Home/Michigan Supreme Court/Whitman v. Cook

Whitman v. Cook

158 N.W. 98, 191 Mich. 453, 1916 Mich. LEXIS 690
CourtMichigan Supreme Court
DecidedJune 1, 1916
DocketDocket No. 137
StatusPublished
Cited by2 cases

This text of 158 N.W. 98 (Whitman v. Cook) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Whitman v. Cook, 158 N.W. 98, 191 Mich. 453, 1916 Mich. LEXIS 690 (Mich. 1916).

Opinion

Moore, J.

This is an injunction bill filed to restrain defendants from opening a private right of way across complainant’s lands, from the Fenton road, so called, to land on the shore of Long Lake, purchased by the defendants from the complainant. From a decree dismissing the bill of complaint and establishing the private way, the case is brought here by appeal.

Omitting the formal parts of the bill of complaint, it avers the making of a deed between the parties containing the words:

“Also conveying the right of way from the Fenton road to the grove back of Fred J. Pierson’s property; thence north along the east line of said grove to the north line of said farm.”

We quote from the bill of complaint:

“Your oratrix, further complaining, says that about one year ago said grantees in said deed demanded a road, according to said paragraph in said deed contained, and proceeded to open and construct the road; that the Fenton road, so-called, runs in a northerly and southerly direction on. the east side of complainant’s farm, and that there is and has been a road,running from the so-called Fenton road running in a westerly direction to Long Lake, situated west of said property; that said defendants started about 80 rods west of the so-called Fenton road without the consent of your oratrix, and tore down her fences between the lands of said Pierson and your oratrix, and construct[455]*455ed a road running northerly between the land of said Pierson and your oratrix as. far as they desired, and constructed the same, taking for the construction of said highway a portion of the land of your oratrix to which they had no title; that for the purpose of avoiding litigation she did not interfere in the construction of said highway or road, and that said defendants have used and occupied said lands as a highway from the time they constructed it up to the present time, and they have, as this complainant alleges, a complete highway to their premises, and have full egress and ingress to their premises, and said highway was built and constructed, is at the present timé open and used by them and the public, as they may desire, giving them full access for ingress and egress to their premises and compares in every respect to the paragraph in said deed hereinbefore set forth.”

The bill proceeds to say that defendants are about to open another right of way from the Fenton road to their lands through her farm, to her great injury and without right, and prays that they may be enjoined from doing so.

The answer is at length, but the substance of it is that the opening of the way mentioned in the bill of complaint was a temporary expedient to avoid destroying the crops of complainant’s tenant, and it was so understood when it was opened. The answer is accompanied by the affidavits of the two men who opened the right of way, which affidavits sustain the averments of the answer. It is further averred that the defendants have a right to open a private way where they purpose to open it by virtue of a deed from complainant to them wherein 20 acres of land and a private way is granted for a consideration of $5,000. The answer prayed that the bill of complaint might be dismissed; but it did not ask for affirmative relief.

The accompanying plat will help to explain the situation : -

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Related

Lau v. Stack
257 N.W. 848 (Michigan Supreme Court, 1934)
Blakeslee v. Strego
229 N.W. 405 (Michigan Supreme Court, 1930)

Cite This Page — Counsel Stack

Bluebook (online)
158 N.W. 98, 191 Mich. 453, 1916 Mich. LEXIS 690, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whitman-v-cook-mich-1916.