City of Port Huron v. Chadwick

• Decision Date: 21 December 1883
• Citation: 52 Mich. 320,17 N.W. 929
• Court: Michigan Supreme Court
• Parties: CITY OF PORT HURON v. CHADWICK and others.

17 N.W. 929

52 Mich. 320

CITY OF PORT HURON v. CHADWICK and others.

Supreme Court of Michigan

December 21, 1883

One who has opened a street which the public authorities have accepted and improved, has no right, after much time has gone by and rights have grown up, to shut it up again, on the ground that the authorities have not performed an oral condition which was made with them at the time of opening the street; but he may have a remedy at law for breach of condition.

Appeal from St. Clair in chancery.

E.G Stevenson, for complainant.

Wm. M. Cline, for defendants and appellants.

COOLEY, J.

The purpose of this suit is to enjoin a public nuisance. The bill was taken as confessed by the defendant Vanderburgh. Chadwick defended, and upon a hearing upon pleadings and proofs the circuit court awarded the injunction as prayed. The nuisance consists in obstructing Tenth street, in the city of Port Huron, by building fences across it. Chadwick denies that any street exists at the point where he has erected fences. The facts seem to be that Tenth street at this point was never laid out as a public street by the authorities, but in the year 1874 Chadwick and other land-owners opened it as a street to the public, and possession of it was immediately taken by the city authorities and the street graded. It remained open and was traveled and used by the public until 1882, when defendants built fences across it with a view to closing it up. The city threw down the fences and then filed this bill. So far the parties do not differ essentially in respect to the facts; but Chadwick claims that when he opened the street to the public in 1874 he did so upon a condition orally expressed by him to the city authorities and by them assented to, that the city should lay a drain along Tenth street to Military street sufficient to take the water off the street and off his abutting land. This condition, he alleges, has never been complied with; and the result has been that the grading of the street has thrown water upon him, to his serious detriment, instead of taking it off. The showing of injury appears to be very conclusive.

On the other hand, it is shown by the evidence of the person who was president of the city board of works when the street was opened, that he did at that time, after consultation with Chadwick, all that he understood him to ask for or desire and this evidence has considerable corroboration. It also appears that...