
    *The Marquette, Houghton & Ontonagon Railroad Company v. The City of Marquette and another.
    
      Equity jurisprudence: Illegal taxes: Injunction: Cloud upon tille to lands. Where a tax upon lands constitutes an apparent Hen on the lands and might result in a sale of them and a conveyance by a deed which would be prima facie evidence of title, a bill wili lie to enjoin its collection where the tax is an illegal one.
    
    
      Bill of complaint: Railroads: Taxes on lands: Allegation that lands are in use for railroad purposes. In a bill by a railroad company to enjoin the collection of a tax levied upon its lands, on the ground that the lands were exempt from taxation under the statute (1 Laws 1873, p. 532), which provides for a specific tax on railroad companies in lieu of all other taxes upon their property, except such real estate as is not actually occupied in the exercise of their franchises and not necessary or in use in the proper operation of their roads, an allegation that the lands taxed are necessary for the proper operation of complainant’s railroad, and have been for a year past and upwards, is equivalent to an assertion that the lands are made use of for that purpose, and is a sufficient averment that the lands were such as were by the statute exempt from taxation.
    
    
      Heard January 17.
    
    
      Decided January 19.
    
    Appeal in Chancery from Delta Circuit.
    
      W. JP. Healey and John Atkinson, for complainant.
    
      John L. Coahran and Moore <& Moore, for defendants.
    
      
      
         SQeScofield v. Lansing, 17 Mich., 437, Annotated Edition, note2, also Howell’s Annotated Statutes, g 6626, and note, cited in Upjohn v. Richland Township, 46 Id,, 545. A bill to quiet title must show in some way that defendant is setting up a cloud on the title, and either describe how or explain why the method cannot be described: Jenks v. Hathaway, 48 Id., 536; Swdsbury v. Saulsbury, 49 Id., 306; Jfyram v. City of Detroit et al., 50 Id., 56; Detroit v. Martin, 34 Id., 170. See Vroman v. Thompson, 51 Id., 453. A title held by a city constitutes a cloud: Chaffee v. Detroit, 53 Id., —.
    
    
      
       See Howell’s Annotated Statutes, g 3360, sec. 3. See People v. M. S. Ss H.I R. R. Co., 4 Id., 398; Mich. Sou. TV. I. R. R. Co. v. Aud. Gen., 9 Id., 448; L. S. & M. S. R. R. v. People, 46 Id., 393; Stale Treas. v. Aud. Geni., 46 Id., 224.
    
   Cooley, Ch. J.:

A bill was filed in tbis cause to enjoin the collection of a tax on lands owned by the complainant. The ease was heard on demurrer to the bill. The bill avers tbat tbe lands taxed are necessary for the proper operation of complainant’s railroad, and have been for a year past and upwards. Tbe points relied upon in defense are, first, that the complainant has an adequate remedy at law in case its property shall be levied upon; and, second, that the allegations in the hill are not sufficient to show that the lands are exempt from taxation.

*1. As the tax in question constitutes an apparent lien on the lands, and might result in á sale of them and a conveyance by a deed which would be prima facie evidence of title, the first point is covered by the case of Scofield v. Lansing, 17 Mich., 437.

II. The second point we also think not well taken. The statute (Laws 1873, Yol. 1, p. 532) provides for a specific tax on railroad companies which “shall be in lieu of all other taxes upon the property of such companies, except such real estate as is owned and can be conveyed by such corporation under the laws of this state, and not actually occupied in the exercise of its franchises, and not necessary or in use in the proper operation of its road.” The defendants insist that the allegations in the bill are insufficient because they fail to show that the lands in question are occupied by the railroad company in the exercise of its franchises. We think, however, that the allegations contain in substance all that the statute requires. They assert that the lands are and have been necessary to the proper operation of their road; and this is equivalent to an assertion that they are made use of for that purpose. They cannot have been necessary for that purpose, unless they have been made use of for that purpose.

The decree dismissing the bill must be reversed, with costs, and the cause remanded to give opportunity for answer if defendants shall so elect.

The other justices concurred.  