Lamb v. Pontiac, Oxford & Northern Railroad , 1907 Mich. LEXIS 805 ( 1907 )

Ostrander, J.

(after stating the facts). At the time the railroad was constructed, and thereafter, Jacob C. Lamb owned the fee of the land in question and complainant now owns it. When the grant was made to defendant’s assignor, it had no possession of the land used as a lane, and has never since occupied it, except to bridge it; it has never occupied the surface of the land. On the contrary, by erecting piling to confine its embankments, by constructing the overhead work and by building and maintaining the wing fences, it has, from the beginning, bounded and defined the use it made of the land. It may be conceded that the grant to defendant’s assignor is not ambiguous and is sufficient in terms to give full and perfect use of the surface of the land conveyed and the right to go below and above the surface as may be necessary to make, operate, and maintain a railroad. The right created by the grant would not be lost by mere neglect to enjoy it for 15 years, or more, if there was no evidence of an adverse user. Day v. Walden, 46 Mich. 575, 583. But the grantee did construct its road in the manner described and so for 23 years it maintained it. It is a necessary inference from the proven facts that this was pursuant to an understanding of the parties to the grant. It involved maintenance of the road with reference to the lane.

There is no access to the pasture land and to the water except over or under the defendant’s road.. The land is now and has been used largely as a stock farm. There were 60 head of cattle on it when the way was obstructed. The presumption is, notwithstanding the grant, that the parties did not intend to deprive the grantor of reaching and using the land beyond the strip removed. New York, etc., R. Co. v. Railroad Com’rs, 162 Mass. 81. The statutory crossing (2 Comp. Laws, § 6294) would, it is true, secure passage between the different portions of the farm. And it has been held that a right of way is not to be implied merely because it is convenient. Jones on Easements, § 315. But neither is the implication limited by strict necessity. And we are not now called upon to determine whether the way claimed to exist was, in law, in its inception, a way of necessity. There is no reason why, in recognition of the demand for a suitable and convenient way, as a way of necessity, the parties should not agree, by parol, to locate it in this lane. Jones on Easements, § 337. If they did agree, equity will restrain the railroad company from taking possession of any additional part of the land after its roadbed is located and completed. Jones on Easements, § 343. Taking into consideration all of the circumstances, including the grant, we are of opinion that it must be presumed that the use of the pass by complainant and by his ancestor was under claim of right, the extinguishment of which defendant has not made out.

The decree of the court below should not be disturbed. It is affirmed, with costs.

McAlvay, C. J., and Carpenter, Hooker, and Moore, JJ., concurred.