I cannot concur in the opinion of Mr. Chief Justice POTTER. The opinion of the trial judge so clearly states the facts and the conclusions of law which should be drawn therefrom that I adopt it as my own.
"The bill was filed in the above entitled cause to have the drive or passageway, leading from Main street, in the village of Frankfort, in said county (Benzie), to certain lands and premises, owned, used and occupied by the plaintiffs, declared to be a highway by user or a way of necessity to the extent *Page 101 to which it has been used; to confirm the rights of the plaintiffs to the use of said highway or passage-way over and across the lands particularly described in the said bill of complaint; to have the building, erected by the defendant across the said highway, or passageway, decreed to be a public nuisance and abated as such; and to secure a mandatory injunction to compel the said defendant to remove said building and obstruction from said highway or passageway to the end that the plaintiffs and the public at large may have and enjoy the use and benefit of such highway or passageway as it has been used and enjoyed for upwards of 50 years.
"From the proofs submitted it appears and the court accordingly finds the facts to be substantially as follows:
"The plaintiffs, Louis Rodal and Otto Rodal, are residents of said village of Frankfort, Benzie county, Michigan, engaged in the business of commercial fishing, and own, use and occupy that part of lot 3 and the west half of lot 2, block 3, lying south of the Ann Arbor Railway Company's right of way, in connection with their said business.
"The defendant, Wash Crawford, is likewise a resident of said village of Frankfort, runs a taxi business and is also engaged in a small manufacturing business, using the building complained of as the subject matter of this law-suit.
"According to the recorded plat of the village of Frankfort, block 3 is divided into four lots, numbered 1, 2, 3 and 4. This block extends from Main street on the north to Betsie bay on the south. The westerly boundary of the block is Third street and the easterly boundary thereof is Fourth street. The Ann Arbor Railway Company's right of way traverses this block in an easterly and westerly direction a little north of the center line of the block. So far as this record discloses neither Third street nor Fourth street has ever been opened up for traffic, at least south of the railway right of way. *Page 102
"In 1870, one Henry Woodward became the owner by purchase of lot 3, and in 1877, he likewise became the owner of the west half of lot 2, in said block 3. He was engaged in the transportation business and made use of the property above described in connection therewith, built and maintained a dock on said Betsie bay, at the south end of said lots. He was agent for one of the transportation companies whose vessels, in the early days, stopped at this dock to load and unload both freight and passengers. Access to this dock was gained by using a drive or passageway over and across the east half of lot 3 in said block 3, running in a direct line north and south from said Main street to the dock. This drive or passageway was used by Mr. Woodward and the public until 1909 or 1910, and by the public from thence hitherto as a means of ingress and egress to and from said dock, until blocked by the action of the defendant in this case. No other means of access thereto was ever available and is not now.
"During the time said drive or passageway has been in use as aforesaid, some gravel and cinders have been placed thereon. The drive or passageway is wide enough for two vehicles to pass and has been in such condition during the period in which it has been used as a drive or passageway. The drive is well defined and has continued in one place all these years. A sidewalk has existed along this drive or passageway to facilitate passenger traffic to and from the dock in question.
"At the time of the death of Henry Woodward, his son, George Woodward, became the owner of the lands and premises above described. In the year 1921. George Woodward and his wife conveyed by warranty deed to the plaintiffs all that part of said lot 3 and the west half of lot 2, block 3, lying south of the Ann Arbor Railway right of way. And, in 1927, the said George Woddward and wife conveyed by warranty deed to Gilbert E. Ness all that part of said lot 3, block 3, lying north of the said Ann Arbor *Page 103 Railway right of way. In 1928, Gilbert E. Ness conveyed by warranty deed to the defendant, Wash Crawford, the east 55 feet of said lot 3, block 3, lying north of said railway right of way. It is over and upon this 55 feet that the drive or passageway, the subject matter of this suit, extends.
