223 Mich. 565 | Mich. | 1923
This is a suit to restrain the vacating of a portion of Dyar avenue and certain public alleys and to vacate Norwalk avenue and relocate it in the village (now city) of Hamtramck, as ordered by the village council. Certain premises were subdivided east of the Detroit, Grand Haven & Milwaukee railroad, between Kenwood and Westminster (now Poland) avenues, and in the plat thereof as recorded, Dyar avenue, running north and south through the plat, and Norwalk avenue, running east from Dyar avenue to Dequindre street, and alleys paralleling Dyar avenue were dedicated to the public. Plaintiffs are owners of residences on Dyar avenue between Norwalk and Kenwood avenues. The whole of the subdivision south of. Norwalk avenue and for 95 feet north of that avenue and west to the railroad right of way is owned by defendant company and was purchased for a factory site. When purchased by defendant company the land lay as an open common used as a dumping ground, with Dyar avenue and the alleys wholly unimproved. Desiring to erect a large
December 6, 1921, at a meeting of the full village council of six members, and by vote of five members, one refusing to vote, the council determined that the closing of the portions of the avenues and alleys, as asked for, would constitute a public improvement and be a benefit to the community at large and, by ordinance, “vacated, discontinued and abolished” such portions of the avenues and alleys, making mention, in the ordinance, of the terms agreed upon between the village and defendant company, in substance as follows: Defendant company to pay the village the cost of the water main in Dyar and Norwalk avenues, the expense of taking up and resetting fire hydrants on the corner of Dyar and the new location of Norwalk avenue, the cost of connecting lateral sewers including manholes, to dedicate to the village the land necessary to establish Norwalk avenue at its new location from the alley west of Dyar avenue to Dequindre street, to pay the cost of paving the new Norwalk avenue from Dyar avenue to Dequindre street and cinderize the avenue from Dyar avenue west to the alley, to pay for a sidewalk on the north side of Norwalk avenue from Dyar to Dequindre and to give bond to do so. The necessary land for the new
Plaintiffs claim they
“are vested with certain indefeasible rights in the nature of rights of ways and easements over said thoroughfare (Dyar avenue) beyond the rights of the usage by the general public, that the property of plaintiffs has a higher value by reason of the fact that said Dyar avenue is a through thoroughfare, and that plaintiffs have invested their moneys in the purchase and development of their properties by virtue of the fact that said Dyar avenue was so dedicated, platted and laid out as a public highway.”
They also allege they have suffered great damage by way of depreciation in value of their several properties by reason of the threatened closing of Dyar avenue,
“that the closing of the dedicated and platted streets set forth in the ordinance will deprive plaintiffs of their property without due process of law, and for which they will receive no compensation, and amounts to the condemnation of private property for the financial gains of said defendant, Palmer Bee Company.”
The regularity of the proceedings leading to the adoption of the ordinance is not questioned. It was alleged in the bill, but wholly abandoned at the hearing, that some sinister influence was brought to bear upon the members of the village council by the defendant company. In the brief of counsel for plaintiffs it is stated that the vacation will interfere with their ordinary means of ingress and egress to their homes and “they will live, shut in, as it were, in a blind alley.” This overstates the situation. None -of the plaintiffs have property abutting upon the vacated parts of the streets. Norwalk avenue will
Other factories are near to plaintiffs’ properties and there appear to be no building restrictions, so we are not concerned with the mere location of a factory upon the land of defendant company. The learned circuit judge entered a decree restraining operation of the ordinance.
The question of eminent domain is not involved. By no stretch of imagination can it be said that property rights of plaintiffs are taken. Mere inconvenience in having to go around the east half of the block next south, instead of through it, constitutes no taking of the property of plaintiffs. It is a well settled rule that a lot owner’s right to object to the vacation of a part of a street depends upon whether his lot abuts upon or comes in actual contact with the vacated portion, or access to his lot is entirely or materially cut off by reason of the vacation. That he may be inconvenienced or that he may have to go a more round-about way to reach certain points does not bring to him any injury different in kind from the general public but only in degree. If means of ingress and egress are not cut off or lessened in the
In Kinnear Manfg. Co. v. Beatty, supra, plaintiffs’ contention is well answered:
"We see no good reason for holding, as seems to be contended, that the rule is different as to the streets and alleys of an addition to the plat of a city; that in such case there is an implied covenant that the streets and alleys, indicated on the plat, are to remain*571 open for public use, and that each owner of a lot in the addition may insist on this covenant. In our view the streets and alleys in every addition to a city become a part of its general system of public ways, over which the city through its council and other agents has the same control that it has over each and every part of the system; and that the rights of lot owners in the addition to the use of the streets and alleys, indicated on the recorded plat, are the same, but not greater, than are the rights of any lot owner upon a street or alley.”
See, also, German Lutheran Church v. City of Baltimore, 123 Md. 142 (90 Atl. 983, 52 L. R. A. [N. S.] 889, Ann. Cas. 1916C, 231).
Plaintiffs have an easement appurtenant in Dyar avenue, in the block upon which their lots abut and the alleys in the same block, and this carries right of ingress and egress to their lots thereover and to outlet over cross streets at each end of the block, but no right to stay municipal legislative action affecting Dyar avenue beyond such block, nor so far as Nor-walk avenue has been ordered relocated north of its present location.
Under the statute the council of the village of Hamtramck had power to vacate the streets and alleys in question, and whether such streets and alleys should be vacated or kept open was wholly a matter of expediency, and this was a question for the council and not for the courts to decide. Glasgow v. City of St. Louis, 107 Mo. 198 (17 S. W. 743). In the absence of clear abuse of discretion or fraud the courts may not review the action of the council determining the necessity of vacating streets. As a result of the vacation the land in the streets and alleys discontinued reverts to defendant company by operation of law and plaintiffs complain of this, insisting that the vacation was for the advantage of a private corporation and the act of the council was, therefore, ultra vires.
“The fact that the vacation of a street is for the benefit of the petitioner does not show such fraud or abuse of discretion as to authorize a court of equity to interfere.”
In that case the vacation was to enable a private corporation to use the vacated portion of the street for a large manufacturing plant? See, also, Knapp, Stout & Co. v. City of St. Louis, 156 Mo. 343 (56 S. W. 1102); Glasgow v. City of St. Louis, supra; Kean v. City of Elizabeth, 54 N. J. Law, 462 (24 Atl. 495); Village of Bellevue v. Improvement Co., 65 Neb. 52 (90 N. W. 1002).
The decree entered in the circuit is reversed and a decree will be entered here dismissing the bill, with costs to defendants.
