People v. Jones

• Citation: 6 Mich. 176
• Court: Supreme Court of Michigan
• Decision Date: 09 December 1858
• Parties: The People v. Catharine H. Jones

6 Mich. 176

The People v. Catharine H. Jones

Supreme Court of Michigan

December 9, 1858

Heard November 23, 1858; November 24, 1858 [Syllabus Material] [Syllabus Material]

Case reserved from Wayne Circuit.

The facts are sufficiently stated in the opinion.

Judgment rendered in favor of defendant upon the verdict.

J. M. Howard, Attorney-General, for the people:

1. The legal effect of the adoption by the governor and judges of the plan of Detroit of 1807, was an actual and present dedication of the ground as streets delineated as such on the map.

The United States were at the time, the actual owners of the lands embraced within the limits of Detroit, and had an undisputed right to grant or dedicate it, as they should see fit. They saw fit, by the act of 1806, to authorize the governor and judges, or any three of them, to lay out a town, to include the whole of the old town of Detroit. This was a special authority conferred upon the governor and judges, wholly distinct from, and independent of, their legislative authority. In its exercise they were merely the agents of the government. Their acts were its acts. Their streets and alleys were the streets and alleys of the United States. The act did not authorize them to change any dedication they had made, nor could they do so in their legislative capacity, for the act of dedication not being their own, but that of the United States, it was, when done, necessarily beyond their reach. Indeed, the law does not allow the party making it to revoke a dedication: 5 Sandf. 587.

The resolution of the governor and judges, adopting the plan, made this a highway forever: People v. Carpenter, 1 Mich. 278; Brig Empire State, 1 Newb. 541; Barclay v. Howell's Lessee, 6 Pet. 498; Cincinnati v. White's Lessee, Ibid., 440; People v. Beaubien, 2 Doug. Mich., 283.

Detroit was, at this time, a town corporate. Its trustees had power, by the charter, to cause the streets, lanes, etc., to be kept open and in repair, and free from nuisances; and the dedication was, of course, made in view of the fact that they might, at any time, enter upon the ground for the purpose of repairing and improving it as a street.

2. Actual user, as a highway, was not necessary to complete the dedication: 6 Pet. 498; 2 Doug., Mich., 283; Commonwealth v. Rush., 14 Pa. S. R., 186; Matter of Thirty-second Street, 19 Wend. 130; Rowan's Ex'rs v. Portland, 8 B. Monr., 232.

3. The deed to Beard was, so far at least as this street was concerned, entirely ineffectual. The act of 1806 authorized the governor and judges to sell, not streets, but lots, i. e., parcels of land which they should, in laying out the town, designate as such. This is plainly the extent of their statutory power to sell. Besides, the act of dedication was, in its nature, irrevocable: Pitcher v. N. Y. & E. R. R. Co., 5 Sandf. 587; Adams v. S. & W. R. R. Co., 11 Barb. 414; State v. Woodward, 23 Vt. 92.

4. No presumption of an abandonment of their right by the public arises from the omission to open and work the street. No length of time can legalize a public nuisance: 1 Chit. Cr. L., 160; 1 Russ. on Cr., 305; Weld v. Hornby, 7 East. 199; Mills v. Hall, 9 Wend. 315. If it could, and thereby give the offender, or his successor, a prescriptive right against the public, the principle would be inapplicable to a case like the one at bar, where streets were laid out for the future, not for the present--and with full knowledge that generations must pass away before all these streets would be actually used.

G. V. N. Lothrop, for defendant:

1. The platting, by the governor and judges, no more ipso facto established public highways than does the act of an individual who plats a piece of private property into lots, streets and alleys. Such platting is not necessarily nor usually a dedication. It simply contemplates a future dedication, and this plat is but the first step towards it. He intends afterwards to open it, and sell lots along the proposed street. And when this is done, and not before, it can be said that there is a dedication.

