Detroit Edison Co. v. City of Detroit, 52
| Decision Date | 15 January 1952 |
| Docket Number | No. 52,52 |
| Citation | 51 N.W.2d 245,332 Mich. 348 |
| Parties | DETROIT EDISON CO. v. CITY OF DETROIT. |
| Court | Michigan Supreme Court |
Fischer, Brown, Sprague, Franklin & Ford, Detroit, for plaintiff and appellant.
Paul T. Dwyer, Corp. Counsel, Walter E. Washak, Asst. Corp. Counsel, Detroit, for defendant and appellee.
Before the Entire Bench, except BUTZEL, j.
In the instant suit plaintiff, a New York corporation authorized to do business in Michigan, sought an injunction enjoining defendant from interfering with or moving plaintiff's utility (electric) poles except on condition that defendant defray the cost thereof and assume liability for any damage or injury to plaintiff's user of its alleged easements; and also a determination of the following question: 'Is the city of Detroit liable for necessary expense incurred in the removal and replacing of the plaintiff's poles in order to enable the city to construct its public sewers along the center of said easement?'
The relief sought by plaintiff was denied by the decree of the circuit court. This appeal followed. Plaintiff is possessed of franchise rights in the city of Detroit by which plaintiff, subject to certain limitations, is empowered:
'* * * to erect, lay, operate and maintain in the public streets, alleys, and other public places of the city of Detroit, all needful and proper poles, masts, towers, mains, wires, pipes, lamps, motors and other apparatus, subject, however, strictly to all conditions and restrictions herein and hereinafter imposed, and all ordinances hereafter adopted concerning the same. * * *
'Said corporation shall at all times be subject to the city ordinances now in existence or which may hereafter be passed relative to the use of the public streets or other public spaces, especially as to the putting up of lights and barriers at and around excavations.'
In the city of Detroit on two separate occasions certain lands were platted, and these plats after being duly executed were accepted by the proper public authorities and duly recorded. In neither of these plats were there any alleys dedicated to the public. However, in each of the plats there was a reservation of space as an easement for the use of public utilities. On the recorded plat of one of these subdivisions at and across the rear of the lots there is shown a strip of land approximately 6 or 10 feet wide, and the following note appears on the plat:
'Note: A six (6) foot space or 'Easement' is shown, for the use of public utilities, not vehicular traffic, at the rear of (certain lots designated by number).
'A ten (10) foot 'Easement' for above purpose, at rear of (other lots designated by specific numbers).'
The dedicatory language appearing on this plat recites: '* * * that the streets and easements as shown on said plat are hereby dedicated to the use of the public.'
The plat of the other subdivision, which was duly executed, accepted and recorded, shows by lines on the rear and across all lots a space 12 feet in width, 6 feet on each lot, which in each instance is labeled: 'Easement for public utilities, but not vehicular traffic.' And on the plat of this second subdivision the dedicatory language states: '* * * that the streets and easements as shown on said plat are hereby dedicated to the use of the public.'
Years before development of the controversy involved in the instant suit, plaintiff or its predecessors erected utility poles along the center line of the strips in the above two subdivisions reserved for public utilities' use; and these poles carrying the wires, et cetera, incident to plaintiff's public service were continuously maintained until the time this suit was started in February, 1948. In 1947 the defendant home rule city started proceedings looking to construction of a sewer down the center line of the respective strips of land over which the easements had been dedicated for the use of public utilities. The construction by the city of this sewer necessitated the temporary removal of plaintiff's utility poles and also involved the replacement thereof after completion of the city's sewer. Plaintiff was notified by the city to remove its poles and wires. The controlling question in the instant case is: Which of these litigants shall bear the cost of temporarily removing and subsequently replacing plaintiff's utility poles and the wires, et cetera, in connection therewith? By stipulation of these parties, plaintiff, without prejudice to its contentions in the instant case, has performed the task of removal and replacement at a cost somewhat in excess of $11,000.
Plaintiff admits that its franchise rights to erect and maintain its poles and lines in the public streets, alleys and other public places of the city are subject to reasonable regulations by the city in matters of physical operation. It admits that it could have been required to remove its poles at its own expense to permit construction of a public sewer, if its poles had been erected under its franchise rights; but plaintiff claims that instead...
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