Fox v. Pierce
| Decision Date | 06 June 1883 |
| Citation | 50 Mich. 500,15 N.W. 880 |
| Court | Michigan Supreme Court |
| Parties | FOX v. PIERCE. |
Courts will not, unless in clear cases, establish and protect a way for passage over private property on the ground of enforcing specific performance of a partly-executed oral agreement, or of declaring and protecting a presumptive right resulting from a use which originally sprang from such an agreement.
A right of way that is too indefinite for a determinate description cannot be established and protected by a court of chancery.
Complainant in equity must so state his case in his bill that, if admitted by answer or proved at the hearing, the court can decree upon it.
A bill to establish a right of way, and to enjoin encroachments upon it, cannot be sustained where it does not furnish the means for declaring exactly what the right is, and the shape dimensions, and precise locality which it occupies, and the proofs show nothing but an oral agreement for its establishment, and such occasional variations in the bounds of the locality as to make it impossible to determine where it originally existed.
Appeal from superior court of Detroit.
Conely Maybury & Lucking, for complainants.
F.A. Baker, for defendant.
The complainants prayed the superior court of Detroit, sitting in chancery, to find and declare the existence of a permanent passage-way on certain premises of the parties, and to enjoin the defendant from committing any encroachment or disturbance on it. The case was heard on bill, answer, and evidence, and dismissed, and complainants appealed. An alley, laid out by the governor and judges, extends from John R. street westerly for several yards, where it narrows to a point and terminates between Madison and Adams avenues. The passage-way in question is alleged to be a narrow way, ingrafted on this alley as a continuation, and running westerly several feet but having no opening at the west. The block is bounded on the east and west by John R. and William streets, and on the north and south by Adams and Madison avenues. In 1851 William Chapoton owned lots 24 and 25, and the east half of lot 23, in this block, and James Brennan, now deceased, owned lot 18 and the east half of lot 19. The Chapoton property fronts to the south and on Madison avenue, and the Brennan property to the north and on Adams avenue, and the opening or passage-way in dispute is on the rear of the two properties. The complainant Brennan is the successor in estate of James Brennan, and holds his title. The complainants Fox and the defendant Pierce hold under mesne conveyances from Chapoton; the premises of Fox being the east 25 feet of lot 23 and the west 34 feet of lot 24; and those of Pierce being the east 26 feet of lot 24 and the west 3 feet of lot 25.
A schedule marked "A," and made a part of the bill, is alleged to be a correct representation of the block and lots, and of the alley made by the governor and judges, and of the passage or opening appended to it which is here in controversy; the latter being colored red. After referring to this schedule the complainants state on information and belief that said alley so opening out of John R. street, and running westerly to a point lying between lots 19 and 24, as shown on said plat, has existed as it now is for the space of 25 years and upwards; that they know that it is at least seven and a half feet wide throughout its entire length, and are informed and believe it has been so for upwards of 25 years; that said alley-way extends in from John R. street, as shown on said Schedule A, up to the land of your orators Fox, and also to and adjoining on the southerly side the land of your orator Edward Brennan, as hereinbefore described." It will be observed that this statement refers to the alley made by the governor and judges, and to the appendix claimed to be an extension, as a single continuous way.
The complainants...
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