Dickerson v. City of Detroit

99 Mich. 498 | Mich. | 1894

Hooker, J.

On September 5,1870, Hannah Stewart platted block 99 of the Cass farm in the city of Detroit, the plat being recorded the same day. The following conveyance, •duly acknowledged, was written upon the plat:

“ State oe Michigan, ) “ County of Wayne, j ss'

“ Know all men by these presents that I, Hannah Stewart, of the city of Detroit, do hereby dedicate to the perpetual use of the public all the streets and alleys on the plat hereto annexed, especially reserving to myself, my heirs and assigns, the reversion thereof, whenever the same may be discontinued by law.

“In witness whereof I have hereunto set my hand and seal this 5th day of September, A. D. 1870.

“Hannah Stewart. [L. S.]

“ Signed and sealed in the presence of—

“Henry Stackey.

“Thomas Joyce.”

On the north side of the block was a strip of land 50 feet wide, the south 30 feet of which was separated from the north 20 feet by a dotted line; said 30 feet being inscribed, “Thirty feet reserved for sidewalk, shrubbery, and ornamental purposes.” This strip of land was afterwards used, as it was apparently intended, as a street, and is now known as “ Prentiss Avenue.” On July 17, 1889, A. Oass Canfield platted block 101 of the Oass farm, lying immediately north of and separated from block 99 by Prentiss avenue. This plat appropriated a strip of land 10 feet in width contiguous to and north of said street as it then existed for the purpose of such street. In 1891 the city ordered Prentiss avenue paved for the width of 26 feet in the center of said strips, i. e., said paved section to comprise the south 16 feet in width of the 20-foot strip and the north 10 feet of the 30-foot strip platted by Stewart. The situation is shown by the diagram on page 500. ■

The complainants are lot owners on block 99, abutting upon said Prentiss avenue, and the bill is filed to restrain the city from constructing any portion of said pavement upon the 30-foot strip. Their counsel contend that, while such strip was dedicated for street purposes, as is evinced by its prescribed use for sidewalks, the public took only a restricted right, and that its use was limited to sidewalks, shrubbery, and ornamental purposes, and this did not give the public a right to pass or repass upon it.

It is clear to our minds that it was the intention that the 30-foot strip should become a part of the street, and that the same should be used for sidewalks, upon which the public should have a right to pass, and which walks should be subject to municipal regulation and control. We see nothing to prevent the city from requiring a sidewalk 30 feet wide, and entirely covering said strip; nor is

there anything that makes it incumbent upon the city to plant or care for a shrub or tree, or place anything ornamental upon it. The most that can be claimed is the right of the land-owner to ornament it, and this certainly would be subject to the right of the city to use for sidewalks. We have little doubt that it was the expectation upon the part of Stewart that a wider street would be made when the land lying north should be platted.

There are authorities which hold that a dedication for a street, with a right reserved in the owner, is a good dedication, but that the condition or reservation, if inconsistent with the use for which the dedication is made, is void. See Elliott, Roads & S. 109, 110, and Richards v. Cincinnati, 31 Ohio St. 513. "We think it unnecessary to dispose of the case upon that ground. In our opinion, this 30-foot strip has become a public street, without restriction, by user.

The decree of the circuit court, dismissing complainants’ bill, must be affirmed, with costs.

The other Justices concurred.