Karrar v. Berry
| Decision Date | 20 October 1880 |
| Citation | 6 N.W. 853,44 Mich. 391 |
| Court | Michigan Supreme Court |
| Parties | KARRAR and another v. BERRY and another |
Where a lot is conveyed, described as bounded by a street, the grantor and his privies will, as to the grantee therein, be estopped from shutting up or obstructing the strip of land so designated as a street, so as to prevent its use for the enjoyment of the granted premises. Sufficiency of bill in equity to prevent the obstruction of such a strip considered and obstructions ordered removed.
Appeal from Wayne in chancery.
Alfred Russell and H.M. Campbell, for defendants.
The complainants ask to be protected in their right to the use and enjoyment as a highway of a strip of land which would be the line of Guion street in the city of Detroit if said street were extended easterly past certain premises owned by them, and to have defendants restrained from closing up as a street said strip, and that they may be required to remove a certain brick office which they have lately erected partly within the limits of said strip.
The defendants insist that the bill is silent as to whence they derive their title, and as to the ownership of the strip in controversy; that the defendants are in possession of this strip and presumably are the owners thereof, and although the evidence may show sufficient to entitle complainants to relief, yet they must fail under the familiar and well-settled law of this state which denies relief upon a case proved but not set up in the bill.
We shall therefore first look to the bill in order to ascertain what is there set forth, and in so doing we must bear in mind that the complainants do not seek relief upon the ground that this strip has ever been dedicated or opened as a public highway, but that their grantor in selling and conveying certain premises to them bounded the same on this strip as a street. Their position is that the purchase of a lot described as bounded on a street, estops the grantor and his privies from shutting it up or obstructing it, so as to prevent his grantees making use of it for their own accommodation in the enjoyment of their purchase. Smith v. Lock, 18 Mich. 56. Where the defendants in such a case answer claiming the benefit of a demurrer therein, the court will not require the same particularity in setting out the sources of defendant's title, as might be required upon special demurrer. The bill sets forth that George B Russel being the owner and actual possessor of certain lands on the twenty-first day of September, 1859 conveyed the same to complainant, and in the description thereof bounded them as, "on the south side of Guion street," and that this conveyance was on the day subsequent to the date thereof duly recorded.
The bill sets up "that Guion street was an open street reaching to Adair street on the west of said premises, and said Russel, who then owned property east of Adair street had intended and claimed his intention to open said Guion street through the premises in question, and to the eastern bounds of the city; that he so gave out to your orators, and had a map or plat prepared, showing the proposed extension of said street, and that he sold the premises, and your orators bought them in reliance upon said streets being extended and continued as an open street, and they further show that immediately after the purchase and taking possession of the premises which were sold to them as fronting on said street said Russel and they united in plowing the lands included...
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