Mayor of Detroit v. Moran

• Decision Date: 10 November 1880
• Citation: Mayor of Detroit v. Moran, 44 Mich. 602, 7 N. W. 180 (Mich. 1880)
• Court: Michigan Supreme Court
• Parties: MAYOR OF DETROIT v. MORAN and others.

7 N.W. 180

44 Mich. 602

MAYOR OF DETROIT v. MORAN and others.

Supreme Court of Michigan

November 10, 1880

"Possessed" is a variable term in law, having different meanings as used under different circumstances. Allegation in an information in the nature of quo warranto, alleging that the city of Detroit was possessed of a certain island, etc., and that defendants unlawfully usurped the franchise by taking possession of said island, etc., held not necessarily contradictory. The city of Detroit was, by special legislation, given the power to purchase, improve, and control as a public park, Belle Isle, lying outside of its city limits, to erect a toll bridge across to such island and extend its police authority over such island. Held, that the right to take possession and improve such park was a public franchise, and that the attempt of private persons to assume possession of and improve such property, would be regarded as a usurpation of such franchise.

Quo warranto.

Otto Kirchner, Att'y Gen., for relator.

Maybury & Conely, John D. Conely, and Ashley Pond, for respondents.

COOLEY, J.

We have in this case an information in the nature of a quo warranto to inquire by what authority the respondents usurp certain franchises. It is very brief and gives the court to understand that on the eleventh day of June, 1880, the city of Detroit was and now is possessed of an island in Detroit river, known as Belle Isle, which was and is held by said city under a purchase of the same by statutory authority, and that the respondents usurp and unlawfully hold, use and exercise the franchises of taking possession of said island for the purpose of improving the same as and for a public park without any legal warrant or authority whatsoever therefor. To this information the defendants demur.

The grounds of demurrer are set out in the respondent's brief, and they appear to be the following: First, that the information is contradictory in that it avers possession by the city of Belie Isle, and also an unlawful possession in the defendants, for which reason no relief can be given; and second, that the usurpation alleged is not of any franchise whatever, and therefore is not the subject of any such inquiry.

The first objection is one of form, not of substance, and ought rather to be the subject of special demurrer. But we are of opinion that, even as a special demurrer, it would not hold good. There is an apparent contradiction, perhaps, but no necessary and positive repugnancy.

The city of Detroit is said to have been possessed of Belle Isle and the defendants to have usurped the franchise of taking possession, etc. "Possessed" is a variable term in the law, and has different meanings as it is used in different circumstances. It sometimes implies a temporary interest in lands; as we say a man in possessed, in contradistinction to being seized. It sometimes implies the corporal having; as we say a man is seized and possessed. But it sometimes implies no more than that one has a property in a thing; that he has it as owner; that it is his. In this sense it may be used even though an intruder may have excluded the owner for the time being. And there is never any impropriety in making use of the term when the only possession the intruder has is apparently subordinate to that of the general owner.

In this case the city is said to be possessed and the respondents have assumed to take posseession for the purpose of improving the same as for a public park. A possession for...