Bringhurst v. Grand Rapids & Indiana Railroad, 78 Mich. 570

78 Mich. 570 | Mich. | 1889

Champlin, J.

The plaintiff brought ejectment, claiming title in fee to the parcel of land described in his declaration. He did not show actual possession or occupancy, but depended entirely upon paper title, which he showed beyond question to an undivided half of the premises. He failed to prove title to the other undivided half.

The land in dispute is in the possession and occupation of defendant as a track for railroad purposes. Prior to 1881, the Bay View, Little Traverse & Mackinac Eailroad Company constructed its road upon and over the land in question, and had actual possession thereof. While so in possession, it executed a mortgage to William E. Shelby. This was foreclosed, and the Grand Eapids & Indiana Eailroad Company became the purchaser, and succeeded to the possession of the premises in' 1882 or 1883, and has ever since operated a railroad over the same. Plaintiff obtained his deed in 1885.

It does not appear that before the entry of the Bay View, Little Traverse & Mackinac Eailroad Company the premises were in the actual possession of any one. The defendant, succeeding to that possession under a claim of right, and holding it in peaceable possession for such length of time, cannot be regarded as a mere intruder. Neither can it be said that this suit is brought to determine the right of possession merely. It is brought to determine title, and the plaintiff having failed to establish his title to the whole premises, and succeeded only as to an undivided half, he was not entitled to a verdict and judgment for the whole.¹ In this respect there was error in the charge of the court and the verdict of the jury. The court should have directed a verdict for an undivided share, as provided for by section 7815, subd. 6, How. Stat. Had he done so, the declaration might have been amended to correspond with the right established at the trial. Hinman v. Booth, 21 Wend. 267.

We adhere to what was said in Reilly v. Blaser, 61 Mich. 399 (28 N. W. Rep. 151). The record in actions of ejectment is much more important under our statute than it was at common law, where it was merely a possessory action, and did not determine the title to the land.. Under the statute, it is used to determine title as well as possession, and the statutory requirements should be observed. The verdict must follow the declaration as to the description of the premises, and the extent and

quality of the estate claimed. How. Stat. §§ 7795-7797, 7815. The necessity for this is obvious, when the effec^ of a judgment in ejectment is considered. Id. § 7821.

The judgment must be reversed, and a new trial had.

The other Justices concurred.

1 The failure to prove a complete title was due to the rejection of the record of a deed offered in evidence by plaintiff, on which he based an undivided half of his title, with nut a single attesting witness.