Harlow v. Marquette, H. & O.R. Co.

• Decision Date: 02 July 1879
• Citation: 41 Mich. 336,2 N.W. 48
• Parties: OLIVE L. HARLOW v. THE MARQUETTE, H. & O.R. Co.
• Court: Michigan Supreme Court

2 N.W. 48

41 Mich. 336

OLIVE L. HARLOW v. THE MARQUETTE, H. & O.R. Co.

Supreme Court of Michigan

July 2, 1879

A railroad company, by permission of plaintiff, entered upon and constructed its road through lands belonging to the plaintiff--damages for right of way, etc., to be settled in the future, and the company in the meantime to acquire no interest in the soil. Condemnation proceedings were subsequently instituted, and plaintiff's damages determined. Held, that she could not thereafter maintain trespass for damages alleged to have been caused by the entry upon and occupancy of the land prior to the condemnation proceedings.

Error to Marquette _______

F.O Clark, for plaintiff.

W.P. Healey, for defendant.

MARSTON J.

Plaintiff brought trespass to recover damages for breaking and entering upon her lands in the construction of a road, and for disturbing her in the possession thereof, and in hindering her from carrying on and transacting her lawful business thereon. Upon the trial her counsel claimed to recover "damages sustained for the use of the property per year not as a damage to the land itself, but as a damage from the use of the land during each year."

The railroad company entered upon the land and commenced the construction of the road in 1871, completed, and ever since has been using the same.

Amos R Harlow, the husband of the plaintiff, and who represented her, was called as a witness and examined. His testimony clearly showed, and was not disputed, permission to the company to proceed and construct the road, but with an understanding that it should not thereby acquire any right in the soil. Mr. Harlow's whole course of conduct, what he said from time to time, and what he did in reference to culverts, fences, and other matters, places this beyond dispute. The fact that he, at certain times claimed that the railroad company and its agents were trespassing, could not change the effect of the permission given, or revoke it. The whole tendency of his testimony is to show that, while the company might proceed with the construction of the road, yet the plaintiff should lose no rights thereby, but that her claims should be provided for and adjusted thereafter. He also declined to make any proposition in reference to a sale of the right of way, giving as a reason therefor that until the road was built he could not tell what the damage would be. It is clear that both parties...