Haab v. Moorman

• Decision Date: 07 January 1952
• Docket Number: No. 6,6
• Citation: 332 Mich. 126,50 N.W.2d 856
• Parties: HAAB et al. v. MOORMAN et al.
• Court: Michigan Supreme Court

Page 856

50 N.W.2d 856

332 Mich. 126

HAAB et al. v. MOORMAN et al.

No. 6.

Supreme Court of Michigan.

Jan. 7, 1952.

Burke, Burke, & Smith, Ann Arbor, (Lawrence, Ulrich & Tripp, Ypsilanti, of counsel) for Plaintiffs and Appellants.

Cleary, Weins, Jackson & Scallen, Ypsilanti, for George Moorman, Velma Moorman, Lucille Denhart and Marion Moorman.

DeVine & DeVine, Ann Arbor, for Gus J. Carras, Christ Carras and Mrs. Gus Carras.

Before the Entire Bench.

BUTZEL, Justice.

Plaintiffs seek to enjoin defendants from obstructing a vacant areaway lying between the properties of the respective parties in the city of Ypsilanti. For an understanding of the issues, we attach a rough sketch of the area in dispute, the subject of this litigation, and also of the neighboring property. For brevity we refer to the disputed property as an alley. Otto and Oscar Haab, Peter Karson and John Atsalas, plaintiffs, were the owners of the properties on the north side of Michigan Avenue in Ypsilanti, Michigan, as shown by the sketch. Atsalas died after the suit was begun and the property designated as Atsalas' in the sketch has been conveyed to James Vourlitis, who has been substituted for Atsalas as party plaintiff. In November, 1946, defendants Gus Carras and Christ Carras entered into a land contract to purchase what appears on the sketch as the Ambassador Restaurant and the alley adjoining it on the south. The contract, however, states that it is subject to a four-foot right-of-way north of plaintiff Haab's property and which is to be used in common with others. Mrs. Gus Carras is joined as a co-defendant. George Moorman, et al., their vendors who still hold the title to the Carras property, were also made dufendants.

The record is not very clear as to the incidents that led up to the filing of plaintiffs' bill for injunctive relief to prevent defendants from closing the alley. Plaintiffs' attorney states the bill was for the purpose of preventing 'defendant' from building a proposed building in the disputed strip. The judge in his opinion denying plaintiffs injunctive relief stated that an attempt by defendants Carras to construct a wall southerly across the disputed strip precipitated the litigation. Stripped of verbiage and notwithstanding an unsatisfactory record, the main purpose of the bill is to establish plaintiffs' claim to an easement to use the alley with other abutting property owners. Just whether Carras intended to block the entire 14.25 feet of the alley, which includes the four feet which his contract with the Moormans gives him only as a right to use in common with others for alley purposes, is not shown. Plaintiffs claim an easement not only in the four feet, but also in the additional 10.25 feet north thereof.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The bill of complaint described the alley as 10 feet wide; as a matter of fact it is approximately 14.25 feet in width, or thereabouts, and the length of the disputed part of the alley involved in the petition in this litigation is 52 feet. There are various obstructions in the alley which later will be described in detail. Plaintiffs in the present suit make no objections to these obstructions, nor are defendants directly interested in them in the present litigation.

In 1923, a competent surveyor and engineer drew a plat from which we prepared the abbreviated rough sketch attached to this opinion. The plat was never recorded. Originally the rectangular parcel, about 36 feet by 14.25 feet, north of the Atsalas property and marked barbershop, was vacant so that the alley extended westerly into Huron street. All of the land fronting on the north side of Michigan avenue, running in an easterly direction to the Huron River from Huron street, slopes downward at a rather sharp grade. The grade of Huron street thus was higher than that of the alley, and a stairway had been built at Huron street leading down into the alley for the use of those who wished to go from Huron street down to the alley with its lower level. When the barbershop was first built on a 28 foot by 14.25 foot site, there still remained the stairway (according to the 1923 unrecorded plat) that provided access from Huron street to the alley. The westerly front of the barbershop when originally built was 8 feet east of Huron street, but later in 1925 it was extended west to Huron street, and the stairway was closed. The difference between the grades of the street and the alley constituted a barrier to vehicular traffic which could not ascend or descend stairs so that the building of the barbershop and the later closing of the stairway did not affect the rear of any of the plaintiffs' properties so far as receipt or delivery of goods through the alley by vehicles was concerned. The easterly wall of the barbershop extended to 6 feet west of the northeast corner of the Atsalas property but there was still sufficient space in the rear of the Atsalas parcel so as to provide for access to the alley through a rear door that opened into the alley.

