
    Detroit & Milwaukee Railroad Co. v. James W. Brown.
    
      Notice of Occupancy — Injunction to Restrain Proceedings in Ejectment.
    
    Occupancy of premises by a railroad in course of construction is constructive notice of the company’s rights therein.
    A railroad company contracted for certain lands, and under the conditions of the contract proceeded to lay its track across . them, receiving at length a deed from the only owner of whose rights it had notice. Meanwhile the same land had been set oif by deed of partition to a party who held some unrecorded claim to an undivided interest in the premises, and this party afterwards quit-claimed the land by a deed referring to the company’s occupancy. Held that an injunction would lie to restrain proceedings in ejectment brought against the company by the holder of the quit-claim.
    Appeal from Kent.
    Submitted Oct. 18.
    Decided Oct. 30.
    Injunction to restrain suit in ejectment. Tbe facts are in the opinion.
    
      Thomas B. Church and G. V. N. Lothrop for complainant and appellee.
    The actual possession of land by a railroad company, and the formal survey and staking out of a line of road upon it, and clearing and grubbing it, constitute tbe most open notice possible of tbe company’s claims to tbe premises, Ellicott v. Pearl, 10 Pet., 442; Ewing v. Burnet, 11 Pet., 52; Longworthy v. Myers, 4 Ia., 18. As to estoppel from “ acts, silence, or other conduct,” see Truesdail v. Ward, 24 Mich., 134, and cases cited; Niven v. Belknap, 2 Johns., 573; Chapman v. Chapman, 59 Penn. St., 214; Brooks v. Curtis, 4 Lans., 283; Gregg v. Von Phul, 1 Wall., 274; Thayer v. Bacon, 3 Allen, 163; Lefevre v. Lefevre, 4 S. & R., 243.
    
      J. W. de O. G. Ransom for defendant and appellant.
    Complainant must show that defendant’s grantor had actual notice of its equities before be acquired title, or that there were facts from which actual notice might be inferred, 
      Converse v. Blumrich, 14 Mich., 109. Constructive possession is not enough to notify a subsequent purchaser of one’s equities in the premises, Brown v. Volkening, 64 N. Y., 76; and merely locating and marking a railroad line cannot establish constructive notice of an adverse claim in the company, Cook v. Travis, 20 N. Y., 402; Chesterman v. Gardner, 5 Johns. Ch., 29.
   Campbell, J.

This bill was filed to restrain Brown from asserting title by action of ejectment for so' much of a lot of land purchased by him in Grand Rapids as is occupied by the railroad of complainants.

Brown bought by deeds which expressly refer to the occupancy by the railroad. His purchase is therefore subject to whatever rights they had.

The ease presents no questions of law and depends on a very simple state of facts.

In 1853 a contract was made in writing whereby Daniel W. Coit, the owner of several government subdivisions including the laud in question, agreed with Harvey P. Yale, who was acting partly for himself and partly as a director of the Oakland and Ottawa Railroad Company, to sell to Yale an undivided interest in certain of these lands, one of the express conditions being that the railroad should pass through the lands, and a depot be built within certain specified distances. The railroad was located and the line marked and cleared, and the place of the depot was fixed. All matters having been settled the contract was as to the rest carried out by deed to an assignee of Yale in December, 1855. The previous month a partition deed was made between Ooit and one Curtis (who liad some unrecorded claim to an undivided interest in the property), and the property covered by the road was nominally within his share of the division. He conveyed to Brown in 1871, by warranty as to all but the railroad land, and by quit-claim as to that.

When Coit and Curtis made the partition deed the road had been surveyed, marked out, and clearly designated by clearing and otherwise.

By statutes which are public laws the Oakland and Ottawa Railroad was authorized to become merged in the Detroit and Milwaukee Railway, whose corporate existence is admitted in the answer as a corporation cle facto in possession of the property, and its subsequent reorganization is also admitted. No further evidence is needed until the presumption of regularity is overthrown, — even if it could be assailed by strangers collaterally.

As the road was laid out in accordance with Ooit’s requirement, and its location was one of the chief conditions of [his contract, we do not think there is any ground for claiming that the company was to have no rights without a further purchase. And as Curtis took his deed with constructive notice of this right, by open and evident occupancy by a road in course of construction, and his grantee took with plainer notice and actual knowledge of the occupancy, the title of Brown cannot prevail, and the bill is well founded.

The decree must be affirmed with costs.

Cooley, O. J., and Graves, J., concurred.

Marston, J., did not sit in this case.  