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point twenty-three rods thirteen and one-half feet south of said half quarter post; thence west to Lake Michigan; thence northeasterly along Lake Michigan to a point west of the place of beginning; thence east to the place of beginning-being the lands indicated on Exhibit A annexed, as lying between the point designated by 'Line Claimed by Brown' on the south and 'Fence Line' on the north."

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21, town 1 south, range 17 west, bounded on the north by Charles Champion, on the west by Lake, on the south by Josephine Rouse, on the east by Lake Shore road, being 7 acres of land, more or less. In 1896 plaintiff began negotiations with Mr. Bradley to purchase the land last above described, at which time the old fence line which it was claimed existed between the north 7 acres and the

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Originally, George and Lucinda Rouse owned all the land on section 21, South Haven township, shown by Exhibit A to be south of the eighth line, supposed to be 34 acres. A number of years ago George and Lucinda Rouse had some domestic difficulty, and separated, and George set off to Lucinda what he supposed to be 7 acres bounded on the north by the eighth line, and made a conveyance whereby the title became vested in her. The testimony tended to show that he built a sort of fence along the south thereof extending from figure "1" east, Exhibit A, as shown by annexed plat. In 1888 George Rouse died. October 17, 1888, Lucinda Rouse, his widow, and all of the other heirs, joined in a deed whereby they conveyed to Josephine Rouse the south 27 acres of the southeast fractional quarter of the southwest fractional quarter of section 21, town 1 south, of range 17 west. This land, by proper legal conveyance, came into the possession and ownership of Fred Bennett, and then to the defendant, Samuel R. Bowerman. August 12, 1890, Lucinda Rouse and all the other heirs of George Rouse joined in a conveyance conveying to William S. Bradley 7 acres of land from and off the north end of the fractional southeast quarter of the southwest quarter of section 97 N.W.-23

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south 27 acres was obliterated, and the fence row plowed up, and nothing was left whereby the division line as originally agreed upon between George and Lucinda Rouse could be designated. Brown and Bradley struck upon a bargain, but before making the deed Bradley, at the request of Brown, caused a survey to be made, in order that the description of the land which was to be deeded to him might be made more certain, and in order that the division line between the socalled 7 acres and the so-called 27 acres might be determined. George C. Monroe, a surveyor, was called, and the whole 34 acres formerly owned by the Rouses was surveyed. and it was found that there was in said piece 33.36 acres, instead of 34 acres. At the time of this survey Bennett was the owner of the so-called 27 acres, Bradley the owner of the so-called 7 acres, and the defendant, Bowerman, mortgagee under foreclosure. All agreed to abide by the division made by the surveyor, and each thereafter acquiesced in such division. The division line, as established by Monroe and as agreed upon by Bradley, Bennett, and Bowerman, and as acquiesced in by them and each of them, is indicated at a point marked "Fence Line" on Exhibit A. The land in dispute is south of

(1) NOTCH IN WOODS AS APPEARS ON MAP OFFERED BY PLAINTIFF

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this line. By this division there were 6.87 acres of land in the so-called 7-acre parcel and 26.49 acres in the so-called 27-acre piece. The amount of land lying between the eighth line and the line marked Exhibit A as "Line Claimed by Brown" is 8.505 acres, the amount lying south thereof being 24.83 acres. After the survey was made and the division line agreed upon, Bradley made a warranty deed, and conveyed to plaintiff all that certain piece or parcel of land in the township of South Haven, Van Buren county, Mich., bounded and described as commencing at the south half quarter post on the north and south quarter line of section 21, town 1 south, range 17 west; thence south on the quarter line 4.64 chains; thence west to Lake Michigan low-water mark 15.42 chains; thence southeasterly along the shore of Lake Michigan to the half quarter line about 19 rods; thence east on the half quarter line 14.27 chains to the place of beginning-containing 6.87 acres. Afterwards the plaintiff procured a quitclaim deed from the Rouses, and also a quitclaim deed from Bradley, and it is under these quitclaim deeds that plaintiff claims to have acquired rights to the premises in dispute. Upon special questions submitted the jury found "that a division line was agreed upon by Bennett, Bradley, and Bowerman defining and fixing the boundary line between the so-called seven acres and the so-called twenty-seven acres," and that such boundary line was acquiesced in by them and each of them thereafter, but returned a general verdict for the plaintiff. A motion was then made that the verdict be set aside, and that judgment be entered for the defendant.

