Levy v. Dossin's Food Products
| Decision Date | 18 July 1947 |
| Docket Number | Civ. No. 702. |
| Citation | 72 F. Supp. 855 |
| Parties | LEVY et al. v. DOSSIN'S FOOD PRODUCTS. |
| Court | U.S. District Court — Western District of Michigan |
L. H. Grettenberger, of Grand Rapids, Mich., for plaintiffs.
Frederick A. Schopp, of Detroit, Mich., for defendant.
Plaintiffs Richard Levy and Arnold A. Schwartz are residents and citizens of the State of Illinois, and defendant Dossin's Food Products (herein referred to as "Dossin's") is a Michigan corporation with its principal office in the city of Detroit.
For several years prior to January 30, 1941, the Alabastine Company, a corporation, owned certain land and the factory buildings thereon, located on the northerly side of Chicago drive in the city of Grand Rapids, Michigan. In the present suit an easterly portion of this land, having a frontage of 90.9 feet on Chicago drive, is referred to as "parcel one" and the remainder of the land, having a frontage of 228.43 feet on Chicago drive, is referred to as "parcel two." Prior to January 30, 1941, the Alabastine Company had used both parcels of land and buildings thereon in connection with its paint manufacturing business, the buildings on parcels one and two being connected by a passageway. During this time the company had established a driveway extending from the rear (northerly) end of the building on parcel one in a south-westerly direction across parcel two to Chicago drive, for ingress and egress to and from the buildings on both parcels. A sketch or map (plaintiffs' exhibit 1) is hereto attached showing the boundaries of the parcels, the location of buildings thereon, and the driveway which is the subject of dispute in the present case.
On January 30, 1941, the Alabastine Company sold and conveyed parcel two and the building thereon by warranty deed to defendant Dossin's. Following this sale the passageway which connected the buildings on parcels one and two was removed, and the buildings were disconnected. Thereafter each company continued its business in the building on the parcel owned by it. It should be noted that in its warranty deed of parcel two, the Alabastine Company did not reserve an easement or any rights whatever in the existing driveway over parcel two. However, it continued to use this driveway in common with defendant.
On February 24, 1944, the Alabastine Company was adjudged bankrupt, and on June 8, 1944, its trustee in bankruptcy sold and conveyed by deed all right, title, and interest of the bankrupt in parcel one and building thereon to plaintiffs Richard Levy and Arnold A. Schwartz. This deed to plaintiffs, after describing parcel one by metes and bounds, stated in part: "Including * * * any and all rights of the Alabastine Company of ingress and egress to the said property (parcel one) and use of railroad sidings." Following their purchase of parcel one, plaintiffs continued the paint manufacturing business which they had acquired from the trustee in bankruptcy of the Alabastine Company and used the driveway over parcel two for access to their building on parcel one. However, trouble arose over their continued use of the driveway, and on May 29, 1945, defendant notified them in writing as follows:
Following the expiration of this 60-day period and on August 3d, defendant erected a barrier across the driveway, which prevented plaintiffs' use thereof over parcel two. On August 6th plaintiffs filed complaint and later an amended complaint, alleging in substance that when the Alabastine Company conveyed parcel two to defendant Dossin's, it was understood and agreed between those parties that Alabastine reserved an easement for driveway purposes over parcel two, but that through mutual mistake this reservation was omitted from the deed. They further alleged that by their purchase of parcel one from the trustee in bankruptcy of Alabastine, they had acquired this easement. They also alleged that they had no means of access to their building on parcel one except by use of the driveway over parcel two. They asked for a decree determining that they had an easement for driveway purposes over parcel two and that the deed of January 30, 1941, from the Alabastine Company to defendant be reformed so as to include a reservation of an easement over parcel two. The court, on plaintiffs' request, issued a temporary restraining order enjoining defendant from interfering with plaintiffs' use of the driveway over parcel two, and in pursuance of stipulation this order was continued in effect until the final determination of the case. In its answer defendant denied that the Alabastine Company had reserved an easement over parcel two, and denied that there was a mutual mistake in omitting such a reservation from the Alabastine deed of January 30, 1941. In its answer defendant alleged in substance that it was understood and agreed at the time it purchased parcel two that the Alabastine Company did not reserve an easement over said parcel. It further alleged that parcel one had a considerable frontage on Chicago drive and that plaintiffs could provide for access to their building on parcel one by establishing a driveway leading from Chicago drive. It denied plaintiffs' right to the relief sought. The case was tried by the court without a jury.
Plaintiffs first contend that there was a mutual mistake in the drafting of the warranty deed of January 30, 1941, from Alabastine to defendant and that the deed should be reformed so as to include a reservation by Alabastine of an easement for driveway purposes over parcel two. As the lands involved are located in the State of Michigan, questions presented regarding an easement over parcel two should be determined in accordance with the laws of that State. The burden is upon plaintiffs, who are asking reformation of the deed, to establish by a preponderance of the evidence that there was a mutual mistake in omitting from the deed a reservation by Alabastine Company of an easement for driveway purposes over parcel two. Kobylinski v. Szeliga, 307 Mich. 306, 312, 11 N.W.2d 899; Moss v. Van Wagnen, 249 Mich. 218, 222, 228 N.W. 696; Miles v. Shreve, 179 Mich. 671, 679, 146 N.W. 374. It may be noted that this claim of a mutual mistake was not raised prior to the time plaintiffs filed their amended complaint on June 20, 1946, which was over five years after the claimed mutual mistake had been made.
The warranty deed from Alabastine to defendant was drafted by Mr. Mare, then president of Alabastine, and its execution was authorized by the board of directors of that company. Although this deed contained no reservation by Alabastine of an easement over parcel two, it appears that the parties discussed the matter of the continued use of the driveway over that parcel by Alabastine. The testimony is in conflict as to what was said and what oral understanding the parties had regarding the continued use of the driveway by Alabastine. The president of Alabastine testified in substance that it was understood and verbally agreed that his company reserved an easement over parcel two and that he made a mistake in omitting such a reservation from the deed. However, defendant's president denied there was a mistake in the preparation of the deed, and he testified in substance that it was understood and agreed that Alabastine did not reserve an easement over parcel two. It appears that on January 23, 1941, defendant wrote Alabastine stating in part as follows:
This offer was accepted by Alabastine, and the sale was concluded and the property conveyed to defendant by the above-mentioned warranty deed. The conflicting testimony of the parties clearly indicates that the matter of the continued use of the driveway over parcel two by Alabastine was not definitely determined or agreed upon prior to or at the time of the sale of this parcel to defendant on January 30, 1941. This is borne out by the fact that two months after the sale was concluded, and apparently as a result of further negotiations, defendant wrote Alabastine on April 2, 1941, as follows:
On April 4th the Alabastine Company replied to the above letter in part as follows:
To continue reading
Request your trial
-
Marley v. United States
...or interest than that of the trustee. Roby v. Colehour, 146 U.S. 153, 161, 13 S.Ct. 47, 36 L.Ed. 922 (1892); Levy v. Dossin's Food Products, 72 F.Supp. 855, 860 (W.D.Mich. 1947); Handlan v. Bennett, 51 F.2d 21, 24 (4th Cir. 1931); Hall v. McGehee, 37 F.2d 854, 855 (5th Cir. 1930), Cert. den......
- Willis v. Dennis, Civil Action No. 215.