23 Mich. 173 | Mich. | 1871
As an abstract of the bill and answer (to which we refer) will accompany the report, we do not deem it necessary to incumber the opinion by their recital here.
It is sufficient to say that it is a bill filed by the city of Detroit, in its corporate capacity, to enforce what is claimed to be the right of the public to a street upon a certain strip of land of forty feet in width, on, and along, the east side of the Dequindre farm, in the city of Detroit, and a strip of equal width on, and along, the west side of the adjoining farm, known as the Witherell farm, and
The bill bases this claim mainly upon the following agreement between Antoine Dequindre, then owner in fee of the Dequindre farm, and the Detroit & Pontiac Eailroad Company (through its agents), of which agreement it asks a specific performance, it being admitted that the present defendant, “The Detroit & Milwaukee Eailroad Company,” is the successor of the former company, with its rights and liabilities.
i The agreement is in the following words: “Articles of agreement made and executed this 24th day of May, 1836, between Antoine Dequindre, of the city of Detroit and territory of Michigan, of one part, and the Detroit and Pontiac Eailroad Company, of the other part.
“Whereas, by an act of the legislative council of the territory of Michigan, entitled an act to incorporate the Detroit and Pontiac E. E. Co., and approved on the 7th day of March, 1834, said company was incorporated for the purpose of constructing a railroad from the city of Detroit' aforesaid, to the village of Pontiac, in the county of Oakland, with power and duties particularly specified in said act; and whereas, in pursuance of such power, it had been deemed advisable by the company to construct part of said road through the property of Antoine Dequindre, and the said Antoine hath agreed to donate the land and lots hereinafter particularly mentioned upon the conditions following, that is to say:
“ 1st. That the said railroad shall be constructed, used and put in operation, conformable in all respects to the provisions-of said act of incorporation, its present charter.
“3d. That said, railroad shall be so far of the width of eighty feet, and shall be laid equally on the farm of Dequindre and those adjoining.
“ 4th. That said railroad company shall procure from the owners of said adjoining farm, a good title to so much thereof as shall be necessary for the construction of said road.
“5th. That the first track of railway laid down by said company shall be on the boundary line; and when there are two tracks the same shall be equally on both farms, on either, side of said line and as near thereto as practicable, leaving a street at each side of the outer side of said tracks.
“6th. That the said railroad shall at all times, after its completion, be kept open in good repair and in operation until the termination of the company’s charter; and all cars and carriages thereon shall be drawn by horses, from Atwater street aforesaid, for a distance of two miles, or so much further as the said Dequindre may require, whenever he shall deem it necessary; and within that distance no steam-power shall be used on said road.
“7th. That the strip of land to be donated by said Dequindre and the owners of the adjoining farm for the purpose of laying out said railroad thereon, shall be deemed, and shall be and remain, a public street forever, to all intents and purposes, subject, however, to reversion to said Dequindre or his heirs, pursuant to the 10th article hereinafter men
“8th. That all fencing of every description on the land to be donated by said Dequindre, shall be and remain his sole property, with liberty to him to remove the same; and so much of the timber and wood cut down thereon as shall not be needed and used for the construction of said road shall also be and remain the sole property of said Dequindre, and shall be removed to his said farm by, and at the expense of, the said company.
“ 9th. That Stewart, Brown, Sheldon, Buel, Bacon, Howard and Morse shall severally carry into full effect and in good faith their respective proposals to said railroad company as contained in their original proposal, a copy of which is hereto annexed, and no conveyance thereof or of any part be made by said company to the said persons or any of them.
