In re Flint & P.M.R. Co.

• Decision Date: 08 April 1892
• Parties: In re FLINT & P. M. R. CO.
• Court: Michigan Supreme Court

51 N.W. 1001

91 Mich. 293

In re FLINT & P. M. R. CO.

Supreme Court of Michigan

April 8, 1892

Appeal from circuit court, St. Clair county, in chancery; ARTHUR L CANFIELD, Judge.

Petition by the Flint & Pere Marquette Railroad Company to obtain an order or decree to abandon and take up its tracks between Yale and Zion, and to abandon Fargo station. Petition dismissed. Petitioner appeals. Reversed.

William L. Webber, (S.W. Vance and A. R. Avery, of counsel,) for appellant.

A A. Ellis, Atty. Gen., and Stevens & Merriam for appellee.

GRANT J.

This is a proceeding by the petitioner under Act 275, (Pub. Acts 1887,) to obtain an order or decree for the abandonment and taking up of its track between Yale and Zion, and to abandon one of its stations. The case was heard as in a suit at law proofs were taken, and the petition dismissed, and the petitioner appeals. The law above mentioned provides that it shall be unlawful for any railroad company, whose road has been constructed, wholly or in part, by public aid or local subscription, given as a bonus for such construction, having once constructed and put in operation the whole, or any portion, of said road, and located and opened for business stations and houses thereon, to thereafter take up, abandon, or cease the operations of its said track, or any portion thereof, or to close up and abandon its said station and station-houses, except upon the order or decree of the circuit court of the county through which said road may run, and in which it is desired to take up and abandon such track. The law then provides for the filing of a petition by the company, for a citation to the commissioner of railroads, for a publication of the pendency of the petition, and for a hearing, "in like manner as is provided by law for other chancery proceedings in this state." It also provides that any citizen interested may appear and be heard in opposition to the petition. The attorney general, and also a citizen, appeared and filed answers.

The record does not disclose the reason given by the court below for dismissing the bill. We do not think the petitioner is in position to attack the constitutionality of the law. It has invoked the aid of the law, and has planted its suit upon the theory of its validity. The defendants do not choose to attack it, but have accepted the petitioner's theory of its validity. For the purposes of this suit, therefore, the law must be held valid. That portion of the road now proposed to be abandoned was a part of the road of the Port Huron &amp Northwestern Railway, and was constructed by that road. In April, 1889, petitioner took possession of this railway property by purchase, under Act 10, Pub. Acts 1889. The Port Huron & Northwestern was a narrow-gauge road, while petitioner is of the standard gauge. The termini of the road are not changed. The general railroad law (How. St. � 3322) authorizes the directors of railroad companies to alter the line of their roads, if it shall appear to them that by so doing their roads may be improved, and provides a method of procedure in such cases. In the...