Tapert v. Detroit, G.H. & M.R. Co.

• Decision Date: 11 April 1883
• Citation: 15 N.W. 450,50 Mich. 267
• Parties: TAPERT v. DETROIT, G.H. & M. RY. CO.
• Court: Michigan Supreme Court

15 N.W. 450

50 Mich. 267

TAPERT v. DETROIT, G.H. & M. RY. CO.

Supreme Court of Michigan

April 11, 1883

A land-owner agreed to convey to a railway company a strip of land, part of which was to be occupied by its track, and part used for a public street, but the whole to revert absolutely on breach of condition. He afterwards made a plat on which this strip was marked a street, and in acknowledging it provided that it should remain a street if the company performed its obligations, but, if not, it should instantly revert. After his death his estate was partitioned, except the railway strip, and one of the partitioners received certain premises abutting thereon, which he sold. This partitioner afterwards obtained grants from the rest of his heirs, and conveyed the strip to the railway company unconditionally. A subsequent grantee of the premises which he had previously sold claimed a right to use the street where the track lay, as a private way appurtenant to his lots, and sought to enjoin the company from occupying it with another track. Held, that the bill for injunction would not lie; the plat had been made with reference to a way that had never been unconditionally dedicated, and the premises occupied by the way had afterwards been unconditionally conveyed to the railway company, and became its private property before complainant's title had passed out of a representative of the estate.

Private owners of lots can get no better right of way over premises on which the lots abut than that which was offered to the public for acceptance in the dedication thereof for public uses, though the public non-acceptance of an offer to dedicate may still leave private rights of way in the land so offered.

A right of way cannot be granted by deed, estoppel, or otherwise by any one but the land-owner; a mere equitable owner of an undivided interest in a possible reversion cannot give it and it cannot well exist over an undivided interest alone.

Appeal from superior court of Detroit.

George Jerome and George V.N. Lothrop, for defendant.

CAMPBELL, J.

Complainant filed his bill to prevent defendant from occupying the land used for its track in Detroit, by adding a second line of rails and narrowing the part of the land not used for the running of cars; his claim being that he has a right of way over it appurtenant to an adjacent lot. The lot owned by complainant is lot 54, section 25, of what is known as the Antoine Dequindre farm, in the city of Detroit, and the strip of land over which the right of way is asserted is the same which was in dispute in the case of the City of Detroit v. Detroit & Milwaukee R. Co. 23 Mich. 173. In that case we held that the land was not a highway, and that the city of Detroit had no interest in it as such. It is now claimed that by holding a lot by reference to the plat under which that question arose, complainant has a private right of way without regard to the rights of the public. A brief statement of the facts which are material will be sufficient to explain the points in issue:

In May 1836, Antoine Dequindre was owner of one of the narrow and deep farms now within the city of Detroit, and next to a similar farm known as the Witherell farm. At that time he made an agreement to convey to the Detroit & Pontiac Railroad (of which defendant is a successor) a strip of 40 feet wide along the entire easterly side of his farm, to which the railroad was to add an equal width from the Witherell farm. Conditions were made that the land should be used by the railroads with one or two tracks at or on either side of the center line, and the remainder used as a public street, but that on breach of the conditions the land should revert absolutely to Dequindre and his heirs,--this reversion applying to the street uses as well as to the railroad uses.

In October, 1836, Dequindre made a conveyance of the farm to Petre J. Desnoyers, in trust to pay his debts, subject to this agreement. In February, 1840, Dequindre and Desnoyers made the plat in question, covering nominally the whole farm, in which the strip of land was marked Dequindre street. In the...