“10th. That in case of non-observance or non-performance of any of the stipulations, conditions or provisions, either of the said act of incorporation or of this agreement, on the part of the company or their agents, or by, or under, their authority, the donations to be made by said Dequindre to said company and all instruments conveying the same, shall become and be absolutely null and void, to all intents and purposes, and inoperative in any court; and the land thereby conveyed shall revert, and be, from the time of such failure or breach, absolutely and legally vested in said Dequindre, as fully to all intents and purposes as if he had
“11th. That on the execittion hereof, or whenever the said company shall require the strip or piece of land of forty feet hereinafter mentioned for the purpose of constructing said railroad, that they may enter thereon for such purpose; but no deed or title shall be given thereof until the entire road shall be put into entire operation conformable to its charter; and it is hereby further agreed by ■ and between the parties hereto, that upon the condition aforesaid, and none other, and so soon as said railroad shall be constructed and put into operation by said company conformable to its charter, the said Dequindre shall and will execute to said company a quit-claim deed of a strip or piece of land commencing at a point where said railroad shall, so as aforesaid, strike his said farm, and running thence along the eastern boundary thereof dividing the same from the aforesaid Witherell farm, in a straight line with Atwater street aforesaid, being forty feet in Avidth from said line, the same to be and form one-half of the aforesaid street to be called Dequindre street; and further, that he, the said Antoine Dequindre, shall and will execute to Alfred Williams, as trustee for said company, a quit-claim deed of forty lots, each fifty by one hundred feet, and no more than eight thereof to be situated in one block or one square of lots as finally to be laid out or surveyed by, or on behalf of, said Dequindre, eight of the same to be north of the Gratiot road, the remainder thereof to be south of aforesaid road, and all aforesaid lots to be at the selection of said Dequindre or his representatives, except so far as is restrained hereby; provided that both said deeds shall be
The first question for our consideration is, whether this strip of land, or any, and what part of it, was dedicated to the public as a street, by the owner or owners, by a regularly executed and recorded plat, according to the statute then in force, so as to make an effectual statutory dedication ; and if not, then, secondly, whether there has been a dedication in pais, duly accepted by the proper authorities on the part of the public.
But, as this alleged street is one having emphatically two sides, with a railroad rightfully existing in the middle, the easterly side or portion being on the Witherell farm, and the western on the Dequindre farm, it will be best to dispose of the question of dedication as to each side, separately; -■and, as that upon the “Witherell farm is most readily disposed -of, and its disposition will disencumber the case of some '-extraneous matter, we will first consider the question of «dedication as it relates to that.
Complainant’s counsel claims that this dedication (or mathet of the twenty feet only along the west side of the -farm) was effected by certain plats executed and acknowledged by the various owners of that farm,' all of which iplats, upon examination, appear to have been made between -June, 1848, and June, 1851. But the bill itself shows that «during this time and until the railroad company released all but twenty feet (which complainant’s evidence shows was December 13, 1851), the railroad company held the
The bill also shows that the company had laid down their track along the line, and were, at the time these plats were executed, in actual possession of the road down, at least, as far as Gratiot street.
Upon the case made by the bill, therefore, the company being the owners of the whole strip of fifty feet along the west line of the farm, holding the title to it as a right of way, the owners of the Witherell farm had no power to dedicate it to the public, by any plat which they could make; nor could they in any way affect the right of the company by any attempted dedication. Complainant must succeed, if at all, upon the case made by his bill, and is not at liberty to make a new case by the evidence unsupported by, and directly repugnant to, the allegations of the bill. But complainant’s counsel does not claim to have made a different case by his evidence, and still insists, upon the argument, that the company owned the fifty feet right of way at the very time these plats were executed.
So far, therefore, as relates to the question of a statute dedication by plat, one side of the alleged street — all that portion on the Witherell farm — may be laid aside as out of the case. There could have been no dedication of it to the public at any time during which it is important to inquire,
We will now pass over to the other side of the alleged street and consider the question of a statutory plat and dedication of that portion situated upon the Dequindre farm.
After his agreement with the railroad company above set forth at large, Dequindre, on the 11th day of June, 1836, made and recorded, in the office of the register of deeds, a plat of so much of said Dequindre. farm as lay between .Lamed street and the Detroit river; on the east side of which plat • appeared an open space of eighty feet in width (not subdivided into lots), running the whole length of the plat, one-half, or forty feet -only, of which appeared to be on the Dequindre farm, and forty feet on the Witherell farm (which of course Dequindre had no authority to plat). In the center of this strip of eighty feet (or on the line between the two farms) were drawn three parallel lines,— the center one of which would seem to indicate the line between the farms and the two others (one on each side of it) the railroad. On and along the west side of the whole eighty feet strip (being the part west of the railroad and on the Dequindre farm), were written the words “Dequindre street,” and on and along the east side (on the Witherell farm), in the open space then left, were written the words “ Railroad to Pontiac.” The peculiar form of the acknowledgment to this plat will be noticed hereafter.
After the making of this plat, Dequindre, in October, 1836, conveyed to Peter J. Desnoyers, in trust for his (Dequindre’s) creditors, the whole of said Dequindre farm, subject, however, to the agreement with the railroad company. And in February, 1810, Desnoyers and Dequindre joined in the execution of another plat, embracing all that part of the Dequindre farm lying between North street and
This latter plat marks the strip of eighty feet along the east side, precisely as upon the plat just mentioned, made be Dequindre alone.
