Munroe v. Pere Marquette Ry. Co.

• Decision Date: 05 March 1924
• Docket Number: No. 40.,40.
• Citation: 226 Mich. 158,197 N.W. 566
• Parties: MUNROE et al. v. PERE MARQUETTE RY. CO.
• Court: Michigan Supreme Court

226 Mich. 158

197 N.W. 566

MUNROE et al.

v.PERE MARQUETTE RY. CO.

No. 40.

Supreme Court of Michigan.

March 5, 1924.

Error to Circuit Court, Muskegon County; Willis J. Perkins, Judge.

Ejectment by William Munroe and others against the Pere Marquette Railway Company. Judgment for defendant, and plaintiffs bring error. Affirmed.

Argued before CLARK, C. J., and McDONALD, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ. Travis, Merrick, Warner & Johnson, of Grand Rapids, and Cross, Foote & Sessions, of Muskegon, for appellants.

Norris, McPherson, Harrington & Waer, of Grand Rapids (John C. Shields, of Detroit, of counsel), for appellee.

SHARPE, J.

When we speak of the defendant, we include its predecessors. Defendant acquired the record title to a 30-foot right of way across block 326 in the city of Muskegon in 1871, and has occupied and used a strip of land on each side of it across said block for many years. In this action of ejectment, plaintiffs seek to recover possession of these strips of land. It is conceded that they have the record title thereto. The case was tried by the court without a jury. Findings of fact were made, from which the court concluded as a matter of law that defendant had acquired title by adverse possession. Plaintiffs review the judgment entered for defendant by writ of error.

The assignments relate to certain of the findings as made (it being claimed that they are unsupported by the proofs), to the refusal to find as requested by plaintiffs, and to the conclusion of law reached by the court. In its tenth finding, the court found that defendant had been in possession of the land in dispute since 1877, without permission or license from the owners, and that the nature of the possession was such as created in defendant a good and sufficient title thereto by adverse possession. Plaintiffs insist that there is no competent evidence to support this finding, and also that it is against the great weight of the evidence. The testimony of Charles H. Root, a switchman of the defendant, who has been in its employ since 1871, in quite convincing that the strips in dispute were occupied by side tracks and switches as early as 1877, and that such occupancy has continued without interruption to the present time. There is considerable other testimony to the same effect. In their reply brief, plaintiffs' counsel say:

‘We admit that the defendant did offer testimony showing that it or its predecessors have been in possession with tracks of a large part of the disputed lands since 1894 or 1897.’

We are impressed that the finding of the court that such possession began as early as 1877, and was of the entire strips in dispute, is fully sustained by the proofs. The serious question presented is whether its possession was of such an adverse nature as to ripen into a title. The burden of proof is upon the defendant to establish all the incidents necessary to make its possession adverse as a matter of law. Conner v. Detroit Terminal R. Co., 183 Mich. 241, 150 N. W. 115;Houghton County v. Massie, 215 Mich. 654, 184 N. W. 446. In the latter case, the following was quoted with approval from the syllabus in Township of Jasper v. Martin, 161 Mich. 336, 126 N. W. 437,137 Am. St. Rep. 508:

‘A mere permissive possession, or one consistent with the title of another, however long continued, cannot ripen into a title by adverse possession.’

We find no proof, and we do not understand that plaintiffs claim there is any, tending to show that defendant's original entry on this land, and its occupation thereafter until 1898, was by permission of the owners of the original title. On April 1, 1898, defendant's president, Mr. Heald, wrote to Thomas Munroe, the superintendent of the Thayer Lumber Company, the then owner of the original title, as follows:

‘I hand you herewith deed and blueprint showing the land at Muskegon, which, according to the conversation I had with you, I desire to secure for the West Michigan road from the Thayer Lumber Company now, when both you and I understand the situation clearly, with the understanding, of course, in the form of an agreement, if you so desire it, that the railroad company will not disturb your piling grounds as at present used, as long as you continue to operate in Muskegon. I desire to have the deed made at this time, so that the rights of the road will be assured beyond the possibility of any trouble in the future. When the time comes for the Thayer Lumber Company to sell the property they now occupy in Muskegon, the requirements of the road may be overlooked, and it would then be left in bad shape as to its right of way. If this meets with your approval, I will be glad to have you take such steps as may be necessary to have the deed properly executed.’

The deed which accompanied this letter contained three descriptions of land besides those here involved. As to one of them, the defendant then had the record title. It appears that on May 6th Mr. Heald wrote another letter, not in the record, concerning the matter. To these letters Mr. Munroe replied on May 7th:

‘Yours of the 6th inst. The Deed was also received in yours of April 1st. What I said to you when we were on the ground one day last summer was this: That I preferred to leave the question until some time when Mr. Thayer was here, and when we could look over the ground together. Later on in the winter, during your absence, Chief Engineer McVance came here, and said you desired him to make out the deed. I told him he could do so, but that it would have to await the coming of Mr. Thayer before anything could be done with it; for this reason I did not reply directly to yours of April 1st. The last time I saw Mr. Thayer he informed me that he would be here this spring some time. It seems to me, however, that the deed as drawn covers considerable more territory than I understood you wanted from my conversation with you while on the ground. Another thing: Freight trains are constantly blocking our crossings, both through freights and switching trains. Instead of pulling the freight house cars from the north end, they persist in pulling them from the south end, so that altogether we are very much hindered in our work. I have made repeated complaints to the office here, but it seems to hae no effect towards bettering the situation. I prefer, as above stated, to leave the matter until such time as Mr. Thayer will be here, and then take it up with you and him; but, whatever is done, I think we should have an...