Peaslee v. Dietrich

• Decision Date: 28 December 1961
• Docket Number: No. 56,56
• Citation: 365 Mich. 338,112 N.W.2d 562
• Parties: Kenneth R. PEASLEE and Thelma M. Peaslee, Plaintiffs and Appellees, v. Herbert J. DIETRICH, Saginaw County Drain Commissioner, in the place and stead of Linus H. Frost, former Saginaw County Drain Commissioner, Defendant and Appellant, and Erwin J. Gould and Edwin I. Cross, a co-partnership, doing business as Gould and Cross, and the Michigan Surety Company, a corporation, of Lansing, Michigan, Defendants.
• Court: Michigan Supreme Court

Page 562

112 N.W.2d 562

365 Mich. 338

Kenneth R. PEASLEE and Thelma M. Peaslee, Plaintiffs and Appellees, v. Herbert J. DIETRICH, Saginaw County Drain Commissioner, in

the place and stead of Linus H. Frost, former

Saginaw County Drain Commissioner,

Defendant and Appellant,

and

Erwin J. Gould and Edwin I. Cross, a co-partnership, doing

business as Gould and Cross, and the Michigan

Surety Company, a corporation, of

Lansing, Michigan, Defendants.

No. 56.

Supreme Court of Michigan.

Dec. 28, 1961.

Robert L. Richardson, Jr., Saginaw, Pros. Atty. for Saginaw County, Gilbert & Gilbert, by Donald W. Gilbert, Saginaw, of counsel for appellant.

Irving M. Hart, Saginaw, Doozan, Scorsone & Trogan, by Vincent A. Scorsone, Saginaw, of counsel, for appellees.

Before the Entire Bench.

EDWARDS, Justice.

This is an action for trespass to property owned by plaintiffs against Herbert J. Dietrich, successor drain commissioner of Saginaw county, for damages done to plaintiffs' property in the building of the Weiss street drain. Plaintiffs' declaration alleged 2 counts, 1 for common-law trespass, and 1 for statutory trespass under C.L. 1948, § 692.451 (Stat.Ann. § 27.2161). A Saginaw county jury before Judge Borchard found for plaintiffs in the sum of $16,500. Defendant appeals and plaintiffs cross appeal.

The defendant's appeal is based on the contention that a certain release of right of way, filed in the office of the drain commissioner by plaintiffs' predecessors in title, constituted a valid easement and in its terms released defendant from any damages which might occur during the construction of the proposed drain. As to this issue, plaintiffs-appellees contend that they were innocent purchasers for value, and that the release of right of way was not filed with the register of deeds nor called to their attention prior to purchase. Plaintiffs' cross appeal asserts a right to treble damages under C.L.1948, § 692.451 (Stat.Ann. § 27.2161), and C.L.1948, § 633.18 (Stat.Ann. § 27.2129).

Prior to trial a settlement was arrived at between plaintiffs and defendants Gould and Cross and Michigan Surety Company whereby the case was dismissed as to these parties in exchange for $3,000, with plaintiffs signing a covenant not to sue. This left the proceeding continuing against the drain commissioner only.

The principal legal issue was dealt with at proceedings on pretrial as a result of defendants' motion for summary judgment. The trial judge analyzed the problem posed by the release of right of way relied upon by defendant drain commissioner, and concluded as follows:

'This court is of the opinion that the release of right of way hereinabove set forth is a conveyance within the meaning of Michigan Statutes Annotated 26.552 and if not recorded in the office of the register of deeds according to Michigan Statutes Annotated 26.547, is void against subsequent purchasers in good faith; that releases of the type given in the instant case, which included a release of all claims to damages in any way arising from or incident to maintaining, cleaning out and repairing the drain across the premises, vested in the county an easement or an interest in land within the provisions of the recording laws of this State; that the enrolling and filing of all drain records in the county drain commissioner's office was a prerequisite for the spreading of a drain tax and not for the purpose of giving constructive notice of an easement.'

