Ellsworth v. City of Grand Rapids
| Decision Date | 06 May 1873 |
| Citation | 27 Mich. 250 |
| Court | Michigan Supreme Court |
| Parties | Henry G. Ellsworth and others v. The City of Grand Rapids and Francis Cain |
Heard May 1, 1873
Appeal in Chancery from Kent Circuit.
Decree of the circuit court granting a perpetual injunction reversed, and the bill dismissed, with costs of both courts to the defendants.
Thomas B. Church, M. J. Smiley and D. Darwin Hughes, for complainants.
J. W Ransom and L. D. Norris, for defendants.
The complainants are severally the owners in fee of several lots on the plat known as "Ellsworth's addition to the city of Grand Rapids," and filed their bill against the city and defendant Cain, as a contractor under the city, for a perpetual injunction to restrain them from grading and graveling a road or street, claimed by the city as a public highway, under the name of the "Grandville road," across the lots of complainants, and from constructing therein gutters, cesspools, bridges and culverts complainants denying the existence of the highway over their lots, as claimed, and about to be graded and graveled by the city.
It is unnecessary to notice the pleadings further than to say that the bill alleges the platting of the land including the lots in question, by one Ellsworth, through whom complainants derive title, in the year 1857; that the city authorities have assessed taxes upon these lots as thus platted, for various city improvements, declaring them within certain taxing districts for this purpose, and thereby recognizing the plat; and complainants annex a plat of part of said "Ellsworth addition," showing the lots in question and the other adjoining lots with the projected streets laid down thereon, by which it appears that said plat was drawn without any reference to, or recognition of, said "Grandville road," which, if extended through said plat from Wealthy avenue on the south to Summit street (the only portion coming in question in this case), as claimed, and about to be graded by the city, would cut diagonally through the lots in question, taking nearly all of some of the lots, cutting several of them into two pieces, and leaving most of them in bad shape.
A road known as the "Grandville road," extending from the foot of Greenwich street, in the city of Grand Rapids, to Grandville, a distance of some six miles, is impliedly admitted by the bill to have been recorded as laid out many years before, which, if opened, would also extend diagonally through this plat; though it is claimed it was never opened and worked, and that it has been abandoned; and it is alleged that this recorded road, if extended and opened through this plat, would run across this plat more than its entire width west of this road as claimed by the city. And, while the bill alleges that the city claims there is a legal public road by user for more than twenty years, without objection from the owners of these lands where they are proceeding to grade across this plat, it denies the existence of any such highway by user, and alleges that the road, as thus claimed by user, has been abandoned by the city, so far as it would extend across this plat, and still farther into the city.
The answer, admitting the title of the complainants and the laying out of the plat by Ellsworth, alleges that at the time of the making and recording of the plat, so much of the said lots as is covered by the Grandville road (as claimed and about to be graded by the city) was under the control and protection of the city, as a highway, known as the "Grandville road;" and that the same was then open and used as a highway by the public, and had been in the open and notorious possession of the public as a highway for more than twenty consecutive years prior to that time; and that Ellsworth (who laid out the plat) extended it over and upon said highway, in his own wrong and without lawful authority that at the time of the incorporation of the city (which was in 1850) the said road had been an open and public highway known as the "Grandville road;" and that by the incorporation of the city, the care and supervision of said highway was committed to the city, so far as the same is within the city limits; and that the city has the power, and it is its duty, to protect and improve the same; admits that the officers of the city, before the filing of the bill, had assessed taxes on some of said lots across which said highway, as claimed by the city, runs, for the grading of Summit street; and that all said lots have been from time to time assessed by the supervisor of the first ward of the city for State, county and city taxes; but denies that this...
To continue reading
Request your trial
-
Donaldson v. Alcona County Bd. of County Road Com'rs
...face the risk of losing the road pursuant to M.C.L. § 221.20; M.S.A. § 9.21. See Eager, supra at 154-155, 136 N.W.2d 16; Ellsworth v. Grand Rapids, 27 Mich. 250 (1873). Where public control is inconsistent with private ownership, the extent to which the landowner permitted or welcomed the i......
-
Ramstad v. Carr
... ... B. Lambert, as Park Commissioners of the Park District of the City" of Minot Supreme Court of North Dakota June 29, 1915 ... \xC2" ... supported by the great weight of authority. Ellsworth v ... Grand Rapids, 27 Mich. 250 at 256; Rhodes v ... Brightwood, ... ...
-
Boise City v. Hon
... ... 170, 13 P ... 405; Sanborn v. City of Amarillo (Tex.), 93 S.W ... 473; Ellsworth v. City of Grand Rapids, 27 Mich ... 256; Gillean v. City of Frost, 25 Tex. Cr. App. 371, ... 61 ... ...
-
Reno v. Johnson
...v. Berry, 44 Mich. 391, 6 N. W. 853;Bumpus v. Miller, 4 Mich. 159;Campau v. City of Detroit, 104 Mich. 560, 62 N. W. 718;Ellsworth v. Grand Rapids, 27 Mich. 250;White v. Smith, 37 Mich. 291;Neal v. Gilmore, 141 Mich. 519, 104 N. W. 609;Smith v. Lock, 18 Mich. 56;Detroit v. Detroit & Milwauk......