Both plats divide the property into lots of appropriate size for city purposes, and show the various streets crossing the farm and crossing the space in question. But none of the lots (except three, or four fractional lots made irregular by Gratiot street) seem to front on the space called “Dequindre street,” but all, with the above exceptions, are made to front on the cross-streets, and those adjoining the space in question lie lengthwise along said space, which appears to form the side lines of such abutting lots. This plat was recorded February 4, 1840. Its peculiar acknowledgment will be noticed further on.
Another plat is relied upon by complainant’s counsel for the balance of the farm. Dequindre died in 1843, and in 1844 a plat seems to have been made of the rear of the farm (not before platted) “for the administratrix on his estate.” This was recorded in 1844, but was never acJcnowledged at all. It lays out no streets, nor does it subdivide the property into blo'cks or city lots, but only into parcels of several acres each. It was probably made with reference to a contemplated administrator’s sale. The legal title was-at this time in Peter J. Desnoyers, and the authority of the administratrix to make and record any plat dedicating any right to the public, does not appear. Very clearly, there was no statute dedication by this plat. The question of a statute dedication is, therefore, narrowed down to the two plats, one executed by Dequindre alone, and the other by
The acknowledgment to the first plat — that executed by Dequindre alone — is not under the seal of the justice taking it, as required by the act then in force (Laws of 1888, p. 681, § 2). This, however, might possibly, if it were the only defect, be cured by the first section of the act of 1850 (Gomp. L., § 1110), for the time which elapsed after that act took effect. But it is unnecessary to consider this question, as the same ground was re-platted by the plat made by Dequindre and Desnoyers jointly, in 1840, the acknowledgment of which is under the seal of the notary taking it, according to the law of 1889, p. 162, § A
The main question as to these plats arises upon the purposes and conditions of the supposed dedication, as expressed in the acknowledgment, which is precisely the same, in effect, upon both these plats; and it is, therefore, only necessary to examine that to the plat made by Desnoyers and Dequindre in 1840. It is in these words:
“State of Michigan, County of Wayne, ss. — Be it remembered, that on this fourth day of February, in the year one thousand eight hundred and forty, came before me, the undersigned, a notary public in and for said county, Antoine Dequindre and Peter J. Desnoyers, his assignee, known to me to be the persons mentioned in the within town plat, and to whom the same belongs, and severally acknowledged the same to be their act and deed, with the view to its being recorded according to law; but always upon, and subject to, this express condition (so far as regards Dequindre street on said plat and not otherwise), that said street laid down shall duly be and remain a public street or place,
This language in reference to Dequindre street is so plain and explicit that it cannot be misunderstood. It clearly withdraws and excepts the space on the Dequindre farm marked as “Dequindre street” from the operation of the dedication intended to be effected by the plat with reference to other streets, and shows in the clearest manner the intention of the proprietors not to dedicate it generally to the public, as the other streets were intended to he dedicated. It adopts the provisions of the articles of agreement between Dequindre and the railroad company, and dedicates it only to the purposes of that agreement, and subject to all the conditions of that agreement, and makes the dedication, or rather the use which the public are to be permitted to enjoy in it, depend upon the performance, in all respects, by the railroad company, of “ every condition, provision and stipulation contained” in it, and provides for its immediate reversion to Dequindre and his heirs, upon any breach of, or failure to perform, any such condition, provision or stipulation.
It was one of the provisions of said agreement, that upon
By the third article of the agreement (and its reference to the second) it will be seen that the company are required to have “their railroad” laid out eighty feet wide from the north line of said Dequindre farm to Atwater street, and to be equally on said farm and those adjoining. Whatever else may be said of this very peculiar agreement, or of its true construction in other respects, it is clear that the title was to vest in the company, subject to the continued performance by the company of all the conditions; that the main and primary object and use to which the strip of land was to be devoted, was for the use of the railroad or the railroad company as a right of way, and that any other pnblic use contemplatéd as a mere street was a secondary and subordinate or incidental use, which should cease whenever the railroad company should forfeit the right to its use for railroad purposes.
The only law in force governing the execution and recording of town plats and dedication thereby to the public at the date of Dequindre’s agreement (1836) and when his first plat was recorded, was that of 1837, found in the Laws of 1888, jp. 581; and in 1840, when the Dequindre and Desnoyers plat was recorded, the only law upon the subject was the act of April 19, 1839 (Laws of 1889, ¶. 162, et seq.), the second section of which is identical with the second section of the law of 1837 (except as to certain officers before whom the acknowledgment may be taken).
The first section provides “ that whenever any town shall hereafter be laid out within this state, the proprietors of such town shall cause a true map or plat thereof to be recorded in the registry of the county where the same lies, before any
For the purposes of this case we shall take it for granted that this section (which in this respect governs the scope of the act) may apply to a plat of a small part only of a town or city, as in the present case.
