Summary
holding that an easement for drainage purposes was abandoned where the easement was dormant for fifty-four years and the proposed drainage was established elsewhere
Summary of this case from L N R Co v. Epworth AssemblyOpinion
Docket No. 58, Calendar No. 35,535.
Submitted April 21, 1931.
Decided June 1, 1931.
Appeal from Oakland; Doty (Frank L.), J. Submitted April 21, 1931. (Docket No. 58, Calendar No. 35,535.) Decided June 1, 1931.
Bill by Mary T. MacLeod against Claude F. Hamilton to foreclose a land contract. Cross-bill by defendant for rescission. From decree dismissing both bill and cross-bill, both parties appeal. Affirmed.
Dykema, Jones Wheat, for plaintiff.
Robert M. Drysdale, for defendant.
The bill herein was filed to foreclose a land contract. Defendant, by answer, set up that the grantor did not have a marketable title because of an easement for a drain granted the county of Oakland in 1876, and, by cross-bill, asked rescission for that reason and because of an alleged slight shortage of land and the refusal of plaintiff to release lots. There was also the claim by defendant that the lots were described as "in Beech Hill Park subdivision," and there is no such subdivision. In fact the lots are in "Beech Hill subdivision," and the circuit judge considered the word "park" surplusage, "because the quarter sections, township and county were named and there would be no difficulty in locating the premises." With this holding we agree.
The circuit judge also held:
"The claim as to the discrepancy in measurements is rather indefinite and uncertain; the surveyor didn't find any alignments from which he made his measurements, but took fence lines and there was no testimony as to how long the fences had been recognized as lines between the properties."
The alleged shortage was about seven and one-half inches on the west side of certain lots in the subdivision.
The contract contained the following release clause:
"Any residence lot in said subdivision to be released upon the additional payment of one and one half times the pro rata proportion that the lots bear to the balance due upon said lots and two times the pro rata proportion for lots on Maple Road when said deeds are called for."
Defendant admits default in payments as well as taxes, but asks for release of lots because of payments made under the contract. Such payment's were not "additional" payments commanding release of lots. The decree, dismissing the cross-bill and denying relief to defendant, is affirmed.
The circuit judge stated:
"The plaintiff is attempting to foreclose her land contracts and should be in a position to tender defendant a deed carrying marketable title in accordance with the contracts signed by the parties. It is admitted that she is unable to do that at this time.
"No claim was ever made by the defendant of any discrepancies in description or any fault found in the title until after suit to foreclose the contracts was started. However, that does not relieve plaintiff from the necessity of being in a position to deliver deeds showing marketable title and before she can attain a position to foreclose the contracts she must be in such a position."
For that reason plaintiff's bill was dismissed without prejudice.
The easement was granted by deed, executed July 14, 1876, and released and conveyed to the county of Oakland "the right of way and the necessary lands for the construction of the said watercourse, ditch or drain and for no other purpose whatever across and over the lands of the which they have control." This easement touched but a slight part of the subdivision. No ditch or drain was ever constructed under the easement and the proposed drainage was provided elsewhere. For 54 years this easement has been dormant and renounced by the county in the establishment of the drainage elsewhere. Such an easement as this can be extinguished by abandonment of purpose or by renunciation showing that other means employed serve the purpose.
It is settled law that:
"A grant of an easement for particular purposes having been made, the right thereto terminates as soon as the purposes for which granted cease to exist or are abandoned or are impossible." Chicago N.W. Ry. Co. v. Sioux City Stockyards Co., 176 Iowa, 659 ( 158 N.W. 769).
The grant was of an easement for drainage purposes only, and when the contemplated purpose was abandoned by establishment of the drain elsewhere the right of way ceased and the easement was but a cloud. Upon this subject see California N. R. Co. v. Mecartney, 104 Cal. 616 ( 38 P. 448); Bangs v. Potter, 135 Mass. 245; Batchelder v. State Capital Bank, 66 N.H. 386 ( 22 A. 592).
While such is the rule, it does not save plaintiff's case, but does prevent rescission by defendant. This suit is to foreclose and not to remove a cloud on the title. The county of Oakland is not a party to this suit, and is entitled to a day in court. The mere record of the outstanding easement is sufficient to command assurance to defendant against the contingencies of a law suit. Platt v. Newman, 71 Mich. 112. The easement is undoubtedly moribund, and, under the evidence, constitutes no justification for rescission by defendant, but does require plaintiff, before exacting performance by defendant, to be in a position to tender a marketable title. The plaintiff can remove the cloud, now of record, and file a new bill to foreclose.
The decree in the circuit is affirmed. Both parties having appealed, without avail, neither can have costs.
BUTZEL, C.J., and CLARK, McDONALD, POTTER, SHARPE, NORTH, and FEAD, JJ., concurred.