Traverse City Gas Co. v. City of Traverse City

• Citation: 130 Mich. 17,89 N.W. 574
• Court: Michigan Supreme Court
• Decision Date: 18 March 1902
• Parties: TRAVERSE CITY GAS CO. v. MAYOR, ETC., OF CITY OF TRAVERSE CITY. [1]

89 N.W. 574

130 Mich. 17

TRAVERSE CITY GAS CO. v. MAYOR, ETC., OF CITY OF TRAVERSE CITY. ^[1]

Supreme Court of Michigan

March 18, 1902

Certiorari to circuit court, Grand Traverse county; Frederick W. Mayne Judge.

Mandamus by the Traverse City Gas Company against the mayor and common council of the city of Traverse City. Judgment denying the writ, and the relator brings certiorari. Affirmed.

The following is the plat referred to in the opinion:

N. Bay.

RPT.CC.1902001259.00010

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Geo. E & M. A. Nichols (Pratt & Davis, of counsel), for appellant.

George H. Cross, for appellee.

MOORE, J.

This case was commenced by petition for mandamus from the circuit court of Grand Traverse county to the mayor and common council of the city of Traverse City, directing the mayor and common council to convene, and grant to the petitioner the right to lay its main gas pipes in certain streets of said city. The circuit judge refused to grant the relief prayed. The case is brought here by certiorari to review his action. The important question involved is, what are the rights of the respective parties under an ordinance granted in January 1901? three sections of which read as follows: Section 1 provides: 'That H. B. Webber and E. F. Gallagher, of Ionia, Michigan, their associates, successors or assigns, as individuals, or as a body corporate, under the name of the Traverse City Gas Light Company, be and they are hereby authorized to use, 'for the term of thirty years from the passage of this ordinance, subject to the provisions of this ordinance and to such rules and regulations as the council of said city may from time to time prescribe, any and all streets, lanes, alleys and public grounds in said city including any territory that may hereafter be added to the same, for the purpose of constructing and maintaining a gas light plant in said city, and to lay down and maintain in said streets, lanes, alleys and public grounds, from time to time, as said company, its successors or assigns, may deem expedient, iron pipes for carrying gas for supplying said city and the inhabitants thereof with gas.' Provided that said company shall not unnecessarily obstruct the passage of any street, lane, alley or public ground, and shall, within a reasonable time after making an opening or excavation, for the purpose aforesaid, repair the same and leave it in a good condition in all respects as before such excavation was made.' Section 7 provides: 'That said main pipes shall be laid in alleys whenever practicable, and when so ordered by the council. Said grantees, before laying any such pipes in the streets, alleys, highways and public places in said city, must obtain permission therefor from the council upon application in writing.' Section 9 provides: 'That twenty-four hours before opening any street, alley or public place, the said grantees shall give notice to the board of public works in writing of such intention, stating the place where, and the object for which such opening is to be made, and shall obtain from the board of public works a permit therefor.' The accompanying plat will aid in understanding the situation. In pursuance of the requirements of the ordinance, Webber & Gallagher made application to the common council for permission to lay main pipes on certain streets of said city, which was referred to the street committee, and the request granted upon their report. At the time of making the report granting the request referred to, the street committee, upon its own motion, granted permission to lay the main pipes on territory extending beyond that to which permission was asked, which system, as reported by the committee, may be called a 'system through the alleys.' Webber & Gallagher refused to accept the permission so gratuitously extended, claiming they did not deem it expedient or practicable to lay the main pipes as designated and prescribed in said report, on account of the large and extra outlay in laying the pipes and in making connection with consumers. On July 15, 1901, Webber and Gallagher asked for permission to lay the main pipes upon a number of streets in the said city beyond the permits already granted. The common council, upon receiving this application, laid the same on the table, and assigned as a reason that certain property owners and citizens living upon Union street and Sixth street had remonstrated because of the fear of the citizens that escaping gas from the main pipes might kill the shade trees along said streets, and further claiming that it was practicable to lay pipes in the alleys; that said council insists upon petitioner laying its pipes according to the plan in the places so reported by the street committee to the common council, and adopted by it, claiming that under section 7 of the ordinance said council has the right to require the pipes to be laid in the alleys, and that they are judges of whether it is practicable or not. The petition alleges that before it was filed, and after the ordinance was granted, petitioner had made an investment of $35,000 to begin and erect its plant that was then in process of construction. It avers the council has no right to compel the relator to put its pipes in the alleys, and that it will cost a good deal more to do so than in the streets. The council answered this petition, and insisted it was practicable to use the alleys. It denied the relator had made application for the use of the streets described in its petition. It admitted a communication from the relators in reference thereto, and claimed that the council was ready to receive and entertain and act upon any and all proper petitions to lay pipes in the alleys...