The factual issues which were tried to jury and resulted in verdict for plaintiffs were set out thus by the pretrial judge in pretrial statement 'The Court: In this action plaintiff claims that the defendants came on his property at the northeast corner of Bay and Weiss; that they not only came on the right of way, they came on other portions of plaintiffs' property, piled dirt, broke up roadways and completely disrupted his business and put him out of business, in effect, for which it took him approximately 3 years to recover and much expense. Plaintiff claims further that this was done by the defendant under the assumption that the defendant had a right of way which was given to plaintiffs' predecessors in title, but was filed in the drain commissioner's office and not recorded in the office of the register of deeds. By reason of the trespass over the drain right of way and other portions of the property, plaintiff claims to have suffered damages.

'Plaintiff claims further that he warned defendants not to trespass on the property, ordered them off, but was told that they had a right of way and were goind to go ahead with the construction of the Weiss street drain.

* * *

* * *

'Defendant Herbert J. Dietrich claims that plaintiffs had actual notice of the Weiss street drain right of way through advance preparations and publicity given said drain and litigation which resulted in a court order canceling special drain assessments on their property for 1947, 1948 and 1949. Defendant drain commissioner claims that plaintiffs had also received tax bill notices for these assessments which would give them further actual notice of the impending construction of a drain, and that although these tax notices and litigation could not have given plaintiffs actual notice at the time of their purchase of the property, which was July 10, 1947, defendant claims there were sufficient physical preparations for the digging of Weiss street drain between March 7, 1945, and July 10, 1947, to put plaintiffs on notice to make further inquiries after receipt of tax notices and other factors calling attention to impending construction of said drain. The plaintiffs never objected to the installation of the drain, either prior or during its construction, according to defendant Herbert J. Dietrich, but rather said construction was welcomed by plaintiffs, who immediately connected their own drainage into the installed Weiss street drain and benefited greatly therefrom.'

At the conclusion of the trial the trial judge denied various motions for new trial and verdict non obstante, and also denied plaintiffs' motion for treble damages, holding the statutory provisions for treble damages for trespass on land not applicable to the general verdict which the jury returned.

The basic issue in this case is whether or not the release of right of way relied upon herein by the appellant was a conveyance within the meaning of Michigan statutes dealing with recordation.

The 2 sections directly applicable read as follows:

'Every conveyance of real estate within the state hereafter made, which shall not be recorded as provided in this chapter, shall be void as against any subsequent purchaser in good faith and for a valuable consideration, of the same real estate or any portion thereof, whose conveyance shall be first duly recorded. The fact that such first recorded conveyance is in the form or contains the terms of a deed of quitclaim and release shall not affect the question of good faith of such subsequent purchaser, or be of itself notice to him of any unrecorded conveyance of the same real estate or any part thereof.' C.L.1948, § 565.29 (Stat.Ann.1953 Rev. § 26.547).

'The term 'conveyance,' as used in this chapter, shall be construed to embrace every instrument in writing, by which any estate or interest in real esstate is created, aliened, mortgaged or assigned; or by which the title to any real estate may be affected in law or equity, except wills, leases for a term not exceeding 3 years, and executory contracts for the sale or purchase of lands.' C.L.1948, § 565.35 (Stat.Ann.1953 Rev. § 26.552).

Interestingly enough, the release itself contains words describing it as a 'conveyance' sufficient to grant an 'easement':

'This conveyance is based upon the above described line of route and shall be deemed to include the extreme width of said drain as shown in the survey thereof, to which survey reference is hereby made for a more particular description, and includes a release of all claims to damages in any way arising from or incident to the opening and maintaining of said drain across said premises; and also sufficient ground on either side of the center line of said drain, for the construction thereof; and shall be deemed a sufficient conveyance to vest in the county an easement in said lands for the uses and purposes of drainage together with such rights of entry upon, passage over, deposit of excavated earth and storage of material and equipment on such lands, as may be necessary or useful for the construction, maintenance, cleaning out and repair of such drain.'

There is much Michigan case law holding that an easement is an interest in land. Myers v. Spencer, 318 Mich. 155, 27 N.W.2d 672; Jeffries v. Union Trust Co., 248 Mich. 652, 227 N.W. 684; Young v. Thendara,...