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said right of way, or, in other words, acquired an easement upon the land of the property holders occupied by it.

"Preliminary to the statement of the main question in the case, it may be said in passing that it is an elementary principle of law that an easement may only be created by grant or by prescription, and that in law the grant of the right of way to a railroad company creates an easement on the land affected, and that an entry upon the land of another by a railroad company, followed by the construction and operation of a railroad upon such right of way, without first obtaining a grant therefor or taking such steps to condemn the land for such right of way, is an appropriation of the right of way such as to afford a right of action for abuttal damages commencing with the time of such appropriation.

"The controverted claims of the parties follow:

"(1) That it has paid for and obtained releases of the right of way from the property holders, and has a grant to said right of way.

"(2) That, if it did not obtain such grant, then prior to the time of the commencement of said action at law by the property holders, it had acquired a prescriptive easement upon and along the land covered by its track, and that therefore the property holders could not maintain its said action for damages.

"The property holders claim:

"(1) That the company has no grant of said easement.

"(2) That there can be no prescriptive easement acquired by a railroad company in a city street to defeat the claim of adjacent property holders for abutting damages.

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(3) That the company, not having acquired a grant or prescriptive easement, has been liable for continuing damages from May 20, 1868, during the whole of said period, and that the damages for that portion of said time, namely, 6 years, not barred by the statute of limitations, can be recovered in said action at law.

"It may be said in explanation of the two periods named, that the 15-year period is the period fixed by the statute of limitation affecting real estate as being the time required to acquire by adverse possession

easements and rights in real estate. The 6-year statute of limitations is that statute which precludes an action of damages, such as said suit at law, from being maintained for damages which accrued 6 years prior to the statute of limitations.

"Upon the disputed questions, I am constrained to hold that in this State an easement upon land for the operation of cars thereon in a public street may be acquired by prescription, and that the time for the acquirement of a prescriptive right commences to run from the time of the commencement of the appropriation of the right of way, where such right of way is appropriated; that as applied to this case, under the facts stated, such time commenced to run on the 20th day of May, 1868, and that the property holders' right of action for abuttal damages was barred by the prescriptive easement of the company on the land long before the commencement of said suit at law.

"This conclusion is sustained by numerous wellconsidered cases decided by our Supreme Court commencing with Conklin v. Boyd, 46 Mich. 56 (9 N. W. 134), and concluding with Brockway v. Power & Light Co., 175 Mich. 339 (141 N. W. 693). These cases, either by express decision or by fair inference, decide that an easement may be acquired in real estate by fifteen years' use under the necessary conditions in principle clearly covering railroad right of way easements in streets and in no manner excepting them from such rule. I make particular reference only to the case of Turner v. Hart, 71 Mich. 128 (38 N. W. 890, 15 Am. St. Rep. 243), which has been often cited and quoted from, the opinion in which is by Judge CHAMPLIN. In that case the court states the reason for the rule of prescriptive easements and the rule as to easement by prescription, as follows: In this State an easement founded upon prescription originates from the fact of actual, adverse, peaceable, open, and uninterrupted possession for such length of time that the law presumes that the true owner by his acquiescence has granted the easement, and that the time required to fix said (prescription) presumption is the period named by the 15-year real estate statute of limitations, and that this 15-year period commences at the time when the adverse user or occupancy com

mences.

"The property holders contend that their claim that

no prescription for a railroad right of way can be acquired in a right of way in a city street in Michigan is supported by three Michigan cases, namely, Grand Rapids, etc., R. Co. v. Heisel, 38 Mich. 62 (31 Am. Rep. 306); s. c. 47 Mich. 393 (11 N. W. 212); Hoffman v. Railroad Co., 114 Mich. 316 (72 N. W. 167); Phelps v. City of Detroit, 120 Mich. 447 (79 N. W. 640).

"In my opinion that question was not presented to the court or passed upon in either of the above cases. In the first two cases the time for acquiring a prescriptive easement had not run before the bringing of the suit; in the third case I am advised that the defense made in the case was of the statute of limitations, as against the right to bring that action, and no defense of the prescriptive easement was made in the case. I can therefore not consider these authorities as sustaining the position contended for, and in any event would be constrained to hold that the greater weight of authority was with the line of decisions, above referred to, holding the other way.

