City of N. Muskegon v. Miller

• Decision Date: 04 December 1929
• Docket Number: No. 79.,79.
• Citation: 249 Mich. 52,227 N.W. 743
• Parties: CITY OF NORTH MUSKEGON v. MILLER et al.
• Court: Michigan Supreme Court

249 Mich. 52

227 N.W. 743

CITY OF NORTH MUSKEGON

v.MILLER et al.

No. 79.

Supreme Court of Michigan.

Dec. 4, 1929.

Appeal from Circuit Court, Muskegon County, in Chancery; John Vanderwerp, Judge.

Suit by the City of North Muskegon against Royal R. Miller and another. Decree for plaintiff, and defendants appeal. Affirmed.

Argued before the Entire Bench.

George S. Lovelace, of Muskegon, for appellants.

Cross, Foote & Sessions, of Muskegon, for appellee.

BUTZEL, J.

Plaintiff, a municipal corporation, brought this suit to restrain defendants from drilling an oil well on property in the city of North Muskegon.

In 1925 plaintiff passed a zoning ordinance, by virtue of which the property on which it was sought to drill the oil well was restricted in its use to single family dwellings, churches, schools, and libraries, farming and truck gardening and private clubs.

In 1928, shortly after oil had been discovered within the corporate limits of plaintiff, an ordinance was passed making it unlawful to drill wells for the purpose of obtaining oil and gas without first securing a permit from the council of plaintiff.

Notwithstanding these two ordinances, defendant Miller, as lessee of the property, in the year 1928, together with defendant Voorhees, an oil drilling contractor, after two unsuccessful efforts to secure a permit from the city, proceeded to drill an oil well without a permit on property herein described.

This suit was brought by the plaintiff to restrain defendants from proceeding with their drilling operations, and, after a hearing, a final decree was entered permanently enjoining defendants from drilling the well. Defendants have appealed.

Defendants claim that both the zoning ordinance and the oil drilling ordinance were not properly adopted, and therefore are of no force and effect; that the zoning ordinance is unreasonable and unwarranted by the police power; and that it violates section 16 of article 2 of the Constitution of the state of Michigan and the provisions of the Fourteenth Amendment to the Constitution of the United States. They further claim that oil drilling permits had been given to others in other sections of the city, and that the refusal to give defendants such permit was discriminatory, and therefore illegal.

In order to properly discuss the reasonableness of the zoning ordinance in its application to the property in question, it is necessary to give a full description of the property. The city of North Muskegon lies on a strip of land between Bear Lake on the north and Muskegon Lake on the south. Running through the length of this strip, and crossed at right angles by Center street, is Ruddiman avenue, the principal thoroughfare of the city. Practically all the land west of Center street has been zoned as a district devoted solely to residences. The property in question in this case is a portion of the Beaudry, Vallicotte, and Haines subdivision, which lies about 5,000 feet west of Center street, extending from Ruddiman avenue south to the edge of Lake Muskegon, a distance of about 950 feet. About 250 feet south of Ruddiman avenue, and 700 feet from the water, the land falls away in a bluff which seemingly runs the entire length of the peninsula. The land under the oil lease is a part of the lowlands between the bluff and the water. The oil well was being sunk at a point variously estimated at from 300 feet to 600 feet from Ruddiman avenue, but shown by the zoning map to be about 800 feet from Ruddiman avenue, 550 feet from the bluff, and 150 feet from the water.

Adjacent to this lot on the lowland to the east is the city dump for refuse and garbage, which Foote, the owner of the fee in the oil lands, testifies at various times gives off a very unpleasant odor. Two hundred twenty-two feet to the west of the oil well is a water well, which furnishes about one-half of the city's water supply. Seemingly bordering the land on the west is a clump of trees known as Bigelow's Grove, which partially shields the proposed oil well from the view of a few new houses erected on Ruddiman avenue about two blocks west. A little less than a mile west of the proposed oil well is Interlaken, the most active of the better residential subdivisions.

Until 1892 the lowlands were used by the lumber companies for their docks and mills. They have been abandoned, the old docks remaining, but the land given over to brush, scrub timber, and old logs. At least a portion of the lowland is marsh. Foote stated that the land in front of the oil well was marshy. The photographs put in evidence indicate the lowland, of which the property in question is a part, to be practically a barren waste, partly marsh, uncultivated and unimproved, even when allowance is made for the fact that the photographs were probably taken from points most advantageous to the defendants.

The land along the bluff on Ruddiman avenue is fairly well built up with substantial residences, two of them being on the Beaudry, Vallicote, and Haines subdivision. Along the lowland, however, for a distance of a mile and a half east, there are only thirteen houses, four of them belonging to Foote, and on the Beaudry, Vallicote, and Haines subdivision. Of these thirteen, nine have been built at least 24 years, and were regarded for over 20 years to be mere shacks. Only one is used as a permanent residence; the others being summer cottages. In regard to the use of this land as a summer resort, Foote testified that the water about the old dock was 40 feet deep, while another witness who claimed to have measured it stated it was 3 feet deep.

Despite testimony of increased building activity and large strides in population and assessed valuation of the property in the city during the past few years, Foote testified that his land had not increased in value in 21 years.

Practically all the witnesses agreed that the lowland was useless for residence purposes. The principal reason for maintaining this property in the residence zone appears to be that the rear of the property on the bluff overlooks it, and that the masts of the oil derricks temporarily used in drilling operations would be visible from Ruddiman avenue.

It will be readily seen that the property in question is almost worthless if its use is to be restricted as provided in the zoning ordinance. The courts have particularly stressed the importance of not destroying or withholding the right to secure oil, gravel, or mineral from one's property, through zoning ordinances, unless some very serious consequences will follow therefrom. Village of Terrace Park v. Errett (C. C. A.) 12 F.(2d) 240. The effect of the zoning ordinance in the cause at issue amounts almost to a confiscation of the property. The legality of a zoning ordinance, when reasonable, has been long recognized by our courts. Although the question is comparatively new in Michigan, its legality has been upheld a number of times. Adams v. Kalamazoo Ice & Fuel Co., 245 Mich. 261, 222 N. W. 86;Dawley v. Ingham Circuit Judge, 242 Mich. 247, 218 N. W. 766. Zoning ordinances have been upheld by the United States Supreme Court in many instances, the leading case being that of Village of Euclid v. Ambler Realty Co., 272 U. S. 365, 47 S. Ct. 114, 71 L. Ed. 303, 54 A. L. R. 1016. It is, however, necessary that a zoning ordinance be reasonable, and the reasonableness becomes the test of its legality. Any ordinance to be legal must be reasonable. People v. Armstrong, 73 Mich. 288, 41 N. W. 275, 2 L. R. A. 721, 16 Am. St. Rep. 578. The authorities are numerous on this subject.

‘Legislatures may not, under the guise of the police power impose restrictions that are unnecessary and unreasonable upon the use of private property or the pursuit of useful activities.’ State of Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U. S. 116, 121, 49 S. Ct. 50, 52, 73 L. Ed. 210.

‘For the purpose of this case it may be conceded that the village, in the exercise of its police power, either delegated to it by statute or vested in it by the Constitution of Ohio, has authority to pass a zoning ordinance reasonably necessary for the preservation of public health, morals, or safety * * * where such necessity appears either from existing conditions or reasonable anticipation of future growth and development. But it does not follow...