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struction, or a nuisance. Defendants appear to contend that this is neither an obstruction nor a nuisance, for the reason that we have held that the use of public highways, by street railway companies, is a legitimate use of the highway, and does not create an additional servitude upon the land of the adjoining proprietor, and that it must, therefore, be an encroachment or a trespass; if the former, not the subject of equitable relief; and, if the latter, waived by the conduct of the officers. While a railroad, lawfully constructed on a highway, and rightfully there, cannot be held to be an unlawful obstruction of, or encroachment upon, the highway, it is an obstruction in the sense that any structure or new use may be an obstruction to its use by the public generally to a greater or less extent. Thus in the case of Attorney General v. Bay State Brick Co., 115 Mass. 431, it was held that a track laid across the highway by the owner of lands adjacent, by the consent of the township authorities, might be an obstruction, and, if the surveyors should so determine (the surveyors being public officers authorized to determine 170 such questions), a court of equity would not review their action, notwithstanding the consent of the township authorities. The inference deducible is that, though the person who built the track owned the fee of the highway, and might use it so long as his use did not interfere with the public use (though they reserved that question), when it should appear, as matter of repair, that the railway interfered with public travel and the proper use of the highway, it was an obstruction. The case contains an intimation that such tracks might be considered inconsistent with the use of the public, but, as already said, that question was not decided. This defendant was not an adjacent land owner, and has no color of right to occupy the street except such as the statutes then in force conferred, and, in building its line, placed an obstruction in the way, of which the township authorities had a right to complain and to take measures to remove, and we hesitate to say that it may not have been a nuisance which they might ask equity to abate, for we think that it does not follow, from the recognition of a lawful street railroad, as a proper adjunct to a highway, that an unlawfully constructed one cannot be a nuisance: See Elliott on Roads and Streets, 2d ed., secs. 644, 802, and cases cited. If it is so claimed, equity has jurisdiction to try the question, and the township may bring the suit, as we held in Township of Merritt v. Harp, 131 Mich. 174, 91 N. W. 156.
The cases of Township of Lebanon v. Burch, 78 Mich. 641, 44 N. W. 148, and Township of Greenfield v. Norton, 111 Mich. 53, 69 N. W. 95, upon which defendant rests its contention that equity is not the proper forum to seek redress in a case of this kind, were cases of encroachment by adjacent proprietors. The opinion in the former cases indicates that the court was considering cases where the land owner seeks to extend his adjacent occupancy beyond the highway line, and the discussion applied to cases where the proceeding is to settle highway lines, cases there said to be peculiarly within the jurisdiction of highway officers, and in which class of cases it was held there was no occasion 171 for resort to equity, unless possibly under some peculiar circumstances which cannot generally exist: See, also, City of Grand Rapids v. Hughes, 15 Mich. 54, defining encroachment. The case of Township of Greenfield v. Norton, 111 Mich. 53, 69 N. W. 95, was a similar .case, a barn being erected partly in the highway. We are of the opinion that if this cause can be said to be within the general rule stated in those cases, it is also within the exception suggested, and that equity may entertain a bill to determine and enforce the rights of the parties.
The defendant's alleged estoppel cannot be sustained. If private persons can create easements by estoppel, under our statute of frauds, and our decisions, or if a license may be implied from the acquiescence of a private person, who stands by and sees, without protest, his land used for a railway, the same cannot be said of township officers, who have no authority except such as the statute gives, and if it could be, the testimony does not justify such a finding: See Goose River Bank v. Willow Lake School Township, 1 N. Dak. 26, 26 Am. St. Rep. 605, 44 N. W. 1002. We must hold that the only authority that the defendant has is traceable to the action of the board in 1902, and it must submit to a decree in accordance with the prayer of complainant's bill, unless, within thirty days after service of a copy of this opinion, it file an election to take a decree adjudging such relief, conditioned upon its failure to accept and comply with the terms imposed by the township board in said resolution or franchise. The complainant will recover costs of both courts.
Carpenter, Montgomery, Ostrander and Moore, JJ., concurred.
Railway Tracks Laid in a Public Street without authority of law constitute a public nuisance: See the note to Acme Fertilizer Co. v. State, 107 Am. St. Rep. 247.
Ejectment will Lie Against a Railroad Company which has appropriated a public street without authority: See the note to Butler v. Frontier Tel. Co., 116 Am. St. Rep. 585.
BAUER v. LONG.
[147 Mich. 351, 110 N. W. 1059.]
MECHANIC'S LIEN on Estate by Entireties.-A mechanic's lien cannot be created against real estate held by husband and wife as tenants by the entireties, under a building contract signed by him alone. (p. 553.)
MECHANIC'S LIEN on Estate by Entireties.-A statute providing for a lien upon a building erected on land, "to which the person contracting for such erection has no legal title," does not create a lien on a house erected upon land owned by husband and wife as tenants by the entireties, under a building contract not signed by her. (p. 553.)
John F. Henigan, for the complainant.
George H. Curtis, for the defendants.
