Thomson v. Flint & Pere Marquette Railroad

131 Mich. 95 | Mich. | 1902

Grant, J.

(after stating the facts). 1. It is insisted that the proof of loss of the instrument was insufficient to justify the admission of secondary evidence. The question whether the loss has been sufficiently proved must be decided by the court at the trial. It is not a question for the jury. Those relying upon a lost document must estabfish the execution of the document, its loss, and a diligent but unsuccessful search for it in places where it is most likely to be found. 1 Greenl. Ev. (15th Ed.) § 558. Mr. Sanborn testified to the execution of the paper by Mr. Harrington; that it was brought to him by Mr. McMorran; that he asked McMorran to secure the signature of Mr. Beard; that his signature was secured; that he took it to Detroit, consulted his attorney, and then executed it himself ; that the witness was then in the custom house, where he had the paper; that he looked everywhere he thought it was likely to be; that, after he left the custom house, he “went through all the papers where it was likely to be; that he did not take it into the estates’ office at all; that it never was in the estates’ office, dhat he knew of.” This testimony stood uncontradicted, and, we think, justified the court in holding that reasonable search had been made, and that its loss had been proved.

2. It is urged that the court erred in directing a verdict in favor of the defendants the McMorran Milling Company and the Chicago & Grand Trunk Railway Company, and in saying to the jury that “the testimony of John P. Sanborn was undisputed, and established the fact that Daniel B. Harrington executed a paper which gave to the McMorran Company the right of way for one or more tracks across lot 41.” Counsel for plaintiffs relies upon Hagan v. Railroad Co., 86 Mich. 615 (49 N. W. 509), and Michigan Pipe Co. v. Insurance Co., 92 Mich. 482 (52 N. W. 1070, 20 L. R. A. 277). In those cases there were facts and circumstances tending to throw discredit upon the statements of the witnesses, and held to be inconsistent with the testimony which was claimed to be undisputed. We find nothing in this case to bring it within the rule of those cases. Mr. Sanborn had no interest in the matter. No purpose or intention to withhold or destroy the paper, or anything suspicious about the circumstances of its loss, was shown. We find no error in thus instructing the jury.

3. It is next insisted that the substance of the writing was not sufficiently proved. This contention cannot be sustained. Mr. Sanborn testified positively that it was an absolute conveyance for the right of way across lot 41. Counsel seeks to bring the case within that of Taylor v. Adams, 58 Mich. 187 (24 N. W. 864), where a witness was not able to give either the description or number of the lot stated in a certain contract, and yet was permitted to testify that it was the same one in question in that suit. Here the lot is clearly identified, and a railroad right of way over it is a sufficient description after it has been located by the parties and used for a period of 20 years by the grantees.

Counsel also insists that this was a “mere floating right,” under the rule of Detroit, etc., R. Co. v. Forbes, 30 Mich. 165. The description in that case, which was held to be a “mere floating right,” was of “100 feet in width, being 50 feet on each side of the line which may be hereafter established by said company for the route of their railroad over and across the following described land,” being a 40-acre tract. Before the controversy arose the company had not located its route. Evidently, if the location had been made, the deed would have been held good; for the opinion says: “Until such actual location, therefore, the title of the whole 40 acres remained in the plaintiff below, and it was competent for him to do with or upon it all he could have done before the deed was executed.” The question involved in that case was whether the owner of the land could maintain an action of assumpsit against the company for failing to remove a certain barn located upon the land. In this case Mr. Harrington was present when the right of way was constructed, and superintended it. If the right conveyed was a floating one, it had become fixed when both the grantor and the grantee went upon the land and established the right of way.

4. We think there was sufficient evidence, so far as Mr. Harrington was concerned, of the delivery of the deed. He had executed it and delivered it without any qualification, or any intention to withdraw it. It was executed by other adjoining owners, over whose property the road must be constructed. It was constructed over submerged lands by throwing up a roadbed at great expense. It is apparent that all the parties understood that no title to a right of way could be obtained except by a written instrument. No other conclusion is possible than that such an instrument was executed, upon which all the parties thereto acted.

We think the case was rightly disposed of, and must be affirmed.

Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit.