Grand Rapids Gravel Co. v. William J. Breen Gravel Co.

The facts are stated with reference to a drawing reproduced herewith. The upper black line marks the southern boundary of the Pere Marquette Railroad Company's right-of-way. The lower two black lines mark the margins of the present State trunkline highway, M-21, assuming it to be 100 feet in width. The triangular piece of land lying between the southern boundary of the railroad and the northern margin of the highway is owned by plaintiff, Grand Rapids Gravel Company. The present center line of M-21 is not exactly the center line of the highway as it was before being paved and improved. The portion, G. H. K., in the apex of plaintiff's triangular piece, was a part of the old highway and it is still highway. Defendant William J. Breen Gravel Company owns land to the south of the highway. In its business of mining, selling, and shipping gravel, it desired to cross the highway to the railroad right-of-way so that it might there load gravel into cars. It appears that it applied to the State highway department for permission to make an overhead crossing. *Page 367 The plaintiff was notified of hearing the application. Its president wrote the department objecting to an overhead crossing, and proposing an underground crossing instead. This was followed by an agreement [EDITORS' NOTE: MAP IS ELECTRONICALLY NON-TRANSFERRABLE.] between defendant and the State highway commissioner permitting and providing for the construction of an underpass, 1 Comp. Laws 1929, § 4022. The underpass is from defendants' land to railroad *Page 368 right-of-way, across the highway and within it, as indicated by the drawing on the map. Within the highway the underpass is underground and under the pavement, and presents no obstruction to use of the full surface of the highway. Plaintiff filed this bill against said defendant and the other defendant, the builder, to restrain construction. The underpass has been completed. The bill was dismissed. Plaintiff has appealed. That the railroad company is in accord with the attempt to give it this business in the manner proposed is not questioned. It is unnecessary to review cases showing that necessities of progress and change have subjected highways and streets to many public burdens and uses not contemplated in former times. We need not consider an argued difference in rights of an adjoining or abutting proprietor where he has the fee and the public the perpetual easement of highway, and where the public has the fee and the proprietor an easement. Generally in the cases a difference is accepted or assumed, but there is respectable authority that the difference is not substantial.Barney v. Keokuk, 94 U.S. 324; 3 Dillon, Municipal Corporations (5th Ed.), § 1124. Whether the fee of highway or street be in the adjoining proprietors or in the public, many privileges, sometimes treated as ripening into rights, have been suffered to be exercised by the adjoining proprietors, such as having steps, areaways, cellar ways, bay windows, hitching posts, carriage blocks, etc., in streets, and taking grasses or fruits, and planting trees, etc., in highways. Ordinarily and in practical experience, such sufferance will continue or it will fade or vanish according to the necessities of public use. *Page 369 In Opinion of the Justices, 208 Mass. 603 (94 N.E. 849), a question was certified: "Is it within the constitutional power of the legislature to enact a law conferring upon a city or town within this Commonwealth the power to grant permits or privileges to private individuals to erect structures which will bridge the public streets connecting premises owned on both sides of the street?" And answered: "Yes, if the private individuals own all the land upon or over which the structures are to be erected." Yale University v. New Haven, 104 Conn. 610 (134 A. 268,47 A.L.R. 667), is a leading case in which the right to bridge a highway is fully considered, with review of authorities. See, also, Kellogg v. Cincinnati Traction Co., 80 Ohio St. 331 (88 N.E. 882, 23 L.R.A. [N. S.] 158, 17 Ann. Cas. 242). And inPeople, ex rel. Mather, v. Marshall Field Co., 266 Ill. 609 (107 N.E. 864, L.R.A. [N. S.] 1915F, 937, Ann. Cas. 1916B, 743), the defendant was permitted to construct and maintain, for the purpose of connecting its buildings on opposite sides of the street, large tunnels beneath the street. In the case at bar, both adjoining proprietors on opposite sides of the highway may be said to favor, to consent to, the underpass, and the public, by the State highway commissioner, has consented. On the facts of this case, the matter would end here, but for the circumstance that plaintiff has the fee, subject to the perpetual easement of highway, of the tongue of land projecting into the highway and along the railroad right-of-way, and which tongue. is crossed by the underpass, and, on this circumstance, the question is raised of the right to use the *Page 370 highway, including the part of which plaintiff has the fee, for the underpass. Defendant, adjoining owner, has right of access to the highway. Eagle Township Highway Com'rs v. Ely, 54 Mich. 173; 29 C. J. p. 547. So has the railroad company. While an adjoining owner may not be entitled to access at all points, but only, as against the public, to convenient and reasonable access, 2 Elliott, Roads and Streets (4th Ed.), § 882, no question of such right of access can arise here, for the public, by the State highway commissioner, has consented to access at the points in question. Defendant, exercising its right of access and in the enjoyment of the railroad company's right of access, might carry its gravel by trucks or other vehicles across the highway and onto the railroad right-of-way. This, the evidence shows, would necessitate crossing the highway by truck every two and one-half minutes and would constitute a serious menace to traffic on this important trunkline highway. The highway is subject to the servitude at and on its surface. The burden upon plaintiff's servient estate would be no greater if the same use were below grade. Constructing the underpass would tend to make the highway safe and convenient and to facilitate travel, and its sanction here is therefore within the public right. No doubt the highway authorities may construct in the highways barriers, signs, warnings, safety signals and devices, and this within the right of public use. The action of the State highway commissioner in permitting this underpass is sustainable for the same reason, and it is no invasion of plaintiff's servient estate in the highway. It is not for a private purpose. It is the control of adjoining proprietors' rights of access in the highway in the *Page 371 interest of public safety and convenience, and it therefore is a public use of the highway. Whether the State highway commissioner may require crossing at other than grade is a question not before the court, for here no more is involved than permission granted on application. Whether the gravel be taken through the underpass by truck or other vehicle or conveyor is not important. Affirmed, with costs. POTTER, SHARPE, and BUTZEL, JJ., concurred with CLARK, J.