89 Mich. 1 | Mich. | 1891
Plaintiff is the owner of two lots located on the corner of Bellevue street and Rose avenue, in the defendant city, having purchased the same in 1885. These
In 1886 the city established a grade upon Eose avenue, and raised it opposite plaintiff’s lots seven feet. Previous to that the surface of the ground and the street was about the same. A survey made by an engineer showed that the lowest point on the east side of Eose avenue is 3.37 feet higher than the lowest point on plaintiff’s lots. Plaintiff brings suit for damages which he claims are caused by the stoppage of the water, thereby overflowing his lots, and flooding his celar. It is conceded that the proceedings had by the city to establish the grade and improve the street were regular, and in pursuance of the authority granted to defendant by its charter.
An important question is presented by this record, which it would be necessary to determine, but for the fact that the plaintiff by his conduct is estopped from raising it. When plaintiff purchased these lots the territory including them was a part of the city, had been platted, and the streets, including Eose avenue, appropriated to the public use. Whether this street had been '.so appropriated by condemnation proceedings, or by ded. ication on the part of the owner and acceptance by the public authorities, does not appear, nor is it material to the question • at issue. If the former, the owner had received compensation for the land taken; if the latter,
In the present case plain tiff would clearly have no right of recovery were it not for the stoppage of the water and the temporary fiowage of his land. With a full knowledge of the situation, plaintiff and other property-owners along the street, petitioned the common council to establish the grade and improve the street. After they had graded it, a committee of the council was appointed to assess the benefits and apportion the damages. This committee decided that the plaintiff’s lots were benefited to the amount of about $15, and. they assessed it against him. Of all these proceedings he had notice. The charter provided- for a review of the assessment roll. To all these proceedings he made no objections, and voluntarily paid his assessment. He might have appeared before the council to urge his claim for damages. He failed to do so. He has had his day in court, and cannot now be heard in an independent proceeding to recover damages. Brown v. City of Grand Rapids, 83 Mich. 101, and authorities there cited.
Judgment is affirmed.