Wood v. Michigan Air Line Ry. Co.

• Decision Date: 05 February 1892
• Citation: 90 Mich. 212,51 N.W. 265
• Court: Michigan Supreme Court
• Parties: WOOD v. MICHIGAN AIR-LINE RY. CO.

51 N.W. 265

90 Mich. 212

WOOD v. MICHIGAN AIR-LINE RY. CO.

Supreme Court of Michigan

February 5, 1892

Error to circuit court, Jackson county; ERASTUS PECK, Judge.

Trespass by Charles Wood against the Michigan Air-Line Railway Company. Judgment for plaintiff. Defendant brings error. Reversed. This is the second appeal. For prior report, see 45 N.W. 980.

Wilson & Cobb, (E. W. Meddaugh, of counsel,) for appellant.

Dwight D. Root, for appellee.

MONTGOMERY J.

This is an action of trespass, brought in April, 1887. The plaintiff alleges in his declaration that the defendant, in March 1883, entered upon the premises described, tore down the fences, dug up and displaced the soil, etc.; and that the defendant has constructed two fences parallel to the track or road-bed on either side of the same, and has used and permitted said road-bed to be used for the purpose of maintaining and operating a railroad and running cars thereon over and across the premises of the plaintiff without his license, and against his will. The case has once been before the court, and is reported in 81 Mich. 358, 45 N.W. 980. On the first trial the declaration was considered as setting forth a cause of action in case, but this court on appeal held that it must be treated as an action of trespass. It was then said: "The distinction is material, because of the statute of limitations, which requires all actions for trespass upon lands to be commenced within two years next after the cause of action shall accrue, and not afterwards while actions on the case may be brought within six years." On the second trial, the plaintiff, while not permitted to recover for the original ouster, was allowed damages for the continuing trespass for the period intervening between the two years after the original entry and the commencement of suit. It appeared by the testimony that the defendant entered upon the lands, fenced its right of way, and maintained its road and operated trains continuously since December, 1883; and that the entry had been made under an instrument claimed by the defendant to amount to a license. The right of action in trespass for the original disseisin having become barred by the statute, the remedy by trespass cannot be given for acts of defendant committed while in full possession of the premises. Undoubtedly the true owner may rely upon his constructive possession of the lands which are not actually occupied, and may have...