City of Lansing v. Dawley

• Decision Date: 03 June 1929
• Docket Number: No. 64.,64.
• Citation: 247 Mich. 394,225 N.W. 500
• Parties: CITY OF LANSING et al. v. DAWLEY.
• Court: Michigan Supreme Court

247 Mich. 394

225 N.W. 500

CITY OF LANSING et al.

v.DAWLEY.

No. 64.

Supreme Court of Michigan.

June 3, 1929.

Appeal from Circuit Court, Ingham County, in Chancery; Charles B. Collingwood, Judge.

Injunction by the City of Lansing, a municipal corporation, and others, against Henry A. Dawley. Judgment for plaintiffs, and defendant appeals. Decree in accordance with opinion.

See, also, 242 Mich. 247, 218 N. W. 766.

Argued before the Entire Bench.

A. M. Cummins, of Lansing, for appellant.

J. E. Converse, of Lansing, for appellee City of Lansing.

Thomas, Shields & Silsbee, of Lansing, for appellees Carpenter.

McDONALD, J.

The purpose of this suit was to restrain the defendant from erecting a business building on a lot in the city of Lansing in violation of a zoning ordinance which prohibits the erection of any building within that area except for residential use.

On April 16, 1927, under the ordinance then in effect, the defendant was refused a permit for the erection of the building. He instituted mandamus proceedings, with the result that they ordinance was held to be invalid and the city was compelled to issue the permit. On June 13, 1927, a valid ordinance covering the same subject-matter was passed by the common council. This ordinance became effective on June 24, 1927. On August 10 the city returned the defendant's license fee and advised him that his permit had been revoked. The defendant ignored this notice and the plaintiffs began suit. The defendant justifies his position on the theory that, in reliance on a valid ordinance, he had made substantial expenditures of time and money and had thus created vested property rights which could not be destroyed by the ordinance subsequently enacted. On the hearing, the circuit judge found for the plaintiffs and entered a decree restraining the construction of the building. From this decree, the defendant has appealed.

In the exercise of its police power, the city of Lansing had a right to enact the ordinance in question, but this right was subject to vested property interests acquired before its enactment. The defendant contends that he has such interests and that he acquired them in reliance on a valid permit. We would be inclined to agree with him if before the enactment of the ordinance he had done anything of a substantial character towards the construction of the building. There was an old barn and house on the lot. He sold the barn and had it torn down. This he says was no loss to him. As to the old house, he testified:

‘I moved the old building away to a wall on the corner to make an apartment house of it. So far as the old building was concerned, it was no loss to me in its use or its income. It was simply moved to another portion of the property to be repaired and employed as an apartment. It has been a loss so far as it stood there. Outside of the removal of the old building from this location, there was nothing done with the construction of the new building until about a week or ten days previous to October 22, the date of the first check to Mr. Bearup.’

It thus appears that the first work done upon the new building was three months after the ordinance went into effect and after the...