Reynolds v. Gaertner

• Decision Date: 12 July 1898
• Court: Michigan Supreme Court
• Parties: REYNOLDS v. GAERTNER.

76 N.W. 3

117 Mich. 532

REYNOLDS v. GAERTNER.

Supreme Court of Michigan

July 12, 1898

Error to circuit court, Monroe county; Edward D. Kinne, Judge.

Ejectment by Edmund W. Reynolds against Herman Gaertner. Judgment for defendant, and plaintiff brings error. Reversed.

John O Zabel and Willis Baldwin, for appellant.

C. A Golden and G. M. Landon, for appellee.

LONG, J.

Action of ejectment. The court below made findings of fact and law from which it appears that on the 6th day of August, 1872 the plaintiff was in possession of, and the owner in fee simple of, the N. 1/2 of the N.E. 1/4 of section 33, town 6 S., range 6 E. On that day he conveyed the strip in dispute to the Chicago & Canada Southern Railroad Company, by the following descriptions and terms: "The right to enter upon, construct, maintain, and operate its railroad and appurtenances in and upon the following described premises to wit: The north one-half of the northeast quarter of section thirty-three, town six south, range six east,-and to use and occupy for its railroad a strip of land one hundred feet in width across said above-described premises. That the same is now located thereon by said company; reference being had for a more definite description of the said strip of land to the map of the route of said company on file." This grant was made upon the condition that the said railroad should be completed through said premises within three years from the date thereof, or, if such railway should cease to be occupied for railway purposes, then the right of way granted under such conveyance should terminate. It is admitted that the said strip has been abandoned by the railway company, and ceased to be used for railroad purposes, and that the defendant took actual possession thereof. On March 14, 1881 the plaintiff conveyed the following premises to the defendant, to wit: "The north one-half of the northeast quarter, except two and forty-six hundredths acres to the Chicago & Canada Southern Railroad, in section thirty-three, town six, range six east." Each of the parties to this suit now claims to own the tract so abandoned by the railway company, so excepted as aforesaid in defendant's deed. The court found in his conclusions of law that the deed from plaintiff to defendant conveyed the fee of said strip to the defendant, and that the defendant was entitled to retain possession of the same.

The plaintiff claims that the strip in...