Horton v. Williams

• Decision Date: 27 March 1894
• Citation: 58 N.W. 369,99 Mich. 423
• Court: Michigan Supreme Court
• Parties: HORTON et al. v. WILLIAMS.

58 N.W. 369

99 Mich. 423

HORTON et al. v. WILLIAMS.

Supreme Court of Michigan

March 27, 1894

Appeal from circuit court, Ingham county, in chancery; Rollin H Person, Judge.

Action by James P. Horton and others against Henry M. Williams to enjoin the erection of a building on an alley in the city of Mason. From a judgment for defendant, plaintiffs appeal. Reversed.

Arthur D. Prosser, for appellants.

Cahill & Ostrander, for appellee.

McGRATH C.J.

Complainants who are owners of property abutting upon an alley in the city of Mason, file this bill to enjoin defendant from erecting a building in one of the main outlets of said alley. Complainants own lots Nos. 1, 2, 3, 4, 8, and 9. The alley between A and B streets is 33 feet wide. The alley running from Ash to Maple streets is 8 feet wide. The block was platted in 1838, by one Noble. Since that time said alley has been used as a way to and from B street. The 8-foot alley, beginning at the alley in question, and running south to Ash street, is a private alley, and is impassable, by reason of a platform and stairway at the rear of the store occupied by Howard & Son and the 8-foot alley running from the alley in question north to Maple street is a private alley, and at times impassable, by reason of various articles placed therein for purposes of convenience by occupants of stores adjoining the same. If the east 66 feet of said alley is occupied with a building, as proposed by defendant, all means of ingress and egress through that part of said alley to the main business street of said city, heretofore used by complainants, will be entirely cut off, and complainants claim that their said property will thereby be depreciated in value. In 1886, Noble conveyed to one Barnes certain other blocks and lots in this same subdivision. The deed contained a general clause conveying all other lands in the subdivision "not heretofore conveyed" by Noble. In April, 1892, defendant procured from Barnes a deed covering the lands in the alley. Defendant also obtained from the owner of the lot adjoining the vacated strip on the south a deed of all interest in the alley. In May, 1892, defendant made a proposition to the common council of the city of Mason that, if said council would vacate the east 66 feet of said alley, he would construct a brick building therein, and devote the use of the south 14 feet of the lower story and a part of the upper story of said building to the use of said council by lease for 99 years, or to convey to said city said portion of said building by quitclaim deed. On May 9, 1892, the common council adopted the following resolution: "Resolved by the common council of the city of Mason, that it is advisable to vacate, discontinue, and abolish the east sixty-six feet of the alley running between lots five (5) and ten (10), block thirteen, in the city of Mason, according to the original recorded plat thereof, and that said common council will meet on Monday evening, June 13th, at the council room, to hear all objections that may be urged against said vacating, discontinuing, and abolishing said sixty-six feet of said alley. All objections to be in writing, and filed with the city clerk." A meeting to consider any objections that should be made was held, and at such meeting 8 of the 9 owners [99 Mich. 427] and 23 others appeared, and filed a written protest against such vacation. On June 13, 1892, defendant entered into an agreement with the city, which recites that, in consideration of the vacation of the east 66 feet of the alley, Williams agrees that he will carry out the proposition made by him as aforesaid. Afterwards, on June 20, 1892, the council adopted the following resolution: "Be it resolved by the common council of the city of Mason, that the east sixty-six feet of the alley running between lots 5 and 10, of block 13, of the city of Mason, be, and the same is hereby, vacated, discontinued, and abolished, and that said vacating, discontinuing, and abolishing of said east 66 feet of said alley is a public improvement." It is admitted that the east 66 feet of said alley is worth, for business purposes, at least $2,500. The sections of the statute ^[1] under which the council is supposed to have acted are as follows: "Sec. 2622. The council shall have authority to lay out, open, widen, extend, straighten, alter, close, vacate or abolish any highway, street or alley in the city, whenever they shall deem the same a public improvement, and if in so doing, it shall be necessary to take or use private property, the same may be taken in the manner in this act provided for taking private property for public use. Sec. 2623. When the council shall deem it advisable to vacate, discontinue or abolish any street, alley or public ground, or any part thereof, they shall by resolution so declare, and in the same resolution shall appoint a time not less than four weeks thereafter when they will meet and hear objections thereto."

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An alley is not meant primarily as a substitute for a street but only as a local accommodation to a limited neighborhood, and the public has no general right of way through it. Paul v. Detroit, 32 Mich. 108; Beecher v. People, 38 Mich. 289; Bagley v. People, 43 Mich. 355, 5 N.W. 415. Hence a claim made by a member of that limited neighborhood is not open to the objection that his injury is of a like character to that which any member of the community is subjected, differing only in degree. The cases of Phillips v. Commissioners, 35 Mich. 15; Goss v. Commissioners, 63 Mich. 608, 30 N.W. 197; and Kimball v. Homan, 74 Mich. 700, 42 N.W. 167, recognize the rights of persons the access to whose property may be disturbed by vacation proceedings. In the last case cited it is said: "We have always regarded a person as having property adjoining a...