H. T. Cook and T. J. Cavanaugh, for appellant. Wicksall & Cogshall, for appellee.

MONTGOMERY, J. (after stating the facts). The first error discussed is in the refusal of the court to set aside the general verdict of the jury, and in the same connection may be discussed the refusal of the court to grant a request of the defendant. The request was as follows: "Although there may have been an agreed line between the former proprietors of the lands in controversy, yet, if the monuments had been removed or been lost, it was competent for the parties who owned the lands to have a survey, and agreed upon a boundary line; and such an agreement would re-establish the boundary line, and would be binding upon the owners who made it or agreed to it, although not established according to the old boundary line." If this request correctly stated the law, or if the request should have been given with the modification that such re-established boundary line would be binding if acquiesced in and acted upon by the parties, then it follows that the circuit judge was in error in refusing to set aside the verdict and enter judgment for the defendant.

We think, where the parties agree to the establishment of a boundary line, and acquiesce in its establishment, so that the relative rights of the parties have become changed, it is well settled that the parties are bound by such action at law as well as in equity. Manistee Manufacturing Co. v. Cogswell, 103 Mich., at page 605, 61 N. W. 884, and cases Icited. We do not overlook the contention of plaintiff's counsel that there was no evidence justifying the submission of this question to the jury. We do not, however, agree with this contention, and think there was testimony from which the jury might have drawn the inference that all parties concerned in this line agreed upon the survey by Monroe, and that both parties thereafter acquiesced in it, and that defendant's grantors changed the character of their occupancy in reliance upon such agreement.

The judgment should be reversed, and the cause remanded, with direction to the circuit judge to enter judgment upon the ver dict for defendant. Appellant will recover costs of this court. The other Justices concurred.

LANE et al. v. MICHIGAN TRACTION CO. (Supreme Court of Michigan. Nov. 17, 1903.) RAILROADS-DEED FOR RIGHT OF WAY-CONSTRUCTION AT GRADE-REQUIREMENT-EMBANKMENT OF OTHER ROAD- CONTRACT WITH GRANTEE GRANTEE'S LIABILITY-REMOVAL OF TRESTLE-RIGHT TO RELIEFDAMAGES-JURISDICTION OF EQUITY.

1. A deed granting a right of way to a suburban electric railway company authorized it to construct and operate a road "substantially as the poles and trolley wires of said company are now erected and maintained on W. street," where a surface line was built. The company was also required to operate its railway over the grant "substantially in the same manner as under the franchise granted to it by the city of K.," and this franchise ordinance required that rails should be laid so as not to obstruct the passage of vehicles, that their upper surface should be flush with the surface of the streets. and that the tracks should conform to the street grades. Held, that the company had no right, under the deed, to build and maintain a trestle above grade.

2. A railway company which contracts with another company for a subway crossing-the State Railroad Commissioner having forbidden a grade crossing-is not liable to an adjoining landowner for damages resulting from the erection by the latter company, in pursuance of the contract, of an embankment on its own private right of way.

3. The violation of the restrictions of a deed granting a surface easement for a right of way to a railway company, by the company's erec tion of a trestle above grade, pursuant to the requirement of the State Railroad Commissioner, will not entitle the grantor to a decree compelling the tearing up of the track and the abandonment of the road, but will only entitle him to pecuniary damages.

4. Equity, having obtained jurisdiction of an injunction suit in which the relief sought is refused, may award pecuniary damages, rather than remit complainant to an action at law therefor.

