Kipp v. Van Wagoner

• Decision Date: 05 October 1938
• Docket Number: No. 17.,17.
• Citation: 286 Mich. 202,281 N.W. 592
• Parties: KIPP et ux. v. VAN WAGONER, State Highway Com'r, et al.
• Court: Michigan Supreme Court

286 Mich. 202

281 N.W. 592

KIPP et ux.

v.VAN WAGONER, State Highway Com'r, et al.

No. 17.

Supreme Court of Michigan.

Oct. 5, 1938.

Suit by Alvin E. Kipp and wife against Murray D. Van Wagoner, State Highway Commissioner of the State of Michigan, or his successor in office, and others, to obtain injunctive relief from injury allegedly resulting from erection of a viaduct across street at an angle directly in front of plaintiffs' property. From a decree of dismissal, the plaintiffs appeal.

Decree affirmed.Appeal from Circuit Court, Oakland County, in Chancery; Frank L. doty, judge.

Argued before the Entire Bench.

Arthur E. Moore, of Royal Oak, for appellants.

Raymond W. Starr, Atty. Gen., and Edmund E. Shepherd, Asst. Atty. Gen., for State Highway Com'r.

Victor Spike and John J. Gafill, both of Detroit, for appellee Grand Trunk Western R. Co.

McALLISTER, Justice.

Plaintiffs are the owners of property in the city of Royal Oak described as lot #182 of Edgewood Park subdivision. The lot faces east on Northwest Avenue, a north and south street. The center line of this street is the dividing line between two subdivisions. The easterly half of the street was dedicated to public use in one plat, and the westerly half of the street was so dedicated in another plat.

In the interest of public safety, and for the purpose of effecting the building of numerous costly grade separations by the erection of a system of viaducts without cost to its citizens, the city of Royal Oak entered into a contract in 1929 with the state of Michigan, represented by the governor and the state highway commissioner, and with the Grand Trunk Western Railroad Company, to re-locate the right-of-way of the railroad company. Such relocation embraced the building of a viaduct in a northwesterly diagonal direction across Northwest Avenue. The viaduct crossed the street at an angle directly in front of plaintiffs' property. The re-located right-of-way and embankment, however, does not touch plaintiffs' lot in crossing the street, but covers nearly the entire easterly or opposite half of the street in front of plaintiffs' lot. The westerly half of the street, directly in front of plaintiffs' lot, and adjoining it, is free from the obstruction of the viaduct except for a small triangle of land, lying along the center line of the street, where the viaduct crosses the street diagonally, the north line of the said triangle projecting a few feet into plaintiffs' side of the street. This small triangular portion of land is approximately 20 feet from plaintiffs' lot at its nearest point. If plaintiffs' lot were extended easterly to the center line of the street, this small portion of land would be the northeasterly corner of the lot.

Defendant city claims that it vacated the easterly side of the street together with the triangular portion lying in the westerly side of the street, in order to carry out the re-location of the right-of-way. Plaintiffs claim that on such vacation this island of land lying near the center of the street although not touching their property would vest and revert to them as adjoining owners under the provisions of 3 Comp.Laws 1929, § 13262. Whatever the merit of this contention, it is unnecessary to discuss, as other facts and principles are controlling.

Conforming to the terms of the contract above mentioned, the railroad company re-located its right-of-way and built an embankment 15 feet high on the property in controversy, in 1931. In 1935, plaintiffs received $1,800 in condemnation proceedings brought to determine damages for the violation of building restriction rights caused by the re-location of the right-of-way. Plaintiffs' bill of complaint was filed June 9, 1936. For a period of upwards of five years plaintiffs made no attempt to assert their alleged rights in this triangular island in the street or to restrain the building of the grade separation which was being erected in the street directly in front of their lot, obviously at tremendous expense, and as part of a system of grade separations in the city of Royal Oak. Plaintiffs had remedies at law if their rights were being violated. They might have brought an action for damages or have proceeded in ejectment. But they have too long delayed their claim for damages in an action at law because of the statute of limitations, 3 Comp.Laws 1929, § 13976; and they would be confronted by the defense of estoppel in an action in ejectment, Gurnsey v. Northern California Power Co., 160 Cal. 699, 117 P. 906, 36 L.R.A.,N.S., 185; Weber v. Ford Motor Co., 245 Mich. 213, 218, 222 N.W. 198;Sliwinski v. Gootstein, 234 Mich. 74, 208 N.W. 47; and estoppel would be a defense, as well, in an action for trespass. Roberts v. Northern Pacific Railroad Co., 158 U.S. 1, 15 S.Ct. 756, 39 L.Ed. 873. Plaintiffs, however, neglecting their legal remedies, have chosen to come into equity.

