W. Mich. Park Ass'n v. Pere Marquette R. Co.

• Decision Date: 02 October 1912
• Citation: 172 Mich. 179,137 N.W. 799
• Parties: WEST MICHIGAN PARK ASS'N v. PERE MARQUETTE R. CO. et al.
• Court: Michigan Supreme Court

172 Mich. 179

137 N.W. 799

WEST MICHIGAN PARK ASS'N

v.PERE MARQUETTE R. CO. et al.

Supreme Court of Michigan.

Oct. 2, 1912.

Error to Circuit Court, Ottawa County; Philip Padgham, Judge.

Ejectment by the West Michigan Park Association against the Pere Marquette Railroad Company and another. Judgment for defendants, and plaintiff brings error. Affirmed.

Argued before MOORE, C. J., and STEERE, McALVAY, BROOKE, STONE, and OSTRANDER, JJ. Swarthout & Master, of Grand Rapids (Bundy, Travis & Merrick, of Grand Rapids, of counsel), for appellant.

Bills, Streeter, Parker & Shields, of Detroit (George A. Farr, of Grand Haven, of counsel), for appellees.

STEERE, J.

This is a suit in ejectment brought to recover title to, and obtain possession of, a platted tract of land located in the township of Holland, Ottawa county, Mich., and known as ‘Ottawa Beach,’ on Macatawa Bay, Lake Michigan. The declaration is in the usual form, describing the premises sought to be recovered as ‘all of fractional lot 3 and all of fractional lot 4, being part of section 33, town 5 north, range 16 west, except a strip 1025 feet wide off the north end of said fractional lot 4, and also the fraction beginning at the center of section 33, thence east along the quarter line of said section 33, 1,500 feet, thence north 17 1/2 degrees east, 111 feet, thence north 72 degrees west, 593 feet, thence north 23 degrees west, 740 feet, thence north 83 degrees west, 691 feet, to the north and south quarter line of said section 33, thence south, along the east line, 1,075 feet, to the place of beginning, excepting the platted lots numbered 1 to 150, and excepting the right of way of said Pere Marquette Railroad Company, where actually occupied by the tracks of said Pere Marquette Railroad.’ Defendants pleaded the general issue, with special notice that the suit had not been commenced within five years next after the cause of action set out in plaintiff's declaration accrued. Claim was also filed, under the statute, by defendants for the value of improvements made on the premises, in case plaintiff should recover.

Plaintiff was originally organized as a summer resort association under Act No. 151, Session Laws of 1869, and now claims its legal existence under Act No. 230, Session Laws of 1897. The purpose of its incorporation, as expressed in its articles of association, was ‘the building, keeping and maintaining on the property of this association suitable houses and grounds for park and recreation purposes on Macatawa Bay.’ The property involved in this controversy is embraced within a tract of substantially 50 acres, to which plaintiff acquired title by warranty deed dated May 21, 1886. The tract lies between Lake Michigan and the outlet of Black Lake, a navigable body of water extending several miles in length inland from Lake Michigan. These grounds, being attractively located, have developed into a popular summer resort, in the neighborhood of 100 cottages being located thereon, with a hotel, railroad connections, and other improvements.

During the same year it acquired title plaintiff platted said property under the name ‘West Michigan Park,’ putting the plat of record in the office of the register of deeds of Ottawa county, Mich. It adopted a plan of procedure, fixing its capitalization at $10,000, divided into 400 shares of $25 each, which was to be distributed among 100 members, each to have 4 shares of stock, and, in that connection, be entitled to select one lot, according to the recorded plat. One hundred members were procured, each paying the $100, receiving his stock and selecting his lot accordingly. These members and their assigns are claimed to constitute the stockholders and membership of the corporate body. A liberal portion of this plat was devoted to streets, parks, and other public places, and so delineated on the plat. The lots deeded by the association were described as part of the platted land according to the numbers they bore on said plat, and the portions devoted to the public use were so recognized and used by the lot owners and public generally as occasion required, except that from time to time the association put certain buildings and improvements thereon, in furtherance of the general scheme of development for a summer resort, as it is claimed. Matters progressed without incident of importance here until 1889, when the plaintiff, needing funds, through its officers mortgaged this property to secure a loan of $20,000. The mortgagee named in the instrument was Henry Springer, trustee, who at that time was also president of the association, in the interest of the bondholders, as it is claimed. The instrument has the peculiarity that said Springer mortgaged the property to himself, acting officially in one capacity as mortgagor and in another capacity as mortgagee. This mortgage contained the following warranty of title: ‘And the said party of the first part, for its successors and assigns, do covenant, grant, bargain and agree to and with the said party of the second part, as trustee, as aforesaid, and his legal successors, that at the time of the ensealing and delivery of these presents, they are well seized of said premises in fee simple; that they are free from all incumbrances and charges whatever, and they will, and their successors and assigns shall forever warrant and defend same against all lawful claims whatsoever.’ Default having been made in the payment of interest on this mortgage, it was foreclosed in chancery. There was no appearance, and decree was rendered on an order pro confesso. The circuit court commissioner of Ottawa county deeded the property on foreclosure sale to Charles M. Heald for a consideration of $5,100.

