Hickox v. Chicago & C.S.R. Co.

• Decision Date: 28 December 1889
• Citation: 44 N.W. 143,78 Mich. 615
• Parties: HICKOX v. CHICAGO & C. S. RY. Co. et al.
• Court: Michigan Supreme Court

44 N.W. 143

78 Mich. 615

HICKOX v. CHICAGO & C. S. RY. Co. et al.

Supreme Court of Michigan

December 28, 1889

Error to circuit court, Lenawee county; V. H. LANE, Judge.

Weaver & Bean, Geo. C. Greene, and O. G Getzen-Danner, for plaintiffs in error.

Clement Carpenter and Salsbury &amp O'Mealey, for defendant in error.

MORSE, J.

In this case the defeasance in the deed of right of way of the plaintiff to the Chicago & Canada Southern Railway Company reads as follows: "If the said railway company, its successors or assigns, should fail to complete said railway through said premises, and to put the same in operation within three years from the date hereof, or if, after such railway is completed and put in operation, it should cease to be used and operated as a railroad, then, in either event, this release shall cease to be operative, and the right of way granted thereunder shall terminate." We think that when this right of way ceased to be used and operated as a railroad, and was used only for the storing of cars, the defeasance became operative, and the conveyance had no further force or effect. The judgment is correct, and is affirmed, with costs.

SHERWOOD, C.J., and LONG, J., concurred.

CAMPBELL J., (Dissenting.)

Plaintiff sued in ejectment to recover land granted by him and his ancestor to be used for railway purposes, which he claims has reverted, for breach of condition in not maintaining the line across it for the purpose of running the usual trains of freight and passengers. The court below held the condition broken, and the estate forfeited. The case is substantially as follows: In 1872 the Chicago & Canada Southern Railway Company was engaged in building a railway from Detroit river to Fayette, in Ohio, not very far south of the state line. Its course took it through Lenawee county in a general direction of about south, thirty degrees west crossing the Lake Shore & Michigan Southern Railway at Corbus, a station between two and three miles north-east of the land in question, and going through Grosvenor, a station about the same distance south-west. The Chicago & Canada Southern Railway continued to run its trains over the railway through both those places until 1879, when it became consolidated in business with the Lake Shore & Michigan Southern, which thereafter had charge of all the running arrangements. The Lake Shore & Michigan Southern had a track running between Corbus and Lenawee junction, more nearly east and west, which passed through two other stations between, and another track through Lenawee junction, passing through Grosvenor. In 1879 the Lake Shore & Michigan Southern, in running from Detroit to Fayette, used its own tracks between Grosvenor and Corbus, through Lenawee junction, and left off the use, for regular trains of the Canada Southern, of the space between Grosvenor and Corbus, on the original track of the latter, making no other change along either line. No station ever existed on the Canada Southern between Grosvenor and Corbus, which were the nearest stopping places to plaintiff's land on that line. The maps do not indicate the wagon roads, but, in actual distance, one or more of the Lake Shore & Michigan Southern road stations west of Corbus would seem to be about as near to plaintiff as Grosvenor or Corbus. On August 23, 1872, plaintiff and his associates in title executed to the Chicago & Canada Southern Railway Company a warranty deed of the right to enter upon, construct, maintain, and operate its road in and upon the N.E. 1/4 of the N.E. 1/4 of section 16, the north 1/2 of the N.W. 1/4 of section 15, and all that part of the west 1/2 of the S.W. 1/4 of section 10, township 7 south, of range 5 east, that lies within 50 feet of the center line of said railway company's track, as the same is located on the S.E. corner of said W. 1/2 of said section 10, and to use and occupy for its railroad a strip of land 100 feet in width across said above-described premises as the same is now located thereon by said company, except 20 feet off the north side of said right of way from the highway 10 rods west; reference being had, for a more definite description of said strip of land, to the map of the route of said company, on file in the office of the register of deeds for said county of Lenawee; said company to construct one farm crossing with cattle-guards, and one crossing with gates, upon the above-described premises; also to construct a ditch, etc. The habendum clause is "to have and to hold said strip of land, for the uses and purposes aforesaid, and incidental thereto, to said railway company, its successors...