Paul v. City of Detroit

• Decision Date: 08 June 1875
• Citation: 32 Mich. 108
• Court: Michigan Supreme Court
• Parties: Romerus Paul v. The City of Detroit and another. [1]

32 Mich. 108

Romerus Paul v. The City of Detroit and another. ^[1]

Supreme Court of Michigan

June 8, 1875

Heard April 23, 1875; April 27, 1875,

Appeal in Chancery from Superior Court of Detroit.

Complainant entitled to a decree reversing the decree below and granting a perpetual injunction, with costs of both courts.

Otto Kirchner and F. A. Baker, for complainant.

F. G Russell, City Attorney, and D. C. Holbrook, City Counselor for defendants.

Campbell, J. Cooley, J., and Graves, Ch. J., concurred.

OPINION

Campbell, J:

The bill in this cause was filed to restrain proceedings for opening an alley across lands of complainant, whereby it was laid out through a building on those lands. The proceedings are attacked as void, both for want of jurisdiction, and for defects in the charter of the city.

The charter of Detroit provides for the same action in regard to opening streets and alleys, except in the rare cases where the expense is all borne by the city. The only difference now is, that in case of alleys the entire burden is thrown on the block through which it runs, or so much as is supposed by the jury to be benefited, while in other cases the district to be charged is designated by the common council. The present rule concerning alleys was adopted in 1869, and that concerning the burdening of particular property for streets, in 1873. Except as to the determination of benefits for these two purposes, the proceedings are the same, under the charter amendments of 1869, for all seizures of land for public uses.

Before 1869, alleys could only be opened on the application of the owners of a majority of the property to be affected, and indemnity given to the city for all costs and liabilities, and before 1873, the city had to pay for land taken for streets, as being public, and not private benefits. In changing these regulations so as to make both streets and alleys private charges, and yet allow the city to originate measures for opening both without consulting the parties interested or chargeable, the amendments have introduced remarkable and fundamental changes of policy, which do not entirely harmonize with the general frame of the charter, and which, if valid, require great care in their enforcement. Before considering those parts of the amended charter which relate to the procedure, it may be well to notice a preliminary question. It is claimed that the charter declares all these alleys highways, and attempts to take, not the use only, but the fee of the land for them, and that this is beyond any possible necessity.--Sec. 27 of charter, as amended in 1869.

Such, no doubt, is the reading of section 27, and it is an instance of the carelessness and want of accuracy with which the charter has been made incongruous in many respects. But the language of one section cannot be allowed to destroy or confound the remainder. It is perfectly evident that it can never be necessary to take a fee simple absolute for either alleys or streets. But the omission of that provision will leave the lands taken subject to all public uses which are appropriate, and it may therefore be disregarded except as to such lands, if any, as require a fee to maintain public uses. It is equally apparent that an alley is not a highway in the proper sense of the term, but is no more than a way subject to a modified supervision, and liable to be used for drainage and other urban services, under municipal regulation, but intended for the convenience of adjacent property, and not for general travel or passage like streets. If put on the same footing with streets, it could seldom, if ever, be held competent to find such a necessity, when no such alley can be laid out until the small space though which it passes, is already surrounded with streets.

It will be found that the charter contains identical provisions for taking lands for "highways, streets, avenues, lanes, alleys, public grounds or spaces,"--Chap. 7, Sec. 1; and that section 27 declares all these alike highways, and declares the interest to be a fee. But this enumeration contains not only different sorts of easements, but also uses entirely inconsistent with any general passage for highway purposes. Grammatically the section means nothing, for it declares that "the same" shall become a public highway, when there has been no reference for several sections to the land at all. It can have no consistent meaning, except by confining the term "highway" to lands taken for that specific use. The sentence together reads as follows: "Upon such payment, tender or deposit in the city treasury, the same shall become a public highway, and the common council may enter upon, take possession of and convert the same to the uses and purposes for which it has been taken." It would be absurd to provide in one breath, that the land shall be devoted to a highway, and also to purposes inconsistent with a highway. It must be converted in all cases to its proper uses, whatever they may be, and to a highway only when it is taken for a highway. And an alley is expressly distinguished from a highway in the section (sec. 1) which enumerates the cases where land may be taken; while the proper uses of such a passage are quite as familiar as those of streets, so that the word "alley" has a definite meaning.--See Tillman v. People, 12 Mich. 401; People v. Jackson, 7 Mich. 432; Jackson v. People, 9 Mich. 111.

It is also to be noted that the provisions concerning alleys are in precise accordance with the section of the constitution relating to private roads.Article 18, section 14, is as follows:

"The property of no person shall be taken for public use without just compensation therefor. Private roads may be opened in the manner to be prescribed by law, but in every case the necessities of the road, and the amount of all damage to be sustained by the opening thereof, shall be first determined by a jury of freeholders; and such amount, together with the expenses of proceedings, shall be paid by the person or persons to be benefited."

This is the only provision in the constitution that requires private benefits to be made the test of necessity, and compels private property to bear the whole burden of a way. Prior to 1869, as already mentioned, the city had no right to open an alley until it was asked for, nor until indemnity was given by the petitioners. In recasting chapter 7, for some reason not appearing on the face of the law, this requisition was removed, and the city now may take the initiative. But in all other respects the rule remains as before, that both damages and costs must be laid upon the property benefited within the block. As the legislature has confined the whole apportionment to a single block, and so closely followed the constitution concerning private roads, we cannot attribute to them such a gross injustice as a design to make private parties bear the whole burden of general highways, nor the folly of opening short detached highways where they cannot be necessary. The alleys must be regarded as intended only for their legitimate uses as private easements, subject to appropriate municipal rules and burdens for the convenience of adjacent lots.

The main difference between these private conveniences and the ordinary public ways is, that where damages are to be paid by the public alone, the jury will not be required to apportion the damages and charges upon private property benefited. But in all cases, whether private property is to pay damages or not, the necessity of the use, and the compensation for the property taken, must be found by the jury, and no legislative or municipal authority can determine either. It is made by the constitution a purely judicial inquiry, to be made by a jury of twelve freeholders, and determined by their unbiased and impartial verdict. And it is with reference to this constitutional requirement that the principal controversy is raised.

The constitution provides (Art. 18, Sec. 2) that "when private property is taken for the use and benefit of the public, the necessity for using such property, and the just compensation to be made therefor (except when to be made by the state) shall be ascertained by a jury of twelve freeholders, residing in the vicinity of such property," or by commissioners appointed by a court of record. An exception was afterwards made of highway commissioners. By Art. 15, Sec. 15 it was declared that compensation should be determined by none but jurors, in cities and villages. It was held in Horton v. Grand Haven, 24 Mich. 465, recognizing and affirming Campau v. Detroit, 14 Mich. 276, and People v. Brighton, 20 Mich. 69, that these sections must be read together, and that in cities and villages the jury must determine the necessity as well as the compensation.

This provision is not found in constitutions generally, and was never known in Michigan until the adoption of the constitution of 1851. Before that, neither jury nor commissioners had any duty to perform except assessing damages, and the prerogative of taking property on their own estimate of its necessity was exercised by legislatures or those persons or corporations whom they allowed to act in the matter.

The change was made from a well founded belief, founded on experience, that private property was often taken improperly and without any necessity, and that the pretense of public utility was often a cloak for private aggrandizement. Ways were forced through private property to enrich the owners of other property, who were enabled by intrigues and sinister influences to induce municipal bodies to use the public authority to subserve their private schemes. The system was abused to the oppression of individuals by corruption and bargaining, and the sacredness of private property,...