(dissenting). The plaintiff recovered a judgment of six cents damages and costs in an action of trespass. The findings of fact show, in substance, that the plaintiff’s grantor permitted the defendant to lay a spur track or switch across his land, upon ties furnished by him. He did not participate in the negotiations with defendant, but permitted the track to be laid in accordance with an arrangement between himself and adjoining mill owners. The track was laid about 10 years ago, and has been used for running cars to and from the mills upon the same. On March 3, 1890, the plaintiff became the owner of the undivided one-half of the premises in •question; and on March 12, 1891, he purchased and obtained title to the other undivided half of the same. These purchases were made by plaintiff with full knowledge of the existence of the track and the arrangement under which it was laid. In April, 1892, plaintiff demanded of the defendant the sum of $75, as compensation for the use of his land by the spur track for the year immediately preceding April 1, 1892. Defendant refused to pay the same, denying liability. In August, 1892, plaintiff required defendant to remove its track, and, upon its failure to do •so, brought this action, to recover for alleged trespasses since su'ch refusal. The defendant’s counsel contend (1) that the defendant built its spur under a license which is coupled with an interest, and is irrevocable; (2) that, if not, the license was not revoked by the deeds of the plaintiff; (3) that, in any event, trespass would not lie, but that the action should be ejectment.
The first of these questions is disposed of by the case of Wood v. Railroad Co., 90 Mich. 334. To hold otherwise would do violence to the rule, well settled in this State, that title to land cannot be acquired by estoppel. It needs no further comment, unless it be to add that in the case of Harlow v. Railroad Co., 41 Mich. 336, the road was *378built by the consent of the plaintiff, upon an oral promise that her claims should be adjusted. Subsequently, she was awarded damages by a jury, which the Court held settled her claim. See Callanan v. Railway Co., 61 Mich. 22; Barnes v. Air Line Ry., 65 Id. 253; Grand Rapids, Lansing & Detroit R. R. Co. v. Chesebro, 74 Id. 474. Under the circumstances of that case, it was said that she could not revoke the license under which the road was constructed. In short, the land was treated as condemned.
It becomes unnecessary to discuss the second question, for, if the deeds to the plaintiff did not have the effect of revoking the license, his express demand to remove the track did.
Upon the third point, it may be said that whether or not trespass will lie must depend upon the question of possession. If the facts were such as to be inconsistent with plaintiff’s possession, ejectment, and not trespass, might be the remedy; e. g., if the lands had been fenced, and occupied exclusively by the defendant. There is nothing to indicate such possession. The railroad company laid its rails upon the ties and ground of the plaintiff’s grantor, and ran its cars across and upon this track for the convenience of the mill owners. There is no reason for saying that it ever asserted or enjoyed possession, to the exclusion of the plaintiff or his grantor. For aught that appears, this was like any other way used under a license. The licensee used it when its business required, and the possession remained in the owner of the fee.
I find no error in the record, and think the judgment should be affirmed.