Lead Opinion
The facts are stated with reference to a drawing reproduced herewith. The upper black line marks the southern boundary of the Pere Marquette Railroad Company's right-of-way. The lower two black lines mark the margins of the present State trunkline highway, M-21, assuming it to be 100 feet in width. The triangular piece of land lying between the southern boundary of the railroad and the northern margin of the highway is owned by plaintiff, Grand Rapids Gravel Company. The present center line of M-21 is not exactly the center line of the highway as it was before being paved and improved. The portion, G. H. K., in the apex of plaintiff's triangular piece, was a part of the old highway and it is still highway.
Defendant William J. Breen Gravel Company owns land to the south of the highway. In its business of mining, selling, and shipping gravel, it desired to cross the highway to the railroad right-of-way so that it might there load gravel into cars. It appears that it applied to the State highway department for permission to make an overhead crossing. *Page 367 The plaintiff was notified of hearing the application. Its president wrote the department objecting to an overhead crossing, and proposing an underground crossing instead. This was followed by an agreement
[EDITORS' NOTE: MAP IS ELECTRONICALLY NON-TRANSFERRABLE.]
between defendant and the State highway commissioner permitting and providing for the construction of an underpass, 1 Comp. Laws 1929, § 4022. The underpass is from defendants' land to railroad *Page 368 right-of-way, across the highway and within it, as indicated by the drawing on the map. Within the highway the underpass is underground and under the pavement, and presents no obstruction to use of the full surface of the highway. Plaintiff filed this bill against said defendant and the other defendant, the builder, to restrain construction. The underpass has been completed. The bill was dismissed. Plaintiff has appealed.
That the railroad company is in accord with the attempt to give it this business in the manner proposed is not questioned.
It is unnecessary to review cases showing that necessities of progress and change have subjected highways and streets to many public burdens and uses not contemplated in former times.
We need not consider an argued difference in rights of an adjoining or abutting proprietor where he has the fee and the public the perpetual easement of highway, and where the public has the fee and the proprietor an easement. Generally in the cases a difference is accepted or assumed, but there is respectable authority that the difference is not substantial.Barney v. Keokuk,
Whether the fee of highway or street be in the adjoining proprietors or in the public, many privileges, sometimes treated as ripening into rights, have been suffered to be exercised by the adjoining proprietors, such as having steps, areaways, cellar ways, bay windows, hitching posts, carriage blocks, etc., in streets, and taking grasses or fruits, and planting trees, etc., in highways. Ordinarily and in practical experience, such sufferance will continue or it will fade or vanish according to the necessities of public use. *Page 369
In Opinion of the Justices,
"Is it within the constitutional power of the legislature to enact a law conferring upon a city or town within this Commonwealth the power to grant permits or privileges to private individuals to erect structures which will bridge the public streets connecting premises owned on both sides of the street?"
And answered:
"Yes, if the private individuals own all the land upon or over which the structures are to be erected."
Yale University v. New Haven,
In the case at bar, both adjoining proprietors on opposite sides of the highway may be said to favor, to consent to, the underpass, and the public, by the State highway commissioner, has consented. On the facts of this case, the matter would end here, but for the circumstance that plaintiff has the fee, subject to the perpetual easement of highway, of the tongue of land projecting into the highway and along the railroad right-of-way, and which tongue. is crossed by the underpass, and, on this circumstance, the question is raised of the right to use the *Page 370 highway, including the part of which plaintiff has the fee, for the underpass.
Defendant, adjoining owner, has right of access to the highway. Eagle Township Highway Com'rs v. Ely,
Defendant, exercising its right of access and in the enjoyment of the railroad company's right of access, might carry its gravel by trucks or other vehicles across the highway and onto the railroad right-of-way. This, the evidence shows, would necessitate crossing the highway by truck every two and one-half minutes and would constitute a serious menace to traffic on this important trunkline highway. The highway is subject to the servitude at and on its surface. The burden upon plaintiff's servient estate would be no greater if the same use were below grade. Constructing the underpass would tend to make the highway safe and convenient and to facilitate travel, and its sanction here is therefore within the public right.
No doubt the highway authorities may construct in the highways barriers, signs, warnings, safety signals and devices, and this within the right of public use. The action of the State highway commissioner in permitting this underpass is sustainable for the same reason, and it is no invasion of plaintiff's servient estate in the highway. It is not for a private purpose. It is the control of adjoining proprietors' rights of access in the highway in the *Page 371 interest of public safety and convenience, and it therefore is a public use of the highway.
