Diamond Match Co. v. Village of Ontonagon
| Decision Date | 01 November 1888 |
| Court | Michigan Supreme Court |
| Parties | DIAMOND MATCH CO v. VILLAGE OF ONTONAGON ET AL. |
Appeal from circuit court, Ontonagon county, in chancery; WILLIAM D WILLIAMS, Judge.
Bill by the Diamond Match Company to restrain the village of Ontonagon, its trustees and street commissioner, from opening a street across and bridging a slough situate in said village. There was a judgment for complainant, and defendants appeal.
Proof of the acceptance of the land dedicated by its owner to public use must be unequivocal and convincing.
C. F. Button, (Ball & Hanscom, of counsel,) for appellants.
Stone & Gray, for appellee.
The Ontonagon river empties into Lake Superior in section 25 township 52 N., range 40 W.; and passes through the section in a northwesterly direction. The shore of Lake Superior at this point runs about southwest and north-east. Within the government survey of section 25 there is an island in the river, surveyed, and known as "Lot 4." The river is navigable on both sides of this island through the section, the main part of the river and the main channel being on the west side. The width of the channel on the west side varies, but at a point designated as "Copper Street," on the "Plan of the Town of Ontonagon," is 100 feet wide. The village of Ontonagon was incorporated by an act of the legislature, approved March 20, 1885, entitled "An act to incorporate the village of Octonagon, in the township of Ontonagon, and state of Michigan." A township by that name, including within it the same territory, had existed for a number of years. The record before us does not show the date of its organization but the county of Ontonagon was first incorporated in 1848. In 1854 one James K. Paull caused to be recorded in the office of the register of deeds of Ontonagon county a plat of a town, designated as a "Plan of the Town of Ontonagon," which embraced the territory included in the United States survey of the public lands described as lots numbered 1, 2, 3, 4, 5, and 6 of section 25, township 52 N range 40 W. Lots 1, 2, and 3 lie on the east side of the river, lot 4 is the island, and lots 5 and 6 lie on the west side of the river. In this plan he laid out the land into blocks and lots, streets and alleys. The blocks and lots are numbered, and the names of the streets appear thereon. On the east side of the main channel of the river the blocks are numbered from 1 to 63, and on the west side from 1 to 15. It thus appears that the main part of the plan was on the east side of the river. The design of the plan evidently was that the streets on the east side should project across the east channel, and run across the island, and terminate at the main channel of the river, these streets on the island forming the boundaries of the blocks, which are numbered from 1 to 10, inclusive; and nine streets appear thus to have been projected across the island. It is not claimed, and there is no evidence in the record, that Paull was the owner or proprietor of the land which is embraced in the plan recorded, nor is there any evidence that he ever afterwards acquired the legal title thereto.
By an act of congress, approved May 23, 1844, entitled "An act for the relief of citizens of towns upon the lands of the United States, under certain circumstances," it was provided that whenever any portion of the surveyed land of the United States had been or should be settled upon and occupied as a town-site it should be lawful, if the town was incorporated, for the judges of the county court to enter the land, in trust for the several use and benefit of the occupants thereof, and according to their respective interests; the execution of the trust as to the disposal of the lots in such town, and the proceeds of the sale thereof, to be conducted under such rules and regulations as might be prescribed by the legislative authority of the state or territory in which the same is situated. 5 St. at Large, 657. The legislature of the state of Michigan passed an act which was approved January 29, 1853, entitled "An act to authorize the district judge of the Upper Peninsula to hold in trust and convey lands included in the town-site of the village of Ontonagon." This act came under review in this court in Re Selby, 6 Mich. 193, and it was held that it did not confer jurisdiction in the district judge to act in the matter, and that in so far as the legislature attempted in such act to dispose of the land it was void. The next step, as will be seen, after the passage of the act by the legislature of Michigan in 1853, was the placing upon record by Paull, in January, 1854, the plan referred to, and following this, in 1856, was the entering by Daniel Goodwin, district judge, of the lots hereinbefore described, together with lot No. 1, in section 36, in the same town and range, and which was made the subject of special legislation by act 11 of the Session Laws of 1858, similar to that of 1853, and which, although not in question in the case referred to, is governed by the conclusions there reached. A patent was issued to Daniel Goodwin, district judge, of said land, in trust for the several use and benefit of the occupants thereof, according to their respective interests, which bears date November 28, 1856. In 1861 the legislature of Michigan passed an act entitled "All act to authorize the district judge of the Upper Peninsula to convey certain land held in trust under the act of congress of May 23, 1844." This act recites that "the judge of the district court of Upper Peninsula for Ontonagon county has received from the United States, under said act of congress, and now holds the same subject to and in trust for certain persons interested therein, which lands have been surveyed and laid out into town lots and blocks, and are known as the 'Village of Ontonagon,' and additions thereto." The act then authorizes the judge of the district court, and his successors in office, to exercise full jurisdiction over and concerning said lands, and the disposition thereof to the several occupants entitled thereto, according to the true intent and meaning of said act of congress. It then prescribes the rules and regulations under which the disposition is to be made, and that "at the expiration of one year, after notice has been given, as provided in section 1, the district judge shall cause all the lots or parts of the land occupied as such town-site, not included in any street, alley, or public ground, and not conveyed by deed, as hereinbefore provided, and remaining vacant and unoccupied, to be advertised for sale. ***" It further authorizes a sale to the highest bidder, and then enacts: "The proceeds of such sale, after the payment of the expenses, and the proportion of the costs and expenses necessarily incurred in the entry of the town-site of said town of Ontonagon, shall be paid over to the treasurer of the township of Ontonagon, and shall be applied by the highway commissioner of said township to the grading and improvement of the streets of said town-site of Ontonagon." Nothing appears ever to have been done under this act of the legislature, passed more than a quarter of a century ago. On the 2d day of November, 1885, the village council of Ontonagon adopted the following resolution: "Whereas, it appears to this board it is necessary for a bridge to be constructed across the slough on Copper street, for the benefit of the public travel, be it resolved that the street commissioner be instructed to advertise for bids for the building of such bridge at once, to put the street in proper condition for winter use." The complainant and those under whom it claims title have been in the undisturbed possession of blocks 6 and 7, which would abut on Copper street where it would cross the island if extended, for 15 years or more last passed. They have erected a saw-mill upon block 6, and have used and occupied the land which would be in Copper street according to the plat where it crosses the island for their private use, have built tramways for running out lumber across such street, have piled lumber along the west side without regard to any street being there, and have docked up along the east channel, called the "Slough," and extended such dock along the shore and across Copper street, and used the same for their private purposes for four years or more, and now claim the ownership of the land in the so-called "Copper Street," and claim that the village has no right to said street, nor the public to the use thereof as a street. No work was ever done by the municipal authorities, either township or village, on that part of Copper street where it crosses said island. Considerable testimony was introduced on the one side to show that it had never been used or traveled by the public as a highway, and on the other to show its occasional use by the public as such highway.
In a contest between the owner of adjoining land and a municipal corporation claiming the existence of a public street or highway over such land, the burden of proof is upon the municipality. Mining Co. v. Town of Mason, 23 W.Va. 211; Miller v. Town of Aracoma, 5 S.E. Rep. 148. Upon a review of the testimony I do not think a highway by user has been made out, or such unequivocal acts of use by the public of this portion of Copper street as implies an acceptance by the public. As before stated, Paull was not the owner or the proprietor of the land covered by the plat when he placed it upon record. The law relating to town plats in force at the time required such maps or plats as were required to be recorded to particularly set forth and describe all the public grounds within such town, by its boundaries, courses and extent, and whether it be for streets, alleys,...
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