352 GRANT, J. This is a suit in equity to establish and foreclose a mechanic's lien. The bill alleges that complainant made a contract with defendant William S. Long to erect a dwelling-house upon the land owned by the defendants William S. and Ella Long, who are husband and wife, as tenants by the entirety; that the contract price was two thousand nine hundred and fifty-three dollars, that the contract has been performed, and that two hundred and ninety-six dollars and forty-eight cents remains unpaid. The bill also sets forth that he had taken the proceedings required by the statute to establish the lien. The bill prays for a lien upon the premises for the amount due under the contract. To this bill the defendants demurred, because (1) the bill shows that the title to the land was held by the defendants Long as tenants by the entirety; (2) that the defendant Ella did not join in the contract; and (3) that the property is a homestead, occupied and used as such. The court overruled the demurrer, and the case is before us on appeal.
The main question presented is, Does the statute provide for a mechanic's lien upon land owned by the husband and wife as tenants by the entirety under a contract signed only by the husband? Section 10,710 of 3 Compiled Laws, being section. 1 of the mechanic's lien law, provides for mechanics' liens. It contemplates a lien where the land is owned by the party for whom the work is done, or the materials are 353 furnished. Section 10,711 of 3 Compiled Laws, being section 2 of the mechanic's lien law, provides for such a lien upon land owned jointly by husband and wife, provided both sign the contract. Mechanics' liens are pure creatures of the statute. Courts cannot extend them to cover cases not included in the statute. The bill shows that complainant knew how the title was held; that the building was to be so constructed that it became a part of the realty, and could not be removed after its erection without injury to the freehold, and that he has so constructed it. His bill is framed upon that theory, for it does not pray for a lien upon the building separate and apart from the land on which it is situated. This court has repeatedly held that one tenant by the entirety has no interest separable from that of the other. He has nothing to convey or mortgage or to which he can attach a lien: Michigan Beef etc. Co. v. Coll, 116 Mich. 261, 74 N. W. 475, and authorities there cited.
In view of this condition of the law, and to protect the rights of each, the legislature enacted that this lien might attach if the lienor secured the written contract of the husband and wife. To hold that either might contract for a lien without the assent of the other would be clear judicial legislation. The complainant seems to concede that he has no lien upon the land, but claims the right to a lien upon the dwelling-house, and to sell and remove it under his lien proceeding. This case does not fall within section 10,712 of 3 Compiled Laws, providing for a lien upon the building if the building is upon lands "to which the person contracting for such erection has no legal title," or within the decision of Holliday v. Mathewson, 146 Mich. 336, 109 N. W. 669. In that case the house was erected upon land to which the defendants at the time of its erection held no title. It is conceded that this question is before the court for the first time. We are cited to no authorities in point. My examination has resulted in finding one case, which holds that the lien attaches to the life estate of the husband: 354 Washburn v. Burns, 34 N. J. L. 18. The court there held that the husband during his life was entitled to the
possession and use of the lands, and that he could attach a lien to his life interest, but no other. That case is inconsistent with the holdings of this court.
The decree must be reversed, and the bill dismissed, with the costs of both courts.
McAlvay, C. J., and Blair, Montgomery, and Ostrander, JJ., concurred.
The Question Whether an Estate by the Entireties is subject to a mechanic's lien when the husband procures a building to be erected thereon is discussed in the note to Rust-Owen Lumber Co. v. Holt. 83 Am. St. Rep. 519. Land held by husband and wife as tenants by the entireties is not liable to be sold on execution to satisfy a judg ment against him alone: Mercer v. Coomler, 32 Ind. 533, 102 Am. St. Rep. 252; and a municipal lien filed against her alone is, as against him, a nullity: Alles v. Lyon, 216 Pa. 604, 116 Am. St. Rep. 791, As to the right of the husband to alienate the property, see Bynum v. Wicker, 141 N. C. 95, 115 Am. St. Rep. 675.
PHILIP v. HERATY.
[147 Mich. 473, 111 N. W. 93.]
WRONGFUL DEATH-Retrospective Statute.-A statute giv ing a right of action for wrongful death to a person who in good faith sustained the marriage relation to the decedent, when there existed a legal impediment to their marriage, is unconstitutional in so far as it authorizes a woman to maintain an action for the death of a man which occurred prior to the enactment of the statute. (pp. 556, 557.)
T. A. E. & J. C. Weadock and L. J. Weadock, for the appellants.
F. L. Edinborough and De Vere Hall, for the appellee.
473 MONTGOMERY, J. This action was brought to recover damages for the negligent act of defendants causing the death of George Philip, plaintiff's intestate. The plaintiff claimed to be the lawful widow of George Philip and was appointed administratrix. The case was once considered by us: See 135 Mich. 446, 97 N. W. 693, 100 N. W. 1086. It was there held that it was open to defendants to prove, on the trial of this action, that plaintiff was not in fact the lawful wife of George Philip at the date of his death. That the statute (3 Comp. Laws, sec. 10,428) limits the recovery 474 of