4. See Injunction, vol. 27, Ce.. Dig. § 416.

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lie south of Washington avenue extension, 2 are devoted to said extension, and 20, including the lots fronting Lake avenue, lie north of Washington avenue extension. The complainants own also what is called the "Reed Farm," lying principally southwest of the Grand Rapids & Indiana track, and the Riverside addition, lying north of Lake street. Counsel say that complainants designed Fulford avenue to connect these two parcels. The defendant is a corporation, and was engaged in building an electric suburban line from Battle Creek to Kalamazoo, and contemplated entering the latter city via Lake street, and had graded to and plowed beyond the point where its track finally left Lake street and entered Washington avenue extension as projected. The plat of Factory View addition shows Washington avenue extension as projected, with the suburban road thereon. One Hayes, who was a member of the South Side Improvement Company, and interested in a proposed park to be called "Recreation Park," conceived the idea of having the suburban road enter the city via Washington avenue, and negotiated such an arrangement with the suburban railway company, and ultimately secured deeds of a right of way for the railroad from landowners west of Cameron street, including the complainants' right of way, over which the proposed extension of Washington avenue would naturally go. The complainants' deed reserved the right to cross the defendant's road with streets, and also reserved a right of way for a belt line road. The defendant then constructed the railroad until it reached the Grand Rapids & Indiana embankment, which at that time was 4 or 5 feet above the adjacent land at the place of crossing. Meantime the Chicago, Kalamazoo & Saginaw Company acquired rights in the belt line strip on the easterly side of the complainants' Factory addition, and made a cut 3 or 4 feet deep, which was afterwards bridged by defendant's track temporarily. Soon after the State Railroad Commissioner refused to allow any crossing of the three roads mentioned at grade, in that vicinity; and ultimately a contract was made between the three railroad companies, by the terms of which the defendant was to build its road under the Grand Rapids & Indiana Railroad track, and over the Chicago, Kalamazoo & Saginaw track on a trestle, the cost to be apportioned according to the agreement. The defendant thereupon constructed a subway under the Grand Rapids & Indiana track, and began the erection of an embankment east of the Chicago, Kalamazoo & Saginaw track, to connect with a trestle; and, when about to commence the trestle in front of Factory addition, the complainants filed the bill in this cause to restrain such building. A preliminary injunction issued, but was dissolved on defendant's filing a bond, and the trestle was completed, and the road is in operation. On the hearing a decree was

Alfred J. Mills, for appellant. E. M. Irish (Dallas Boudeman, of counsel), for appellees.

HOOKER, C. J. The complainants own land in the southeasterly portion of the city of Kalamazoo, which is platted, and is called "Factory View Addition." Our understanding is that the proof shows it to contain 9 acres, but, if the map is drawn to scale, the premises are about 1,000 feet long by 300 feet wide, making less than 8 acres. The north end fronts on Lake avenue (a good street), and the premises extend south to the track of the Grand Rapids & Indiana Railroad Company, which is upon an embankment 10 or more feet high at this time. In platting the premises, a street called "Fulford Avenue" was laid out, lengthwise of the parcel north and south; there being a row of lots on each side, fronting said Fulford avenue. The land is low. The accompanying diagram will serve to show the situation as it now exists. Upon this diagram, Factory addition is inclosed by a crooked line, thus

On the east it includes the right of way occupied by the Chicago, Kalamazoo & Saginaw Railroad. It consists of 35 lots, 4 of which front on Lake avenue. Thirteen

made allowing complainants $6,500 damages for the depreciation of their property, arising out of a failure to build the road at grade, and the erection of the trestle and embankment. The defendant claims that it had a right to build the trestle, under the deed, and, further, that the complainants are not injured by the subway under the Grand Rapids & Indiana Railroad, and that the trestle was made necessary by the cut made by the Chicago, Kalamazoo & Saginaw Railway Company by consent of the complain- | ants.

