Panfil v. City of Detroit

• Decision Date: 28 March 1929
• Docket Number: No. 167.,167.
• Citation: 246 Mich. 149,224 N.W. 616
• Parties: PANFIL et al. v. CITY OF DETROIT.
• Court: Michigan Supreme Court

246 Mich. 149

224 N.W. 616

PANFIL et al.

v.CITY OF DETROIT.

No. 167.

Supreme Court of Michigan.

March 28, 1929.

Appeal from Circuit Court, Wayne County, in Chancery; Major L. Dunham, Judge.

Suit by Anthony C. Panfil and another against the City of Detroit. Decree for plaintiffs, and defendant appeals. Affirmed.

Argued before the Entire Bench. Walter Barlow and Arthur F. Lederle, both of Detroit (Clarence E. Wilcox, of Detroit, of counsel), for appellant.

Frank C. Cook and John P. O'Hara, both of Detroit, for appellees.

NORTH, C. J.

In 1923 the plaintiffs owned and occupied as a residence in the city of Detroit certain property which will be referred to herein as lot 79 of Smart Farm subdivision. Incident to the opening and widening of McGraw avenue, this lot, as a part of a special assessment district to which 60 per cent. of the cost of the improvement was apportioned by the common council, was assessed $1,440. It was also assessed $1,780.72 for paving and $198.28 for constructing a sidewalk on McGraw avenue. The plaintiffs claim that these assessments so levied are illegal and excessive in amount, and that they have been imposed as the result of fraudulent conduct of the assessing officers. By the bill filed herein, the plaintiffs ask to have these assessments set aside and their property relieved from the lien, and further that the defendant city be restrained from enforcing collection. The relief sought by the plaintiffs was decreed in the circuit. The defendant has appealed.

Plaintiffs' lot fronts west 40 feet on Lonyo boulevard, which runs north and south. McGraw avenue extends from Martin avenue on the east to Michigan avenue on the west, and crosses Lonyo boulevard at right angles. Before the laying out of McGraw avenue, plaintiffs' lot was bounded on the south by lot 78 of the same subdivision, which lot also faced 40 feet on Lonyo boulevard and extended back 150 feet, the same as plaintiffs' lot. The general plan of McGraw avenue was to lay out a street 86 feet wide. If it had been laid out only 86 feet in width at the place in question, it would have occupied approximately the southerly 32 1/2 feet of lot 78. In other words, the north line of the street would not have been adjacent to plaintiffs' property, but instead would have been substantially 7 1/2 feet south thereof. Notwithstanding the city did not actually need the whole of lot 78 for the purpose of a street 86 feet in width, in the condemnation proceeding incident to laying out McGraw avenue the whole of lot 78 was taken. In some other instances where nearly the whole of a lot was needed for this improvement, the condemnation proceeding covered the entire lot. But for some reason not apparent in the record, in other cases only so much of the lot as was actually needed for an 86-foot street was taken, and a narrow strip of land extending the whole length of the lot would not be included. It is plaintiffs' claim that the defendant's purpose in taking the whole of lot 78 was that their lot 79 would thereby become a corner lot, and being adjacent to the newly established avenue, would be subject to a larger assessment for benefits and would also be subject to assessment for the pavement and sidewalk on adjacent portions of McGraw avenue. The Detroit city charter (title 6, chap. 3, § 2) provides for assessing the cost of pavements (excepting intersections) and sidewalks against ‘abutting or adjacent’ property according to frontage. Hence if the city had not condemned the whole of lot 78 none of the cost of the pavement or sidewalk on McGraw avenue could have been assessed against the plaintiffs' lot 79. And likewise, it is fairly indicated by this record that if plaintiffs' lot had not been made by this method to appear to be a corner lot with frontage on both Lonyo boulevard and McGraw avenue, the amount assessed against it for benefits incident to this improvement would have been less. Plaintiffs' case in part is based upon the claim that the defendant in condemning the whole of lot 78, when the northerly 7 1/2 feet thereof was not needed for street purposes, was prompted by its determination to subject their property to unlawful assessments, that the taking of the whole of lot 78 was excessive condemnation and resulted in the perpetration of a fraud upon the plaintiffs and that because of such fraud the assessments should be held to be invalid.

We are of the opinion that these plaintiffs cannot question in this suit the regularity of the condemnation proceeding through which the defendant became possessed of title to lot 78. The regularity of that proceeding is not subject to collateral attack in this suit. Scotten v. City of Detroit, 106 Mich. 564, 64 N. W. 579;Doherty v. City of Detroit, 244 Mich. 660, 222 N. W. 177. The material question here presented is how much of lot 78 is actually included within the limits of McGraw avenue. It is true that the whole lot was condemned for street purposes. But, if in fact the northerly 7 1/2 feet of this lot is held by the city for other than street use, then plaintiffs' property is not adjacent to McGraw avenue and is not subject to the pavement or sidewalk assessment. This is the claim made in the plaintiffs' bill of complaint wherein it is alleged that the defendant's contention that the whole of lot 78 was taken for street purposes is untrue and amounts to a fraud upon these plaintiffs.

Nothing will be found in this record which tends in any manner to show there was ever any intention of actually constructing McGraw avenue more than 86 feet in width. The blueprints prepared by the city incident to laying out this street indicate a width of 86 feet. The assistant city engineer, under whose supervision the work of opening and widening McGraw avenue was carried on, testified that the actual width of the street was to be 86 feet. Mr. Corcoran, who had charge of the special...