McKee v. City of Grand Rapids

• Decision Date: 29 May 1903
• Citation: 133 Mich. 272,95 N.W. 85
• Court: Michigan Supreme Court
• Parties: McKEE et al. v. CITY OF GRAND RAPIDS.

95 N.W. 85

133 Mich. 272

McKEE et al. v. CITY OF GRAND RAPIDS.

Supreme Court of Michigan

May 29, 1903

Error to Superior Court of Grand Rapids; Richard L. Newnham, Judge.

Action by James H. McKee and another against the city of Grand Rapids. From a judgment for defendant, plaintiffs bring error. Affirmed.

Burlingame, Belden & Orton, and William E. Grove (Knappen, Kleinhaus & Knappen, of counsel), for appellants.

Moses Taggart (Taggart & Taggart, of counsel), for appellee.

MOORE J.

This action is ejectment, involving title to certain portions of an island situated in Grand river known as 'Island No 3.' The plaintiffs claim title to the land in controversy through a patent issued by the United States to Henry L Ellsworth, bearing date November 5, 1833, and mesne conveyances, to them. It is claimed by the defendant that the Ellsworth patent, and consequently the plaintiff's title extends only to the thread of the easterly channel of Grand river, as it now exists. The defendant claims title to Island No. 3 through a patent issued by the United States to Richard Godfroy bearing date August 10, 1840, and mesne conveyances to the said defendant.

Island No. 3 is situated in the easterly half of the river, and it is the claim of the plaintiff that it was conveyed to Ellsworth by the government patent executed to him in 1833, which did not refer to the island, and that the consequent survey and grant to Godfroy of Island No. 3 were void. This claim was sustained by the court below. The defendant also claimed title by adverse possession. The jury found this claim to be true, except as to a line 10 feet west of and parallel with the thread of the easterly channel of Grand river. The plaintiffs have brought the case here by writ of error.

It is the claim of the plaintiffs that the question of the legal title is settled in their favor by the case of Butler v. R. R. Co., 85 Mich. 246, 48 N.W. 569, 24 Am. St. Rep. 84. The defendants do not concede this claim, but say the decision in that case proceeded upon the theory that not only was the east bank of Grand river surveyed in 1831, but the west bank also, while in fact, as disclosed by the record in this case, the west bank and the islands in the river were not surveyed until 1837, when the islands and west bank of the river were surveyed and meandered, and that this was after the Ells worth patent was issued, and before the Godfroy patent, and that if this situation had been understood the decision in the Butler Case would have been different.

As before stated, the trial judge decided the question of legal title in favor of plaintiffs. For reasons which will hereafter appear, we do not deem it necessary to refer further to this question. A reference to the plats in Butler v. R. R. Co., supra, will aid in understanding the situation and make it unnecessary to reproduce them here.

The city claims to be the owner of Island No. 3. The upper portion of this island is used as a market place. South of the center of the island, and on the west side thereof, the city has a substantial and expensive lighting plant. One of the descriptions of land for which this suit is brought extends easterly and westerly across the island north of this plant. Some distance south of the lighting plant the city has erected, at an expense of upwards of $10,000, a crematory for burning garbage. One of the descriptions of land for which this suit is brought runs easterly and westerly across the island between the lighting plant and the crematory. About midway between the crematory and the south end of the island a railroad bridge, which spans both channels of the river, crosses the island. This bridge was built in 1881, and has a driveway beneath it, where teams can pass under it, and reach the lower part of the island. The only way to reach the island by teams is near the north end from Oakes street. It is the claim of plaintiffs that, as owners of lots on the main land which border on the east channel of Grand river, the lines of their lots extend across the island to the thread of the west channel of the river, while, as before stated, the city claims title by reasons of the Godfroy patent and adverse possession.

The second question discussed by counsel for plaintiffs relates to that part of the charge of the trial judge reading as follows: 'A party's possession of a single parcel or tract of land is coextensive with his claim of title; that is, if his deed is for an entire parcel of land, and he occupies a part, either personally or by tenants, his possession extends to the whole tract described in his deed or patent. If, therefore, you find that Alcott Caldwell was in possession of a part of the island under lease of the whole, the possession of the owners of the island, through him as their tenant, would extend to the whole island, it being a single parcel of land; and such possession would be adverse as to the whole world if such possession continued for fifteen years, or was continued through other tenants to make in the aggregate fifteen years.'

It is the claim of counsel that as the Ellsworth patent covered not only land on the east of the east channel, but the south half of the island, while the Godfroy patent purported to convey the entire island, the question of interlocker is involved, and applies to the south half of the island; and while Caldwell's occupancy, which will be referred to later, would establish title to the north half of the island, it would not do so as to that part of the island covered by both patents. Counsel say: 'The general rule is well settled that where a party enters, under color of title, into the actual occupancy of a part of the premises described in the instrument giving color, his possession is not considered as confined to that part of the premises in his actual occupancy, but he acquires possession of all the lands embraced in the instrument under which he claims. This is true although the land is not actually inclosed, and though the tract may be divided into two parts by a river running through it.' And as, under the Ellsworth patent, the grantee took possession of the land east of the channel, that this gave them constructive possession of the land on the island, and that this continued until they were ousted thereof by actual adverse possession. Counsel also say: 'Where a person enters into land under a deed or title his possession is construed to be coextensive with his deed or title, and, although the deed or title may turn out to be defective or void, yet the true owner will be deemed disseised to the extent of the boundaries of such deed or title. This, however, is subject to some qualification; for, if the true owner be at the same time in possession of a part of the land, claiming title to the whole, then his seisin extends, by construction of law, to all the land which is not in actual possession and occupancy, by inclosure or otherwise, of the party so claiming under a defective deed or title. The reason is plain: Both parties cannot be seised at the same time of the same land under different titles, and the law, therefore, adjudges the seisin of all which is not in the actual occupancy of the adverse party to him who has the better title.'

In order to decide whether the court erred in its charge to the jury, it will be necessary to go into the facts as disclosed by the record more in detail. Though the Ellsworth patent was issued in 1833, it does not appear that from that time until now any person claiming title thereunder was ever in actual occupancy of any portion of the island. It should be borne in mind that until some time about 1870...