Attorney General ex rel. McKay v. Detroit & Erin Plank Road Co.

• Decision Date: 03 May 1864
• Court: Michigan Supreme Court
• Parties: Attorney General ex rel. McKay v. Detroit & Erin Plank Road Company

2 Mich. 139

Attorney General ex rel. McKay v. Detroit & Erin Plank Road Company

Supreme Court of Michigan

May 3, 1864

Motion for an injunction denied.

Backus & Harbaugh, for complainants.

Emmons & Van Dyke, for defendants.

OPINION

By the Court, Whipple, C. J.

A motion for an injunction was made in the Circuit Court of Wayne county, founded on the following facts: A common or public highway, called the Fort Gratiot Road, commencing at the city of Detroit, and extending through the townships of Hamtramck and Grosse Point, is alleged to have been obstructed by a corporation called the Detroit and Erin Plank Road Company, by the construction of a plank road and the erection of toll houses and toll gates over and across the said road. The bill also states that the Fort Gratiot Road has been established, worked and used for upwards of twenty years, and that the company has never applied to the supervisor or commissioners of highways of Hamtramck, for the purchase and release of any part of the Gratoit Road embraced in said township, and that neither the commissioners or supervisor have ever granted in any way to said plank road company a right to enter upon, take or use any part of said Fort Gratiot Road for the purpose of constructing maintaining or using a plank road thereon.

As it is important to the public interests that the real question involved in this controversy should be definitely determined and the door closed to future litigation, we have not thought it necessary to pronounce an opinion upon the question presented by the defendants, as to whether or not the case made by the bill would justify the interposition of a Court of Equity by writ of injunction, supposing the defendants to have had no authority under their charter to take possession of the Fort Gratoit Road, without the assent of the supervisor and commissioners of highways of the township of Hamtramck.

The act entitled "An Act relative to Plank Roads," approved March 12, 1848, provides in the first section, that all corporations thereafter created for the purpose of erecting plank roads, should be subject to the provisions therein contained. By the fourteenth section of this act, it is provided in substance, that whenever any plank road company may wish to use any part of a public highway or street for the construction of their plank road over the same, such company shall apply to the supervisor and commissioners of highways of the township, or common council of any incorporated city, or the president and trustees of any incorporated village, as the case may be, in which the highway or street is situated, for the purchase or release of the same; and it shall be the duty of such supervisor and commissioners, or common council of any incorporated city, or the president and trustees of any incorporated village, as the case may be, to examine at the expense of such company so much of any such highway or street as may be wanted as aforesaid by such company; and if in the opinion of such supervisor and commissioners, etc., the public interest would not be prejudiced by granting the application of such company, the supervisor and commissioners, or a majority of them, may in writing signed by them, grant to such company a right to enter upon, take and use such highway or street for the purpose of the construction, maintenance and use of a plank road thereon, under the provisions of the charter of such company; and upon filing such grant in the office of the township clerk, the company are authorized to use such highway for the purpose aforesaid. The amount received by the supervisor and commissioners for such grant, is directed to be expended in improving the highways, or in purchasing the right of way for highways, in such township. The second section of the act to incorporate the Detroit and Erin Plank Road, authorizes the company to construct a plank road from the city of Detroit, on the Fort Gratiot Road (so called) twelve miles to the township of Erin in the county of Macomb, with the privilege of extending the same to the village of Utica, in said county. Section four authorizes the company, when duly organized, "to enter upon and take possession of so much of said Fort Gratoit Road as lies between the said city of Detroit and the township of Erin, in the county of Macomb, and proceed to construct and maintain thereon a plank road." By the sixth section, the provisions of an act entitled "An act relative to Plank Roads," approved March 13th, 1848, shall be deemed a part of this act of incorporation.

The difficulty which presents itself, arises out of an apparent conflict between the provisions of section 14 of the general plank road act, and the 4th and 6th sections of the...