105 Mich. 529 | Mich. | 1895
December 4, 1886, plaintiff purchased from one John You ell lot 1 of Bryan & Ball’s addition to the city of Grand Rapids, situated on the corner of East Fulton and South Waterloo streets. The deed excepted the .right of way for Fulton street. She was the owner at the time of the grievance complained of. In 1884, Fulton street was opened, from Waterloo street to the Fulton street bridge,.66 feet wide. It became necessary to fill in the street between those points, so that the roadway, which was then fixed at the width of 38 feet, was about
The plaintiff’s claims are these:
“1. The resolution of the common council, that the paving of the street was a necessary public improvement, did not carry with it the right to widen the grade or the roadway on a part of the street, and such change was not properly authorized.
“2. The area wall was her property. Even if the city, under its general charter authority over streets, had a right to remove it after taking proper steps, it had no right to appropriate it to its own use. Such appropriation amounted to a taldng, and falls within the constitutional prohibition.
“3. There was an absence of such impartiality as a city is bound to exercise in its dealings with its citizens.
“4. The destruction of the sidewalk and the filling of the area constituted damage, for which, under the circumstances of this case, the city is liable.
u5. The deposit of earth on plaintiff’s lot was a further*532 damage, from which defendant could not escape liability by removing it after this suit was commenced, and as to whether it had been removed at all or not there was a conflict of testimony, raising a question of fact, which should have been submitted to the jury.”
The authorities cited do not sustain the contention of the learned counsel. In Fisher v. Thirkell, 21 Mich. 1, the opinion goes no further than to hold that excavations under public streets, properly and safely constructed for the benefit of the adjacent owner, and which do not interfere with the public use, are not unlawful.
Grand Rapids & Indiana R. R. Co. v. Heisel, 38 Mich. 62, decides' that a commercial steam railroad cannot be authorized in a city street without compensating adjacent owners.
Muzzey v. Davis, 54 Me. 361, decides that granite curb stones, put in by the lot owner, were his property, and the city was liable for removing and selling them.
In Sheldon v. Kalamazoo, 24 Mich. 383, the corporation tore down the plaintiff’s fences upon the assertion that he was occupying part of a village street, and it was held that he could not be dispossessed without legal process.
In Vanderlip v. City of Grand Rapids, 73 Mich. 522, the
The contract and specifications contained the following:
“All plank walks on the street to be taken up with care and be deposited on the adjoining premises, unless previously cared for by property owners. All plank approaches to crosswalks or sidewalks, required to be taken up in excavating approaches in intersecting streets, shall be taken up with care, and be deposited in some safe place, and, when such approaches are graded and crosswalks laid, said plank walks and approaches shall be relaid in as good condition as before they were disturbed.”
It became necessary to remove the sidewalk in order to make the improvement. In removing it, and placing it upon plaintiff’s lot, neither the city nor the contractor was guilty of converting the material of which it was built. After the improvement was completed it appears that a sidewalk was constructed, but by whom or at whose expense does not appear. Certainly, if the city rebuilt it, plaintiff has not been injured.
Judgment affirmed.