Dickinson v. City of Detroit

• Decision Date: 05 January 1897
• Citation: 111 Mich. 480,69 N.W. 728
• Court: Michigan Supreme Court
• Parties: DICKINSON v. CITY OF DETROIT ET AL.

69 N.W. 728

111 Mich. 480

DICKINSON v. CITY OF DETROIT ET AL.

Supreme Court of Michigan

January 5, 1897

Appeal from circuit court, Wayne county, in chancery; William L Carpenter, Judge.

Bill by Horace H. Dickinson against the city of Detroit and Albert Stoll, receiver of taxes, to restrain the collection of an assessment for paving a street. Decree for complainant, and defendants appeal. Affirmed.

Charles Flowers (Charles D. Joslyn, of counsel) for appellants.

Wells Angell, Boynton & McMillan (F. A. Baker, of counsel), for appellee.

HOOKER J.

Washington avenue is a street in the city of Detroit, and is 200 feet wide between lot lines. Many years ago, under an ordinance passed in the year 1860, this street was paved with block stone, such pavement being laid to the width of 40 feet through the middle of the street. In the year 1895 the common council caused the stone pavement to be taken up, and a strip of ground 100 feet wide through the middle of the street was appropriated to the purpose of a street park, on each side of which a driveway 25 feet wide was made of asphalt. This improvement was assessed as a paving improvement upon the adjoining premises, and complainant files the bill in this case to restrain collection. The charter (section 35) provides: "The cost and expense of such improvement, except so much thereof as shall be for the work within the lines of intersection of cross streets and alleys, for the cross walks at such intersections, and for repaving streets, avenues and highways, shall be assessed ratably, according to their extent of front, on the lots, parts of lots, or parcels of real estate directly fronting on and within the local assessment district. The cost of all repaving of streets, avenues and highways of the city shall be paid out of the repaving fund." The case turns upon the question whether or not this was a repavement, within the meaning of the charter; counsel for the complainant claiming that it is, while counsel for the city urge that it is not, because it does not cover the ground theretofore paved, and that, inasmuch as the city might, in the first instance, have paved the entire width of the street at the expense of adjoining proprietors, it was proper to charge the expense of the first pavement built upon a given portion of the street to adjoining proprietors.

Whether this action of the counsel grew out of a desire to beautify Washington avenue, by changing the location of the roadway and parks, or from a necessity for a new pavement arising from the wear upon the first pavement, we are not informed. The fact remains that there is nothing to...