59 Mich. 43 | Mich. | 1886
Lead Opinion
November 7, 1884, the complainants, in the Superior Court of the city of Detroit, were granted a decree to the effect that Joseph Campau avenue, in said city, is a common and public highway, and extending to the channel bank of the Detroit river; that said Alice M. Scott has a life-estate in, and said James Scott the title in fee, to a water lot situated on the east line of said avenue; that the
As this decree was not appealed from, we cannot pass upon its correctness.
It appears from the record that the defendant Layng was subsequently brought before the court to answer for contempt in not obeying said decree. Layng made a showing that, intending to carry out said decree, in January, 1885, he removed all his boats, apparatus, tackle and other property from said building; that the weather then became so cold that it was almost impossible to work at the removal of said building; that he was not well enough himself to do the work, and too poor to hire and pay men to remove such building and its supports, and asked leave of the court to allow said building to remain until the weather moderated. This was February 9, 1885. On the twenty-fifth day of April, 1885, interrogatories addressed to said defendant Layng were filed, in said court; answers to the same were also filed, and afterwards a hearing was had upon such interrogatories and answers, and testimony taken in the matter. June 15, 1885, it was determined by the court that Layng was guilty of contempt in not removing said boathouse in the manner or within the time as he was directed by said decree, and that, instead of wholly removing said boat-house and obstructions, he had rebuilt said boat-house in the form of a floating boat-house, and kept the same moored to the wharf, extending into the river, and on the east side of said wharf, and between the dock and the
The building first erected by Layng was not on land, but built upon piles in the water. At the time of this contempt sentence, this building had been removed, and a floating scow or boat-house constructed, twenty-four feet in width, fifty-eight feet in length, and about fourteen feet in height, drawing about four inches of water when empty, which boathouse was anchored or tied up next to the dock at the foot of said avenue, ten feet away from the line of complainant’s premises. It appears to us that the defendant gave good reason for not removing said stationary building sooner, and the question, therefore, arises whether the mooring of this floating boat-house where it was is a violation of said decree, subjecting Layng to punishment as for contempt. It is a floating structure, not affixed to the realty, but capable of being moved to any point at pleasure. Does it come within the scope of the decree, or of the case made by the bill? We think not. Its presence there does not affect the realty any more than would the anchorage of a vessel at the same point.
It is difficult to conceive upon what ground the decree was founded in the first place. It undertakes to establish a highway to the channel bank of the river, and treat the water between the land and the channel bank as an upland highway. The record shows a wharf or dock at the end of this avenue; and the point or slip wherein the stationary building stood, and where the floating house is moored, is upon the side of this dock. It was plainly decided by this Court in the ease of Horn v. People, 26 Mich. 221, that a wharf at the termination of a street in the city of Detroit was not a part of the public highway, and that the city had author
The proceeding, however, under which Layng must be punished, if at all, for the maintenance of this floating boathouse within the slip is for the alleged violation of the injunction contained in said decree. The complainants are not entitled to this remedy against him, unless some tangible wrong has been done them. To enforce this penalty there should be clear proof of damages. Neither the bill nor the proofs taken show that there are any improvements, or any dock, or erection of any kind, upon complainants’ lot. By the mooring of this floating boat-house within this slip their water facilities are not injured in any way shown to us. The tying up of this movable structure to the dock, over which complainants have no control, and in which they have no rights, because of their ownership of this lot, cannot be presumed, without proof, to be a nuisance or an irreparable mischief to them. It does not interfere with any of complainants’ rights as alleged in their bill. It is not an obstruction to the highway. It may be a hindrance to navigation, but it does not infringe upon any of complainants’ rights as alleged in their pleadings or shown in the proofs. The conviction of defendant is reversed, and he must be discharged, with costs of both courts.
Rehearing
Motion for rehearing. Argued February 9, 1886. Denied February 10, 1886.
We find nothing in the reasons presented for a rehearing to make us doubt the correctness of the decision already rendered, and a rehearing is denied.
