12 Mich. 401 | Mich. | 1864
This was a prosecution against the plaintiff in error, by complaint in the Recorder’s Court of the city of Detroit, for “ obstructing and incumbering a public alley in said city, running westerly from the westerly line of Griswold street, between Jefferson Avenue and Wood-bridge street, by erecting upon and in said alley, a small office or building, contrary to the ordinances of said city.”
The ordinance claimed to have been violated provides that “No person shall obstruct or incumber any public wharf, street, alley or other public space, with any article or thing whatsoever.’’ See Revised Ordinances of 1863, Ch. 29, § 5. This ordinance relates to no other alleys than such as are essentially of a public character, or which have, in some way, become established for the public use as public grounds; and which, therefore, the general public, or at least the people of the city, have a general interest in keeping, and a right to keep, unobstructed. The complaint must be understood (if it be sufficient for any purpose — a question we shall not discuss) — as intended to describe the alley in question as one of this public character. The power of the Common Council to prohibit by ordinance the obstruction of alleys of a private nature, made only by, or for the use of, the owners or occupants of particular lots, and depending only upon
But neither the ordinance in question, nor the complaint in the case, would seem to have any reference to acts affecting the public health: both speak only of “obstructing and incumbering streets, alleys, &c.” The object of this provision of the ordinance would seem to be mainly, if not entirely, so far as relates to alleys, to secure the use of them for purposes of passage and travel. And the language of the prohibition is appropriate to this end. The public character of the alley, so far as it depends upon its use, or ■ the right of the public to use it, in this manner, can only be maintained on the .ground that it is a public way or highway. Ways must be either public or private : there is no intermediate species of way for any purpose of passage.
Our first inquiry then, is, was this alley a public way or highway at the time of the obstruction or incumbrance complained of?
The alley was laid down upon the plan or plat of the city made by the Governor and Judges in 1806-'?, and, as exhibited upon this plan (upon paper), it extended through the block from Griswold street to Shelby street: but no part of the alley was ever opened by any one, ■or for any purpose, further west than the east line of the Campau lot, 182 feet west from Griswold street; thence through to Shelby street it has always remained closed. Across the west part of this 182 feet of the alley (which was formerly open) a brick building was ■erected within about six feet of the ground, to connect two stores (next the Campau line) on opposite sides of the alley. This building seems to have been erected prior to the obstruction complained of, which is further towards
We held in People v. Jones, 6 Mich. 176, that the adoption by the Governor and Judges of the plan of the. city of Detroit, and . the laying down of a street upon the plat made by them, did not, of itself, constitute it a street or highway; that the action of the Governor and Judges, acting on behalf of the United States as proprietors, was but a naked dedication of the land for a street, and that, as in the case of other land owners, it was essential, before such dedication could become effectual, that it should be accepted by the proper authorities on behalf of the public: that such acceptance should be manifested by some act of the public authorities either formally confirming or accepting the dedication, and ordering the opening of such street, or by exercising authority over it, in some of the ordinary ways of improvement or regulation. If this be necessary in case of a street laid down upon the plan, in order to constitute it a highway, it must be at least quite as essential in the case of an alley laid down upon the same plat.
But as the proper public authorities have never yet accepted, nor exercised any authority over any part of
But it appeared that in 1832 there were several buildings on the south side of that part of the alley east of Campau’s line, which were used as dwellings, and that this was used as a way to them; and on this ground it is claimed that this alley had become, thus far, a highway by user. If the owners of these lots chose to construct dwellings fronting on this alley, instead of the street, they had a right to do so; but they had an equal right to remove them; and this they seem to have done many years ago. It is quite evident, we think, that the use of the alley as a way to such buildings depended wholly upon the will of the lot owners; so far, at least, that when the buildings were removed, or ceased to be ■ used as dwellings, any right of way depending upon such use of the buildings would also cease.
The charge of the Court below assumed that the mere platting of this alley by the Governor and Judges constituted it a public way; or, at least, public ground, which the Common Council had a right to control as such: that the lot owners had no right, therefore, by mutual consent, to close, obstruct or incumber it, or to regulate its use by agreement; and that such obstruction or incumbrance was an offense within the' prohibition of the ordinance. The charge in these respects was, we think, clearly erroneous. So far as appears by the case as now presented, no public right has been injured by the obstruction complained of. The only injury shown to arise from the obstruction, if any, is but a private injury to one of the lot owners, for which he can only resort to his appropriate private action.
The judgment of the Recorder’s Court must be reversed, with costs, and the conviction set aside.