Quinn v. Pere Marquette Ry. Co.

• Decision Date: 08 December 1931
• Docket Number: No. 157.,157.
• Citation: 239 N.W. 376,256 Mich. 143
• Parties: QUINN v. PERE MARQUETTE RY. CO. et al.
• Court: Michigan Supreme Court

256 Mich. 143

239 N.W. 376

QUINN

v.PERE MARQUETTE RY. CO. et al.

No. 157.

Supreme Court of Michigan.

Dec. 8, 1931.

Appeal from Circuit Court, Clare County, in Chancery; Ray Hart, Judge.

Bill by John Quinn against the Pere Marquette Railway Company and another. Decree for plaintiff, and defendants appeal.

Reversed, and bill dismissed.

Argued before the Entire Bench, except POTTER, J.John C. Shields, of Detroit, and Arthur W. Penny, of Muskegon, for appellants.

John Quinn, of Harrison, in pro. per.

Haswell W. Grant, of Mt. Pleasant, for amici curiae.

FEAD, J.

This is a bill to restrain defendant from drilling for oil and gas on certain land. The facts were stipulated.

(1) September 7, 1881, Aaron T. Bliss and Lyman W. Bliss, by warranty deed, sold and conveyed to the Saginaw & Clare County Railroad Company, ‘to be used for railroad purposes only,’ ‘a parcel of land one hundred feet in width, lying fifty feet on each side of the center line of the Saginaw & Clare County Railroad, as located and established upon and across the lands of said parties of the first part’ (describing a forty acre parcel) ‘and all the estate, right, title, claim and demand whatsoever of the parties of the first part, both legal and equitable, in and to the said premises: To have and to sold the above granted premises to the said party of the second part, its successors and assigns forever, for the uses above expressed.’

(2) The grantee constructed tracks and other appurtenances for general railroad purposes, and the land has been used for such purposes continuously since.

(3) Plaintiff has acquired the title of Aaron T. and Lyman Bliss to the 40-acre parcel and whatever right or title they retained in the 100-foot strip after their conveyance.

(4) The transaction was a purchase. The consideration for the conveyance was $1, and also the benefit, advantage, and enhanced value of grantors' adjacent land by reason of the construction of a railroad. Defendant is a purchaser in good faith and for valuable consideration of the title of the grantee.

(5) Defendant company claims title to the strip in fee-simple absolute, has granted defendant Sovereign the right to drill for oil and gas thereon, but without interfering with the railroad business, and with the condition that oil found shall be shipped over defendant's road.

(6) Plaintiff claims he is owner of the fee of the strip of land except as it is burdened by an easement of use for railroad purposes, and that the gas and oil under the surface belong to him.

In entering decree for plaintiff, the court felt the case was controlled by our statutes and by New York Central & Hudson River R. Co. v. Aldrich, 135 N. Y. 83, 32 N. E. 50,17 L. R. A. 516 and Abercrombie v. Simmons, 71 Kan. 538, 81 P. 208,1 L. R. A. (N. S.) 806, 114 Am. St. Rep. 509,6 Ann. Cas. 239.

In the New York case, it was held, by virtue of statute, that, where a railroad company acquires a right of way on the shore of navigable water, although it may take in fee, the upland owner retains all riparian rights which he had before the conveyance. This doctrine was disapproved in Attorney General v. Smith, 109 Wis. 532, 85 N. W. 512. In New York, it seems to be confined to riparian rights, as a railroad company may take title in fee absolute, with full rights of enjoyment and alienation, as between itself and the grantor. Buffalo Pipe Line Co. v. New York, etc., R. Co., 10 Abb. N. C. (N. Y.) 107;Yates v. Van De Bogert, 56 N. Y. 526;Atlantic Mills, Inc., v. New York Cent. R. Co., 126 Misc. Rep. 349, 214 N. Y. S. 123.

In the Kansas case, the court read into the deed the language that the land was taken as and for a right of way, cited cases holding that such provision created an easement, and also suggested that, by analogy, the title to a right of way taken by purchase should be no greater than that taken under condemnation proceedings, which is an easement. Revised Statutes of Kansas 1923, 66-904; Harvey v. Railroad Co., 111 Kan. 371, 207 P. 761, 50 A. L. R. 300, although under the former statute it could have taken a fee, Challiss v. A., T. & Santa F. R. Co., 16 Kan. 117. The court did not decide whether the estate was an easement or a determinable fee; and, as it decreed reverter for total failure to use and for complete abandonment of right of way for railroad purposes, the result would have been the same whether the estate had been held to be an easement or a fee on condition precedent or subsequent.

To the contrary of the discussion in the Kansas case, it is held that, where the conveyance is not limited by its terms to a right of way purpose and the deed has no conditions, title in fee passes, Spierling v. Ohl, 232 Ill. 581, 83 N. E. 1068, 13 Ann. Cas. 430;Kynerd v. Hulen (C. C. A. Tex.) 5 F.(2d) 160; and that, although a railroad company acquires only an easement in a right of way by condemnation, it may acquire a fee by purchase, Right of Way Oil Co. v. Galdys City Oil, etc., Co., 106 Tex. 94, 157 S. W. 737,51 L. R. A. (N. S.) 268.

