Lemerand v. Flint & P.M.R. Co.

• Decision Date: 07 June 1898
• Parties: LEMERAND v. FLINT & P. M. R. CO. ET AL.
• Court: Michigan Supreme Court

75 N.W. 763

117 Mich. 309

LEMERAND v. FLINT & P. M. R. CO. ET AL.

Supreme Court of Michigan

June 7, 1898

Error to circuit court, Monroe county; Edward D. Kinne, Judge.

Action by James Lemerand against the Flint & Pere Marquette Railroad Company and another. There was a judgment for defendants, and plaintiff brought error. Affirmed.

Ira G. Humphrey and Willis Baldwin, for appellant.

Landon & Lockwood, for appellees.

MOORE J.

An examination of the plat attached hereto will aid in understanding the situation. In 1873 about 18 acres of land was owned by Mr. La Fountain and Mrs. Toll as tenants in common. This land was divided into two nearly equal parts by Elm avenue, which runs nearly east and west. In April, 1873 William L. Webber, as trustee for the Flint & Pere Marquette Railroad Company, purchased the west 33 feet of that part of the tract lying north of Elm avenue. Mr. Webber's deed was recorded in May, and contained this provision "That, if the same shall ever be occupied for the running and operation of a railroad, the same shall be duly fenced by the company." Soon after the deed was given, a railroad grade four or five feet high was made on the north two-thirds of the land bought, and a fence was built on the east line of the part graded. This strip of land was thereafter assessed either to Mr. Webber or the railroad company, and the taxes paid by them. This land was afterwards conveyed to the Monroe & Toledo Railroad Company. In 1888 the plaintiff obtained a quitclaim deed of substantially the west half of the land lying north of Elm avenue, including the 33 feet which had been deeded to Mr Webber. The plaintiff removed the fence, soon after he obtained the deed, back 33 feet, which took it to about the middle of the grade. The plaintiff gave a mortgage on his land in 1892, and another in 1895, in each of which his land was described as bounded on the west by land of the Flint &amp Pere Marquette Railroad Company. All his tax receipts read the same way, and he knew of the grade and of the talk about building a railroad on the land. In the spring of 1893 the plaintiff set out on the 33-foot strip of land 55 plum trees and 30 pear trees. That spring he had been notified to move the fence back because the railroad company desired to place tracks upon the grade. There is a dispute in the testimony whether this notice was given before or after the trees were set. This notice was repeated in the summer of 1894. On one Sunday, in June, 1896, the company entered upon the 33-foot strip of land, destroyed the trees, and built its track. Soon thereafter plaintiff commenced a suit in the circuit court for Monroe county in an action of trespass, claiming damages for the destruction of these trees and the crops growing upon the strip of land, and for damages done outside of the strip of land. The circuit judge charged the jury in that case: "The plaintiff will not recover damages in this action for the value of the permanent improvements and the trees destroyed in the right of way, or for deprivation of his right to have his damages assessed in an action of ejectment. As to these elements of damages, the plaintiff is left unprejudiced, the same not being in this case." The jury returned a verdict as directed, for $65.40. No appeal was ever taken in that case. Afterwards this action was commenced. The declaration contained two counts, in the first of which it is, in substance, recited that plaintiff, at the time of the alleged trespass, in June, 1896, was in actual and peaceable possession of the premises, under a claim of title, and had been for more than six years; that within six years he had set out the trees in question; that on Sunday the defendant took forcible possession of said premises, and by that act deprived the plaintiff of his right to have the value of his improvements to the land assessed, as provided by section 7836, 2 How. Ann. St., and reciting the destruction of the trees and the value of the improvements destroyed, and claimed damages in the sum of $2,000. The second count recited the forcible entry upon the premises, the destruction of the trees without notice to the plaintiff and without legal determination, and claimed damages in the sum of $2,000. To this declaration the defendants pleaded the general issue, and gave notice that the former suit is res adjudicata of this one. On the trial it was admitted that the property described in the declaration in the first case includes the 33 feet described in the declaration in this case; that the trees described in the two declarations are the same, and the entry complained of is the same. The court held there could be no recovery under the second count, but that proofs might be taken under the first count. The case was tried by a jury, who returned a verdict in favor of defendant. The plaintiff brings the case here by writ of error.

We do not think the court erred in relation to the second count. If it states a cause of action at all, it is in trespass, and is by the former suit res adjudicata. The trial judge, among other things, charged the jury as follows: "The plaintiff having been in peaceable possession of the premises in question for more than six years prior to the entry complained of, and having taken possession under color of title, there was no peaceable way known to the law to evict him from these premises except by an action of ejectment. In such an action he would have been defendant, and had his title failed him, as he now admits it has, he would be entitled to recover from the plaintiff railway company in that action compensation for such improvements made on the premises in question to the extent that such improvements would have increased the then value of the property. The entry complained of and the retaining possession of the premises in question deprived the plaintiff in this case of having his damages ascertained in an action of ejectment; and this suit is brought to recover such damages as he could have obtained had such action been brought, and he is entitled in this suit to recover those damages providing he planted those trees in good faith believing that he held the title to this property. If the plaintiff, in 1888, or soon thereafter, went into possession of this disputed piece of land 33 feet in width in good faith, believing that he had title; and if you further find from the evidence that he was in possession of the same under the same belief and good faith at...