Buskirk v. Strickland
| Decision Date | 11 January 1882 |
| Citation | 47 Mich. 389,11 N.W. 210 |
| Court | Michigan Supreme Court |
| Parties | BUSKIRK and another v. STRICKLAND. |
Marking out a street on a village plat does not necessarily make the space a public way, unless the public authorities accept it as such.
Where a street was marked out on a village plat, but a certain part of it in its natural condition was incapable of use as a way and for 40 years remained so without any act of the authorities to accept or improve it, and the street commissioner then entered and made excavation that he might use the earth in other parts of the town, and in so doing removed the lateral support for adjacent lands to their injury: held, that the commissioner was liable for this injury.
When one makes an excavation by his neighbor's land into which the land, from its own weight and of necessity must fall, and does immediately fall, trespass will lie against him therefor.
Error to Genesee.
L.J. Topping, for plaintiff in error.
Long & Gold, for defendant in error.
Strickland sued Buskirk and Rudolph in trespass for digging and removing gravel from her premises in the village of Fenton. The important facts of the controversy as they are presented by the record are the following:
The village of Fenton was platted by the proprietors of the land and the plat recorded in the year 1837. Upon the plat was block 37, which was sold and by successive mesne conveyances has passed to Strickland, who occupied it as a dwelling lot when the alleged trespass took place. The block is bounded on the north by Shiawassee avenue and on the east by George street. Strickland bought in 1869, and at that time George street had never been opened and used as a public highway along by this block. The land within its lines was elevated 40 feet or so above Shiawassee avenue. The earth was gravel. In the year 1878 Buskirk and Rudolph were street commissioners of Fenton, and under the direction of the street committee of the common council they proceeded to dig for gravel within the line of George street as platted, and to cart the gravel for use in other portions of the village. In excavating they approached within a distance variously estimated at from four to eight feet of the line of block 37 as platted; so near that a part of the fence on the line with the gravel back of it fell into the excavation. This was the trespass complained of.
On the trial the right of the public to open and use George street as a public highway along by this block was contested by the plaintiff, who insisted that the dedication which had been offered by the plat had never been accepted by the public. It appeared that George street had been opened and used as a highway in other parts, but never here, and plaintiff claimed ownership to the middle line. This claim, however, it does not become necessary to pass upon. It is clearly shown by the record that if there was ever any act of the public authorities accepting the proposed dedication of George street at the point in question, it must be found in the acts complained of. For upwards of 40 years the public authorities had taken no step evincing an intention to open and improve this street, but had left the land in a condition which made its use for the purposes of a highway impossible. It is not until 41 years after the plat was made that any positive step is taken by the village authorities which affords us any means of conjecturing their purpose. It may well be questioned whether their option to accept the dedication had not been lost by the delay. County of Wayne v. Michigan, 31 Mich. 447; Field v Manchester, 32 Mich. 299...
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