Weber v. City of Detroit, 159 Mich. 14

Weber v. City of Detroit

159 Mich. 14 | Mich. | 1909

Grant, J.

(after stating the facts). Counsel for complainant cites and relies upon the following authorities: Gregory v. Knight, 50 Mich. 61, 63, 64 (14 N. W. 700); Village of Essexville v. Emery, 90 Mich. 183, 185, 186 (51 N. W. 204); Flynn v. City of Detroit, 93 Mich. 590 (53 N. W. 815); Leonard v. City of Detroit, 108 Mich. 600, 601, 602 (66 N. W. 488); Vier v. City of Detroit, 111 Mich. 646, 647, 648 (70 N. W. 139). In Gregory v. Knight the land was occupied by a “rail fence, stone-row, rail piles, hay barn, and sheds.” In Flynn v. City of Detroit a house was standing about one foot upon the land in controversy, and the balance of the strip was inclosed by a picket fence completely inclosing it with no opening from the street into it. In Vincent v. City of Kalamazoo, 111 Mich. 230 (69 N. W. 501), the strip of land involved had been covered by a building for 30 years. In Vier v. City of Detroit the opinion states that the case possesses the essential features of Vincent v. City of Kalamazoo, supra.

Referring to that case, it will appear that the ground in controversy had been covered with buildings for about 30 years. In this case there are no buildings or permanent improvements. The ground was occupied exclusively by personal property which complainant placed there for his own convenience for sale, and which was *18constantly changing. The merchandise thus placed was changed from three to four times a year. As soon as one pile was sold, it was replaced with other lumber. There was nothing in appearance to indicate a permanent, hostile, or adverse possession. It is common knowledge that merchants are permitted, without objection by the public, to occupy parts of streets and sidewalks in front of their stores to exhibit goods for sale. It has never been held that by so doing they could acquire title by adverse possession. They occupy these portions of the public thoroughfares by permission, and not in hostility to the public. The ground when the plaintiff purchased it was an open common. He did not know where the line was. He purchased his lots by number, and therefore with reference to the plat, which showed that they were bounded on the south by Sherman street and on the north by the alley. He took no pains, however, to ascertain that line or to pile his lumber in accordance with any straight line. Some piles extended into the alley farther than others. That he supposed, when he began to pile his lumber, that he was occupying his own land upon the south side of the alley, is absurd. As shown in the description of the land in the decree, the northern boundary of the strip is a zigzag line extending from the west corner of lot 185 through the alley to a point at or near the northeast corner of said lot, while the southern boundary of the strip is the lot line as platted. He could not have believed that he was occupying land to which he had any title. The apparent fact is that he entered upon this land, then an open common, without any view of his own lot line. No one was interested to complain. He notified no one that he occupied this land with his lumber piles under claim or color of title. He had no claim or color of title. The presence of this movable personal property, placed there for his own convenience in selling and moving, is no notice of any claim or title, or of a possession hostile to the rights of the public. His statement that he claimed title is of no consequence. Title to lands cannot be maintained by an *19unexpressed claim existing in the mind of the claimant. His adverse possession could only commence when he had in some manner notified the public of his adverse claim. City of St. Joseph v. Seel, 122 Mich. 70, 74 (80 N. W. 987).

“The occupancy must be exclusive, known to, and against the will and consent of, those interested, and whose right it is to contest.” Marble v. Price, 54 Mich. 466 (20 N. W. 531).

We said in Fuller v. City of Grand Rapids, 105 Mich. 529 (63 N. W. 530):

“ Owners of adjacent lands acquire no permanent rights in the public streets by the erection of structures for their own use and benefit. So long as the space so occupied is not required for public use, they are usually permitted, but, when the public demands it for the use for which it has been condemned or dedicated, the private use must go, and the structures be removed. The opportunity to remove them is all the right the law gives the owners.”

The language there used is, of course, subject to acquiring title by adverse possession under the authorities above cited.

Under complainant’s contention, every occupancy by an adjoining owner of the unused portion of a public highway or street along its sides for the storage or display of merchandise would result in depriving the municipalities of a portion of their streets if such occupancy were continued for the statutory period. . Such holding is not in accord with authority or sound reason.

“To transform a permissive use into an adverse one there must be a distinct and positive assertion of a right hostile to the rights of the owner and such assertion must be brought to his attention.” 14 Cyc. p. 1152.

It follows that the complainant has not title by adverse possession, but had only a permissive occupancy which ceased when the public demanded the use of the entire alley.

It appears from the record that complainant built a *20fence which is, according to his evidence, south of the south boundary line of the alley, as platted, and on his own ground. He testified that this fence was not constructed with any reference to the boundary line, but for the purpose of keeping people out of his yard, particularly boys who were accustomed to go to a pile of gravel, pick up stones, and throw them at the windows of his buildings. The city contends that this fence should constitute the boundary line. Probably this fence, like the piles of lumber, was not located with any reference to the boundary line. Complainant has obtained no rights upon the city’s highway. Neither has the city obtained any rights to complainant’s land by reason of the fence. The boundary line as established by the plat is the boundary line between the alley and complainant’s lots, 184 and 185.

The decree will be reversed, with costs of this court, and entered in accordance with this opinion.

Blair, C. J., and Moore, McAlvat, and Brooke, JJ., concurred.