Testimony shows that plaintiffs used and required the alley for delivery of goods and a large number of vehicles were backed into the alley at the rear of the respective properties. In fact, one of defendants' photographic exhibits shows vehicles occupying the alley. The course followed by these vehicles as they drove east of the easterly line of the Ambassador Restaurant if extended is not clearly shown. It appears, however, that sometime after 1935, a cement block extension of about 6 or 7 feet was built into the alley in the rear of the parcel marked 'old brick building' in the sketch, so that trucks proceeding to the north-south private alley would at least to some extent have to use the open space not owned by defendants Carras in the rear of the Ambassador Restaurant. The testimony indicates that even before this cement block extension was built, it was common practice to use the open space in the rear of the restaurant and the buildings north thereof as a means of access to the disputed area. It was also the practice to drive straight east from the disputed area to the north-south private alley, as shown on the sketch.

It appears that the present Ambassador Restaurant building existed since before 1900 and all of the space between the south wall of the Ambassador Restaurant building and the north walls of plaintiffs' buildings, to-wit, 14.25 feet, was used from that time on to the present for making such deliveries. There is no claim that the alley was a way of necessity for plaintiffs' respective properties as goods could also be delivered through the doors fronting on Michigan avenue.

It does not appear that any objection was made to the building of the barbershop at the west end of the alley over 25 years ago as the owners of the stores continued to have the free and open use of the alley in the rear for commercial purposes. In 1923, there was a four and one-half foot platform extending from the old brick building but it was torn down and the cement block extension referred to above constructed. However, the platform did not restrict the traffic to the disputed area in a straight easterly-westerly direction from the north-south alley. At the present time, in addition to the cement block extension, there exists a utility pole approximately in the middle of the alley, a few feet beyond the disputed area and a four foot obstruction in the rear of plaintiffs Haab's property. The existence of the utility pole also necessitates the use of the open space in the rear of the Ambassador Restaurant. This space is not directly involved in the litigation. The four-foot obstruction by plaintiffs Haab is not shown to impede the use of the alley in any way.

Part of the area in dispute was first designated as an alley when in 1837 one Pliny Cutler conveyed to Gilman Davis a parcel of land on Huron street described as: 'Together with an alley or right of way over and across the piece of land ten feet in width lying between the lands herein conveyed and said building erected by Joseph C. Allen on Huron Street.'

The Joseph C. Allen building referred to was situated on land part of which now constitutes plaintiffs' properties. It seems obvious that it was used as an alley for over one hundred years, although the farthest back we have proof of witnessing its use in the memory of living witnesses is that of two aged witnesses who testified that it was used as an alley for 57 years within their knowledge.

In 1964 George Moorman, grandfather of the present defendant, took title to the Ambassador Restaurant property extending as far east as the north-south alley. In connection with the purchase of the property, George Hill in 1864 deeded an undivided one-half interest in the east 76 feet of the alley to Moorman. In 1881, one Simeon Rowley quitclaimed to the same Moorman the west 100 feet of the alley. In 1892, one Foerster, a successor in title to Gilman Davis, quitclaimed to Moorman the west 65 feet of the alley. The three just mentioned conveyances concerned the original 10-foot alley, which is the southerly part of the present 14.25-foot strip. The north 4.25 feet of today's disputed alley was never specifically referred to in a deed as such and was originally a portion of the Ambassador Restaurant parcel. The proofs do not indicate that it was ever built on. The entire 14.25-foot strip had been used as an alley before 1900 and ever since. The restaurant parcel, and any remaining record title to the alley, passed to the Moormans, present defendants, by inheritance from their grandfather.

Hiram Tooker, who between 1847 and 1857 aquired all of plaintiffs's properties through deeds that referred to the alley, conveyed to George Moorman all of the property now embraced in the plaintiffs' parcels with the exception of one Karson parcel. In 1865 Tooker conveyed the other Karson parcel to Simeon G. Rowley.

In the deed of the Haab parcel from...