Gardens of Rest, Inc. v. Upper Mich. Power & Light Co.

• Decision Date: 08 September 1948
• Docket Number: No. 40.,40.
• Citation: 33 N.W.2d 741,322 Mich. 153
• Parties: GARDENS OF REST, Inc., v. UPPER MICHIGAN POWER & LIGHT CO.
• Court: Michigan Supreme Court

322 Mich. 153

33 N.W.2d 741

GARDENS OF REST, Inc.,

v.UPPER MICHIGAN POWER & LIGHT CO.

No. 40.

Supreme Court of Michigan.

Sept. 8, 1948.

Appeal from Circuit Court, Delta County, in Chancery; Frank A. Bell, judge.

Suit by Gardens of Rest, Inc., a Michigan corporation, against the Upper Michigan Power & Light Company, a Michigan corporation, to restrain he defendant from constructing or maintaining a power line along the line of an old highway across lands allegedly owned by the plaintiff. From a decree dismissing the bill, the plaintiff appeals.

Decree affirmed.

Before the Entire Bench.

Yelland & Yelland, of Escanaba, for plaintiff and appellant.

McGinn & Fitzharris, of Escanaba, for defendant and appellee.

REID, Justice.

Plaintiff cemetery company filed the bill of complaint in this for an injunction to restrain defendant power company from constructing or maintaining a power line along the line of an old highway across lands claimed to be owned by plaintiff. Defendant claims an easement or franchise as upon a highway. From a decree dismissing the bill, plaintiff appeals.

Defendant power company has a power line along the westerly side of the old roadway in question and began surveying to establish an additional line, with hightension wires, along the easterly side of the old roadway. Plaintiff claims that the old highway has become lost to the public by non-use. Inasmuch as the defendant power company is the only party defendant in this case, we are concerned only with the question of whether defendant power company has the right to do what it intends to do as to its power line. It is important to determine the status of the roadway at the time of the granting to defendant's predecessor of its franchise in 1907 and a renewal thereof to defendant in 1938. We are not concerned with the right of the public in general as to the use of the road at the present time.

Plaintiff claims that in 1939 and 1940 when the persons interested in organizing the cemetery company and developing the project for the cemetery in question, looked the property over, that the old road had been abandoned, was grown up to weeds and sumac and was not distinguishable, and that evidently the road had not been used for some years.

Defendant's witness McNabb, a surveyor, testified that he had lived in Escanaba since 1901 or 1902, and that the road in question had been along the section line for over 45 years. The highway was known as the ‘Old State road’ and it is on the range line and the section line, and is visible. McNabb testified that the screenings and pebbles from building stone at Flat Rock were used in building the road in question.

A highway may cease to be such by voluntary abandonment and non-use (see Meyer v. Meldrum, 237 Mich. 318, 211 N.W. 658), but we are satisfied there never has been a voluntary abandonment and non-use of the old highway in the case at bar.

We are satisfied with the substantial accuracy of the following finding by the trial judge:

‘More than 40 years ago a highway was built along this section line. It extended from the northerly limits of the city of Escanaba to points north of the plaintiff's cemetery plat. It was the main way of travel from the city to the north. It was extensively used for years. Observation on the ground shows that at some time the roadway was graded and gravelled. In the year 1931 highway U. S. 2 was completed. It adjoins the cemetery on the west. Some time earlier county road 426, which adjoins the cemetery on the east, was improved. These are paved roads and took travel away from the section line road. ...