Section two of the act is in the following words: “ That such maps or plats, as are by this act required to be recorded, shall particularly set forth and describe all the public ground within such town by its boundaries, courses and extent, and whether it be intended for streets, alleys, commons or other public uses, and all the lots intended for sale by progressive numbers, and their precise length and width; and the maps made and acknowledged before a justice of the peace, a notary public of the proper county, where the town lies, or before any judge of any court of record, and certified under the hand and seal of the judge, justice or notary public taking such acknowledgment, and recorded, shall be deemed a sufficient conveyance to vest the fee of such parcels of land as therein expressed, named or intended to be for public uses, in the county in which such town lies, in trust to and for the uses and purposes therein named, expressed or intended, and for no other use or purpose whatever.”
It can need little argument to show that the strip of land in question marked on these plats as “Dequindre street” (or rather that portion of it on the Dequindre farm) was not by these plats (thus acknowdedged) dedicated to the public in accordance with these statute provisions. The statute clearly contemplates no such conditional dedication by which the rights of the public are made depend
Again, the statute has taken care to provide against any resumption by the grantor, or reversion to him, without the assent of the public, by an express provision that the dedication which it provides for, “ shall vest the fee in the county, in trust to, and for, the uses therein named.”
By this plat, and what is claimed to be a dedication effected by it, the fee was to be vested in the railroad company, subject to defeasance by the non-performance of any of the conditions mentioned. There are some other particulars in which these plats fail to comply with the statute in question; but we deem it unnecessary to notice them, as we think those already mentioned are conclusive.
The matters above pointed out as not in compliance with the statute, are matters which affect the very substance of the transaction, the intent to dedicate; they are not mere formal defects or a failure to acknowledge according to the statute, which the statute of 1850 {pomp. L., § HJi.6) was intended to cure. It would hardly be in the power of the legislature to convert what was so plainly intended as a mere conditional disposition of this property into an absolute dedication, taking away the right of reversion expressly stipulated for, on the breach of any of the conditions. This disposes of the question of a statute dedication, and shows that no part of the alleged street has been thus dedicated.
We are next to inquire whether there has been a dedication in pais; to render such a dedication effectual, it is
The bill itself can hardly be said to make a case of dedication in pais, but -'apparently rests the whole claim to a dedication upon the several plats which it alleges were executed “according to the statute in such case made and provided,” and upon user of the land by the public as a street. But it nowhere alleges any acceptance of the dedication by the proper public authorities, a fact essential to ' the public right under any dedication in pais, of land for public uses in cities having a regularly organized city government, nor any fact which, of itself, constitutes such acceptance, — such as the taking the actual charge and management or the regulation of it, or making improvements upon it. — People v. Jones, 6 Mich., 176; Tillman v. The People, 12 Mich., 401; Lee v. Lake, 14. Mich., 12.
But user by the public, that is, travel over it by the public, is the only fact alleged which can be claimed to bear upon the question of acceptance. This, at the most, so far as relates to the question of the acceptance of a dedication of city streets, is but evidence tending to prove acceptance, but of itself does not constitute it'.
As to country roads which are not. so directly and immediately under the official control of any board or local legislation, and where the expenditures to keep them up are comparatively small, public user alone may, perhaps, properly be held, when sufficiently general and long continued, to constitute' an acceptance of a dedication to such public use; but this in many, if not most, of the states, depends much, if not wholly, upon statutes, which recognize
The public user alleged in the bill is confined to the period commencing about the time of the alleged dedication, and extending down to the time when the company, having obtained . the deed from Watson, (which was in 1851),
We have carefully examined all the evidence during this period, and, though it is somewhat conflicting, we do not think it satisfactorily establishes such general public user, especially within the definite limits of the eighty feet in question, or upon any other definite line, as would be sufficient to establish by user a highway in the country. There was, undoubtedly, some little travel within the eighty feet, especially between Gratiot street and Jefferson avenue, but the Dequindre farm was for nearly the whole period an open common, and much of the Witherell farm also, for a large portion of the time, and the travel seems to have been anywhere, over or across the common, within and without the eighty feet, wherever the ground was best fitted for the purpose. The greater portion of the travel seems to have been between the time when the company took up their track from Jefferson avenue to Gratiot street and turned their road down the latter street, which was about 1842, and the time when they re-laid the track there, in 1851, when the ditches which had been made each side by the company, and the old road-bed and the culverts left there, rendered the road-bed itself, for much of the way, passable for teams; and when the travel was more nearly confined
And though the bill contains no' averment of an acceptance by the city authorities of the alleged dedication, or even of any recognition of it -by them during the period in question (and therefore such evidence, if it appeared, would hardly be in support of any case made by the bill), we have nevertheless looked carefully through all the evidence for the purpose of finding, if possible, any evidence showing an acceptance by the proper city authorities. But though we find that the subject was frequently brought before the council by petition of the inhabitants who owned property near the line and were interested in having a. street there (and upon whose testimony the evidence of user mainly depends), and, though the'Detroit and Pontiac Railroad was' frequently complained of as a nuisance, for running across the streets of the city, and because they did not build the proper bridges, crossings- or sidewalks across their track, and though they were notified by the council to build such bridges, we find no action of the council fairly showing any intention to accept the supposed dedication. We find that sidewalks along the streets crossing the railroad, and crosswalks across said railroad and the space-in question, were ordered and wére constructed. But we find no work ordered to be done upon the street, nor any sidewalks .ordered constructed along the length of the street, nor any money appropriated or expended-upon it.
