Harrington v. City of Port Huron

Champlin, C. J. The plaintiff brought an action of ejectment against defendant by filing a declaration as commencement of suit, which contains two counts. The first count described the premises as follows: “A tract of land bounded on the north-west by Pine Grove park, on the north-east by St. Clair river, and on the south by Lincoln avenue, excelling a strip of land across said premises seventy-five feet in width, occupied by the Port Huron & Northwestern Railway Company, being fifty feet in width on westerly side of the center line of the roadway of said company, and twenty-five feet on the easterly side thereof,” which premises the plaintiff claimed in fee. The second count describes the premises as follows: “All that part of that piece of land bounded on the — 49 — north-west by Pine Grove park, on the north-east by St. Clair river, and on the south by Lincoln avenue, which is occupied by Superior-street sewer and Ontario-street sewer, and the outlet thereof;” and then the same exception as in the first count, — which premises the plaintiff claimed in fee. A trial was had before a jury, and it appeared that this land described in the first count of plaintiff's declaration was formerly a part of the Ft. Gratiot military reservation; that on the 20th day of July, 1868, the Congress of the United States authorized the Secretary of War to sell portions of this reservation, including the tract in controversy, “at such times as he may deem most advantageous to the interests of the government.” On March 18, 1870, before any sales had been made by the Secretary, a portion of the tract was granted to the city of Port Huron for park purposes, to be known as “Pine Grove Park.” Some time during the season of 1870 the Secretary of War caused the remaining portion of the reservation to be platted, and public sale was made of a part thereof. The part unsold, which is in controversy here, was sold under authority of an act of Congress passed June 16, 1880, to the Port Huron & Northwestern Railway Company, and this company conveyed to the plaintiff in this suit such land by deed dated April 3, 1884. In this deed there was an erroneous description, which was corrected by a deed dated January 8, 1886. In June, 1874, the city of Port Huron, by its common council, decided to construct a sewer from the St. Clair river westward, through and along Park place, to Ontario street, and during that year entered upon the premises and constructed the sewer. The authorities of the United States had prepared a map previously to that time, on which was designated a street across the land described — 50 — in the declaration, known as “Park Place;” but before the same was recorded or the property sold the authorities of the United States had ignored such street, and retained the premises as property belonging to the government. In 1875 or 1876 the city caused a sewer to be built along Superior street, which connected with the •one through Park place. These sewers have always been maintained by the city as public sewers, and continue so to be. They are used by the inhabitants of the city for sewage purposes, and, among, others, by the plaintiff in this suit, who was, as appears, one of the petitioners for the construction of the sewer in Superior street, which was built before he obtained title from the railway company. It further appears that at the outlet of the sewer, •at its junction with the river, there is a structure of masonry several feet in height and 22 feet in width, extending outward from the bank into the stream, protected by a system of piling; and testimony was introduced tending to show that this structure prevents the land being used for any purposes requiring dockage, and that the land is so situated as to be valuable for a dock frontage. It was further shown upon the trial that the premises -are uninclosed, and that there is nothing to prevent the plaintiff from taking possession peaceably of the land described in his declaration. The sewer in question was built several years before the railway company made its purchase in 1880, and while the land belonged to the general government; and some effort was made on the part of the defendant to show that permission was given the city by the officer in charge of Ft. Gratiot for it to construct the sewer across these premises, but we think that such testimony wholly failed to show such permission. On the contrary, it was shown that, during the time they were excavating for the sewer, the officers — 51 — in charge of the fort caused stakes to be set along the lines of this parcel of land to indicate that it belonged to the government. It is a principle of law that where a person, without permission from the owner, knowingly enters upon his lands, and erects structures permanent in their charactei’, annexed to the freehold, such structures belong to the owner of the soil to which they are annexed or upon which they are erected; and it follows that when the city erected this sewer across the lands of the government of the United States, without its consent or permission, such structure immediately belonged to the owner of the soil, and when the government conveyed such land to the railway company -the whole of the premises passed to its grantee. The testimony does not show that the city is in possession of any of the premises described