"The company contends that it has proved that releases of right of way were given within some reasonable time after the construction of the railroad in the said streets. This contention is denied by the property holders. I do not consider it, for the conclusions above reached dispose of the case.

"A decree may be entered dismissing the cross-bill of the property holders, and sustaining the bill of the railroad company, with costs to complainants.”

The defendants have appealed from the decree entered pursuant to the foregoing opinion.

In their brief defendants urge that complainants ought not to be granted the relief asked for, for the following reasons:

(1) That they have asked for and obtained a decree for an injunction, as against defendant George E. Wedthoff, directly contrary to the provisions of section 502, 1 Comp. Laws (4 How. Stat. [2d Ed.] § 12020).

(2) That they have wholly failed to produce proof of any payment to or settlement with the defendants or their predecessors in title, and the court will not

presume payment in the absence of preponderating, or at least, some, proofs.

(3) That they have come into a court of equity, not to protect their rights to operate their railroad, which is not being questioned, but asking the court to prevent defendants from recovering actual damages inflicted, because of their negligence and carelessness. He who comes into equity must come with clean hands.

(4) That they are asking this court to declare a prescriptive right, founded, as shown by their own testimony, upon the operation of its road along a public highway without authority, contrary to the express provisions of law. The railroad, so far as being in the public street is concerned, has been a public nuisance from 1868 until 1899.

(5) That the permission of the council in 1899 is invalid until the railroad has made settlement with the property owners along the street, as provided by the only law in Michigan which authorizes a railroad to be built along a public street or highway.

(6) That to establish its prescriptive right the company asks this court, in effect, to set aside and reverse its rulings made in Grand Rapids, etc., R. Co. v. Heisel, 38 Mich. 62 (31 Am. Rep. 306), and 47 Mich. 393 (11 N. W. 212), and affirmed in Hoffman v. Railway Co., 114 Mich. 316 (72 N. W. 167); Wilkinson v. Dunkley-Williams Co., 139 Mich. 621 (103 N. W. 170), and Phelps v. City of Detroit, 120 Mich. 447 (79 N. W. 640).

(7) That they ask the first adjudication in the history of litigation that a railroad along a public highway, without authority, occupying not adversely or exclusively, but in common with the entire public, has acquired a title by prescription to injure and destroy defendants' property without compensation, when complainants have had it in their power to have the damages for all times determined, and when defendants have never had and have no right now to determine or have fixed any of the damages for the future.

(8) That to grant the relief prayed for and given by the court would be, and is, to say to these defendants:

"Under our repeated decisions you have never had any right to bring suit for the damages that may accrue to you in the

future; you have never had and could not have had a day in court for those damages. Because you have waived the past damages, you may not now recover the future damages."

These positions are very strongly stated, and, if supported by the authorities, defendants ought to prevail here. We think, however, that the positions taken by defendants are not all warranted under the authorities, as we find them.

1. We have never understood that the provisions of section 502, 1 Comp. Laws, requiring a bond to be given to have injunction to stay trial of action in a court of law, applied to a permanent injunction issued by the decree of the court at the hearing. We had supposed that it referred to preliminary injunction, and such we think has been the understanding of the profession. Carroll v. Bank, Har. Ch. (Mich.) 197; Lawton v. Richardson, 115 Mich. 12 (72 N. W. 988).

2. It is the position of defendants that complainants have wholly failed to produce proof of any payment to or settlement with the defendants or their predecessors in title. We have read very carefully the entire record in this case, and are unable to agree with defendants' position upon this point. The documentary evidence, taken in connection with the testimony, especially of the witness William Westover, shows strong circumstantial proof to the effect that appellants' predecessors in title were actually compensated for the right of way. The evidence is very convincing that at least some of the parties, who are in the same category as those represented here, were compensated. We think at least a strong presumption of fact has been raised that all who were in like circumstances were alike dealt with. It may be said that no one of the details is individually controlling, but in combination they create a very strong presumption of fact.

3. In the light of this record we hardly know what counsel for defendants mean by their third proposi

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