Ranson v. City of Sault Ste. Marie

143 Mich. 661 | Mich. | 1906

Ostrander, J.

{after stating the facts). The construction of the bridge and the approach thereto was made^ necessary by the excavation for the canal and the maintenance thereof. The argument for appellant, shortly stated, is that whatever may have preceded the building of the bridge in question and whatever lawful or unlawful action, public or private, created the condition which made the bridge and the approach thereto necessary, inquiry in the plaintiff’s case should begin with the condition which was, after the construction of the canal, found to exist, and be confined to the action of the authorities in restoring the street to. public travel. To use the language of the brief:

“ One set of municipal officers might wrongfully acquiesce in or license the destruction of a portion of a public street, but could it be said that the act of the succeeding set of officers in devising and carrying out plans for restoring the street would be any less a lawful exercise of municipal authority on account of the original tort ? ”

The general power over streets, their grades and maintenance, and over bridges and the manner in which they shall be constructed, which is usually possessed by cities and is possessed by defendant city, must be considered with reference to, and is limited by, the purposes and uses of public ways. Plaintiff’s damage flows from the construction of an embankment by the city which has the effect to .destroy, to some extent,- her property. Within repeated decisions of this court, there has been a “ taking ” of plaintiff’s property, and, if we could consider the purpose of the taking a “public purpose,” plaintiff was entitled, by the terms of defendant’s charter, to compensation. The city has taken, without proceedings to determine either necessity or resulting damage. So that whether we regard the action of the defendant1 in erecting the bridge as within or outside of the charter powers, .there has been a tortious taking of property. Whether the action of the city can be sustained as an exercise of charter powers is, however, important, as affecting the measure of the plaintiff’s recovery. If there was mere neglect to condemn and to compensate, then the judgment is wrong. Harper v. City of Detroit, 110 Mich. 427; Keyser v. Railway Co., 142 Mich. 143. We are of opinion that the defendant, in causing the bridge to be erected, was not, and did not, in fact, suppose that it was proceeding in the exercise of any charter power of the city over its streets or to erect bridges. See Dean v. Railroad Co., 137 Mich. 459. The bridge was erected, and the necessity for it created, because of an ordinance, in form a contract between the city and private parties. The argument made for appellant, that because the bridge was not erected at the height prescribed in the ordinance, it was therefore not built because of the ordinance and the conditions created by proceedings of private parties thereunder, is not satisfying. The record discloses that for the purposes of a way only, the bridge might have been constructed at, or substantially at, the grade of the street. In principle, the case is ruled by Phelps v. City of Detroit, 120 Mich. 447, as to the right and the measure of recovery.

The judgment is affirmed.

McAlvay, Grant, Blair, and Montgomery, JJ., concurred.