Unlike some others, our statutes do not single out rights of way for special treatment, but they provide a uniform rule for the acquisition of lands and other property ‘for the construction, maintenance and accommodation of its railroad,’ bridges, buildings, etc.

Title may be acquired by voluntary grant, purchase, condemnation, Comp. Laws 1929, § 11121 et seq., or prescription, Felton v. Wedthoff, 185 Mich. 72, 151 N. W. 727;Munroe v. Pere Marquette Ry. Co., 226 Mich. 158, 197 N. W. 566, although not by dedication, Minneapolis, etc., R. Co. v. Marble, 112 Mich. 4, 70 N. W. 319. Where property is taken through voluntary grant and donation, it ‘shall be held and used for the purpose of such grant only,’ Comp. Laws 1929, § 11121; and, upon abandonment of the road, the title to property so donated is restored to the donor or his representatives or assigns, Comp. Laws 1929, § 11353; Flint & P. M. R. Co. v. Rich, 91 Mich. 293, 51 N. W. 1001. Lands may be acquired also by purchase, Comp. Laws 1929, § 11121; and the failure of the statute to attach to such purchase the conditions of tenancy, use, and reverter provided for donated property is persuasive of the intention of the Legislature that they are not to be applied to limit a title as taken. On condemnation, the owner ‘shall be divested and barred of all right, estate, and interest in such real estate, franchise, or other property, until such right or title shall be again legally vested in such owner.’ Section 11135.

So our statutes furnish no ground for holding, by analogy to condemnation, donation, or otherwise, that a title taken by purchase is merely an easement, or that it is subject to limitations of tenure not expressed in the deed. A railroad company may acquire in a strip of land for right of way, as well as in other real estate, title in fee absolute, determinable fee, and easement, lease, or license, as may another corporation or an individual. Where the property is taken by purchase, the character of the estate is determined by the terms of grant, as in other cases.

‘Right of way’ has two meanings in railroad parlance-the strip of land upon which the track is laid-and the legal right to use such strip. In the latter sense it may mean an easement. But in this state and others the character of the title taken to the strip depends upon the language of the conveyance.

Where the grant is not of the land, but is merely of the use or of the right of way, or, in some cases, of the land specifically for a right of way, it is held to convey an easement only. Hickox v. Railway Co., 78 Mich. 615, 44 N. W. 143;Mahar v. Grand Rapids Terminal R. Co., 174 Mich. 138, 140 N. W. 535;Putnam v. Pere Marquette Ry. Co., 174 Mich. 246, 140 N. W. 554;Matthews v. Lake Shore, etc., R. Co., 110 Mich. 170, 67 N. W. 1111,64 Am. St. Rep. 336;Jones v. Van Bochove, 103 Mich. 98, 61 N. W. 342;Blakely v. Chicago, K. & N. R. Co., 46 Neb. 272, 64 N. W. 972;Louisville & Nashville R. Co. v. Covington, 2 Bush (65 Ky.) 526; East Alabama R. Co. v. Doe, 114 U. S. 340, 5 S. Ct. 869, 29 L. Ed. 136;Lockwood v. Ohio River R. Co. (C. C. A.) 103 F. 243.

Where the land itself is conveyed, although for railroad purposes only, without specific designation of a right of way, the conveyance is in fee and not of an easement. The distinction was pointed out by Mr. Justice Sharpe in Epworth Assembly v. Ludington, etc., Ry. Co., 236 Mich. 565, 573, 211 N. W. 99, 102: ‘On the face of these deeds, it would appear that a determinable fee had been created. In neither deed is the land conveyed for a right of way, although an inference would doubtless be drawn that it was, from the description used. The first deed provides that the land shall ‘be used for railroad purposes only,’ and the second that, if the land shall ‘cease to be used for railroad purposes' for ‘one year or longer,’ it shall revert to the grantor. Had not these provisions been inserted it seems clear that an unqualified title in fee would have passed to the grantees.' Weber v. Ford Motor Co., 245 Mich. 213, 222 N. W. 198;Ballard v. Louisville & Nashville R. Co., 5 S. W. 484, 9 Ky. Law Rep. 523;Coburn v. Coxeter, 51 N. H. 158;Gilbert v. Missouri, K. & T. Ry. Co. (C. C. A. Okl.) 185 F. 102;Sherman v. Sherman, 23 S. D. 486, 122 N. W. 439;Rice v. Clear Spring Coal Co., 186 Pa. 49, 40 A. 149.

What was the character of the fee?

The rule is that the debasing of a fee is not favored by the law, but provisions tending thereto are to be construed against the grantor. Polebitzke v. John Week Lumber Co., 157 Wis. 377, 147 N. W. 703, Ann. Cas. 1916B, 606.

It seems to be the weight of authority that, where there is no reverter clause, a statement of use is merely a declaration of the purpose of conveyance, without effect to limit the grant. The reasoning is that, as a railroad company may take real estate only for railroad purposes, the declaration that it is to be so used is merely an expression of the intention of the parties...