Barkley v. City of Detroit, 9.

• Decision Date: 13 May 1946
• Docket Number: No. 9.,9.
• Citation: 22 N.W.2d 835,314 Mich. 404
• Parties: BARKLEY et al. v. CITY OF DETROIT.
• Court: Michigan Supreme Court

314 Mich. 404

22 N.W.2d 835

BARKLEY et al.

v.CITY OF DETROIT.

No. 9.

Supreme Court of Michigan.

May 13, 1946.

Appeal from Circuit Court, Wayne County, in Chancery; Joseph A. Moynihan, Judge.

Action by Thomas H. Barkley and others against City of Detroit, a municipal corporation, for decree permanently enjoining and restraining the city from refusing and refraining from maintaining, caring for, and keeping in repair designated boulevards and that city rename such thoroughfares; it having, by ordinance, changed their designation from boulevards to avenues. From an adverse decree, defendant city appeals.

Decree affirmed.

Before the Entire Bench.

N. F. Crawford, John A. Hamilton, and D. N. Simonds, all of Detroit, for plaintiffs and appellees.

William E. Dowling, Corp. Counsel, Paul T. Dwyer, Chief Asst. Corp. Counsel, and Julian P. Rodgers, Asst. Corp. Counsel, all of Detroit, for defendant and appellant.

BUSHNELL, Justice.

Plaintiffs are owners of property in the city of Detroit, south of Grand River avenue, located in Rosedale Park subdivision and Rosedale Park subdivision No. 1. These subdivisions were platted in 1917. Certain north and south thoroughfares therein, which are from 80 to 100 feet wide, were designated and dedicated as boulevards. Both subdivisions at the time were located in the township of Redford. The several plats were accepted and approved by the township board.

Although no parkways were shown in the center of these boulevards in the recorded plats, they were included when the thoroughfares were laid out by the subdividers. The respective boulevards were subsequently improved with cement paving on each side of the parkways, in which were maintained ornamental grass plots and trees. Along each side of the thoroughfares, between the sidewalk and the pavement, hard maple and elm trees were planted. These thoroughfares were maintained as boulevards until 1926, when the portion of the township of Redford, in which these subdivisions were located, was annexed to the city of Detroit. For ten years thereafter the department of parks and boulevards of defendant city continued to maintain these parkways and boulevards as such. On May 27, 1936, the corporation counsel's office addressed a communication to the commissioner of parks and boulevards stating, in substance, that if the city desired to avoid liability for future paving and improvements it should not assume jurisdiction over the thoroughfares in question as boulevards. It was suggested, however, that the city could ‘cut grass, and weeds in the center islands or along the sides of the streets in question as a traffic, or peace, health or safety measure independent of any consideration tending to establish boulevards in fact.’

Subsequent to this communication and another one in 1939 the department of parks and boulevards discontinued its care of the parkways in question. Plaintiffs then filed a bill of complaint seeking a decree permanently enjoining and restraining the city, its agents, etc., from refusing and refraining from maintaining, caring for and keeping in repair the boulevards in these subdivisions. They also asked that the city rename these thoroughfares, it having, by ordinance, changed their designation from boulevards to avenues. In an amendment to their bill of complaint, plaintiffs sought relief from the provisions of ordinance 188D, which would allow the city to levy special assessments for paving costs against property abutting these boulevards. Upon an order of reference, testimony was taken before a circuit court commissioner. The trial judge upheld the findings of the commissioner and determined that the issues presented were controlled by Barris v. City of Detroit, 260 Mich. 622, 245 N.W. 790, 791, and a decision in an unappealed chancery case No. 265106 of the Wayne circuit court, entitled, Harry E. Braman v. City of Detroit.

Defendant city appealed from the decree holding the thoroughfares in question to be boulevards of the city of Detroit in fact and in law, and part of the parks and boule vard system of the city since the annexation of 1926. In this decree the city was permanently restrained and enjoined from levying any special paving assessments on property abutting the boulevards therein enumerated, and from discontinuing, neglecting, lecting, and refusing to extend to these boulevards, ‘the same and equal care, upkeep and maintenance as said City is now furnishing, or shall furnish in the future, to the other boulevards of the City of Detroit, which have been specifically recognized by City Ordinance.’

The Barris case, which the trial judge held to be controlling, was concerned with Strathmoor boulevard in Strathmoor subdivisio...