The object of the plan in question was to lay out the city into lots, with a view of adjusting titles, and, by deed, conveying the lots as provided in the act of congress. It was the adoption of a general plan which should furnish the groundwork for shaping into some system the work of these magistrates in adjusting and making titles. It was nothing more nor less than a proposed chart for the guidance of their future action. It was the plan of the city as they proposed it should be. So far as they could carry it out in their subsequent action, it became the actual plan of the city. When they should adjust titles, and sell and convey lots according to the proposed plan, they would thereby recognize and establish that part of the proposed plan--thereby recognize, establish, and dedicate the streets and alleys which were adjacent to such lots, and contemplated as adjacent to the same: May v. Tillman, 1 Mich. 263; U.S. v. Chicago, 7 How. 185; Oswego v. Oswego Canal Co., 2 Sel. 257; Badeau v. Mead, 14 Barb. 329; Clements v. West Troy, 16 Barb. 251; Bailey v. Copeland, Wright, 150; Matter of Twenty-ninth Street, 1 Hill 189.

2. But, conceding that the plan of the governor and judges had the effect claimed, we say that the premises in question ceased to be a highway long ago. After this long period of non-user and exclusive private occupancy, it will be presumed that the right is extinguished or abandoned: Beardslee v. French, 7 Conn. 125; Fox v. Hart, 11 Ohio 414. Especially should this be so when the only ground for assuming that a highway ever existed is a naked laying out on paper.

3. By the laws of 1833 (p. 110), if any highway already laid out should not be opened and marked in six years, and by the statutes of 1838 (p. 127) in four years, it ceased to be a highway for any purpose. These statutes seem to us decisive of this question, if the proposed street was ever a highway. They would also settle the period within which the court might presume an abandonment of a highway, in a case where the statute did not, in terms, apply.

OPINION

Campbell J.:

The defendant was indicted for obstructing an alleged highway, described in the indictment as leading from Jefferson avenue to the Detroit river, in the city of Detroit, and known as Shelby street. A special verdict was found, and the liability of the defendant to judgment upon that verdict, is the question reserved for our opinion.

From this it appears that in the year 1807 the governor and judges adopted a plan of twelve sections, in separate parts--section 3, embracing the land in controversy, having been adopted April 27th, 1807; and on the same day a resolution was adopted that the plan of this section, and of sections 1, 2, 4, 6, and 8, "be confirmed, and be a record, and that they be signed by the president of the board, and be attested by the secretary in identification; and that no alteration be suffered therein without an order of the governor and judges to that effect." The section in question is bounded north by Jefferson avenue, and east by Woodward avenue. A street parallel with Jefferson avenue has long been, and is now, open according to the plan, as far as the street below the land in controversy. The plan calls for its continuation a considerable distance further, to the west boundary of the plan. The jury find that the street and alley spaces on this section have never been, except in part, opened, used, and recognized in fact as streets and alleys: That whet is claimed as Shelby street in the indictment is represented on the plan by a space of sixty feet in width, reaching from Jefferson avenue to the river: That on January 16th, 1811, upon the application of Aaron Greeley and David Beard, to purchase the lands in front of their respective lots in the old town of Detroit, between the merchants' and public wharf, an order was made to sell to them, at a certain rate per square foot, subject to the new plan of Detroit, and all intervening claims; and a deed was accordingly made to David Beard of a tract embracing the premises in controversy, for a consideration embracing payment for the whole of it. This lot extended to the street parallel with Jefferson avenue, now known as Woodbridge street. In the habendum clause of the deed, it was made subject to the new plan of Detroit, and all interfering claims. At the date of the deed, the water came nearly or quite up to Woodbridge street at the intersection of Shelby street, and nearly all the premises conveyed were under water. Since that date, Beard and his grantees (the defendant being such) have continuously claimed and occupied the whole premises as private property; and the land was reclaimed from the river, and buildings erected upon the alleged street, as early as 1816, and continued there ever since. In 1819, the building now complained of was erected in the alleged street space, and has been maintained there to this time. So much of the alleged Shelby street as lies between Woodbridge street and Jefferson avenue was never actually opened as a street, according to the plan. The ground over which it was projected was known as the Dodemead lot, and remained inclosed and used as private property, until 1828, when the corporate authorities of Detroit caused a street forty-four feet wide to be opened through the Dodemead lot, and paid the owners of the land for the strip so taken. The premises in question have always been claimed, reputed, and occupied as private property. The building in question has been used as a warehouse, and a passage has been kept up from Woodbridge street to it, and used by all persons having business at the warehouse and dock. No part has been claimed, or used, or worked by the...