Jones v. Van Bochove

• Decision Date: 18 December 1894
• Citation: 61 N.W. 342,103 Mich. 98
• Court: Michigan Supreme Court
• Parties: JONES v. VAN BOCHOVE.

61 N.W. 342

103 Mich. 98

JONES v. VAN BOCHOVE.

Supreme Court of Michigan

December 18, 1894

Error to circuit court, Kalamazoo county; George M. Buck, Judge.

Action of trespass by John W. Jones against Benjamin J. Van Bochove brought in justice's court. Defendant pleaded a superior title to the land in question, and the cause was certified to the circuit court for trial. There was a judgment for defendant, from which plaintiff brings error. Affirmed.

H. O Bliss (W. G. Howard, of counsel), for appellant.

Wm Shakespeare and Boudeman & Adams, for appellee.

LONG J.

In 1876 the Eagle Portland Cement Company was the owner of a body of land in the township of Kalamazoo, county of Kalamazoo, upon which there was a marl bed. The marl bed and land were some distance east of the river road and of the Kalamazoo river. The company was at the same time operating a factory on the west side of the river, about three-fourths of a mile west of the marl beds, and at which factory the marl was manufactured into cement. In the above year, the company being desirous of building a railroad from the beds to the factory, purchased of George W. Winslow the right of way over a strip of land along the line of their proposed road, 40 feet wide, and 952 feet long. In the January following Winslow deeded to the company all the land he owned on that section north of said railroad strip, and being about 2 1/2 acres. This land (and, it is now claimed, also the railroad strip) came to the plaintiff by an unbroken chain of title, the plaintiff acquiring title April 1, 1891. Several years before the plaintiff claimed title to the land, the cement company failed, and its property passed, on foreclosure of mortgage, into the hands of Bush & Patterson. They never carried on the business of manufacturing cement. They sold the manufacturing building and land, and the buildings were torn down. They took down the bridge over the Kalamazoo river, over which the railroad passed, took up the iron rails, and sold them, took up some of the ties, and permitted others to be taken up, allowed the fences inclosing the railroad strip to go to decay; and as Mr. Patterson says, in doing these acts, they intended to abandon the manufacture of cement and the railroad. In the meantime, George W. Winslow died, leaving his real property to his four children. The title to his real estate comes to the defendant by an unbroken chain of title. This strip of land lies north of Winslow's other lands of which he died seised, and defendant claims this strip under his deeds from the children of Winslow. It will be seen, therefore, that the strip lies between plaintiff's and defendant's lands, and each claiming title to it. The defendant is now in possession, and is cultivating it. Plaintiff, claiming such acts were trespasses upon his close, brought an action of trespass in justice's court for damages. Defendant pleaded title, and the cause was certified to the circuit for trial, where the court directed the verdict in favor of defendant. The principal controversy arises over the construction of the deed made by George W. Winslow to the Eagle Portland Cement Company. The granting clause reads: "All that certain piece or parcel of land situate *** and described as follows, to wit: The right of way for a railroad, running from the marl bed of said cement company to their works, on the west side of Kalamazoo river, and described as follows: 'A strip of land forty feet wide; *** and being nine hundred fifty-two feet in length."' The deed is in the usual form of a full covenant warranty.

We think the court below was correct in holding that the deed conveyed an easement only, and not a fee. It does not purport to convey a strip of land 40 feet wide, etc., but the right of way over a strip 40 feet wide. Cases, undoubtedly, can be found in which the operative words of the grant relate...