Face v. City of Ionia
| Decision Date | 05 February 1892 |
| Citation | 51 N.W. 184,90 Mich. 104 |
| Court | Michigan Supreme Court |
| Parties | FACE v. CITY OF IONIA. |
Error to circuit court, Ionia county; VERNON H. SMITH, Judge.
Action for personal injuries by Almira E. Face against the city of Ionia. Verdict and judgment for defendant. Plaintiff brings error. Affirmed.
Mitchel, Hawley & Nesbitt, for appellant.
Davis & Nichols, for appellee.
An action for negligent injury resulting from a fall into an area built by a private person within the limits of Broad alley, in the city of Ionia. The court below directed a verdict for the defendant. The area into which plaintiff fell was from 8 to 10 feet in length, and from 3 to 4 feet in width, and was left entirely unguarded, without any railing to prevent people from walking or falling into it. It had been in this condition from the time of its construction, in December, 1885, up to the time of the injury to plaintiff November 27, 1889. The circuit judge was of the opinion that public alleys were not covered by the statute in relation to injuries received on account of the neglect of municipalities to keep streets and highways in reasonable repair and in condition reasonably safe and fit for travel. Pub. Acts 1887, (Act No. 264, pp. 345, 346.) The counsel for plaintiff contend- First, that the evidence in the case tends to show that this alley has become a public street by dedication as well as user; and, second, that a public alley is a public street in law and in the contemplation of this statute. The place now known as the "City of Ionia" was first settled in 1833. The land was located by Samuel Dexter, and patented to him by the United States in 1833. In July, 1841, Dexter caused a survey and plat to be made of the village of "Ionia County-Seat." Minutes of the survey were indorsed on the back of the plat, and on the 28th day of August, 1841, Dexter acknowledged "the within map to be made for the use and purposes therewith expressed." The map and minutes, together with the acknowledgment, were entered for record the same day in the office of the register of deeds of Ionia county. Upon this map certain streets were laid out and designated by names. Between Main and Washington streets, which are the principal streets running east and west, and between First and Second streets, which run north and south, there was left a space between lots which is now known as "Broad Alley." Between Main street and Front street, which latter street runs parallel with Main street, and south of it, a corresponding space was laid out, which is also now known as "Broad Alley." The following portion of the plat will explain the situation:
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The space marked "X" is what is now called "Broad Alley." The injury occurred at or near the south-east corner of lot 25, the area being constructed for the purpose of a stairway down into the basement of Page's block, situated on said lot. There are also like spaces on the remainder of the plat running from Washington to Main street, and from Main street to Front street, and opposite each other, between Second and Third streets; and also one running from Main to Washington street, between Third street and what is now known as "Dexter Street," but marked upon the plat as "Highway." These spaces or openings are all one rod wide, and have been open and uninclosed ever since. It will readily be seen that these spaces were not intended for public streets or highways, as there was no necessity for them. They were undoubtedly intended as private alleys, and platted more for the benefit of the adjoining lot-owners than for any public use. They have been treated as alleys ever since by both the village and city authorities, and in no sense as public streets. The travel upon them, until of late years, has been such travel as is customary in the use of alleys. They have been open so that foot-passengers and wagons could pass through them, and people have more or less availed themselves of such opportunity. It was attempted to be shown, but without success, that the village and city authorities have recognized this particular alley as a public street, and did work upon it. The record shows no acceptance by the public of this alley as a street, and no work upon it by the municipal authorities. When this plat was made, and for nearly a quarter of a century thereafter, north and back of Washington street, as located on this plat, was a steep bluff, covered with bushes and small timber, and so steep and rugged in a state of nature as to be impassable for teams. There was no occasion to use this alley, as the distance between First and Second streets was but 21 rods, and there was nothing at either end of the alley calling for or inviting travel through it. In 1862 or 1863 the hill began to be settled, principally upon the top, and a short street, called "Pleasant Street," was opened north from Washington street to High street, which latter street ran on the brow of the hill parallel with Washington street. Upon reaching High street, Pleasant street ran on north for some distance, but from Washington to High street it has seldom been passable for teams. Pleasant street ended on Washington street opposite this alley in question. Since the location of the post-office where it now is, some eight or nine years ago, the foot-travelers from the places on the hill reached by Pleasant street have frequently used this alley as a short cut to the post-office; and this alley south of Main street has been used by foot-passengers ofttimes in late years as a short cut to the depot of the Detroit, Lansing & Northern Railroad. The public have no doubt acquired rights of passage in this alley by user, and it is a public alley, but it has never been known or classed by the public generally or the municipal authorities as a public street, any more than have the other alleys in the city, which have been used by the public all these years, in the same manner and to the same extent as this alley, except that for seven or eight years there has been more travel on Broad alley, for the reasons heretofore stated. No name was ever given to this alley until 1890, when all the principal alleys in the city were named by the common council for the purpose of a general postal delivery. It was named "Broad" after a meat-market proprietor whose shop was situated on the south side of Main street adjoining it, and not because of its width. For the purposes of this suit, it may be considered that this alley, although never dedicated as a public street, nor accepted as such by the public, and probably intended as a private alley, has become by user a public alley, in which the public have rights of passage which the lot-owners adjoining such alley cannot interfere with or destroy.
Conceding this to be a public alley, is a public alley in this state a public street or highway in contemplation of the statute giving...
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