49 Mich. 249 | Mich. | 1882
The object of the bill in this case is to obtain a perpetual injunction against the use by the city of Detroit of Michigan Grand avenue for market purposes to the prejudice of complainant.
Michigan Grand avenue extends from Campus Martius to Randolph street, and is two hundred ;feet in width. Fifty feet in width through the middle, from end to end, was duly taken and condemned by the city for market purposes several years ago, and is now occupied as a public market, with buildings and sheds. This appropriation left seventy-five feet in width for a public street on each side. Bates street intersects Michigan Grand avenue between Randolph street and Campus Martius. Complainant is owner of a lot one hundred and thirty feet in width on Randolph street, facing the easterly end of Michigan Grand avenue, and of another lot fifty feet in width on the northerly side of the Grand avenue. The Randolph street lot is occupied by six four-story brick stores, in two of which complainant carries on business as wholesale grocer, and the other four he has been accustomed to rent. The other lot is covered by a building in which complainant cai’ries on the business of pork packing.
The city hall formerly occupied the westerly end of the present market grounds, but has now been removed. Before its removal the common council passed an ordinance whereby it was declared that the “ square of ground lying between the east end of the city hall and the east line of Randolph street ” should be “ a public market, to be known as the city hall market.” Another ordinance provided that
Changes were made in these ordinances and additional regulations established, but it will be sufficient for the purpose of this suit to give the regulations as they existed at the time the suit was instituted. Previous to that time the easterly boundary of the market had been changed from the east to the west line of Randolph street, so as to exclude that street. The following are city ordinances:
“All persons selling or offering for sale from wagons, carts or other vehicles, within the limits of the city of Detroit, any vegetables, fish, poultry, produce, meat or articles of any kind, shall occupy and stand with such wagons, carts or other vehicles which they may use in exposing such articles as aforesaid for sale, in the following places, as directed by the clerk of the market, subject to regulation by the common council by resolution, and in no other place or places, to wit:
“ All that space known as the central market grounds, and lying between the Campus Martius and Randolph street, and on such portions of the eastern and western district hay market grounds (so called) as may be laid out and designated for such purpose by the Board of Public Works, under the direction of the common council.
“ In addition to the duties already prescribed, the market clerk shall collect a fee of ten cents from every owner, driver or other person in charge of any team or vehicle standing upon or occupying for market purposes the public market grounds of the city, or any of the streets or public squares adjacent thereto. Por every fee so collected the said clerk shall deliver to the person from whom he collected the same a ticket receipt furnished such clerk by the controller, as hereinafter mentioned.
“ All wagons, carts and other vehicles shall occupy such positions on the market grounds and streets adjacent thereto as the clerk of the market shall direct.
“ There shall be collected from every owner, driver or other person in charge of any wagon, cart or other vehicle using the market grounds or public squares or streets adja*254 cent thereto, for market purposes, a rent or fee of ten cents, and for every live calf offered for sale a fee of ten cents, and for every live sheep or lamb a fee of five cents.
“The clerk'of the market shall have charge of the markets, take care of the buildings thereof, attend therein daily during market hours, keep the same in a clean and orderly condition, collect all rents of stalls and stands, and such fees from wagons and other vehicles, also for calves, sheep' and lambs, as may be fixed by the common council; see that market wagons and other vehicles occupy such positions so as not to interfere with public travel, as may be prescribed by the common council; carefully observe that the rules and regulations of the market are properly observed and respected, and make complaint of any infractions of such rules and regulations or of any ordinances of the city.”
It is alleged in the bill of complaint that the use of Michigan Grand avenue and Randolph streets for market purposes began in 1865, and has been increasing from that time to the present; that during the last four or five years, on the principal market days, and during the market hours from six o’clock in the morning until ten or eleven o’clock these streets in the vicinity of complainant’s premises have been so much obstructed by market wagons and vehicles stationed upon them by the market clerk as to exclude all other traffic upon and use of said streets, and as to render the complainant’s places of business inaccessible by the complainant’s own vehicles or those of his customers. This obstruction of the streets in front of and adjacent to the complainant’s premises is averred to be a great injury to his business, and it is alleged that it not only greatly impairs the rental value and prevents him from obtaining suitable tenants, but damages the fee in the land and causes irreparable injury. Complainant insists that it is the duty of the city to so regulate the use of the public streets as to prevent all unlawful or improper obstructions to the use thereof for the purposes to which they were dedicated, but that he has appealed to the proper authorities to do so and redress his grievance in vain. He denies the power of the city to appropriate any portion of the public streets to market purposes, and insists that all ordinances and regulations of the city purporting to
“ That the damage to the plaintiff’s business and property may be ascertained by proceedings in this cause for .that purpose, and that a decree may be rendered in favor of the plaintiff against the defendant, the city of Detroit, for the amount thereof, with costs.”
