111 Mich. 383 | Mich. | 1897
The bill filed in this case asks for an injunction restraining defendants from prosecuting an ejectment suit brought to compel the railway company to remove its tracks from lands described in the bill, and to surrender possession thereof to plaintiffs in ejectment (defendants herein). In 1869, the firm of A. B. Long & Sons owned and operated a sawmill on the west bank of Grand river, in the city of Grand Rapids, and had constructed a side track from the Grand Rapids & Indiana Railroad to its mill. The firm of Wonderly & Co. also built a mill south of the Long mill, and the two mill companies entered into a contract, whereby Wonderly & Co. became the owner of an undivided half of this side track, the monetary consideration being $1,950.83. In 1876, Wonderly & Co. was adjudged bankrupt, and it ceased to operate its mill or use the track. In 1880, Joseph H. Wonderly, who had acquired all the interests of Wonderly & Co., gave a bill of sale of a large amount of personal property, including this side track, to the Kent Furniture Manufacturing Company. This was followed in 1895 by a quitclaim of the same property from Wonderly to the Kent Company. By successive business changes and death, the firm of A. B. Long & Sons is now represented by George H. Long, executor, and George H. Long, individual.
In 1877, the Detroit, Grand Haven & Milwaukee Railway Company put in a side track to the Long mill, and from that time Long & Sons ceased to use the old track. In 1882, Long & Sons gave the Chicago & West Michigan Railway Company oral license to lay a side track to its mill, and the track was laid, part of it being over the same right of way as the old side track of 1869. The rest of the track was laid upon the private lands of Long & Sons. The Kent Furniture Manufacturing Company alleges that Long & Sons requested it to consent to the laying of this track, representing that if such change were made, the railway company would keep
The complainant furniture company alleges that it should have the same right’ in the new track as in the old, and to its use as long as desired; that the railway company was to keep the track in repair, and that, relying upon the representations made, complainant railway company laid the track at an expense of several thousand dollars, and the furniture company invested large sums in its plant; that defendants should be forever absolutely barred from interfering with complainants’ use of this track. The defendants answer, and say that they own the lots occupied by the side track in fee simple; that neither complainant has the right to use or maintain the track; that the firm of A. B. Long & Sons was dissolved in 1878, the firm of Wonderly & Co. in 1876, and that the track was wholly abandoned after 1877; that complainant railway company laid its track under parol license, which has been revoked, and is estopped from denying the right and title of these defendants, its licensors; that, under the agreement of 1869, A. B. Long & Sons did not convey any right of way across the lots occupied by the track; that the license to use the track under the agreement of 1869 was revoked by the dissolution of the two original firms, in 1876 and 1878; that the interest of Wonderly & Co. was not assignable; that the furniture company, was not a party to the ejectment suit, and is not entitled to join in this action; that complainants have not stated a case entitling them to relief; and defendants claim the benefit of a demurrer. Upon the hearing in the court below, a decree was en
The contract between A. B. Long & Sons and Wonderly & Co. recites the consideration, the fact that Wonderly & Co. was erecting a sawmill south of the Long mill, and then provides that—
“The said parties of the first part, for and in consideration of the sum of $1,950.83, to them in hand paid by the said parties of the second part, * * * do, by these presents, grant, bargain, sell, remise, release, alien, and confirm unto the said parties of the second part, their heirs and assigns, forever, the undivided one-half of the said side track or railroad; to have and to hold the said side track to the said parties of the second part, their heirs and assigns, to the sole and only proper use, benefit, and behoof of the said parties of the second part, their heirs and assigns, forever.” -
The contract also provides that each party should 'bear one-half of the expense of keeping the side track in repair at all times, and that either party might at any time construct switches from such toack to either of their mills or yards, and that the side track should be used in common so long as either party should desire to use the same, and should not be moved without the written consent of all the parties. The contract was signed and sealed, in the presence of a witness, November 22, 1869, by all the members constituting the two firms. The track at that time extended across several lots owned by A. B. Long & Sons, as copartners. The contract contemplated the use of the track, and the right granted to be appurtenant to the Wonderly mill and plant, and the right retained to be appurtenant to the mill and plant of Long & Sons, and also contemplated a long-time use. It was the expressed intention of the parties that the second parties, their heirs and assigns, should have such use forever, qualified only by the proviso that if such parties, their heirs or assigns, should not wish the further use of the way at any time, then it might cease.
“The inquiry in these cases [whereland is conveyed in parcels to several purchasers, subject to restrictions with reference to the use of the premises conveyed] has generally been whether the servitudes or restrictions imposed were of such a nature as to operate as an inducement to purchasers, and, if so, the inclination of the courts has been to construe them as appurtenant to the estate, and intended for its protection, rather than as personal to the grantor. If appurtenant, it, of course, follows the land, being assignable with it, and each grantee can enforce it in equity against each other grantee having notice of it; ” citing Sharp v. Ropes, 110 Mass. 381; Whitney v. Railway Co., 11 Gray, 359 (71 Am. Dec. 715); Inhabitants of Winthrop v. Fairbanks, 41 Me. 307.
In Peck v. Conway, 119 Mass. 549, the court said:
‘ ‘ The question whether such an easement is a personal right, or is to be construed to be appurtenant to some other estate, must be determined by the fair interpretation of the grant or reservation creating the easement, aided, if necessary, by the situation of the property and the surrounding circumstances.”
See, also, Fitch v. Hydraulic Co., 44 Mich. 74.
We think that Wonderly & Co. took a perpetual right of way over this track for the use of its mill, and that it was such a right in the land as Wonderiy & Go. could and did convey to the Kent Furniture Manufacturing Company. The claim that this right was ever abandoned in any way is not sustained by the proofs.
In 1882, as has been said, the track, or a portion of it, was moved for a distance by Long & Sons. Complainant-furniture company claims that this was by its consent, and upon an agreement by Long & Sons that the rights of the furniture company in the side track and easement
The decree of the court below must be reversed, and a decree entered here in accordance with the prayer of the bill. Complainants will recover their costs of both courts.