City of Mt. Clemens v. Mt. Clemens Sanitarium Co.
| Decision Date | 17 June 1901 |
| Citation | 86 N.W. 537,127 Mich. 115 |
| Court | Michigan Supreme Court |
| Parties | CITY OF MT. CLEMENS v. MT. CLEMENS SANITARIUM CO., Limited. |
Appeal from circuit court, Macomb county, in chancery; James B Eldredge, Judge.
Action by the city of Mt. Clemens against the Mt. Clemens Sanitarium Company, Limited. From a judgment in favor of plaintiff defendant appeals. Affirmed.
Byron R. Erskine, for appellant.
O. C Lungerhausen, for appellee.
The city of Mt. Clemens filed the bill in this cause to prevent the defendant from appropriating to its own use for the site of its building a parcel of land which the city claims to have been dedicated to the public for a city street by a former proprietor. The land was platted in 1874, and there is evidence clearly showing an acceptance of the plat by the common council. The dispute arises as to that portion of Greiner street forming a cul-de-sac, between blocks 1 and 2 of Greiner's addition, which, respectively, lie east and west of the street. The defendant owns a portion of each of said blocks, and proposes to use it for a site for its sanitarium, and this, if done, would obstruct, and effectively close up, the street. The evidence indicates that this portion of the street was used but little, and that about the time that defendant purchased the land it claimed that the dedication was not valid; but, to cut off any dispute, an attempt was made to induce the common council to vacate this part of the street, or in some way surrender any public rights therein, but the measure failed to pass the council. It is claimed, and there is perhaps little doubt that the refusal to do this was based upon an understanding on the part of the council that there was no street to vacate, but this does not signify, as a vacation of the street cannot be thus accomplished. Some months before this suit was instituted the defendant put a wire fence across the street, thus making the disputed portion a part of its inclosure. Subsequently the city highway officers forcibly took possession and destroyed the fence, and did some granding, a collision of some violence occurring at the time between them and defendant's agents. Soon after defendant replaced the fence, and restored the premises to their former condition, and was in possession at the time that this suit was commenced to compel the removal of the obstruction and prevent the erection of the building in the street. Counsel for the defendant make the claim that the form of action is inappropriate, and that the defendant has a right to have his claim to title tried in ejectment. It is the rule that a bill to quiet title does not lie at the suit of one not in possession, and we have held that it will not lie in behalf of one who has taken possession by force for the purpose of filing such bill. See Watson v. Brewing Co., 61 Mich. 595, 28 N.W. 726; Wakefield v. Mining Co., 85 Mich. 622, 49 N.W. 135; Lillie v. Snow, 118 Mich. 613, 77 N.W. 241. And it was applied to one who sought to restrain the closing of a private alley where the complainant had forcibly invaded the premises and destroyed a fence which the latter had erected...
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