We are of the opinion that the deed upon which the defendant relies contains provisions which forbid the inference of an intention to grant a right of way for a railway above the grade of the street. This deed contains provisions that indicate an intention on the part of both parties that the track should be a surface road to conform to the grade that should be established for the street, when opened; e. g., it was authorized to construct, etc., and operate a road "substantially as the poles and trolley wires of said company are now erected and maintained on Washington street." Again: "It is further understood that party of the second part

shall be required to operate

its electric railway over the right of way hereby granted, substantially in the same manner, as under the franchise granted to it by the city of Kalamazoo, and under which it operates its line over Washington avenue, at present." The ordinance referred to provides "that the * * rails * * shall be laid and maintained, in such a manner, as not to obstruct the free passage of vehicles over the same, and the upper surface of the same, shall be laid flush with the surface of the streets, and such tracks shall conform to the grade of the streets, as now established, or as may from time to time be established." Under the provisions of this deed quoted, the intention to limit the easement to a surface easement seems plain, and it cannot be construed to convey more than a right to build a road conforming to the street or surface. Counsel's claim that the deed gave the right to build and maintain the trestle is untenable.

Contrary to the expectation of the parties, the Railroad Commissioner forbade grade crossings. Thereupon the Grand Rapids & Indiana raised its grade, making it feasible for the defendant to go beneath its track through a subway. We find nothing in the record that indicates that the Grand Rapids & Indiana Company had not a right to raise its grade at will. Its track was built upon its own private right of way, and there is testimony that it was constantly raising its grade at this point, in furtherance of a policy of its own. The contract by which it made the subway possible was one that the parties had a right to make, and complainants had no right to complain of it. Nor were their rights infringed by the failure to

construct a subway wide enough to accommodate travel aside from defendant's road. The highway then terminated west of the track, and, while the plat of Factory View addition indicated an offer of land for an extension of Washington avenue, it has never been accepted by the city. There seems to be no difficulty in widening the subway if the city shall ever care to do it. The slight depression necessary to get room for the passage of cars under the Grand Rapids & Indiana track does not injure the complainants, but has rather benefited the property, and, as it is not upon the premises deeded by them, defendant's right does not rest or depend upon their grant. It is apparent that the controversy does not depend to any great extent upon this subway, but rather upon the trestle.

Counsel for the defendant say that the complainants' conduct has been such as to create an equitable estoppel against a claim that the trestle could not lawfully be built, inasmuch as they countenanced, if they did not authorize, the building of the Chicago, Kalamazoo & Saginaw and belt line roads. It is true that they reserved a right to build a belt line. Of this the defendant cannot complain, for it accepted the deed subject to this right. It is also true that the record indicates a consent on the part of the complainants that the Chicago, Kalamazoo & Saginaw should cross the right of way that it had granted to the defendant, below grade, and this might justify an inference of a willingness that Washington avenue extension should be lowered to the grade of such cut at that point. But this question is not here, and, if the order of the Railroad Commissioner is to be enforced, both complainants and defendant have been benefited by the cut made by the Chicago, Kalamazoo & Saginaw Railroad Company, because it lessens the height of the trestle that would otherwise be necessary.

We have, then, this situation: The defendant has lawfully and in good faith constructed and put in operation a permanent public improvement, and, without its fault, the police requirements of the state have made the erection of a trestle necessary. It is apparent that there is no other way of operating the road. The complainants, relying upon the letter of their deed, insist that defendant has no right there, and have come into a court of equity, asking that it be compelled to tear up its track and abandon its road. We think that they are not entitled to such relief. On the other hand, they are no more responsible for the condition of affairs than is the defendant, and are entitled to reasonable compensation for such damages as are fairly chargeable to the erection of the trestle upon their land. It is urged that they should be remitted to their remedy at law for these, and that this bill should be dismissed; but authorities are numerous to the effect that chancery having entertained

jurisdiction for one purpose, as in this case, may retain it for the purpose of doing complete justice in the premises. The authorities cited by counsel sufficiently show this, and need not be repeated in this opinion.

The complainants claim compensation for depreciation of value of the lots upon Factory addition, and make a similar claim as to the Riverside addition and Reed Farm. All of the former lies north of Lake street, and most of the latter south and west of the Grand Rapids & Indiana track. We think neither has suffered from the building of the trestle. The claim that Fulford avenue was to connect the two, does not appeal to us, first, because Lake street is a much more natural approach to Riverside, and Washington avenue, as already opened, offers every facility requisite to Reed Farm; and, second, the Grand Rapids & Indiana Company had a right to raise its tracks, and its doing so has made the crossing of Fulford avenue safer and comparatively easy; and, third, the defendant is not liable for injury to Fulford avenue caused by raising the Grand Rapids & Indiana track. This street could also cross the suburban road by a subway without much difficulty, so that Reed Farm and Riverside are not seriously affected by the obstacles to the opening of Fulford ave

nue.

