Strong v. Detroit & Mackinac Ry. Co., Docket No. 92624

• Decision Date: 31 May 1988
• Docket Number: Docket No. 92624
• Citation: 423 N.W.2d 266,167 Mich.App. 562
• Parties: Robert C. STRONG and Helen A. Strong, Plaintiffs-Appellees, Cross-Appellants, v. DETROIT & MACKINAC RAILWAY COMPANY, Defendant-Appellee, Cross-Appellee, Burton Abstract and Title Company, Defendant-Appellant, and Delmar E. Porter, d/b/a Porter's Survey, Defendant. 167 Mich.App. 562, 423 N.W.2d 266
• Court: Court of Appeal of Michigan — District of US

Page 266

423 N.W.2d 266

Robert C. STRONG and Helen A. Strong, Plaintiffs-Appellees, Cross-Appellants, v. DETROIT & MACKINAC RAILWAY COMPANY, Defendant-Appellee,

Cross-Appellee,

Burton Abstract and Title Company, Defendant-Appellant,

and

Delmar E. Porter, d/b/a Porter's Survey, Defendant.

Docket No. 92624.

167 Mich.App. 562, 423 N.W.2d 266

Court of Appeals of Michigan.

Submitted Oct. 15, 1987.

Decided April 4, 1988.

Released for Publication May 31, 1988.

[167 MICHAPP 564] Rhynard & Meden by Russell L. Rhynard, Alpena, for plaintiffs-appellees, cross-appellants.

[167 MICHAPP 565] Lindsay & Lindsay by Francis E. Lindsay, Cheboygan, for Detroit & Mackinac Ry. Co.

Peter Patrick, Cheboygan, for Burton Abstract and Title Co.

Before BEASLEY, P.J., and MacKENZIE and HATHAWAY, ^* JJ.

MacKENZIE, Judge.

In 1974, plaintiffs purchased forty-four acres of undeveloped land in Section 3, Forest Township, Cheboygan County. Before purchasing the property, plaintiffs obtained an abstract and had it updated and certified by defendant Burton Abstract and Title Company. They then obtained two title opinions. When it appeared that all clouds on title had been removed, plaintiffs received a warranty deed which contained two descriptions, one of a forty-acre parcel, essentially consisting of the NW 1/4 of the SW 1/4 of Section 3, and one of an adjoining four-acre parcel, located in the NW 1/4 of Section 3. The description of the four-acre parcel excepted "the Right of Way of the Detroit and Mackinaw Railroad."

Delmar Porter surveyed plaintiffs' forty-four acres in 1975. Later, while performing an unrelated survey, Porter discovered the existence of a Detroit & Mackinac Railroad (D & M) "wye track" or "turn-around" right-of-way which ran through the forty-acre parcel. D & M's interest in the right-of-way was conveyed to it by a 1901 warranty deed from Frank and Ida Stinchfield. Tracks were laid, but apparently pulled up in the 1950s. It is undisputed that in 1948 D & M recorded a notice of its rights-of-way. It is also undisputed that this notice was not included in the abstract prepared by defendant Burton Abstract. The instant quiet title [167 MICHAPP 566] action against defendant D & M ensued after plaintiffs learned of the right-of-way located on the forty-acre parcel. Plaintiffs also asserted a claim of negligence against defendant Burton Abstract.

Following a bench trial, the court on May 5, 1986, entered a judgment determining that D & M had preserved its interest in the right-of-way and that Burton Abstract was negligent in failing to include that interest in its abstract of plaintiffs' property. The court ordered Burton Abstract to cure the defect in plaintiffs' title by buying the disputed right-of-way from D & M and conveying it to plaintiffs. Burton Abstract appeals as of right. Plaintiffs cross-appeal the judgment in favor of D & M. We affirm.

On appeal, Burton Abstract first contends that D & M did not acquire title to the wye track right-of-way through plaintiffs' forty-acre parcel under the 1901 Stinchfield deed. According to Burton Abstract, the Stinchfield deed conveyed to D & M property located in Section 4, rather than Section 3, of Forest Township. The argument is wholly without merit. An examination of the Stinchfield deed establishes that it conveyed property located exclusively in Section 3, the location of plaintiffs' property and the wye track right-of-way.

Burton Abstract next argues that, even if D & M had title to the right-of-way, the trial court erred in finding that D & M preserved its interest under the marketable record title act, M.C.L. Sec. 565.101 et seq.; M.S.A. Sec. 26.1271 et seq. Plaintiffs join in this argument.

Under Sec. 3 of the marketable record title act, M.C.L. Sec. 565.103; M.S.A. Sec. 26.1273, D & M's interest in plaintiffs' forty-acre parcel, conveyed to it in 1901, was extinguished unless within the forty-year period prior to plaintiffs' purchase D & M recorded a [167 MICHAPP 567] notice of its interest. Section 5 of the act, M.C.L. Sec. 565.105; M.S.A. Sec. 26.1275, states:

"To be effective and to be entitled to record the notice above referred to shall contain an accurate and full description of all the land affected by such notice which description shall be set forth in particular terms and not be general inclusions...."

The notice that D & M recorded on January 29, 1948, after fixing the location of the land in Forest Township in Cheboygan County, refers to

"A 100 foot right-of-way lying 50 feet on each side of the centerline of the main railroad track as now laid over and across the northwest quarter of the southwest quarter and the northwest quarter, Section 3; and the northeast quarter of Section 4; Town 34 North, Range 1 East. Also a 100 foot right-of-way lying 50 feet on each side of the centerline of the abandoned Indian River Branch and the abandoned Wye tracks in said descriptions." (Emphasis added.)

Thus, the notice described the affected land as one hundred feet along the abandoned wye tracks in the NW 1/4 of the SW 1/4, Section 3 of Forest Township. Plaintiffs' forty-acre parcel consists of all but a small wedge of the NW 1/4 of the SW 1/4 of Section 3.

Plaintiffs and Burton Abstract contend that reference to abandoned railroad tracks is too general to satisfy the particularity requirement of Sec. 5 of the marketable title act. We disagree. The purpose of the filing of notice provision is to put persons on notice of existing interests in land created by a conveyance or title transaction which was executed more than forty years in the past. The notice in this case was sufficient to accomplish that purpose. It gave notice of a claim of interest [167 MICHAPP 568] in the wye track bed located in the NW 1/4 of the SW 1/4 of Section 3--plaintiffs' forty acres. No more was needed to alert a person examining title to the parcel to the possibility of a cloud on title. Furthermore, no more was needed to alert an abstracter that the claim should be included in the abstract of any parcel within the NW 1/4 of the SW 1/4 of Section 3. Burton Abstract's failure to do so must be attributed to its abstracter, not a deficiency in D & M's notice of claim.

Burton Abstract next argues that the judgment against it must be reversed because the trial judge failed to set forth specific findings of fact on the ownership of the disputed property. The argument is without merit. A reading of the judge's decision makes it clear that he found D & M to be the owner of the right-of-way because its 1948 notice of claim was satisfactory and because plaintiffs had failed to prove adverse possession. This was sufficient to comply with MCR 2.517. See, e.g., Birkenshaw v. Detroit, 110 Mich.App. 500, 509, 313 N.W.2d 334 (1981), lv. den. 417 Mich. 913 (1983).

Next, plaintiffs and Burton Abstract argue that the trial court erred in finding that plaintiffs failed to...