Docket No. 24 | Mich. | May 31, 1917
This case is now before the court for the second time. The opinion rendered upon its first consideration will be found reported at 182 Mich. 405 (148 N. W. 738). A perusal of that opinion will make a restatement of fact unnecessary.
When the bill was filed the defendants interposed a demurrer, alleging 18 different grounds for the dismissal of the bill, and an order was entered in the circuit court sustaining said demurrer. On appeal to this
“As and for compensation for the damage to said complainants from the continued infringement of their said easement for the period of six years next precede ing the institution of this suit.”
From the decree so rendered defendants have appealed, and in this court counsel argues for a reversal of the decree for the following reasons:
“First. The plaintiffs never acquired any legal rights through the restrictive covenant contained in the deed given by James Baumann and wife to Han-ford.
“Second. That if the said covenant created an easement, such easement was personal or an easement in gross, and was not assignable.
“Third. That said restrictive covenant had been abandoned by the subsequent conveyances of the property now owned by the plaintiffs and that owned by the defendants.
“Fourth. That if said covenant contained in deeds Exhibits A and I created an easement which has not been abandoned, was transferable, and had been legally assigned to plaintiffs, they have lost all rights they might have had by their laches, as said covenant con*545 stituting or creating said easement was broken when the building was erected nearly 14 years before suit was commenced.
“Fifth. That the plaintiffs are estopped by their laches from claiming any affirmative relief in said cause.
“Sixth. That the statute of limitation is a complete bar to plaintiffs’ right of action, either in law or equity.”
We have read the evidence introduced in the case with care, and have no hesitation in saying that the allegations contained in the bill are fully sustained by the proofs. That being true, it will be found that the first, second, third, fourth, and fifth grounds for reversal are fully covered by the opinion already rendered in the case.
With reference to the sixth ground urged, appellant relies upon the statute (section 14141, 5 How. Stat. [2d Ed.], 3 Comp. Laws 1915, § 12323), which provides that:
“All personal actions on any contract, not limited by the foregoing sections, or by any law of this State, shall be brought within ten years after the accruing of the cause of action, and not afterwards.”
A sufficient answer to this contention is found in the fact that plaintiffs’ action is not based on any covenant. It is an action in which plaintiffs seek by the aid of a mandatory injunction to abate and restrain a continuing trespass. This action is open to plaintiffs at any time until the trespasser has extinguished the easement claimed by plaintiffs by adverse possession 15 years.
The decree is affirmed, with costs.