Docket No. 129 | Mich. | Feb 5, 1907
The defendant purchased a street railway constructed in a highway, within the township of Bangor, in Bay county. The, township files this bill alleging that the railway was built without the consent, and against the repeated protests, of the township authorities, and has
We infer from the defendant’s brief that the testimony sustains the bill upon the point that the railway was built without obtaining authority from the township in the way pointed out by statute, but defendant seems to rely on an estoppel, based on the acquiescence of the officers of the township, or failure to take steps to prevent the construction of the railway. The testimony shows that the construction of the railway began in 1889. The highway commissioner was informed that work was being done in the highway, and a meeting of the township board was held soon after to consider what should be done, and the board looked over the premises where the work was being done. The record of this meeting shows:
“Before calling the meeting to order the board proceeded to examine the highway between sections 9 and 10, town 14 north, range 5 east, pursuant to the request of the highway commissioner of the township of Bangor, and ascertained the following facts, viz.: The West Bay City Street Railway Company is constructing a street railway on the highway running north and south between said sections, using d'irt from near the center of the highway for the construction of said railway, and grading on*167 the east side of said highway, and whereas said railroad proposes to secure lands on the west side of the said highway to widen the highway, and the people adjoining said highway are satisfied, therefore it is
“ Mesolved, That the board take no action at the present and leave the consideration for some future date.
“ Carried.”
The supervisor had some talk with officers of the company, and was informed that it was its intention to buy as much land on the west side of the highway as it was using of the highway on the east side, and to widen the highway to that extent, and this project was talked over at the meeting. Action was purposely deferred to see if that should be done. The railway company proceeded to complete the railway. It neither bought the land nor widened the street. The township officers complained several times about the condition of the highway, but could get nothing done. . The township board took no further action until some years after.
In June, 1902, notice was served by the township authorities on the receivers of the railway company demanding a removal of the road from the highway, for reasons enumerated in the notice. On August 14, 1902, Mr. Weadock, the managing receiver of the railway company, and in charge and control of the business of the company, had some negotiations with the township officers upon his application, and was present at one or more meetings of the township board, and these negotiations resulted in the granting of a franchise for a railroad along the highway in question, to. the United Traction Company, its successors and assigns, upon terms and conditions stated therein. The record of the township treats this as, an application of the Bay Cities Consolidated Street Car Company “ for a franchise of its road through Bangor township, on the east side of the line between sections 9 and 10 and 3 and 4.” The record states the fact of the arrival of Mr Weadock, the examination of the premises upon the question of a proposed doubling of the track, and that Mr. Weadock paid the expenses of the
“ This road was first built in 1889, by Fisher, Aplin and Magill without acquiring any right to lay their track in the highway. The first mile was then an established highway, and the second mile was private property, and now, when the township had entered an action to oust them, they apply for a franchise.”
It shows that. Weadock, receiver, and E. S. Dimmock, general manager, were present representing the United Traction Company, and that Mr. Weadock presented “ the request of his company ” for a franchise for 30 years and a right to lay a single or a double track, and to charge a 5-cent fare on these two miles. The substance of the negotiations follow. Again Mr. Weadock paid the costs of the meeting, and the franchise was agreed upon and was entered in the record. At that time it was contemplated that the road would soon be sold at receiver’s sale, and the purpose of asking for the franchise was understood to be to give the purchaser a franchise under which it could operate the road, and it was given in the name of a company not then in existence, to avoid giving another later, it being expected that it would be transferred to such company as should purchase the road. The road was sold to the Bay Cities United Traction Company, a company organized for the purpose of purchasing it, and this franchise was assigned to it, without any consideration, other than reimbursing the receiver for the expense incurred in procuring it. The Bay Cities United Traction Company
The points relied on by defendant seem to be:
1. That the court has no jurisdiction of this cause, because there is an adequate remedy at law, if complainant’s claim is valid.
2. That it is estopped from asking the relief sought, because of the acquiescence of its officers in the building and maintenance of the road, it being contended also that the proceedings of 1902 have no force as against this defendant.
A railway which is built in a highway without authority of law is not rightfully there, and the public has a right to have it removed, whether it be called an encroachment, an obstruction, or a nuisance. Defendants appear to contend that this is neither an obstruction nor a nuisance, for the reason that we have held that' the use of public highways, by street railway companies, is a legitimate use of the highway, and does not create an additional servitude upon the land of the adjoining proprietor, and that it must, therefore, be an encroachment or a trespass; if the former, not the subject of equitable relief; and, if the latter, waived by the conduct of the officers. While a railroad, lawfully constructed on a highway, and rightfully there, cannot be held to be an unlawful obstruction of, or encroachment upon, the highway, it is an obstruction in the sense that any structure or new use may be an obstruction to its use by the public generally to a greater or less extent. Thus in the case of Attorney General v. Brick Co., 115 Mass. 431" court="Mass." date_filed="1874-09-04" href="https://app.midpage.ai/document/bay-state-brick-co-v-foster-6417742?utm_source=webapp" opinion_id="6417742">115 Mass. 431, it was held that a track laid across the highway by the owner of lands adjacent, by the consent of the township authorities, might be an obstruction, and, if the surveyors should so determine (the surveyors being public officers authorized to de
The defendant’s alleged estoppel cannot be sustained. If private persons can create easements by estoppel, under our statute of frauds, and our decisions, or if a license may be implied from the acquiescence of a private person, who stands by and sees, without protest, his land used for a railway, the same cannot be said of township officers, who have no authority except such as the statute gives, and if it could be, the testimony does not justify such a finding. See Goose River Bank v. Willow Lake School Township, 1 N. Dak. 26. We must hold that the only authority that the defendant has is traceable to the action of the board in 1902, and it must submit to a decree in accordance with the prayer of complainant’s bill, unless, within 30 days after service of a copy of this opinion, it file an election to take a decree adjudging such relief, conditioned upon its failure to accept and comply with the terms imposed by the township board in said resolution or franchise. The complainant will recover costs of both courts.