Defnet v. City of Detroit
| Decision Date | 01 March 1950 |
| Docket Number | No. 58,58 |
| Citation | 327 Mich. 254,41 N.W.2d 539 |
| Parties | DEFNET et ux. v. CITY OF DETROIT. |
| Court | Michigan Supreme Court |
Charles F. Ives, Detroit, for plaintiffs and appellants.
Raymond J. Kelly, Corporation Counsel, Leo E. LaJoie, Assistant Corporation Counsel, Detroit, for defendant and appellee.
Before the Entire Bench.
Dr. William A. Defnet and Ida Franke Defnet, his wife, are the owners of and have occupied residential property at 39 Lawrence avenue in the city of Detroit since 1924. The legal description of this property is: 'The westerly 30 feet of Lot 99 and East 20 feet of vacated valley lying West of and adjoining said Lot 99, Greenlawn subdivision, being the South 682 feet of 1/4 section #25, 10,000 acre tract, according to the plat thereof recorded April 30, 1891, in Liber 15 at page 58 of Plats in the office of the Wayne county register of deeds.'
In 1901 defendant City of Detroit construction a sewer running in an easterly and westerly direction under the alley between Lawrence and Collingwood avenues. In the rear of the Defnet property, about 200 feet west of Woodward avenue, this sewer turns northerly under what is now the east 20 feet of the vacated alley above mentioned.
When Greenlawn subdivision was platted, the lots on Woodward avenue were 200 feet deep. In 1915 the alley behind the Woodward frontage was vacated. In lieu thereof the city obtained a quitclaim deed to a new alley 100 feet east of the vacated alley. The resolution of the common council pertaining to the matter contains no reservation of rights. The sewer under the vacated alley was never removed nor blocked off, and still serves a large number of homes in the subdivision.
The Defnet home, erected in 1923, was purchased by them in 1924. Their abstract of title merely recited the vacating of the alley and did not refer to the sewer. The Defnets' first knowledge of any sewer was when they obtained a deed in 1928. They were then informed by their grantor that there was a 'blocked off' sewer beneath their property. The following year cracks appeared in their house and it began to settle. Later, other damage developed, and continued as late as 1944. Refilling was required in the rear of the lot, and obnoxious fumes leaked from the fireplace. Also, screens had to be refitted, a stone window-ledge replaced, and masonry repaired. In 1941 a cave-in occurred in the back yard.
Continual inquiries made at the city engineer's office and elsewhere were without avail. Finally in 1944 the department of public works sent a crew to investigate the supposed blocked-off sewer. The foreman reported that he found the 'sewer' in perfect condition, and said that the condition complained of was of no concern to the city, but was a private matter. The Defnets then learned for the first time that the 'sewer' had not been blocked off, but was an active one running under their house. They later employed a private contractor to make the necessary repairs.
The city completed the work begun by the private contractor and repaired a broken sewer connection. The Defnets were asked to pay $298 for this work, which they refused, and the city instituted an action in the common pleas court.
The Defnets then presented a claim to the common council on April 23, 1945, seeking an abandonment of the common pleas suit and the payment of the damages which they had sustained. The council denied a hearing and refused their claim. Plaintiffs, about two months later, filed a bill in equity.
The parties accepted the action of the pre-trial judge, who said the court would not order a removal of the sewer because the city always has the right to condemn for an easement. He transferred the cause to the law side of the court, where it was consolidated with the city's counterclaim. In doing so he said plaintiffs could there 'obtain full redress in damages.' The trial judge instructed the jury on this phase of the matter.
The jury awarded plaintiffs damages in the sum of $5,000, which verdict was set aside by the trial judge and a judgment entered for defendant.
The trial judge determined that the city was not liable for negligence because of the faulty sewer connection; that the statute of limitations had run; that the city was engaged in a governmental function and immune from it; and that the charter prerequisites to suit had not been met.
The maintenance of an active...
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