in plaintiff’s declaration, or that it assumes to exercise any act of control or 'ownership over it; the facts appearing that in 1874 it constructed a sewer across it, which is the outlet of two sewers, and has done nothing since upon the lands. But if the city did claim to own the sewer, and to have the right to discharge water through it, we do not think that the action of ejectment would lie, under the circumstances of this case. Ejectment will not lie in this State for anything that is not tangible or capable of being delivered to the plaintiff by the sheriff under the writ of possession. Here the judgment was rendered upon the verdict of the jury for the premises described in the first count of the plaintiff’s declaration, such verdict having been directed by the trial court. A writ of possession, under such judgment, would only put the plaintiff in possession of what he could at any time have had without the aid of the court, and, when he was so put in possession of the land described in the first count — 52 — of his declaration, the sewer would still incumber the land, and the water continue to be discharged through this artificial conduit. Ejectment will not lie for a mere trespass to lands, nor for a mere right of way or an easement. Turnpike Co. v. Smith, 15 Barb. 355; Judd v. Leonard, 1 D. Chip. 204; Clement v. Youngman, 40 Penn. St. 341; Caldwell v. Fulton, 31 Id. 483; Child v. Chappell, 9 N. Y. 251. If the corporation had obtained the right to construct, the sewer across these lands to discharge the water passing therein, it would have created an easement upon the land. If the city constructed the sewer without authority, thus discharging the water upon and across the land, the act would be a trespass, but not an ouster of the plaintiff from the lands described. Expressed in simplest-language, the city has constructed an artificial aqueduct, across the lands belonging to plaintiff’s grantor, through which it discharges water and sewage from two of the sewers laid in the streets of the city. There is no doubt that the plaintiff’s title, as riparian owner, extends to the boundary line in the St. Clair river, and gives him the right to erect docks and employ the land for any purpose not inconsistent with the rights of navigation; and if the defendant in this case is in possession, and sets up a claim of right to maintain the sewer in the St. Clair river in front of his land, and to drive and maintain piles there for the purpose of protecting such sewer, we think ejectment would lie for the land so appropriated; but the facts in this case do not warrant this Court in finding that the city of Port Huron has laid any claim to the right to maintain the structure which it erected when it built the sewer, and we are of opinion that the court erred in directing a verdict for plaintiff under the first count of plaintiff’s declaration. The learned judge instructed the jury that— — 53 — “The act of the city in entering upon, the excavating the soil for this sewer, and constructing the same, was such an act as amounted to an assertion or claim of title on its part, and so the owner of the property may treat it as an act of disseisin or ouster; and, as the sewer has been used and maintained continuously to the present time, I think it a legal fact that plaintiff has been kept out of possession of the premises by the city.” We have already called attention to the fact that this sewer was constructed long before the plaintiff obtained his title from the railway company, and in fact before the railway company had obtained its title to the land in dispute, and if there was any ouster of the owner, or an act of disseisin, it occurred a long time prior to the conveyance to plaintiff’s grantor. The government, in ■conveying to plaintiff’s grantor, only conveyed all the right, title, and interest of the United States to the laud in question, without any covenants of warranty whatever. We shall not assume in this suit, at this time, to pass upon the question as to whether or not it was the intention of the government to recognize defendant’s rights upon the premises; although it may be said that the government granted to the purchaser the full extent of its right, title, and interest in the premises. . It is apparent, however, that whether the act of the city in constructing the sewer was a disseisin of the owner would depend very much upon the facts and circumstances under which the ■city entered upon the land and constructed the sewer. If at that time the city authorities supposed that there was a public street' called “Park Place,” in which they were constructing a sewer, it would not be such an assertion or claim of title on its part as would operate as a ■disseisin if it afterwards turned out that the city was mistaken as to the claim under which it entered. Neither would it be a disseisin if the city entered by the consent, express or implied, of the owner. The mere fact that — 54 — the sewer has been used continuously to the present time to discharge water into the St. Olair river, without any other acts or claims made by the defendant, would not amount in law to keeping the plaintiff out of possession of the premises. We think that the plaintiff has mistaken his remedy, and that the judgment must be reversed, and a new trial granted. McGrath, Long, and Grant, J«L, concurred with Champlin, 0. J.