Westman v. Kiell, Docket No. 113331
| Citation | 455 N.W.2d 45,183 Mich.App. 489 |
| Decision Date | 01 June 1990 |
| Docket Number | Docket No. 113331 |
| Parties | Ronald F. WESTMAN and Pauline M. Westman, Plaintiffs-Appellees, v. Harold R. KIELL and Betty Ann Kiell, Defendants-Appellants. 183 Mich.App. 489, 455 N.W.2d 45 |
| Court | Court of Appeal of Michigan (US) |
[183 MICHAPP 491] Varnum, Riddering, Schmidt & Howlett by Thomas A. Hoffman and Richard J. McKenna, Grand Rapids, for plaintiffs-appellees.
Low & Low, P.C. by Joseph N. Low, Niles, for defendants-appellants.
Before CYNAR, P.J., and MARILYN KELLY and KAVANAGH, * JJ.
Defendants appeal as of right from an order entered in the Berrien Circuit Court granting summary disposition in favor of plaintiffs in their action to quiet title. We affirm in part, reverse in part, and remand for further proceedings.
The instant action to quiet title concerns a 66-foot-wide strip of land that abuts the western boundary of a parcel of real property owned by plaintiffs and commonly referred to as "the Big Four right of way." By condemnation order entered in the Berrien County Probate Court on May 22, 1882, the Elkhart, Niles and Lake Michigan Railroad Company acquired, for a sum of $585, a "right of way upon and across lands of Henry Salee ... for the uses and purposes of said Railroad Company...." This right of way, the 66-foot-wide strip of land in question, was used for railroad purposes from 1882 until it was abandoned and the tracks were removed in the 1960s.
On March 20, 1984, plaintiffs acquired fee title to a parcel of land bounded on the west by the abandoned Big Four right of way. Thereafter, in December, 1986, the Consolidated Rail Corporation deeded by quitclaim deed 18.507 acres of the abandoned right of way to defendants for the sum of [183 MICHAPP 492] $10,000. Included in the 18.507 acres was that portion of the right of way that abutted plaintiffs' property.
On March 28, 1988, plaintiffs brought the instant action to quiet title, claiming fee ownership to the center of the abandoned right of way where it abutted their property. Plaintiffs moved for summary disposition pursuant to MCR 2.116, no subsection specified, on July 15, 1988. Thereafter, at a hearing on plaintiffs' motion held on August 8, 1988, the circuit court found that the 1882 condemnation order had conveyed an easement to the railroad, which was extinguished when the right of way was abandoned for railroad purposes. The court also found that, as by accretion, plaintiffs owned the underlying fee to the center of the right of way. Defendants' motions for new trial and rehearing were denied on November 1, 1988.
On appeal, defendants argue that the circuit court erroneously granted summary disposition based on a mistaken conclusion that the 1882 condemnation order created an easement. Defendants further argue that the condemnation order evidences that the Elkhart, Niles and Lake Michigan Railroad Company acquired fee interest in the subject property.
Plaintiffs moved for summary disposition pursuant to MCR 2.116 without specifying on which provision of the court rule they placed their reliance. Although the circuit court's order and the hearing transcript are silent as to which provision was used in granting plaintiffs' motion, the circuit court based its decision on documentary evidence submitted to the court. Accordingly, we will treat the circuit court's ruling as though it were made pursuant to MCR 2.116(C)(10). Grochowalski v. DAIIE, 171 Mich.App. 771, 773, 430 N.W.2d 822 (1988), lv. den. 432 Mich. 931 (1989).
[183 MICHAPP 493] A motion for summary disposition pursuant to MCR 2.116(C)(10) is appropriately granted where, "[e]xcept as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law." The motion tests whether there is factual support for the claim. Dumas v. Auto Club Ins. Ass'n, 168 Mich.App. 619, 626, 425 N.W.2d 480 (1988). The nonmovant bears the burden of showing that a genuine issue of disputed fact exists, id., and that the disputed factual issues are material to dispositive legal claims, Belmont v. Forest Hills Public Schools, 114 Mich.App. 692, 696, 319 N.W.2d 386 (1982), lv. den. 422 Mich. 891, 368 N.W.2d 234 (1985). Giving the benefit of reasonable doubt to the nonmovant, the court must determine whether a record might be developed which will leave open an issue upon which reasonable minds could differ. Dumas, supra. All inferences are to be drawn in favor of the nonmovant. Dagen v. Hastings Mutual Ins. Co., 166 Mich.App. 225, 229, 420 N.W.2d 111 (1987), lv. den. 430 Mich. 887 (1988). Before judgment may be granted, the court must be satisfied that it is impossible for the claim asserted to be supported by evidence at trial. Peterfish v. Frantz, 168 Mich.App. 43, 48-49, 424 N.W.2d 25 (1988).
A railroad may acquire in a strip of real property for use as a right of way, as in any real property, a fee simple absolute, a determinable fee, an easement, a lease, or a license, as may any other corporate entity or individual. The character of the interest acquired is determined by the language of the conveyance. Quinn v. Pere Marquette R. Co., 256 Mich. 143, 150, 239 N.W. 376 (1931).
Where the strip of land itself is conveyed for railroad purposes only, without specific designation as a right of way, the conveyance is in fee. Id. at [183 MICHAPP 494] 150-151, 239 N.W. 376. However, where the grant is not of the land but of the use or of a right of way, then the land is conveyed as an easement. Additionally, in some cases, an easement is deemed to have been conveyed where the grant is of the land for a right of way. Id. at 150, 239 N.W. 376. See also Boyne City v. Crain, 179 Mich.App. 738, 743, 446 N.W.2d 348 (1989); 2 Thompson, Commentaries on the Modern Law of Real Property (1980), Sec. 381, pp. 504-506.
By entry of the May 22, 1882, order of condemnation, Elkhart, Niles and Lake Michigan Railroad Company acquired a "right of way upon and across lands of Henry Salee ... for the uses and purposes of said Railroad Company ... [consistent with the company's operation of its] Rail Road [sic] Route upon and across said land...." This language evidences an intent to convey a use or right of way upon and across the land, or, in other words, an easement. The condemnation order is devoid of any language which evidences an intent to convey the land itself. Accordingly, we conclude that the circuit court correctly found that the right of way constituted an easement and that the court correctly granted summary disposition on this issue.
However, we believe that the circuit court was a trifle hasty in awarding plaintiffs a fee interest to the center of the right of way.
Generally, when a railroad company obtains an easement for a right of way and later abandons that easement, the servient estate reverts to the owner of the dominant estate from which it was carved at the time when the use was abandoned and passes with the conveyance of the dominant estate. See 4 Thompson, Commentaries on the Modern Law of Real Property (1979), Sec....
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