Odoi v. White , 342 Mich. 573 ( 1955 )

342 Mich. 573 (1955) 70 N.W.2d 709

ODOI
v.
WHITE.

Docket No. 19, Calendar No. 46,271.

Supreme Court of Michigan.

Decided June 6, 1955.

William H. Wilmot, for plaintiffs.

Walter R. O'Hair (Daniel P. Cassidy, of counsel), for defendants.

REID, J.

Plaintiffs filed a declaration in ejectment setting forth conveyances purporting to evidence title. The case was heard by a jury but after motion for a directed verdict by each of the parties without reservation, the trial judge entered the judgment for plaintiffs in ejectment without the verdict of the jury, finding plaintiffs not vested with title to a 2-rod strip of land in question but owners of an easement over the 2-rod strip as appurtenant to plaintiffs' other land. Defendants appeal but plaintiffs did not cross-appeal.

On this appeal the sole issue concerns the easement for the 2-rod strip otherwise spoken of as "the right-of-way." Defendants do not question the right of the court to determine the plaintiffs' claimed right to an easement over instead of title to the 2-rod strip, but defendants deny the existence of the easement.

Plaintiffs are owners of the dominant estate. Plaintiffs' ancestors or predecessors in title were granted the title by warranty deed dated February 13, 1873, including with the description of lands constituting the dominant estate the 2-rod strip under the wording, "also the right-of-way or 2 rods on the south side of land owned by parties of the first part on the east half of the said southwest quarter of said section 16."

Defendants-appellants claim that the purpose for which the easement was created ceased to exist. However, this strip spoken of as "about 80 rods long or about 1,320 feet" afforded the only method of reaching a 22-acre tract from the dominant estate, and has continued to be so used. Although the premises constituting the dominant estate were used for a dairy farm and are now used as a fairway for a golf course, the 2-rod strip in question is still used in reaching the 22 acres. In any event, the expressly granted easement was not limited to any one particular purpose or use.

Defendants further claim that the right-of-way was extinguished as a consequence of merger.

A former owner of the dominant estate, Henry W. Cort, testified that he sold the property to a Mr. Senn in 1938 or 1940 and that Mr. Senn did not carry out his contract. The contract was cancelled by foreclosure about 1945. Mr. Senn therefore never received the title to the dominant estate.

The use by Mr. Senn of both the dominant and servient estates as vendee under land contracts, did not extinguish the easement.

"Unity of possession without unity of fee is not sufficient to cause an extinguishment." 17 Am Jur, Merger, § 139, p 1025.

Mr. Senn was entitled under his land contract to the possession, but did not acquire the fee.

"An easement appurtenant to land, created by grant in a deed, is not lost by nonuser, nor can abandonment be predicated upon nonuser without evidence establishing an intention to release the servient estate and extinguish the easement." Greve v. Caron, 233 Mich 261 (syllabus 4).

There is no showing in the record that there was any conveyance nor any act on the part of any person at the time owning the dominant estate, expressly repudiating, extinguishing or destroying ownership on the part of the owner of the dominant estate of the easement in question. The easement was not extinguished. The trial court properly found the right to the use of the 2-rod strip to be an easement, and that the title to the 2-rod strip was not owned by the owners of the dominant estate.

The judgment of the circuit court granted ejectment as to a certain tract of land described in the judgment and this part of the judgment has not been appealed from by the defendants. This part of the judgment therefore stands affirmed as to the tract other than the 2-rod strip in question.

The judgment of the court further recited as to the easement in question, "Also the unimpaired use of an easement over and upon the south 2 rods of the following described property," and those words in the judgment were followed by a description of the land crossed by the 2-rod strip in question.

Defendants in their statement of reasons and grounds of appeal asserted no claim that the trial court in ejectment was without right to grant the relief sought by plaintiffs as to the use of the easement. The trial court properly found that, "The conveyances down to the defendants reserved a right-of-way or a private road referring to the original conveyance from Waters to Rofe," and further, "The deed to the defendants is subject to this limitation of this use."

In Michigan, ejectment does not lie to recover an easement. See Buell v. Irwin, 24 Mich 145; Taylor v. Gladwin, 40 Mich 232; City of Detroit v. Detroit United Railway, 172 Mich 136; Graham v. City of Detroit, 174 Mich 538 (44 LRA NS 836); McMorran Milling Co. v. Pere Marquette R. Co., 210 Mich 381; Hasselbring v. Koepke, 263 Mich 466 (93 ALR 1170); and Frank v. Coyle, 310 Mich 14 (syllabus 5).

The portion of the judgment granting ejectment as to the 2-rod strip covered by the easement is reversed. Judgment for plaintiffs as to the easement is reversed without prejudice to proceedings in chancery as to the easement.

On this appeal the parties by their briefs have argued the proposition of an extinguishment of the easement. The finding of the trial court that the easement is not extinguished is supported by the clear preponderance of the evidence. In view of the nature and result of the appeal, no costs are awarded to either party.

CARR, C.J., and BUTZEL, SMITH, SHARPE, BOYLES, DETHMERS, and KELLY, JJ., concurred.