Devaux v. Detroit, Har.Chy. 98; Blackwood v. Van Vleet, 11 Mich. 252,) but this is only so when the remedy at law is plain and adequate. It is neither plain nor adequate when in the suit at law the title would only incidentally come under examination, and a decision in favor of one party would still leave an apparent title of record in the other. And such would be the case here; the apparent title of record is in the defendant, and it will still remain in him, whatever might be the result of the suit brought by him at law. If the railroad company shall succeed, its title will nevertheless remain clouded, and nothing short of a decree that shall distinctly declare and affirm its right to the strip of land in dispute can constitute an effective remedy. The bill, therefore, was properly filed.

2. It is contended on the part of the defence that the railroad company has no rights whatever in the land--First, because the United States, the original proprietor, has never undertaken or assumed to give any, and consequently the entrance by the railroad company to construct it road, if the United States then remained the owner, was an unlawful intrusion and trespass; and, second, because by the patent from the United States to the defendant the title in fee simple was transferred, not as of the date of the patent, but by relation as of the date when the defendant made his homestead entry. If the defence shall succeed in establishing either of these positions it is obvious that the bill must fail, for the complainant asserts no rights except under grant by the United States, and any such grant...