Wisher v. Pere Marquette Ry. Co.

• Decision Date: 08 December 1926
• Docket Number: No. 75.,75.
• Parties: WISHER et al. v. PERE MARQUETTE RY. CO.
• Court: Michigan Supreme Court

237 Mich. 117

211 N.W. 68

WISHER et al.

v.PERE MARQUETTE RY. CO.

No. 75.

Supreme Court of Michigan.

Dec. 8, 1926.

Appeal from Circuit Court, Muskegon County, in Chancery; John Vanderwerp, Judge.

Bill by Frank J. Wisher and others against the Pere Marquette Railway Company. Decree for defendant, and plaintiffs appeal. Affirmed.

Argued before the Entire Bench.Willard J. Turner and James E. Sullivan, both of Muskegon (John G. Turner, of Muskegon, of counsel), for appellants.

Cross, Foote & Sessions, of Muskegon, for appellee.

SNOW, J.

The bill of complaint prays injunctive relief against the defendant by restraining the construction of a railroad track in the city of Muskegon across and along Beach street, and across Nelson and Dewey streets, which parallel it on the east. Denied such relief by the trial court, plaintiffs bring the case here on appeal.

Defendant obtained permission to cross these streets from the city and also from the property owners abutting them at the points of the proposed crossings. But plaintiffs claim that defendant is without right to construct its railroad in and along Beach street without first having obtained consent of the plaintiffs, who are adjoining lot owners. Or without having acquired the right by condemnation. Defendant replies that what has been done in Beach street has been simply to recondition tracks which its predecessor had constructed some 40 years before in the same place; that it had acquired by purchase and prescription a right to do this, and that therefore it should be permitted to proceed with the construction of its track as proposed.

Beach street is a public highway 66 feet wide, and extends from near a channel connecting Lakes Michigan and Muskegon, in a southerly direction along the shore of Lake Michigan, about three-fourths of a mile, to what is known as Lake Michigan Park. Here it forms an obtuse angle, and bears to the east and again to the south, where it ends in Wilcox street. It has recently been paved with concrete, and there is a cement sidewalk on the east side its entire length. On this side of the street, too, are a number of summer cottages and homes facing Lake Michigan, about 10 rods away. Back of these cottages to the east, for a distance of about three-fourths of a mile, there are sand dunes, and the land is rough and uneven. The largest dune, called Pigeon Hill, is close to Muskegon Lake, and is about 180 feet high.

The objectionable track has been placed in Beach street for a distance of from 400 to 600 feet. Going northerly, it then leaves the street, running beside it on the west, until near the channel, where it is proposed that it turn to the east and cross Beach, Nelson, and Dewey streets at nearly right angles.

The trial court found that a railroad track was located along this same route more than 34 years ago, and that defendant's rights in the street were ‘originally acquired from the highway commissioner of Lakeside township on December 1, 1879, and under an agreement between its predecessors, Muskegon Lake Railway Company, and C. D. Nelson Company, and that they have never ceased to exist’; also that the Nelson Company at that time owned practically all the property on both sides of Beach street, and consented to the construction of the track and the occupancy of the street by defendant's predecessor. The court also found that the track had at times been covered up with sand, but never abandoned; that defendant was simply attempting to repair it by putting in new ties and heavier rails, intending to continue it to Pigeon Hill, from which it is to haul sand. It was therefore held that defendant had a right to lay its track in and along the street without pay or permission, and to cross the streets with the consent which it had already obtained.

Plaintiffs claim that the judge was in error, both in his conclusions on the facts disclosed by the evidence, and in his conclusions of law. They claim the decree was contrary to law and equity. Section 8243, C. L. 1915, requires a railroad company to agree with the common council, in cites, upon the terms and conditions under which it may run its road upon a public street. It also provides that no railway shall be constructed upon any public street until damages and compensation be made to the owners of property adjoining....