Hawkins v. Dillman

• Decision Date: 18 September 1934
• Docket Number: No. 118.,118.
• Citation: 268 Mich. 483,256 N.W. 492
• Parties: HAWKINS et al. v. DILLMAN, State Highway Commissioner, et al.
• Court: Michigan Supreme Court

268 Mich. 483

256 N.W. 492

HAWKINS et al.

v.DILLMAN, State Highway Commissioner, et al.

No. 118.

Supreme Court of Michigan.

Sept. 18, 1934.

Appeal from Circuit Court, Oakland County, in Chancery.

Suit by Elsie Mildred Hawkins and another, by their guardian, John W. Hawkins and others against Grover C. Dillman, State Highway Commissioner, and another. Judgment for plaintiffs, and defendants appeal.

Affirmed.

Argued before the Entire Bench.

Patrick H. O'Brien, Atty. Gen., Arthur F. Lederle, Sp. Asst. Atty. Gen., Frank Kolodziejski and Nicholas V. Olds, Asst. Attys.

Gen., and W. C. Hudson, City Atty., of Royal Oak, for appellants.

Arthur E. Moore and George A. Dondero, both of Royal Oak, for appellees.

EDWARD M. SHARPE, Justice.

This suit involves the title to a strip of land 16 1/2 feet wide and approximately 142 rods long, lying in what is now the central portion of Wider Woodward avenue in section 8, town 1 north, range 11 east, of Royal Oak township. Prior to 1838 John Benjamin and wife owned all of the southwest one-fourth of section 8 in the township of Royal Oak. On May 7, 1838, John Benjamin and wife conveyed to the president and directors of the Detroit & Pontiac Railroad Company, a steam railroad, a strip of land in section 8 described as: ‘Lying on the east side of the Detroit and Pontiac turnpike and bounded thereby, being 24 ft. wide and running parallel with said turnpike through the said described land.’

The railroad company immediately built a fence along the west side of its right of way, which fence remained in the same place until the recent widening of Woodward avenue.

Since early times there has been a road from Detroit to Saginaw in the approximate location of the present Woodward avenue. In 1827 an act of Congress (4 U. S. Stat. 231) authorized the laying out of a road between Detroit and Saginaw, but there is nothing to show that a survey was actually made. In 1857 (Laws 1857, No. 107) the Michigan Legislature established the Detroit and Saginaw road as a state highway to be of the uniform width of 4 rods. In 1895 a franchise was granted the Detroit & Pontiac Railway Company by the township of Royal Oak to construct a street car line along the Saginaw turnpike, now Woodward avenue. A single track was so constructed on the east part of the highway. In 1898 the heirs of John Benjamin granted a right of way to the Detroit & Pontiac Railway Company of ‘that certain strip of land existing and lying between the eastern boundary of said Saginaw turnpike and the Detroit, Grand Haven & Milwaukee Railroad; the same being about one rod in width and about 142 rods long, more or less.’

This grant was for railway purposes only, and upon cesser of such use was to become void. Prior to the granting of this right of way, the strip of land was never used for any purpose except in the spring of 1898, when the Benjamins planted potatoes thereon. Old photographs show it as grown up to grass. The traveled portion of the highway was close to the fence inclosing the Benjamin property on the west side of the highway, property which was later acquired by the Roseland Park Cemetery Association. A fence remained on this west line of the old highway until removed for the widening of Woodward avenue.

Some time prior to 1924, the Benjamin property east of Woodward avenue and the railroad tracks was partitioned between the heirs. In 1924 the southern portion was platted as the Benjamin Estates subdivision, and in this plat the streets and alleys were dedicated to the public. The plat shows Woodward avenue as being 200 feet wide at the point where the disputed property lies. In 1925 the northern portion was platted as Roywood subdivision, and also contains the same provisions as to streets and alleys and the width of Woodward avenue. However, the Roywood plat was made by grantees of part of the plaintiffs, and the Benjamin Estates plat was joined in only by those of the plaintiffs to whom that part of the estate had been apportioned.

In 1931, and after the above property was platted, the Eastern Michigan Railways, successor to the Detroit United Railway and the Detroit & Pontiac Railway Company, ceased operating its electric lines, removed its wires and tracks, and quitclaimed to the state highway commissioner. Later the state highway department paved the property formerly occupied by the Eastern Michigan Railways, including the 16 1/2-foot strip.

Plaintiffs, heirs of John Benjamin, bring this suit in equity asking that the title to the fee in this strip be quieted in them, free and clear of any public easement, on the ground that they are the rightful owners by recorded legal title and by adverse possession.

Defendants contend that the land in question is part of a public highway, and that, if plaintiffs ever had any title to the same, it has been lost to them by reason of platting the adjoining property and dedicating the streets to the use of the public. Defendants also contend that a court of chancery has no jurisdiction of the subject-matter.

The lower court held for plaintiffs, and defendants appeal.

While the circuit courts in chancery of this state have express statutory jurisdiction (section 13944, subd. 4, 3 Comp. Laws 1929) to hear and determine title to land, such bills to quiet title will not be entertained and the defendant thus deprived of jury trial where the question of title may be tried at law. Moran v. Palmer, 13 Mich. 367;Carpenter v. Dennison, 208 Mich. 441, 175 N. W. 419;Dunn v. Peck, 255 Mich. 391, 238 N. W. 224;Kamman v. City of Detroit, 252 Mich. 498, 233 N. W. 393. Of course, where a court of chancery has jurisdiction of the subjectmatter on an independent ground, it may determine the question of title, although an action of ejectment would likewise be open. Moody v. Macomber, 158 Mich. 209, 122 N. W. 517;Carpenter v. Dennison, 208 Mich. 441, 175 N. W. 419;Nisbett v. Milner, 159 Mich. 337, 124 N. W. 22. So equity has jurisdiction to quiet title where there is fraud, Moran v. Palmer, 13 Mich. 367; or to avoid a multiplicity of suits, Woods v. Monroe, 17 Mich. 238;Eaton v. Trowbridge, 38 Mich. 454;Maes v. Olmsted, 247 Mich. 180, 225 N. W. 583; or to set aside a mortgage, Methodist Episcopal Church of Newark v. Clark, 41 Mich. 730, 3 N. W. 207; or to reform an instrument, Nisbett v. Milner, 159 Mich. 337, 124 N. W. 22.

Where the defendant is in actual possession of the land, ejectment is the proper remedy, Seymour v. Rood, 121 Mich. 173, 79 N. W. 1100;Longcor v. Turner, 191 Mich. 240, 157 N. W. 564. The plaintiffs contend that an easement is an intangible and incorporeal right, for which ejectment will not lie. But, when the exercise of the easement requires complete possession of the land itself to the exclusion of any acts of ownership by the holder of the fee, ejectment will lie. It would be hard to conceive of any more complete possession than that of the public in a crowded thoroughfare like Woodward avenue. It has been held both in this state and others that ejectment is a proper remedy for lands used as a public street. Tuller v. City of Detroit, 97 Mich. 597, 56...