79 Mich. 93 | Mich. | 1889
This suit was brought in justice's court to recover a penalty of five dollars for an alleged violation of an ordinance of the city of Charlotte, enacted to prevent the obstruction or incumbering of - streets, lanes, etc. Plaintiff obtained judgment in that court, whereupon defendants appealed to the circuit court, where a trial was had before a jury, resulting in a verdict and judgment for defendants. Plaintiff comes to this Court by writ of error.
It is admitted that defendants incumber, by machinery, etc., in front' of their foundry, what is claimed by the plaintiff to be a portion of Cochrane avenue, in said city. The defense claimed that the title to the land at this ■point was in the defendant John A. Miller and his wife, Amanda Miller. After the testimony was all in, the plaintiff asked the court to instruct the jury to find a verdict for the plaintiff, which was refused. This is the chief assignment of error in the case.
The undisputed or conceded facts in the case are as follows: In the year 1872, John A. Miller was the owner of lot No. 1 in McClure's addition to the village (now city) of Charlotte. Lots Nos. 2 and 3 of the same addition, and adjoining lot 1, were, at the same time, owned by Mrs. Altha Rice, wife of D. P. Rice. In May of that year, for the purposes of widening Cochrane avenue, upon which these lots fronted, John A. Miller and Amanda Miller, with a large number of other persons, joined in a quitclaim deed to the public. Miller received $45 as a consideration for his deed. The deed described the land conveyed “for the purpose of a public street or highway,” as—
This deed was executed and acknowledged by John A. Miller and Amanda Miller on May 22, 1872, the instrument being dated in the body as of May 2, 1872. It was executed, also,- by D. P. Rice, the husband of Altha Rice; but she did not join in the deed.
This deed, executed by the lot-owners along the street for the length of a mile, was intended to make the street, which is the main one in the city, 100 feet wide. The ■description in this deed embraced 17 feet in width from off the east end of lots 1, 2, and 3 of McClure's addition to the city of Charlotte.
Mrs. Rice deeded lots 2 and 3 to Laura Cadwell and John S. Opt, January 2, 1874, with the usual covenants of warranty, and made no exception as to this 17 feet. January 11, 1876, Laura Cadwell conveyed to John S. Opt her interest in said lots by warranty deed, making no exception of the land now claimed as highway; and November 12, 1880, John S. Opt and wife conveyed, in the same manner, these lots 2 and 3 to John A. Miller and Amanda Miller, his wife". Under these conveyances, Miller and wife claim the 17 feet alleged to have been obstructed by the defendants.
The court instructed the jury that the people must show, by a preponderance of proof, the existence of a highway
“ Whether Mr. Miller bought that land with the street existing there; * * and it all hinges upon what these people have done previously.” .
He also charged that the doctrine of estoppel, that had been alluded to, by the taking of deeds, did not apply to the case. He ignored and rejected the claim of plaintiff that Miller and his wife, by joining in the deed to the public of this land, were thereby estopped, although they did not then own it, from denying the existence of the highway over this 17 feet afterwards acquired in their deed from Opt.
There was some dispute as to the opening of this 17 feet to the public, although it clearly enough appears that Miller’s foundry or shop was built on the line of the street as claimed by plaintiff, as was also his fence north of his shop, leaving this 17 feet out to the commons, if not in the street. It is also clear that Miller has always claimed the 17 feet, since he bought lots 2 and 3, as being his land, and no part of the street, and has occupied a portion of it all the time, with machinery, etc. Mr. Miller built the shop himself, and testifies that
¥e think the evidence as to the acceptance of this 17 feet by the city sufficient to show that, after the omnibus deed was made, in 1872, the street was considered as being 100 feet wide opposite these lots; that thereafter no part of said street was fenced in, and that the public authorities of the city did all that was necessary to indicate their acceptance of this disputed 17 feet as a public street or highway, and that they have done nothing since to abandon such acceptance. Therefore the solution of this question in dispute depends, first, upon the effect of the deed of John A. and Amanda Miller to the public, in 1872. If the giving of such deed estopB them from claiming the 17 feet under their conveyance from Opt, then the dispute is ended in favor of the plaintiff. If not, then other questions as to dedication may arise.
It is admitted that if the deed of May, 1872, had been a warranty deed the estoppel would exist; but it is claimed by the defendants that a quitclaim deed cannot work such an estoppel. The counsel for the plaintiff claim that if a deed of bargain and sale, by release or quitclaim, bears on its face evidence that the grantors intended to convey, and the grantee expected to become invested with, an estate of particular description or qual
It is contended that this deed is one .of this kind; that it bears upon its face what particular estate or interest in the parcel of land described, and of which the 17 feet in question was a part, was intended to be conveyed, and what was being bargained for by the public; that it was an absolute bargain, sale, and quitclaim of the lands, not merely of all the interest of the grantors, and “for the purpose of a public street or highway.” And again, after the description, the language of the deed is,—
“To be used as a public street or highway, and for the purpose of widening the street known as c Cochrane Avenue'’ in the city of Charlotte, subject to the laws pertaining to and governing highways.”
And that the ordinary doctrine of estoppel applies in case of a grant of an easement, so that if a person without title profess to convey an estate, or to grant an easement, his conveyances operates by way of estoppel if, at a subsequent period, he acquires a fee, and the subsequently-acquired estate, is bound thereby; or as it is termed, the newly acquired estate “feeds the estoppel.”
It appears from the record that Opt deeded lots 2 and 3 to John A. Miller and Amanda Miller, his wife, so that they are joint tenants in the premises in the entirety; the survivor taking, at the death of the other, the whole
Numerous authorities are cited by plaintiffs counsel to support their, position as above stated, — that Miller is estopped from asserting title to this 17 feet on lots 2 and 3, as against the easement to the public which he granted in the omnibus deed.
“ But a quitclaim deed can never inure to convey any subsequently-acquired title which was not actually owned in equity at the time of the deed.’’
The question of dedication and acceptance of the highway was properly submitted to the jury. The court was correct in stating to the jury that there was no evidence that Miller had ever dedicated this land, since he owned it, for the purposes of a public highway, and in instructing them that the dedication, if any, must be found from the acts of the grantors of Miller.
The judgment will be affirmed, with costs.
Smith v. Lock, 18 Mich. 56; McDonnell v. Rathbun, 46 Id. 303; Karrer v. Berry, 44 Id. 391; Plumer v. Johnston, 63 Id. 165; Fisher v. Hallock, 50 Id. 463; Parker v. Smith, 17 Mass. 413; Bigelow, Estop. (4th ed.) 430, 431; Van Rensselaer v. Kearney, 11 How. 323; Bawle, Cov. 388, 389, and notes; Sinclair v. Jackson, 8 Cow. 586; Jones, Mtg. § 679; McDrackin v. Wright, 14 Johns. 193; Washb. Easem. 62 (note 2), and cases cited.