The claim of damages to Factory View addition is predicated upon the combination of circumstances which surround a portion of it on three sides, by cut, fill, and trestle. The defendant is not to blame for the cut or the embankment of the Grand Rapids & Indiana Co. Each had the right to make its cut or fill, and the defendant committed no actionable wrong when it arranged with the latter for a subway. It is responsible for its trestle and embankment, and for nothing

more.

Witnesses were called to give their opinions upon the amount of injury done to these lots in Factory View addition, to the Reed Farm, and to Riverside. They have also made the situation of the premises plain. The damages given by the learned circuit Judge seem to include: (1) Damages for an embankment east of complainants' premises, upon the land of others, who have consented to its erection, upon the theory that it preIcludes the future opening and use of Washington avenue extension. (2) That the trestle and embankment are rough and unsightly, and obstruct the view from the south part of Factory View addition to the north, and from the north part to the south. (3) That the trestle is so low as to prevent Fulford avenue passing it in a subway, and that Factory View addition and a portion of Reed Farm is damaged because of the practical impossibility of carrying Fulford avenue over or under the trestle and the Grand Rapids & Indiana track; and the court said that, although defendant should so arrange its trestle as to permit Fulford avenue to go beneath it, still the Grand Rapids & Indiana

embankment is so high that the street could not be carried under it without almost unwarranted expense.

From the foregoing, we conclude that, of the $6,500 allowed as damages, a portion was for injury to Reed Farm, and a portion for the obstacles in the way of the extension of Washington avenue east of the Chicago, Kalamazoo & Saginaw track, if that should be desirable. No damages appear to have been given for injury to Riverside addition. We have no way of ascertaining how much of the amount decreed was given for one or another of these things. From the situation of these premises as shown by the map, and the description given by the witnesses, we are satisfied that no damages were suffered by reason of this trestle to Reed Farm or Riverside addition. Some damage was suffered by reason of the necessity of depressing Fulford avenue at the trestle; and some depreciation of lots south of the trestle, and the two lots adjacent to Washington avenue north of the trestle; and we think $2,000 ample recompense for these items.

The decree of the circuit court will be modified in the matter of damages as indicated, and otherwise affirmed. The defendant will recover costs of this court. The other Justices concurred.

SOULE v. HARRINGTON.

(Supreme Court of Michigan. Dec. 1, 1903.) CHATTEL MORTGAGE-NOTICE TO PURCHASER OF CHATTEL-EVIDENCE-FALSE REPRESENTATIONS-RIGHT OF ACTION.

1. Evidence in replevin by the mortgagee of a chattel against the purchaser thereof from the mortgagor held sufficient to authorize the court, in directing verdict for plaintiff, to assume defendant had notice of the mortgage before the purchase.

2. Any rights of a mortgagor because of having been induced by fraud to execute a chattel mortgage do not pass to the purchaser from him of the chattel.

3. False representations as to goods made to the purchaser thereof after he has become the purchaser give him no cause of action.

Error to Circuit Court, Otsego County; Nelson Sharpe, Judge.

Action by Charles P. Soule against Wil liam A. Harrington. Judgment for plaintiff Defendant brings error. Affirmed.

William A. Harrington, in pro. per. W. L. Townsend, for appellee.

CARPENTER, J. This is a suit in replevin to recover the possession of two printing presses. These presses were sold by plaintiff, doing business as the Crescent Type Foundry, to a partnership doing business as Babcock & Marlatt. Babcock & Marlatt secured payment of part of the purchase price by a chattel mortgage. This chattel mortgage was filed, not where either Babcock or Marlatt resided, but, through some mistake, in the township where they did business.

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