Answer was filed on behalf of the city and its officers, in which it is averred that the city ordinances do not and were ■not intended to give to any person whomsoever any, right, privilege or license to occupy any portion of the public highways of the city as a market ground, or for any purpose beyond that reasonable use of the public highways to which all persons are entitled. It is further answered that •“ the city of Detroit does not claim the power or right to use the public streets of the city as market grounds, and •does not claim or exercise the right to maintain a public corporate market on any portion of Michigan Grand avenue or ■of the streets adjacent thereto.”
The defendants “ show that the central market grounds, “through the center of Michigan Grand avenue, have been used for market purposes, and a public market has been maintained thereon, by the city of Detroit under a claim of Tight since the year 1834; that the complainant purchased 'his said property and started his said business thereon, well knowing the existence of said public market and of the intent of the city to continue its existence on said strip of fifty feet in width through the center of Michigan Grand .■avenue; that the streets adjacent to said market are not used ’by the city or by the public except in such reasonable manner .as is necessarily incident to the business carried on at said
The case went to a hearing on pleadings and proofs, and the court made a decree of which the following are the-material portions:
1. It satisfactorily appears from the proofs, that the-defendant, the city of Detroit, has by various ordinances,, resolutions and regulations, adopted by its common council, claimed and exercised the right to xise for market purposes the public streets adjacent to the city hall or-central market grounds, as in the plaintiff’s bill denned, and under color of its authority, the defendant, Richard Poole,, the clerk of said market, and his predecessors in office, have been in the constant practice of stationing during market ■hours the wagons and other vehicles of market gardeners,, hucksters, and others having articles for sale about the market, upon such portions of said adjacent streets, namely, Michigan Grand avenue, Randolph, Congress, and Bates-streets, as he saw fit, to the extent oftentimes of blockading-portions of these streets and rendering them impassable by other vehicles, — which has amounted to a misuse and obstruction of those streets as public highways since the year 1865 and by means of such misuse of the streets named, the-defendant, the city of Detroit, has, since April 15, 1875,. received profits in the way of fees collected from farmers, market gardeners, and other persons stationed or allowed to-stand with their teams and wagons on said public streets,, using them for market purposes as aforesaid; and that such misuse of the streets named was in violation of, and an interference with, the rights of the plaintiff in the enjoyment of' his property described in the bill of complaint, as well as-an interference with the use of the same streets by the-public.
2. The court further declares that the use of the streets-n am ed for market purposes as above and in the plaintiff’s-bill stated, was without warrant of law.
4. And the defendant, the city of Detroit, its controller, market clerk, and all others, its officers, servants and agents, are forever enjoined and restrained from placing or stationing the wagons or other vehicles of market gardeners, farmers, hucksters, or other persons resorting to the city hall or central market in or upon any part of Randolph street, Michigan Grand avenue, or any other public street or space adjacent to said market, and from collecting market fees of any kind from the owner or person in charge of any such vehicles as may be upon any of such streets and outside said market grounds, as above and by law defined.
5. It is further decreed that the prayer of the plaintiff for the allowance of damages sustained by him in his business and property be and the same is hereby denied.
6. It is ordered that the plaintiff recover of tlie defendant, the city of Detroit, his costs, to be taxed.”
It is not necessary to recapitulate the evidence in the case, or to enlarge upon the facts. The city did not dispute that its legislation had the effect to collect the market wagons from the country in the immediate vicinity of complainant’s premises on Michigan Grand avenue and Randolph street to an extent that must at times seriously impede the public travel. The city denied, however, that it was making any-use of the streets that was not customary or admissible, or that it was appropriating any street as market ground. The middle fifty feet of Michigan Grand avenue, as it was originally laid out, had been regularly acquired by the city
On this state of facts it becomes important to understand what the precise ground is of the complaint which has been sustained in the Superior Court. If the complainant has sustained any legal grievance, we should know what is its precise nature, and in what particular the city has exceeded its just and legitimate authority.
