Doherty v. City of Detroit

• Decision Date: 04 December 1928
• Docket Number: No. 2.,2.
• Citation: 244 Mich. 660,222 N.W. 177
• Parties: DOHERTY et al. v. CITY OF DETROIT et al.
• Court: Michigan Supreme Court

244 Mich. 660

222 N.W. 177

DOHERTY et al.

v.CITY OF DETROIT et al.

No. 2.

Supreme Court of Michigan.

Dec. 4, 1928.

Appeal from Circuit Court, Wayne County, in Chancery; De Witt H. Merriam, Judge.

Suit by Thomas N. Doherty and others against the City of Detroit and others. Decree for plaintiffs, and defendants appeal. Modified and affirmed.

Argued before the Entire Bench. Walter Barlow, of Detroit (Clarence E. Wilcox, of Detroit, of counsel), for appellants.

Carl B. Grawn and Lightner, Oxtoby, Hanley & Crawford, all of Detroit, for appellees.

CLARK, J.

The plaintiffs own lots on a boulevard, sometime called Chicago boulevard, between Linwood avenue and Dexter boulevard in Detroit. They seek, by this bill, to have vacated a special assessment for the widening and opening of the boulevard between Linwood and Dexter. They also pray that a special assessment for paving that portion of the boulevard be set aside. They had decree, from which defendants have appealed.

We discuss first the assessment for paving. Under the city charter, paving a boulevard is not a local improvement. Title 6, c. 3, § 2, City Charter. Paving a street where abutting or adjacent real estate shall be benefited is a local improvement, and it is the charter duty of the common council in such case to assess benefits ratably against the real estate to be benefited.

Is the highway between Linwood and Dexter a boulevard or a street? Chicago boulevard extended westward from Woodward avenue to Linwood. In August, 1917, a 60-foot street known as Weston avenue extended west from near the westerly end of Chicago boulevard at Linwood through and beyond a number of streets or boulevards, including Dexter Boulevard and Nardin avenue, to McQuade street. On August 28, 1917, the common council by ordinance, duly approved, provided:

‘That the name of the street and highway known as Weston avenue between Linwood avenue and McQuade street, be and the same is hereby changed and shall hereafter be known and designated as Chicago boulevard.’

On June 20, 1922, while such ordinance was still in effect, the common council adopted a resolution declaring it a necessary public improvement to open Thomas avenue from Linwood avenue to Nardin avenue where not already open as a public street, which resolution--

‘further declared it necessary to take private property for the purpose of making said improvement, which property was therein described; that said resolution designated a special assessment district against which part of the damages awarded in said proceeding were to be assessed, and directed the corporation counsel to institute the necessary proceedings therefor in the Recorder's Court of said City; and on July 29, 1922, said petition was filed in said court pursuant to said resolution and said proceeding to make said improvement begun.

‘On December 5, 1922, by resolution, said Common Council directed the Corporation Counsel to amend said petition in said proceedings so as to include only so much of the private property to be taken for said improvements as lay between the west line of Linwood avenue and the east line of Dexter boulevard, and on January 3, 1923, an order was entered in said proceedings purporting to amend said proceedings accordingly.

‘On January 18, 1923, a jury was empaneled in said cause, who viewed the premises and returned to court, and on January 26, 1923, said jury brought in a verdict finding the necessity of said widening and awarding damages for the taking of the property therein designated. * * *’

The verdict was confirmed and the awards paid in full.

It will be noted that in the condemnation proceedings Chicago boulevard is called by the misnomer, Thomas avenue. On June 5, 1923, an ordinance was approved changing the name of Chicago boulevard between Linwood avenue and Dexter boulevard to Thomas avenue.

On May 6, 1924, the common council confirmed a contract for the paving of so-called Thomas avenue between Linwood and Dexter. The pavement was completed and accepted by the city on August 5, 1924. The highway at the place in question is now approximately 175 feet wide. The plaintiffs' property abutting the highway so paved was thereafter assessed for benefits for paving.

In determining whether the highway is a street or a boulevard we do not rest decision on the act of the common council in changing the name of Weston avenue to Chicago boulevard; the change of name, that the highway at the place in question was popularly known as Chicago boulevard, that its signs were of that name, and that the city assessors and the city plan and improvement commission treated it as a boulevard are here treated as evidence respecting its character, as is also that the department of parks and boulevards assumed jurisdiction over it, expended public money upon it, patrolled it against heavy loads, landscaped it, and treated it like the adjoining part of Chicago boulevard. We treat all these matters as evidence, because we need not in this opinion consider that they or any of them are capable of greater significance. 44 C. J. 882.

An important part of the evidence is the highway, the thing itself, in its physical aspect. It is wide, according to the record wider than Chicago boulevard east of Linwood, much wider than an ordinary street. It is given a parklike appearance. It contains for much of its langth at least and at present islands so-called. It answers the description of a boulevard. McLachlan v. City of Detroit, 208 Mich. 188, 175 N. W. 445; 1 Words and Phrases, Second Series, 484; Miller v. City of Detroit, 244 Mich. 38, 221 N. W. 292. It is a boulevard.

Albers v. City of St. Louis, 268 Mo. 349, 188 S. W. 83, is closely in point. There the city of St. Louis passed an ordinance changing a part of Bircher street into a boulevard to be known as ‘Kingshighway Northeast,’ and to widen the boulevard, etc. After taking certain steps in carrying out the provisions of the ordinance, the city, seeking to create a special assessment district and to assess lands of the complainant (which it might do in case of improving a street and...