I cannot concur in the opinion of Mr. Justice CLARK.
I speak of the Breen Gravel Company as defendant. 1 Compiled Laws 1929, § 4022, gives the State highway commissioner no power to authorize an underpass on one man's property for private use by another. Private interest is never a public requirement. Constructing a tunnel through land constitutes a taking. 1 Elliott, Roads and Streets (4th Ed.), § 228. It is settled law in this State, as stated in plaintiff's brief, that:
"The ownership of the fee of lands used for highway purposes remains in the owner of the property over which the way passes."
The owner of the fee title has a right to use it and to enjoy the profits of it, in any way not incompatible with the public enjoyment of the right of way. Clark v. Dasso, 34 Mich. 86;Campau v. Konan, 39 Mich. 362; Stretch v. Village ofCassopolis, 125 Mich. 167 (51 L.R.A. 345, 84 Am. St. Rep. 567); Bolender v. Southern Michigan Telephone Co., 182 Mich. 646;United States Gypsum Co. v. Christenson, 226 Mich. 347 *Page 372 . So well is this right established in this State that the county drain commissioner cannot construct a drain, in whole or in part, along the public highway, without a release of rights by abutting owners, and the statute expressly says that the owners of the land abutting on the side of the highway along which such drain is proposed to be laid shall be considered as still owning the fee of such land. I Comp. Laws 1929, § 4139. The underpass is an appropriation of plaintiff's soil and an additional burden thereon, and the owner of the fee is entitled to have the trespass enjoined. The defendant has established a private way under a public way. The public officer exceeded his powers in authorizing defendant to construct a private way within the limits of the highway, and this is no less true because the private way is beneath the public way. In no sense is the underpass for highway use within the scope of the easement vested in the public. It is an additional burden upon the land, imposed by public officials for purely private use by a stranger to the title.
As said in Bradley v. Degnon Contracting Co., 224 N.Y. 60 (120 N.E. 89):
To constitute a use public, it must be for the benefit and advantage of all the public and in which all have a right to share — a use which the public have a right to freely enter upon under terms common to all. Public use necessarily implies the right of use by the public. The character of the use, whether public or private, is determined by the extent of the right by the public to its use, and not by the extent to which that right is or may be exercised. If a person or corporation holds or possesses the use, the public must have the right to demand and compel access to or the enjoyment of it. The motive which led to the creation of the use is immaterial. * * * *Page 373
"It was the private property of the defendants or one of them used exclusively for their private advantage and purposes. It is true its use facilitated and progressed the completion of a great public enterprise, but that fact, as we have already said, does not enter into the distinction between a public use and a private use. A lawful work cannot justify an unlawful expedient."
The underpass is for exclusive private use, and there existed no more authority for its construction on that portion of plaintiff's soil occupied by the public road than on any other portion thereof. Any incidental benefit to the public travel upon the surface highway cannot sustain violation of plaintiff's legal rights. This passageway dispossesses plaintiff pro tanto.
Real property consists of something more than mere surface rights; its meaning and the rights appertaining thereto are found in the ancient maxim: "Cujus est solum, ejus est usequead coelum et ad inferos. The surface of the land is a guide but not the full measure, for, within reasonable limitations, land includes not only the surface but also the space above and the part beneath." Butler v. Frontier Telephone Co., 186 N.Y. 486 (79 N.E. 716, 11 L.R.A. [N. S.] 920, 116 Am. St. Rep. 563, 9 Ann. Cas. 858).
It is clearly established in this State that the abutting proprietor holds title in fee to the center of the public highway, subject to the easement for highway purposes. Mr. Justice CLARK, in United States Gypsum Co. v. Christenson,supra. If the strip of the old road is ever abandoned, full possession will revert to plaintiff. Until abandoned, plaintiff's rights, except for public use and for highway purposes, remain intact and cannot be appropriated by defendant for private use or convenience. *Page 374
There is no merit in the contention of defendant that the amount of damage for the injury inflicted is too small to confer equity jurisdiction. Unpermitted invasion of premises constitutes a trespass quare clausum fregit.
"In trespass quare clausum fregit, it is immaterial whether the quantum of harm suffered be great, little, or inappreciable." Whittaker v. Stangvick, 100 Minn. 386 (111 N.W. 295, 10 L.R.A. [N. S.] 921, 117 Am. St. Rep. 703, 10 Ann. Cas. 528).
It is the province of equity jurisdiction to prevent a trespass upon lands.
As stated in 29 C. J. p. 550:
"Subject only to the public easement, an abutting owner has all the usual rights and remedies of the owner of a freehold, including trespass, ejectment, waste, action for damages, injunction, or an action to remove an obstruction, or abate a nuisance."
The highway commissioner assumed the power to grant defendant the right to occupy space, for a private purpose, beneath the surface of plaintiff's land, and when defendant constructed the underpass there was a taking of plaintiff's land without compensation and without warrant of law. Under the law of this State, defendant could not acquire right to the underpass for its private purposes by condemnation. What it could not do by warrant of law, it is not permitted to do under assumption of power exercised by the State highway commissioner. The principle here involved is far-reaching. Cases may be found where an owner with land abutting both sides of the highway has been permitted to establish an underpass, but I have found no case authorizing such a way under circumstances such as in this case. The bill herein was filed during construction of the underpass, but defendant went on and completed the work. *Page 375 The underpass violates plaintiff's rights of property, and maintenance thereof should be enjoined.
The decree dismissing the bill should be reversed, with costs, and relief granted plaintiff.
McDONALD, C.J., and NORTH and FEAD, JJ., concurred with WIEST, J.