Nowlin Lumber Co. v. Wilson

• Decision Date: 02 March 1899
• Court: Michigan Supreme Court
• Parties: NOWLIN LUMBER CO. v. WILSON.

78 N.W. 338

119 Mich. 406

NOWLIN LUMBER CO. v. WILSON.

Supreme Court of Michigan

March 2, 1899

Appeal from circuit court, Clare county, in chancery; Peter F Dodds, Judge.

Bill by the Nowlin Lumber Company against Amelia B. Wilson. From a decree for defendant, complainant appeals. Affirmed.

C. W. Perry, for appellant.

Geo. J Cummins (Roberts & Crane, of counsel), for appellee.

HOOKER J.

Complainant and the defendant own adjoining lots of timbered land different parcels of the complainant's land being separated by the land of the defendant. Previous to the time that the defendant acquired title to her property, the complainant desired to construct a logging railroad across the land now owned by the defendant, so that it might transport timber, which it proposed to cut upon one of its parcels, to its sawmill, which was located upon the other tract. It therefore addressed the following letter to Mr Spencer, who then owned the land now owned by the defendant:

"Clarence, Mich., Sept. 8, 1897. Mr. H. C. Spencer, Flint, Mich.-Dear Sir: I write you for permission to build a logging road across a 40 on your land,-the S.E. 1/4 of the N.W. 1/4 of 19, town 19, 5 west. What timber we have to cut will be cut into logs of usual length, and left on side of road. Trusting the above request will be agreeable to you, and that we may receive an early reply, we are, yours, truly, Nowlin Lumber Company."

Mr. Spencer's answer to this letter was not produced upon the trial, but complainant's witness testified that "it stated that those lands were for sale, and that he would not have a stick of timber cut, and forbade me to trespass it." The correspondence continued as follows: "Clarence, Mich., Sept. 11, 1897. Mr. H. C. Spencer, Flint, Mich.-Dear Sir: Yours of the 9th inst. received. In regard to logging railroad across your land, I think you have a wrong impression in regard to the timber that we would cut. We do not need a wide track. It is easier for us to shun large trees than to cut and grub the stumps. We have graded 1 1/2 miles through standing timber, and I do not think we have had to cut to exceed 2,000 feet of standing trees. Inclosed please find plats of land owned by us. Examine same, and you will see that the favor we ask for is very beneficial, and might be asked for by either party. Trusting that you will give this matter a little careful consideration, and awaiting an early reply, we are, yours, truly, Nowlin Lumber Company."

"Flint, Mich., Sept. 13, 1897. Nowlin Lumber Co.-Gentlemen: I have referred the matter of crossing my land to John R. Brown, of Harrison. I received a letter from him a few days ago, in which he advised giving you the privilege you ask. If you should cut timber, I would expect you to pay the value of it. Yours, H. C. Spencer."

Exhibit C: "Harrison, Mich., Sept. 15, 1897. Nowlin Lumber Co.-Dear Sir: I wrote to Spencer, of Flint, about your crossing his lands, and he says its all right, go ahead, and you may have time to take your lumber off. Mr. Spencer will expect the same privilege to cross your lands to cut his timber. Whatever timber you cut down on the right of way, cut it in logs, take them, and pay him for the timber. He sends me your letter. Yours, John R. Brown."

The complainant began clearing a way for the road two or three days after the correspondence ended, and had it partially built when it received a letter from the defendant, who acquired title by full warranty deed from Spencer on October 15, 1897. The letter is as follows:

"Harrison, Mich., Oct. 16, 1898. Nowlin Lumber Co., Clarence, Mich.-Gentlemen: I have purchased all lands belonging to H. C. Spencer and W. H. Wilson & Son in Greenwood township. I hereby notify you to stop operations on the same, also to stop crossing said lands with your railroad, and that, unless the same is immediately done, I shall be compelled to ask for an injunction to restrain you from doing so. Awaiting your early reply that you will do so, and not compel me to resort to this method, I remain, yours truly, Mrs. A. B. Wilson."

This was followed by the commencement of this suit. The complainant appeals from a decree dismissing the bill of complaint.

The bill alleges that the complainant found it necessary in its business to construct and operate a logging railroad across these premises; that it thereupon conferred with Spencer; and that such conference "culminated in securing from him (Spencer), in writing, the right of way and privilege to go upon, cross, erect, build, construct, maintain, and operate such logging railroad"; that it expended large sums in doing this; that the defendant claims to have purchased the land from Spencer, with knowledge of its rights; that it was then in possession, occupancy, and control of the road; and that she has destroyed a portion of said road, and threatens to prevent the complainant from repairing, maintaining, or operating it. The prayer was for an injunction, and included general relief.

It is contended in the brief of counsel that the proofs show that the complainant acquired an interest in the nature of a lease of the ground, for the purpose of a road, to be used as long as necessary, or at least for a reasonable time. It is claimed that it was in writing, signed by Spencer, and was for a valuable consideration. It is said, further, that, if it should be held to be a license merely, it is an executed license, and that it has expended large sums of money, and that it is therefore irrevocable. The writing consists of the letters quoted, and, as the parties never met, the letters are not qualified in any way. Counsel cite no authority to sustain the claim that the complainant acquired a leasehold interest. No such claim is made in the bill, and the letters themselves do not indicate that a lease was designed. They do not purport to give exclusive possession of any part of the premises, which is essential to a lease. No rent is reserved, and no consideration was paid or promised for the alleged right, which the letters and bill call a "privilege." See Druse v. Wheeler, 22 Mich. 438; Iron Co. v. Wright, 32 N. J. Eq. 252. We must therefore consider the question of license.

The defendant maintains that, at most, the letters show a gratuitous license, and that such is revocable at will, and that it was revoked by the deed from Spencer to her, and, at all events, by her letter of October 16th. Counsel for the complainant say that this is an executed license, and therefore, that it is irrevocable. They also say that it is based upon a valuable consideration, and that they have been allowed to expend large sums of money upon their railroad, and that a revocation would be a fraud. It cannot be said that the complainant has an easement, because an easement must rest in prescription or grant. There is no claim to a prescriptive right, and these letters certainly constitute no grant-First, because they do not comply with the statute prescribing how interests in land shall be conveyed (How. Ann. St. � 5658); and, second, because they do not contain words indicative of a grant. For the latter reason, and the want of...