Redinger v. Marquette & W.R. Co.
| Decision Date | 24 June 1886 |
| Citation | 62 Mich. 29,28 N.W. 775 |
| Parties | REDINGER v. MARQUETTE & W.R. CO. |
| Court | Michigan Supreme Court |
Appeal from Marquette.
Ball & Hanscom, for defendants and appellees.
The Cleveland Iron Mining Company was organized in April, 1853 under the act of February 5, 1853, for the purpose of iron mining in the county of Marquette, in the state of Michigan and became the owner of an iron mine near Ishpeming, in said county, and also the owner of a parcel of land on the shore of Lake Superior, which the company platted into lots and streets, in September, 1854, and caused the plat to be duly filed, and said parcel now forms a part of the city of Marquette. In making the plat, and dedicating the same, the company made a reservation referring to the streets therein in the following language: "Reserved to the Cleveland Iron Company, and their assigns, forever, the exclusive right to lay a plank or railroad track through and across any of the streets recorded in this map; also the exclusive right to use the same, with cars, engines, or any other vehicle they may choose; also the right of conveying, through pipes or otherwise, the water of Harlow's spring, or any other waters, through any of the streets of this plat forever." There are, in the plat referred to, two blocks numbered, respectively, 2 and 3. In each of these blocks there are 22 lots. On the east side of these two blocks is Front street, it being 66 feet wide, and about 250 feet from the lake front as it is now established. Between the two blocks runs Superior street east and west, 100 feet wide, extending to the lake. The dock of the Cleveland Iron Mining Company is at the foot of this street, and standing near the same and on the south side thereof.
The plaintiff is the owner of lot 2, in block 3, lying in the south-east corner of the block at the junction of Front and Superior streets, extending 30 feet on Front street, and 124 feet on Superior street. These streets intersect each other at right angles. At the time of filing the plat the Cleveland Iron Mining Company had constructed the said dock upon its water front, for shipping ore and receiving merchandise, and had a strap iron railroad, the cars of which were moved by horses or mules, extending from the dock westerly, across both of said streets, at their junction, and diagonally across the northern portion of block 3, into the mine of the company. The track crosses, in passing through the block, the extreme southwest corner of lot 2.
In 1857 and 1858 two additional tracks down Superior street, just south of the original track, and extending onto a trestle-dock, were built, and these three tracks were continued in use by the company down to 1871, and operated by locomotives from 1858; and the two leading to the trestle-dock continued to be so operated until they were sold to the defendant, the Marquette & Western Railroad Company. Since 1857 the railroad had been doing a large and constantly increasing business, in shipping iron ore, pig-iron, and general merchandise, until in 1883, when there was shipped over these tracks something over 200,000 tons from the Cleveland mine alone. In 1883 the Marquette & Western Railroad Company was engaged in building a railroad from Marquette to the iron mines at Negaunee and Ishpeming, and purchased of the Cleveland Iron Mining Company, at Marquette, its entire water front, shipping dock, railroad tracks, and land occupied thereby, all its reserved rights in the streets, and its real estate remaining unsold, and the parcel of land platted as aforesaid. The reserved rights in the streets referred to are the same quoted above, and contained in the same language.
The plaintiff's lot was sold by the Cleveland Iron Mining Company to William J. Gordon and Peter White on the twenty-second day of August, 1857, by warranty deed, for the sum of $4,300; the conveyance containing the following clause: "Reserving therefrom all that part of said lot above described, which is now used or occupied by said Cleveland Iron Mining Company for railroad or railway purposes, to be used and occupied by the said Cleveland Iron Mining Company, its successors and assigns, so long as needed or desired by them for said railroad or railway purposes." The lot was described in this deed by metes and bounds, and on the south by the north line of Superior street. On the fourteenth day of June, 1865, Gordon conveyed his interest in lot 2, in block 3, by warranty deed containing the same reservations, to Peter White, and the complainant made his purchase of this lot of Peter White, in March, 1869, receiving his deed therefor on the seventh day of December, 1872; it being a warranty deed, and containing same reservations as mentioned in the conveyance of the property by the Cleveland Mining Company to said Gordon and White.
From the time of complainant's purchase of this lot, down to the time of the commencement of this suit, he used and occupied the property in his own business, renting some parts of the building as he could spare the same. About the month of October, 1883, after the Marquette & Western Railroad Company made their purchase, they began grading, for the purpose of bringing its ore cars on the trestle, and for that purpose it was necessary to bring them upon the tracks crossing Front and Superior streets. It was also the purpose of defendant to change the tracks further to the south upon Superior street, and add another track crossing said streets. The work of grading to make such connection with the tracks purchased of the Cleveland Iron Mining Company, as before mentioned, continued until the grade had been completed, and their tracks laid to the east side of Front street, and were about to proceed with the work of grading across Superior street. At this time William Ward and James Dwyer, who owned the land on the south-west corner of Front and Superior streets, and who claimed that the changes proposed to be made by the Marquette & Western Railroad Company were unlawful, and, if completed, would seriously injure their property, obtained a writ of injunction restraining the further progress of the work, on the nineteenth day of January, 1884. This injunction was afterwards dissolved, upon the defendants giving a bond. One of the grounds taken in the Ward and Dwyer bill was that the right of way across or in the streets had not been granted to the defendants by the city, and, on the sixth day of February following, the common council of the city passed the following resolutions:
The defendant, Marquette & Western Railroad Company, after dissolution of the injunction in the Ward and Dwyer Case, proceeded with the work of laying their three tracks in the manner proposed, intersecting said streets at such points as the company chose. Proofs were taken in that case, and the cause heard at the Marquette circuit, and the complainants' bill was dismissed. The case is now before this court on appeal.
The bill in this case was filed February, 1884, by the complainant, Redinger. In addition to the facts stated hereinbefore, it avers that the Cleveland Iron Mining Company was organized for the purpose of carrying on a mining business in Marquette county; that, for the purpose of transporting ore from its mine to the lake for shipment, the company constructed its railroad, which was known as the "Cleveland Branch Track,"--at first it being no more than a tram-way, and so continued until the locomotive power was used thereon; that said mining company is a private company, organized for a private business, and the said railroad was constructed to be used in that business; that the reservation contained in the plat was made with reference to that business, and that solely; and that the location of its tracks in said streets and its yards for the accommodation of that business, at the time the complainant made the purchase of his lot, was well known to all the parties.
The complainant further avers, in the language of his bill ...
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