"The defendant has been a resident of Frankfort for many years. His place of business, before he purchased the promises in question, was in plain view of this drive or passageway, and since he purchased this property, his place of business has been right alongside this drive or passageway. He has had actual knowledge for all the years of his residence in the village that this said drive or passage-way was being used by the plaintiffs and the public in general as the only means of ingress and agress to and from Main street to the dock on Betsie bay and the place of business of the plaintiffs, and, further, that it had been so used long before the purchase of the property by the plaintiffs. He likewise had actual knowledge that this drive or passageway was the only means of ingress and egress that the plaintiffs had or now have to their place of business on Betsie bay.
"On or about the month of December, 1932, the said defendant asked for and obtained oral permission from the village council to remove and place upon his said 55 feet of lot 3, block 3, an old building, 24 feet by 35 feet in dimensions, but with the understanding that said building, when placed upon said lands, was not to encroach upon the said drive or passageway. Notwithstanding said condition, the defendant located said building across said drive or passageway, at the rear end of his said property, thus depriving the plaintiffs and the public of all access to their said business and the dock on the bay. Subsequently, the common council by record action thereof ordered said defendant to remove said building from said drive or passageway within *Page 104 15 days. Defendant has made no move to comply with said order.
"In the paving of Main street, in the village of Frankfort, the public authorities left an opening in the curb of the pavement along Main street where this drive or passageway intersects, or enters the pavement on Main street.
"For over 30 years, during the lifetime of Henry Woodward and while he was the sole owner of the fee of and to said lands, this drive or passageway was in use by the public openly, continuously, notoriously, adversely and hostile to the rights of the owner of the fee. It was recognized and treated as a public way to and from the dock and business places on Betsie bay.
"Under the foregoing setting as to the facts, the plaintiffs contend that they have made out their case and are entitled to the relief prayed in their bill of complaint. In the judgment of the court, their claims are well founded both in law and fact. That this drive or passageway is a way of necessity, at least, can hardly be gainsaid or questioned, under the following authorities: Moore v. White, 159 Mich. 460 (134 Am. St. Rep. 735); Bean v. Bean, 163 Mich. 379; Goodman v. Brenner,219 Mich. 55.
"Under the facts disclosed by this record, there was an implied dedication of the land embraced in this drive or passageway, to the extent to which use has been made by the public. Such was the foundation of this way or drive and it ripened into a way by user during the lifetime of Henry Woodward. The right to the use of a right of way may be acquired by prescription the same as title to the fee of lands. It was so brought to pass in this case within the following authorities: Campau v. City of Detroit, 104 Mich. 560; Bean v.Bean, supra; Murphy Chair Co. v. American Radiator Co.,172 Mich. 14; Douglas v. Jordan, 232 Mich. 283 (41 A.L.R. 1437).
"A decree may be prepared to carry out the prayer of the bill of complaint." *Page 105
It is insisted that the court was in error in finding that "no other means of access thereto was ever available, and is not now," and that the plaintiffs had an outlet to the street through what is spoken of as the Anderson property. The plaintiff Louis Rodal testified:
"Since this building was constructed across this roadway by the defendant, Crawford, I have no other means of getting out of my property other than over the land of other people. Mr. Anderson is allowing me to get out over his property because we cannot get out any other way. We never asked any permission, and are just driving across."
There was a roadway across this property and its use was permitted, but no right thereto was ever acquired, nor had it been used by plaintiffs before the obstruction was placed on the road in question.
The defense that plaintiffs have an outlet by the use of the water in the bay in front of their property was not raised upon the trial, nor does it appear in the reasons for appeal. I think it should not be considered, but, if it be, it seems apparent that the decisions quoted from by the Chief Justice should not be held to apply to the use of water which, as is well known, is frozen and may not be navigated except by large vessels during a number of months in each year.
The decree is affirmed, with costs to appellees.
NORTH, FEAD, WIEST, BUTZEL, BUSHNELL, and EDWARD M. SHARPE, JJ., concurred with NELSON SHARPE, J.