Abrey v. Livingstone

• Decision Date: 10 March 1893
• Court: Michigan Supreme Court
• Parties: ABREY et al. v. LIVINGSTONE et al., Park Commissioners.

54 N.W. 714

95 Mich. 181

ABREY et al. v. LIVINGSTONE et al., Park Commissioners.

Supreme Court of Michigan

March 10, 1893

Appeal from circuit court, Wayne county, in chancery; Cornelius J Reilly, Judge.

Bill by George T. Abrey and others against William Livingstone, Jr. and others, park commissioners, for an injunction to restrain defendants from using certain land for ornamentation as a park instead of as a public street. From a decree dismissing their bill, complainants appeal. Affirmed.

Edwin F. Conely and Orla B. Taylor, for appellants.

John J Speed, (F. H. Canfield, of counsel,) for appellees.

LONG J.

By Act No. 391, Local Acts 1879, the city of Detroit was authorized to establish and regulate a park. Section 1 of the act gave the common council of the city power to purchase the island in the Detroit river known as "Belle Isle," and to improve and use the same as a public park. Section 2 conferred the power upon the council, so far as the legislature had a right to confer it, to erect and maintain a bridge over the American channel between the island and the mainland, and also the power to purchase and acquire sufficient real estate on said mainland, either within or without the limits of the city, for suitable approaches to such bridge from the mainland. The island was subsequently purchased by the city for a park, and the American channel of the river bridged, an act of congress having been obtained permitting it. The full text of that act is set out in Commissioners, etc., v Common Council, etc., of Detroit, 80 Mich. 663, 45 N.W. 508. The island has been beautified, and is used as a park, and the bridge going across to it fully completed. The end of the bridge upon the mainland is within the city limits, and at a point directly opposite of the southerly end of the boulevard as it enters Jefferson avenue. This boulevard extends northward from Jefferson avenue about four miles, thence westward for several miles, and thence southward near to the Detroit river; thus inclosing the outer limits of the city upon three sides. It is 150 feet wide. This boulevard or broad street was authorized to be built and maintained by the city by Act No. 374, Local Acts 1879, and acts supplemental thereto. The city acquired the right of way for this boulevard largely by condemnation proceedings, as it was authorized to do under the act. The boulevard is now nearly completed. Under the power granted to it by Act No. 391, Local Acts 1879, the common council, on January 11, 1886, purchased from Edward Kanter and wife a strip of land for an approach to the bridge from the mainland. The strip is 150 feet wide, and extends from Jefferson avenue to the river. It is described in the deed from Kanter and wife as "one hundred and fifty feet front on Jefferson avenue, running back to the channel bank of the Detroit river east and west, lines being parallel, and being a direct extension of the boulevard or Frontenac avenue, so called, and being a part of front concession of private claim No. 678, formerly in the township of Hamtramck." The bridge and this approach were completed in the fall of 1889, and came into general use by the public. At the time of the purchase of this approach the natural surface of the ground descended towards the water's edge, so that, in the construction of the driveway leading over it to the bridge, it was filled up to a level with the bridge,...