Bain v. Fry, 53
| Citation | 89 N.W.2d 485,352 Mich. 299 |
| Decision Date | 14 April 1958 |
| Docket Number | No. 53,53 |
| Parties | Ivan BAIN and Irene Bain, his wife, Plaintiffs and Appellants, v. Carl O. FRY, City of Pontiac, Michigan, a Municipal Corporation, Defendants and Appellees, A. J. Roy and Mabel E. Roy, his wife, Edward Booth and Nora Booth, his wife, Intervening Defendants and Appellees. |
| Court | Supreme Court of Michigan |
Robert D. Heitsch, Pontiac, for plaintiffs and appellants.
William A. Ewart, Pontiac, for defendant, City of Pontiac.
Kenneth H. Hempstead, Pontiac, for defendant, Carl O. Fry.
L. C. Burch, Jr., Pontiac, for defendants, A. J. Roy and Mabel E. Roy, his wife, and Edward Booth and Nora Booth, his wife.
Before the Entire Bench.
On July 8, 1955, plaintiffs filed their bill of complaint in the Oakland county circuit court against defendants Carl O. Fry and the city of Pontiac. They alleged ownership of lot 61 of assessor's plat No. 122 of said city; that said lot was on the corner of Oakland avenue and Myrtle drive. Plaintiffs further alleged that they had occupied the premises since about August, 1942, during which time Myrtle drive had been used as a public alley openly and continuously until defendant Carl O. Fry, who owned and occupied the lot directly north of plaintiffs' lot, across Myrtle drive, a short time before the filing of the bill of complaint, used a portion of Myrtle drive for parking his automobile thereon so that plaintiffs were unable to have access from Myrtle drive to the rear of their lot; that defendant Carl O. Fry had caused a fence to be constructed along the southeasterly boundary of Myrtle drive in such a fashion as to constitute an obstruction of plaintiffs' access to Myrtle drive, causing them damages in connection with their property rights in said lot 61. Plaintiffs further alleged that the city of Pontiac was named defendant because of the public interest in Myrtle drive as a part of its street and highway system. It was also alleged that certain city officials had declined to assume the responsibility of keeping Myrtle drive open as a public alley.
Subsequently defendant Roy and wife and defendant Booth and wife sought and were granted the right to intervene as party defendants on the theory that their property rights were involved. They alleged that no lot owner on the plaintiffs' side of the alley had access to Myrtle drive from their properties for a period of 30 years or more. Intervening defendant A. J. Roy further alleged that he is the owner of lot 47 of assessor's plat 122 and that the lot includes Myrtle drive for its entire width of 15 feet.
Intervening defendants moved to dissolve the temporary injunction granted to plaintiffs and asked that a counter-injunction be granted defendants restraining plaintiffs from using Myrtle drive as a means of ingress to and egress from their properties. The motion to dismiss plaintiffs' temporary injunction was granted, as was the request for a counter-injunction.
Defendants all allege that Myrtle drive was a private drive for the use and benefit of the persons owning lots on the northwest side of Myrtle drive; that the private drive was never accepted by the city of Pontiac; that the drive was never offered to said city so that a dedication could have taken place. They denied that any use by the public or maintenance of the premises by public authorities had been made that would constitute a common law dedication.
Plaintiffs claim that the public at large had used Myrtle drive; that it had been maintained by the city of Pontiac; that through the recording and approving of assessor's plat No. 122 city officials as well as county officials had participated in an acceptance of the dedication of Myrtle drive for public use by the city assessor prior to the plat's recording in 1933, endorsing upon the plat the following:
'and that the streets and alleys as shown on said plat are now being used for such purposes.'
The circuit court at the conclusion of the trial concluded that no dedication--statutory, common law or otherwise--had been shown by plaintiffs with reference to Myrtle drive; that it was a private drive; that plaintiffs had no right to use said drive nor any property rights in and to the easement created by Myrtle drive, and permanently enjoined plaintiffs from using said drive.
Plaintiffs appeal to this Court, contending that the record shows that assessor's plat No. 122 was recorded in the Oakland county register of deeds office on April 20, 1933; that it portrays Myrtle drive as a 15 foot drive or alley; that the city of Pontiac erected street signs at the intersection of Myrtle drive with Oakland avenue and Howard street, which are standard signs similar to those erected at other streets in the city; that none of the land described as Myrtle drive has been assessed for taxation; that under the statutes of the State of Michigan, roads used as highways for 10 years of more are deemed public highways whether any record or other proof exists that they were ever established as highways or not. Plaintiffs contend that testimony indicates such use for more than the statutory time, and that a dedication for the use of the public has been created with reference to Myrtle drive.
It appears to be an undisputed fact that witness Eva L. Mosher and her deceased husband were the owners of a small tract of land between Oakland avenue and Howard street in the city of Pontiac. Several years before this action was instituted the said Moshers subdivided drive 15 feet in building sites. A private drive 15 feet in width extending from Oakland avenue to Howard street provided the only means of access to several of the lots. This private drive became known as Myrtle drive. The area embraced in the tract for many years has been fenced off from adjoining lands. The plaintiffs, owners of a parcel of adjoining land, now seek a removal of the fence barrier so as to have ingress and egress to Myrtle drive for the purpose of driving to and from a...
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Donaldson v. Alcona County Bd. of County Road Com'rs
...highway[,] the use must be so open, notorious and hostile as to be notice to the landowner that his title is denied." Bain v. Fry, 352 Mich. 299, 305, 89 N.W.2d 485 (1958); accord Missaukee Lakes Land Co. v. Missaukee Co. Rd Comm., 333 Mich. 372, 379, 53 N.W.2d 297 (1952); Murphey v. Lee Tw......
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Trust v. Babel
...for public use, (b) an acceptance by, and maintenance of the road by, public officials, and (c) use by the public generally. Bain v. Fry, 352 Mich. 299, 305, 89 N.W.2d 485 (1958). If these are present, the dedication is sufficient regardless of form. Badeaux v. Ryerson, 213 Mich. 642, 647, ......
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Baum Family Trust v. Babel, Docket No. 284547.
...and maintenance of the alley, street or highway by the public officials; [and] (3) ... use by the public generally. [Bain v. Fry, 352 Mich. 299, 305, 89 N.W.2d 485 (1958).] Significantly, there is no requirement that the dedication be recorded in a plat. "Neither a grant nor written words a......
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McIntyre v. BOARD OF COUNTY COM'RS, 02SC803.
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