■ The space, or rather so much' of it as' was not occupied by the railroad, was spoken of generally, and generally known, by the name of “ Dequindr'e street.” And it was often men
On the other hand it appears, we think affirmatively, that up to the time of the Watson deed (as late as it is material to inquire) the common council had not only not determined to’ claim the land as a street, but had deliberately decided not to assert a. claim to it as a street, until the question should have been decided between .other parties.
On the 5th of August, 1851, there was a report from the majority of a committee which had been appointed by the common council to inquire by what authority the Detroit and Pontiac Eailroad Company have taken possession of Dequindre street, and also a report from the minority of the same committee. The report of the majority expressed the opinion that the street had been unequivocally dedicated to the public, and that it was the duty of the city, in its corporate capacity, to maintain its free use to the people of the city, and that the city should, at, once, take steps to apply an effectual remedy. They, therefore, recommend that the city attorney be instructed forthwith to take such legal measures as will test the right of the company to the possession of the street. The minority report, without expressing any opinion upon the legality of the dedication, or the right of the public to it as a street, concludes that whether the company are entitled to it for their railroad, is a question of fact to be determined in a proceeding between them and the representatives of the deceased (Dequindre), in which the city cannot intervene. It then proceeds: “It maybe added, also, that the question whether that street be a public highway, is a question of fact to which both the company and those representatives are
Both these .reports were referred to the city attorney, and, on the 15th day of August, 1851, the city attorney reports that he adopts as correct, the report of the minority of the committee; and this report was on the 26th day of August adopted by the council. Nothing in any way contravening this action was done by the council, up to the time, at least, when the railroad company obtained their deed from Watson.
IJp to the time, then, when this deed was obtained from Watson, there had been no acceptance by the city of the alleged dedication. And whether the conditions of the agreement with Dequindre had been performed or violated by the company, we can see no reason to doubt that it would have been entirely competent, if not for Dequindre alone, at least for Dequindre with the consent of the company, to withdraw and put an end to the unaccepted dedication. Until acceptance, it was in the nature of a proposition, by which he could not be bound. And what it was competent for him to do in this respect, with the consent of the company, it would be equally competent for his heirs or any of his or their grantees, having the whole estate, to do.
As already stated, Dequindre, in October, 1836, had conveyed in trust for his creditors, to Peter J. Desnoyers, the
But it was urged with much earnestness by complainant’s counsel, that inasmuch as Dequindre and Desnoyers, and other parties deriving title under them, had sold lots according to, and referring to, these plats, and as Watson himself had thus sold lots, and all the lots had been thus sold before the deed from the heirs to Watson, all the parties through whom Watson claimed, and Watson himself, were thus estopped to deny the existence of this street as shown upon the plats; that it would be unjust and a fraud upon the lot-owners to permit the retraction of the dedication after they bad thus purchased on the faith of the plats. This is a question which may arise between the lot-■owners and the heirs of Dequindre, or, possibly, between them and the company. But whatever rights these lot-owners may have, are private rights, and cannot be adjudicated in this suit' to which they are not .parties; nor can those private rights be made the foundation of a public right in a suit brought by the city entirely in behalf of the public and for the sole purpose of securing a public right. — Smith v. Lock, 18 Mich., 56.
■ A question of much importance was raised by the defendants and very fully discussed by counsel on both sides, whether, supposing the case made by the bill to be maintainable in other respects, and to be established by the proof, the city, in its corporate capacity, was the proper or a competent party to bring this suit on behalf of the public.
But while we do not consider the rights of the city by any means clear upon the authorities, we have thought it best to express no opinion upon it, believing it better for the interests of all parties to consider and decide the case upon its merits.
The decree of the circuit coxirt in chancery dismissing
