51 Mich. 21 | Mich. | 1883
The purpose of the bill in this case is to enjoin the defendant from enclosing and occupying with buildings and for his private business certain parcels of land which complainants claim have been made public streets by dedication, or, if not public streets, their private ways for the enjoyment and use of complainants in connection with certain lots owned by them and which abut on one of the supposed streets or ways. The facts appear to be that one Need, in the year 1872, being the owner of certain lands in the township of Nottowa, St. Joseph county, platted a village thereon which he named Nottowa, and caused his plat to be recorded, but without the statutory execution and acknowledgment. The Grand Bapids & Indiana Bailroad ran across the land platted, and the company had a station house and side track there. West of the land of this company a street was marked on the plat which was named Bailroad street. Complainant Schermerhorn bought five ef the platted lots near the railroad station, all lying together, and three of them appearing to abut on Bailroad street. Upon two of these lots he built a store, which a
The proposed village never acquired much population and was never incorj>orated. Lying adjoining it and coming nearly up to Railroad street on the west is a little lake, and it seems to have occurred to defendant to build ice houses upon this lake and make a business of shipping ice by the railroad. He therefore purchased the four blocks bounded by "Wallace street, East street, South street and the lake, and commenced the erection of ice houses upon them. Up to this time Railroad street had never been opened or used as a public highway, and in its natural condition through the land of defendant it was incapable of such use because of low and marshy ground. Neither had William street across the land of defendant ever been improved or used as a highway, and defendant in his preparation for improvements ignored the existence of any public highways across his lands, and proposed to build regardless of street lines. When this was perceived, complainant Sehermerhorn endeavored to induce the highway authorities of the township to take possession and improve Railroad street as a public highway, but they refused, and there is no claim that any offer of a dedication made by the platting which Reed put on record was ever accepted. When the highway authorities refused to interfere the complainants filed this bill.
The bill sets out the platting of the village of Nottowa
The defendant answered, and the case was heard on pleadings and proofs, and the bill dismissed. In the decree entered by him the circuit judge recites that “ it was found by the court that the public authorities have asserted no rights in or to the streets in question in this case, and have declined to do so when requested, and have neglected and refused to improve Railroad street so as to make it fit for travel; ” and that the “ whole village of Nottowa is but littie more than a common. And it was further found that heretofore the complainants have not used either of the alleged streets or parts of streets so far as they are obstructed, or required them for use, and neither have persons heretofore passing to or from complainant Sehermerhorn’s store •or property traveled over the said parts of streets, but they have chosen other routes still open to them; and theré is •nothing to show that the patrons of the store of said complainant now use or desire, or ever will desire to use the streets obstructed in any way to benefit complainant, or that complainant will ever be likely to need them for any purpose. The complainant Sehermerhorn has not ever found it desirable to have an entrance to his store on Railroad street, and mo damage or prejudice has yet resulted or is likely to result
All the facts here recited we find established by the evidence. The consideration mentioned as received by Bell was a. small sum paid him by defendant for his consent to the exclusive occupation defendant contemplated, and. which Bell, though subsequently claiming he did not fully understand the matter, has always retained. The question,, then, is whether in the light of these facts complainants-have any equities.
The question of misjoinder which is made by the defense-we pass without decision. It was not called to the attention of the court below until the case was brought to a hearing-on the proofs, and was then entitled to no favor!
No attempt was made on the argument to sustain the-claim of the bill that Bailroad street had become a highway by dedication; but complainants insisted that by purchasing lots by reference to the plat, which the plat showed to abut on a street, they acquired the right to the use of the street and of all connecting streets for the enjoyment of their purchases, and that their grantor was estopped by his conveyances from disputing the right. The principle is supposed to be well settled, and many cases are relied upon to show its application to the facts of this case.
In Smith v. Lock 18 Mich. 56, it was decided that by-granting a lot described in the conveyance as bounded on a-street the grantor is estopped from shutting it up so as to-prevent the grantee from making usé of it for his own accommodation in the enjoyment of his purchase. The principle was again declared in White v. Smith 37 Mich. 291, and was recognized and applied in Karrer v. Berry 44 Mich.
No support for the broad claim that is made on behalf of these complainants can be derived from these-cases, nor, in our opinion, from any one of them. Fox v. Union Sugar Bejmery 109 Mass. 292, seems to be very much relied upon. It was decided in that case that where-land was conveyed by a description which bounded it on a private way not defined in the deed but shown upon a plan referred to therein, the deed operated as an estoppel upon the grantor, and precluded his denying the existence not. only of the abutting way, but of any of the connecting ways represented on the plan, which would enable the grantee to-
That complainant Bell has no equity to be protected is .shown by his having assented for a consideration to what defendant has done. But it also appears that Bailroad street .south of South street is enclosed and occupied by Bell himself, so that he is doing in his own individual interest in respect to this very street precisely what he seeks to enjoin ■defendant from doing. It would be preposterous to grant the relief prayed for on his application under such circumstances. Schermerhorn’s case is not thus embarrassed by action on his part inconsistent with his prayer, and if he has .shown that it is necessary or important to the enjoyment ■of the lots he owns that Railroad street or William street .as platted should be kept open through the lands of defendant, he has thereby made out a prima facie equity. But he has made no such showing. Defendant has closed up no passage way that was ever open to him along either of these proposed streets, for neither of them in its natural ■condition was susceptible of use as a street, and neither of them was ever put in condition for that use. If opened ;and improved they would be to Schermerhorn of no value. They would give to him no new connection with the roads ■of the country around him, and they would shorten no con
The circuit court was right in dismissing the bill, and the decree must be affirmed with costs.