Allen v. City of Mt. Morris, Docket No. 9386

• Decision Date: 22 April 1971
• Docket Number: Docket No. 9386,No. 2,2
• Parties: Mark R. ALLEN and Margaret E. Allen, his wife, Plaintiffs-Appellants, v. CITY OF MT. MORRIS, a municipal corporation of Genesee County, Michigan, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 120

189 N.W.2d 120

32 Mich.App. 633

Mark R. ALLEN and Margaret E. Allen, his wife, Plaintiffs-Appellants, v. CITY OF MT. MORRIS, a municipal corporation of Genesee County, Michigan, Defendant-Appellee.

Docket No. 9386.

Court of Appeals of Michigan, Division No. 2.

April 22, 1971.

Released for Publication Aug. 25, 1971.

William R. McTaggart, Flint, for plaintiffs-appellants.

Charles A. Forrest, Jr., Flint, for defendant-appellee.

Before QUINN, P.J., and R. B. BURNS and McGREGOR, JJ.

QUINN, Presiding Judge.

By this action, plaintiffs sought to restrain defendant from interfering with their property. The alleged interference arose when defendant notified plaintiffs to remove a fence, trees, and shrubs that obstructed a platted alley which was not opened until 1962. From the judgment entered by the trial court, plaintiffs appeal.

Plaintiffs' property is described as the west 40 feet of lots 24 and 25 of Bray's addition to the village of Mt. Morris. The plat of Bray's addition was approved September 13, 1909, and recorded December 24, 1909. The streets and alleys in the plat were dedicated to the use of the public. According to the plat, the east line of a north and south 15 foot alley was the west line of lots 24 and 25, but prior to 1962, this alley was unopened and was blocked by trees and underbrush.

Plaintiffs purchased their property in 1944, at which time it was enclosed by a fence. The record indicates this fence was erected about 1926.

For the purpose of installing a sanitary sewer, defendant opened the alley in 1962. Prior to the opening, defendant conducted a survey to locate the alley. This survey disclosed that the actual distance on the ground exceeded the measurements on the plat by approximately 5 1/2 feet. In locating the alley, the surveyor apportioned this excess equally to the property on each side of the alley. As thus located, the east line of the alley came within 1 1/2 feet of plaintiffs' house and the fence on their west line protruded into the alley about 1 3/4 feet.

The theory of plaintiffs' action was that the alley was never accepted by defendant; if accepted, it was abandoned; and that the alley defendant sought to establish was improperly located.

The record is devoid of proof that between 1909 and 1962, the defendant ordered the opening of the alley or exercised any authority over it by way of improvement or regulation. See Tillman v. People (1864), 12 Mich. 401. A serious question could have been raised in 1962 with regard to acceptance within a reasonable time. No question was raised then and a sanitary sewer is now located in the alley. Any issue as...