Hudson v. O. & A. Elec. Co-op. (State Report Title: Deputy Com'r of Agriculture v. O. & A. Elec. Co-op., Inc.)

• Decision Date: 07 April 1952
• Docket Number: I,No. 290,CO-OPERATIV,290
• Citation: 332 Mich. 713,52 N.W.2d 565
• Parties: HUDSON et al. v. O. & A. ELECTRICnc. * Motion
• Court: Michigan Supreme Court

Page 565

52 N.W.2d 565

332 Mich. 713

HUDSON et al. v. O. & A. ELECTRIC CO-OPERATIVE, Inc. ^*

Motion No. 290.

Supreme Court of Michigan.

April 7, 1952.

Robinson, Robinson & Robinson and Thomas N. Robinson, all of Benton Harbor, for appellant.

Chester A. Ray, Allegan, for appellees.

Before the Entire Bench.

DETHMERS, Justice.

Plaintiffs brought mandamus to require defendant to remove temporarily its power lines and poles from a drain right of way because they interfered with the free movement of excavating equipment used in connection with the cleaning, deepening and widening of the drain. From an order granting the writ defendant appeals.

Plaintiffs acquired the right of way prior to 1935 by conveyances never recorded in the office of the register of deeds, but filed in the office of the county drain commissioner. The conveyances were for the construction and maintenance of a drain and deposit of excavated earth adjacent thereto upon the right of way which extended for 75 feet on each side of the center line of the drain. The drain was constructed, the ditch dug and the dirt piled up alongside, plainly visible for all to see. Thereafter, in 1938, defendant obtained, but also failed to record, conveyances of right of way from record titleholders covering some of the same property and erected an electric power line thereon running parallel to and at a distance of 30 feet from the drainage ditch, all within the confines of plaintiffs' right of way.

Defendant relies on plaintiffs' failure to record their conveyances, its own previous lack of actual knowledge of plaintiffs' preexisting rights, and its own open and notorious possession under its grants of right of way, as supporting its claim to superior rights in and to the disputed lands. It claims that physical conditions there existing were not such as to apprise it that plaintiffs' right of way extended so far as to include the land on which its power line was thereafter erected. The trial court held that the presence of a large drainage ditch within 30 feet of where defendant constructed its power line and a large bank of dirt adjacent thereto constituted physical facts known to defendant prir to its acquisition of the easement, which, together with the statutory provisions about to be quoted, should have served to put defendant on inquiry as to the extent of plaintiffs' right of way:

'All releases for rights of way shall be deemed to include sufficient ground on each side of the center line of such drain for the deposit of the excavations therefrom.' C.L.1948, § 264.4, Stat.Ann. § 11.29.

'The said special commissioners shall within 30 days from the date of their first meeting make a return in writing of their hearing, determination and of their several awards. The special commissioners shall file said return with the commissioner, who * * * shall file the same with the other papers in his possession pertaining to such drain. Such return by such special commissioners shall be deemed a sufficient conveyance to vest in the county an easement in said land for the uses and purposes of drainage together with such rights of entry upon, passage over, deposit of excavated earth and storage of material and equipment on such lands, as may be necessary or useful for the construction, maintenance, cleaning out and repair of such drain: * * *.' C.L.1948, § 264.12, Stat.Ann. § 11.37.

Knowledge of facts putting a person or ordinary prudence on inquiry is equivalent to actual knowledge of the facts which a reasonably diligent inquiry would have disclosed....