It is not claimed that it was wrongful in the city to appropriate the middle part of Michigan Grand avenue to market purposes, even though inconvenience to adjacent property owners was a necessary consequence. The appropriation was regularly made, under an exercise of the eminent domain, and if any person was found entitled to compensation we must suppose it was made. Market places in large towns are a convenience, if not an absolute necessity, and their establishment is an act of legislation. An act of legislation can never be counted on as a legal wrong, however in jurious it may prove to be to pri/ate interests. Detroit v. Beckman 34 Mich. 125; McCutcheon v. Homer 43 Mich. 483.
But it is complained that the city not only took the middle part of the street for a market place, but in effect it took the whole street, because its legislation caused the whole to be occupied and obstructed by market wagons. So far as the gathering of the market wagons in the vicinity was a result of the establishment of a market on the ground appropriated for the purpose, it is plain that it can constitute no legal ground of complaint, for this was but one of the incidental consequences of rightful municipal legislation. Nor, though it might be desirable that all sales in the open market should be made within the limits of the market grounds, will it be claimed that sales in the streets are in themselves wrongful. City streets are not laid out for the
It is said it has become an abuse in Detroit, because the ■city legislation not only suffers the traffic in the street, but it encourages it and congregates the dealers in one locality. It is bringing them together in one locality which causes the inconvenience with which complainant finds fault, and this inconvenience is so serious as to constitute, in his view, a private, if not a public nuisance. It becomes important, then, ¡to know whether any substantial purpose is accomplished by this bringing the market wagons together in one locality and whether the city can justify its action on public grounds.
If it be conceded that the common market articles of the •city may lawfully be sold or exchanged in the streets, it is not difficult to assign some reasons of convenience in favor •of the traffic being localized as far as possible. One strong reason is that buyers will more readily find what they want. Another, equally strong, is that sellers will be enabled more readily to dispose of their wares and will economize time. But a reason more important on public grounds is that the city will thereby be the better enabled to enforce its inspection laws and sanitary regulations.
The inspection of meats, vegetables and other articles of provisions in order to prevent the sale and consumption of those that are unwholesome, and also to preclude frauds and ■cheats in weights, measures and by means of adulterations, ■is one of the most important of municipal duties. But to render inspection inexpensive and thorough, the proper officer must know where he may find the articles he is to examine, and if he must search the city through for the pur
Still, the purpose may be right and the means selected or the measures taken to accomplish it, wrongful; and if what is done by the city in this case amounts to a substantial appropriation of Michigan Grand avenue, and a conversion of it from a thoroughfare to a city market, we must concede that such a case exists here. We must then see what the evidences are of such an appropriation. It is-urged that they may be found in the fees that are charged to those who bring their commodities to the market and are-stationed on the avenue, these fees being apparently looked upon in the nature of rent or of fees for license to occupy a part of the- street. If this were their true nature, the-argument of complainant would have much force. But the-true light in which to regard these fees is that they are fees paid to cover the necessary expense of municipal regulations, and it is not likely that in the aggregate they exceed that expense. Nor does the fact that complainant is sometimes incommoded by market wagons in reaching his place of business make out a case against the city. Such an inconvenience might arise from numerous causes without giving just occasion for a complaint. It might arise from permitting a procession in the street, or from a municipal celebration, or a political gathering; and no one would deem himself entitled to complain that he was injured, unless the city was remiss in enforcing proper police regulations.
The proper police regulations the city claims in this case to have established and enforced. Market wagons are stationed and required to keep their places for the very purpose, among others, of preventing obstruction of general
If it be a fact, as complainant alleges, that the value of ihis property is diminished by the market regulations of the ••city, the result may be deplored, but the injury cannot be ■compensated in a recovery of damages. The vicinity of a market place is generally thought desirable, and it certainly is so for many kinds of business, because the congregation of people makes the business known and renders transactions convenient. It is therefore likely to enhance the value of property. Por some purposes, however, it might not make a desirable neighborhood. A dealer in expensive dress goods would not be likely to locate his business by a fish or vegetable market, and for his purposes the location -of such a market near him might diminish the value of his property. But here again we encounter results which are incident to or inseparable from the gathering of people into towns for residence and traffic. Every person is supposed ■to calculate upon the probability of his interests being affected by such matters when he buys his property or locates his business, and he gains or loses according as his judgment is verified or is disproved by events.
The result of our reflections is that the complainant has
The decree must be reversed and the bill dismissed with costs of both courts.