209 N.W. 125 | Mich. | 1926
The parties to this suit live in Detroit in the block bounded by Woodward avenue on the east, Second avenue on the west, Boston boulevard on the north, and Chicago boulevard on the south. Prior to 1916, this block contained a T shaped alley 20 feet wide. The north and south alley commenced about 200 feet west of Woodward, and ran through the block from Boston to Chicago boulevard, and the east and west alley commenced at Second avenue and ran easterly to the intersection of the north and south alley. In 1916 the common council, on the petition of defendant Siegel, vacated the northerly 162 1/2 feet of the north and south alley, which would be all that portion of such alley north of the east and west alley. More than a year later the common council, on petition of the defendants Freund, McLennan, and Freeman, vacated the southerly 109 1/2 feet of the alley. Thus was left only the east and west alley and a short strip of the north and south alley just south of the east end of the east and west alley, and a small strip of land on either side thereof, which was deeded to the city by defendants Freund and McLennan to provide a large enough turn around for vehicles using the east and west alley.
This suit is to compel the defendants, Freund, McLennan, and Freeman, owners of the property immediately abutting upon the closed portion of the alley, to reopen the same on the ground that the action of the common council in closing it was illegal and void.
These defendants answer by way of cross-bill, and pray that the Siegels, who secured the closing of the north portion of the alley, be made defendants, and that their portion of the alley be likewise decreed opened, and the closing order of the common council secured by them be also decreed null and void. The Siegels appeared specially and moved to dismiss the cross-bill of defendants. The motion was granted, *128 and from an order dismissing the cross-bills, the defendants Freund and Freeman have taken this appeal.
The questions necessary to be determined for the disposition of the appeal are whether or not the subject-matter of the cross-bill is germane to that of the original bill, and whether or not the Siegels, who are not parties to the original suit, may be brought into the case by cross-bill at all.
While new issues may be raised by cross-bill, they must always be confined to the subject-matter of the original bill, and germane to it. 10 R. C. L. p. 485; McGuire v. Van BurenCircuit Judge,
The subject-matter of the bill, in the instant case, is that portion of the alley which appellants have had closed to public use, while the subject-matter of the cross-bill is that portion of the alley the Siegels, by an entirely different proceeding, have had closed to public use. We are not impressed with the claim of appellees that the test of their right to, or the validity of the proceedings in, the closing of the portion of the alley adjacent to the Freund home, is in any way dependent upon the validity of the proceedings in closing the alley further north and adjacent to the Siegel property. One proceeding may be valid, the other void. If plaintiffs had made the Siegels defendants in the original suit, they might have prevailed as to them and been denied relief as to appellants. Because one obstructs a highway it is no defense for him to say that another has also obstructed the same highway, and that if he must remove his obstruction so must the other; if chancery action is brought against one to quiet title to a strip of land at the north of *129 his property, he cannot bring a cross-action in the same suit against his neighbor to the south, on the claim that, if he is occupying land on the north to which he has no right, his neighbor is doing the same thing on the south. If appellant Freund is injured by an unlawful closing of the Siegel alley, he is not without remedy, but such an issue cannot be determined in an action between him and another, not involving the same subject-matter, and in which the Siegels are not parties.
It clearly appearing that the Siegels are in no way necessary or proper parties in the determination of the subject-matter of the original bill of complaint, which involves only the legality of the vacation of an order of the common council of the city of Detroit closing that portion of the alley referred to in the bill, it follows the cross-bills here attacked were filed without legal warrant, and that the trial court was right in dismissing them.
The order so dismissing is hereby affirmed. Costs to appellees.
BIRD, C.J., and SHARPE, STEERE, FELLOWS, WIEST, CLARK, and McDONALD, JJ., concurred. *130