Matthews v. Lake Shore & M.S. Ry. Co.

• Citation: 110 Mich. 170,67 N.W. 1111
• Parties: MATTHEWS v. LAKE SHORE & M. S. RY. CO.
• Decision Date: 08 July 1896
• Court: Supreme Court of Michigan

67 N.W. 1111

110 Mich. 170

MATTHEWS v. LAKE SHORE & M. S. RY. CO.

Supreme Court of Michigan

July 8, 1896

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

Action bye Daniel A. Matthews against the Lake Shore & Michigan Southern Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

C. E. Weaver and Ira R. Grosvenor (George C Greene and O. G. Getzen-Danner, of counsel), for appellant.

Landon & Lockwood, for appellee.

MONTGOMERY J.

In July, 1871, the predecessor of the defendant company obtained a right of way for a railway, 100 feet in width, being 50 feet on each side of the surveyed line, extending through the land upon which the village of Carleton is now situated. In October, 1872, Charles A. Kent conveyed to the railway company and its successors the right to enter upon and erect maintain, and operate its railroad and appurtenances in and upon a strip 50 feet in width, lying south of the first-named 100-foot strip. Subsequently, and on the 7th of April, 1875 Kent conveyed 40 acres of land to the plaintiff, which included the lands, the right of way over which was last deeded to the railroad company. This deed was a quitclaim and was recorded April 10, 1875. During the summer of 1874 the railroad company built a fence on the south side of the first 100-foot strip, past the land in question. In November, 1876 the plaintiff inclosed all the land south of the fence with the remaining portion of his 40, and has since continued to use the land for crops, grass, and pasturage, until the time of the alleged trespass. The defendant, in 1894, extended the fence so as to include the 50 feet south of the first right of way, being parcel of the 40 acres deeded to the plaintiff. The plaintiff thereupon brought this action of trespass. On the trial it appeared that the plaintiff had occupied the lands, as above stated, for more than 15 years, without any assent by the railway company. The circuit judge instructed the jury that the plaintiff had acquired title by adverse possession. The defendant brings error, and contends that the occupancy of the plaintiff was not such as to ripen into a title, for the reason that the plaintiff had the right to occupy the land, and use it for any purpose as long as its use was not deemed necessary by the railroad company. The precise question involved was recently determined by the supreme court of Illinois in the case of Railroad Co. v. O'Connor, 154 Ill. 550, 39 N.E. 563. The court say in that case: "For more than thirty years it [the railroad company] abandoned all use of the land, and fenced it out of its right of way, and allowed it to remain in the exclusive possession and use of the owner of the fee. When it desire to use it, it attempted to exclude the owner of the servient estate from the same. It is not denied that if the controversy between these parties had been as to the ownership of the fee of the premises, plaintiff's possession would have been a complete bar;...