In the foreclosure proceedings a decree was also taken for deficiency which amounted to some $15,600. Execution therefor was issued and levy was made upon the same property, which was again sold thereunder to the said Charles M. Heald, who received a sheriff's deed thereto; thus holding the property under a commissioner's deed pursuant to foreclosure in chancery and the sheriff's deed pursuant to levy and sale under execution for deficiency. The sheriff's deed is dated February 1, 1897; the commissioner's deed May 1, 1895. Under these proceedings, said Heald and his successors in interest, the defendants in this case, beginning in the winter of 1895-96, assumed control of said property, taking possession and making changes and improvements for its further development as a summer resort, working along lines similar to those followed by plaintiff, but in various ways more aggressively and extensively occupying the public places and thereby restricting the privileges and rights of lot owners, as plaintiff contends. The defendant Central Land Company is the successor in title of said Heald. The railroad was originally extended into this tract by the Chicago & West Michigan Railway Company, of which said Heald was general manager. The defendant the Pere Marquette Railway Company is successor of the Chicago & West Michigan Railway Company, and the defendant Central Land Company is a subsidiary corporation of said Pere Marquette Railroad Company. Neither plaintiffs nor defendants appear to have fully and consistently treated the portion devoted to parks, streets, and public places as public property at all times. Early in the history of the association plaintiff granted a railroad right of way across it, erected on it a hotel, store, pavilion, boathouse, icehouse, pumping plant, etc., and mortgaged the tract for $8,000, which, it is testified, was used in furnishing the hotel. Defendants have since made similar but more extensive use of the parks and streets for various buildings and other improvements. They have erected a larger hotel in another location, built a store, power house, docks, and other structures, and run a line of electric light poles and wires along the streets and across the parks as found most convenient. It is charged as an act of usurpation that in exercising control over the property they prevent any one but their licensees from delivering goods upon public streets of the resort and from landing boats at the docks along Black Lake. Most of the improvements mentioned as located on the parks and streets were semipublic in character, for the furtherance of public utilities and amusements. In 1897 a man named Comstock, with permission from Heald, in whose name the property then stood, began the erection of some cottages on one of the parks, and a preliminary injunction was granted at the instance of certain lot owners by the circuit court of Ottawa county in chancery restraining such action and the sale or any other disposition of any portion of such parks. Before final hearing of the suit, a partial adjustment was reached, and a stipulation entered into withdrawing objection to the erection of cottages Comstock was then building, but leaving the temporary injunction to stand as to other buildings and other matters. Said suit is still pending and undetermined beyond the provisions of such stipulation.

The mortgage, under foreclosure of which defendant claims title, and which plaintiff now attacks as void, describes the property, title to which it warrants, as follows: ‘All of fractional lot number three, and all of fractional lot number four, being part of section 33, township number 5 north of range 16 west, county of Ottawa and state of Michigan, containing 50 90/100 acres more or less according to the government survey, excepting a strip 1,025 feet wide off the north end of said fractional lot four; and also the following described land: Beginning at the center of said section 33, in said township, and running thence along the quarter line of said section 33 1500 feet, thence north 17 1/2 degrees east, 111 feet, thence north 72 degrees west, 643 feet, thence north 23 degrees west 708 feet, thence north 83 degrees west 691 feet, to the north and south quarter...