The general rule is that nothing can call forth the court of chancery into activity except conscience, good faith and reasonable diligence. When these are wanting, the court is passive and does nothing, Sullivan v. Portland & Kennebec Railroad, 94 U.S. 806, 24 L.Ed. 324; and it is a general rule that laches or staleness of demand constitutes a defense to the enforcement of the right or demand so neglected. Creswill v. Grand Lodge K. P., 225 U.S. 246, 32 S.Ct. 822, 56 L.Ed. 1074.

In Hammond v. Hopkins, 143 U.S. 224, 250, 12 S.Ct. 418, 427, 36 L.Ed. 134, through Mr. Chief Justice Fuller, the court said: ‘No rule of law is better settled than that a court of equity will not aid a party whose application is destitute of conscience, good faith, and reasonable diligence, but will discourage stale demands, for the peace of society, by refusing to interfere where there have been gross laches in prosecuting rights, or where long acquiescence in the assertion of adverse rights has occurred.’

In Galliher v. Cadwell, 145 U.S. 368, 371, 12 S.Ct. 873, 874, 36 L.Ed. 738, speaking through Mr. Justice Brewer, it was said:

‘The question of laches turns not simply upon the number of years which have elapsed between the accruing of her rights, whatever they were, and her assertion of them, but also upon the nature and evidence of those rights, the changes in value, and other circumstances occurring during that lapse of years. The cases are many in which this defense has been invoked and considered. It is true, that by reason of their differences of fact no one case becomes an exact precedent for another, yet a uniform principle pervades them all.’

“The omission to do what one is by law required to do to protect his rights, and which justified a fair presumption that he has abandoned the same, under circumstances which misled or prejudiced an adverse party, may in equity operate as laches which bar the assertion of such right later under changed conditions, even though the statute of limitations has not run.' Olson v. Williams, 185 Mich. 294, 301, 151 N.W. 1043.

“The doctrine of laches is founded upon long inaction to assert a right, attended by such intermediate change of conditions as renders it inequitable to enforce the right.' Angeloff v. Smith, 254 Mich. 99, 101, 235 N.W. 823, 824.' School District v. School District, 266 Mich. 479, 485, 254 N.W. 174, 176.

In Penn Mutual Life Insurance Co. v. Austin, 168 U.S. 685, 18 S.Ct. 223, 42 L.Ed. 626, it is said [page 228]:

‘In Lane & Bodley Co. v. Locke, 150 U.S. 193, 14 S.Ct. 78 , and Mackall v. Casilear, 137 U.S. 556, 11 S.Ct. 178 , it was held that the mere assertion of a claim, unaccompanied with any act to give effect to the asserted right, could not avail to keep alive a right which would otherwise be precluded because of laches. Indeed, the principle by which a court of equity declines to exert its powers to relieve one who has been guilty of laches, as expressed in the foregoing decisions has been applied by this court in so many cases besides those above referred to as to render the doctrine elementary. Whitney v. Fox, 166 U.S. 637, 647, 648, 17 S.Ct. 713 ;Gildersleeve v. New Mexico Mining Co., 161 U.S. 573, 58216 S.Ct. 663 ;Abraham v. Ordway, 158 U.S. 416, 423, 15 S.Ct. 894 ;Ware v. Galveston City Co., 146 U.S. 102, 116, 13 S.Ct. 33 ;Foster v. Mansfield, Cold Water, etc., Railroad Co., 146 U.S. 88, 102, 13 S.Ct. 28 ;Galliher v. Cadwell, supra, where the earlier cases are fully reviewed; Hoyt v. Latham, 143 U.S. 553, 12 S.Ct. 568 ;Hanner v. Moulton, 138 U.S. 486, 495, 11 S.Ct. 408 ;Richards v. Mackall, 124 U.S. 183, 189, 8 S.Ct. 437 .

‘The reason upon which the rule is based is not along the lapse of time during which the neglect to enforce the right has existed, but the changes of condition which may have arisen during the period in which there has been neglect. In other words, where a court of equity finds that the position of the parties has so changed that equitable relief cannot be afforded without doing injustice, or that the intervening rights of third persons may be destroyed or seriously impaired, it will not exert its equitable powers in order to save one from the consequences of his own neglect. The adjudicated cases, as said in Galliher v. Cadwell, supra, 145 U.S. 372, 12 S.Ct. [873], 874, ‘proceed on the assumption that the party to whom laches in imputed has knowledge of his rights, and an ample opportunity to establish them in the proper forum; that by reason of his delay the adverse party has good reason...