Whether the State highway commissioner may require crossing at other than grade is a question not before the court, for here no more is involved than permission granted on application.
Whether the gravel be taken through the underpass by truck or other vehicle or conveyor is not important.
Affirmed, with costs.
POTTER, SHARPE, and BUTZEL, JJ., concurred with CLARK, J.
Addendum
I cannot concur in the opinion of Mr. Justice CLARK.
I speak of the Breen Gravel Company as defendant. 1 Compiled Laws 1929, § 4022, gives the State highway commissioner no power to authorize an underpass on one man's property for private use by another. Private interest is never a public requirement. Constructing a tunnel through land constitutes a taking. 1 Elliott, Roads and Streets (4th Ed.), § 228. It is settled law in this State, as stated in plaintiff's brief, that:
"The ownership of the fee of lands used for highway purposes remains in the owner of the property over which the way passes."
The owner of the fee title has a right to use it and to enjoy the profits of it, in any way not incompatible with the public enjoyment of the right of way. Clark v. Dasso,
As said in Bradley v. Degnon Contracting Co.,
To constitute a use public, it must be for the benefit and advantage of all the public and in which all have a right to share — a use which the public have a right to freely enter upon under terms common to all. Public use necessarily implies the right of use by the public. The character of the use, whether public or private, is determined by the extent of the right by the public to its use, and not by the extent to which that right is or may be exercised. If a person or corporation holds or possesses the use, the public must have the right to demand and compel access to or the enjoyment of it. The motive which led to the creation of the use is immaterial. * * * *Page 373
"It was the private property of the defendants or one of them used exclusively for their private advantage and purposes. It is true its use facilitated and progressed the completion of a great public enterprise, but that fact, as we have already said, does not enter into the distinction between a public use and a private use. A lawful work cannot justify an unlawful expedient."
The underpass is for exclusive private use, and there existed no more authority for its construction on that portion of plaintiff's soil occupied by the public road than on any other portion thereof. Any incidental benefit to the public travel upon the surface highway cannot sustain violation of plaintiff's legal rights. This passageway dispossesses plaintiff pro tanto.
Real property consists of something more than mere surface rights; its meaning and the rights appertaining thereto are found in the ancient maxim: "Cujus est solum, ejus est usequead coelum et ad inferos. The surface of the land is a guide but not the full measure, for, within reasonable limitations, land includes not only the surface but also the space above and the part beneath." Butler v. Frontier Telephone Co.,
It is clearly established in this State that the abutting proprietor holds title in fee to the center of the public highway, subject to the easement for highway purposes. Mr. Justice CLARK, in United States Gypsum Co. v. Christenson,supra. If the strip of the old road is ever abandoned, full possession will revert to plaintiff. Until abandoned, plaintiff's rights, except for public use and for highway purposes, remain intact and cannot be appropriated by defendant for private use or convenience. *Page 374
There is no merit in the contention of defendant that the amount of damage for the injury inflicted is too small to confer equity jurisdiction. Unpermitted invasion of premises constitutes a trespass quare clausum fregit.
"In trespass quare clausum fregit, it is immaterial whether the quantum of harm suffered be great, little, or inappreciable." Whittaker v. Stangvick,
It is the province of equity jurisdiction to prevent a trespass upon lands.
As stated in 29 C. J. p. 550:
"Subject only to the public easement, an abutting owner has all the usual rights and remedies of the owner of a freehold, including trespass, ejectment, waste, action for damages, injunction, or an action to remove an obstruction, or abate a nuisance."
The highway commissioner assumed the power to grant defendant the right to occupy space, for a private purpose, beneath the surface of plaintiff's land, and when defendant constructed the underpass there was a taking of plaintiff's land without compensation and without warrant of law. Under the law of this State, defendant could not acquire right to the underpass for its private purposes by condemnation. What it could not do by warrant of law, it is not permitted to do under assumption of power exercised by the State highway commissioner. The principle here involved is far-reaching. Cases may be found where an owner with land abutting both sides of the highway has been permitted to establish an underpass, but I have found no case authorizing such a way under circumstances such as in this case. The bill herein was filed during construction of the underpass, but defendant went on and completed the work. *Page 375 The underpass violates plaintiff's rights of property, and maintenance thereof should be enjoined.
The decree dismissing the bill should be reversed, with costs, and relief granted plaintiff.
McDONALD, C.J., and NORTH and FEAD, JJ., concurred with WIEST, J.