Clay v. City of Grand Rapids

• Decision Date: 08 April 1886
• Citation: 27 N.W. 596,60 Mich. 451
• Court: Michigan Supreme Court
• Parties: CLAY v. CITY OF GRAND RAPIDS.

27 N.W. 596

60 Mich. 451

CLAY v. CITY OF GRAND RAPIDS.

Supreme Court of Michigan

April 8, 1886

Appeal from superior court of Grand Rapids.

John E. More, for complainant.

J.W Ransom, for defendant and appellant.

CAMPBELL C.J.

Complainant owns property having a front of 100 feet on Campau street, at the corner of Lyon street, in Grand Rapids. Many years ago this, and other property near by, was platted as the Island Company's addition, and covered in part the old bed of the east channel of Grand river. In the progress of their improvements the owners brought that channel within a timbered way or race, partly within and partly without projected streets, it being agreed that it should be kept as a water-way for various purposes, including the common uses to which such a channel is adapted, and especially for drainage and the discharge of water needing such an outlet. Among other purposes, it was utilized as a tail-race, discharging below the rapids. In the neighborhood in question the bed of this channel was very much below the surface, the top of the trunk which confined it being about 16 feet below the street level. Where it passed through Campau street it was confined in a timber trunk, having timbered bottom, sides, and cover enclosing a space of between 12 and 13 feet wide and 6 feet high, (if the scale in the record as furnished us is correct,) and the timbers being heavy. In 1875 the city authorities assumed the improvement of Campau street, and graded, leveled, and paved it in the usual way, under the city charter, leaving this trunk undisturbed, the street being filled in above and around it, and various sewers and drains have been discharged into it, the Lyon-street sewer emptying into it at the junction of Lyon and Campau streets. The channel is not along the middle of the way, but runs diagonally, entering at one side and leaving some distance down on the other.

In the early fall of 1882 a break occurred in the timber covering of this trunk in Campau street, under one of the gutters, which led to the caving in of a considerable part of the street, interfering with passage. In October the council began to consider the question of repairing the mischief, and, on the sixth of November, passed a resolution that the "grading, leveling, and repairing, and amending, and graveling" of Campau street, between points 50 and 100 feet south of Lyon street, "including the construction of the necessary bridges, culverts, and paved gutters therein, is a necessary public improvement." On the thirteenth day of November, 1882, as appears of record, Mr. Thayer, president of the board of public works, "being present, made a verbal statement relative to the sewer which runs under Campau street, and recommended that the council reconsider certain portions of the resolution as passed one week ago, and pass a resolution which would construct a brick sewer in said street, to take the place of the timbers which cover the said sewer." Thereupon Alderman Follett moved to "rescind the resolution as offered and passed one week ago, relative to the break in the sewer in Campau street." This was carried, and a new resolution adopted, which used the language of the old one, except that it covered the space between 10 and 140 feet south of Lyon street.

On December 26, 1882, a committee was appointed to "locate a district to be assessed for the grading, leveling, repairing, amending, and graveling of Campau street." This committee reported January 2, 1883, fixing a district from Lyon street to 140 feet south, and extending back 100 feet from Campau street, and their report was adopted. For some unexplained reason this action was rescinded on the twenty-ninth of January, 1883. On that day it is entered that the board of public works "presented the estimate of cost of the improvement of the break of the sewer in Campau street, which was accepted and placed on file." What this was does not appear; but on the third of February there was filed a document, approved by the board of public works on February 3d, which purports to be an "estimate of the cost of the improvement of Campau street, as follows: Contract price, $990; assessment and printing, $50; incidentals, $130,--$1,170." On February 19th the same special committee made again precisely the same report as to a district, and resolutions were passed charging the expense on that district, and ordering assessments, which were made by the board of review. Complainant, I.M. Weston, A.B. Watson, and Martin L. Sweet appealed from the assessment,--the three former on the grounds of illegality and inequality, the assessment not being made on any basis of equality among the parties benefited. The result of this appeal was the removal of $100 of Mr. Sweet's assessment, so as to add it to the assessments of complainant and Mr. Watson, who were made to bear between them nearly the whole cost of the work, complainant's share being $500 and charges. He did not pay it, and the marshal returned the assessment unpaid, and the city sold the property, and bid it in. This bill was filed to set aside the proceeding for several alleged grounds of fraud and illegality.

The contract, which was made November 20, 1882, provided for putting the street in repair on the same grade and level, and in the same manner, as before. It appears from that instrument and the...