People v. Jackson

• Decision Date: 30 November 1859
• Citation: 7 Mich. 432
• Court: Michigan Supreme Court
• Parties: The People v. Charles Jackson

7 Mich. 432

The People v. Charles Jackson

Supreme Court of Michigan

November 30, 1859

Heard November 2, 1859 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

On exceptions from the recorder's court of the city of Detroit.

The defendant was convicted in the recorder's court, on an information charging him with obstructing a public alley in Detroit. From the testimony and plats produced on the trial, it appeared that there was an alley twenty feet in width, in section eight of the governor and judges' plan of said city, extending from State street to the center of said section, and from thence at right angles to Rowland street, and that the locus of the alleged obstruction was an opening from the angle of this alley, twenty feet wide, in the rear of lot two of said section, extending fifty feet in the direction of Michigan avenue, but not to it, and consequently only affording means of access, by means of the first mentioned alley, to the rear of one and two lots in said section. ^[*]

The following is the material evidence given in the case:

All questions of admissibility, and all the offers of excluding evidence, are omitted.

Francis W. Hughes testified that he was clerk of the city of Detroit, and of the land board of said city; that the plan produced by him was found in the office when he came into it, and he now had the custody of it as clerk of the land board.

The attorneys for the people then offered said plan in evidence, which purported to be the original plan signed by Governor Hull, and P. Audrain, secretary, of section eight, of the city of Detroit, as laid out by the governor and judges, April 27th, 1807.

It is deemed unnecessary to give any further statement of the contents of this plat than appears in the opinion. It shows the alley as claimed by the prosecution, and is shown by the first diagram in the preceding note.

The witness testified further that he found a book in his custody as clerk of said land board, purporting to be journal No. 1 of the governor and judges, in which he found an entry of date April 27th, 1807, which entry was read in evidence as follows:

"Resolved unanimously, That the plan of the sections numbered 1, 2, 3, 4, 6 and 8 be confirmed, and be a record; that they be signed by the president of the board, and attested by the secretary in identification; and that no alteration be suffered therein, without an order of the governor and judges to that effect."

The counsel for the people then gave in evidence the proceedings of the city common council, showing that John Blindbury, on June 5th, 1855, petitioned to have the alley opened in the rear of lots 1 and 2, of section 8, which petition was referred to the committee on streets, and the committee reported on June 13th, 1855, recommending that the obstructions in the alley be removed.

The counsel then read such a report in evidence, which was to the effect that the alley in question was obstructed by fences and barns, and directed the marshal to remove them.

The counsel for the people further gave in evidence from the records of Wayne county a plan of section 8, of the city of Detroit, as there recorded on the 23d of December, 1848, in pursuance, as claimed, of the act of the territorial legislature of 1834, authorizing the common council of Detroit to have all the records of the land board transcribed and deposited in the registry of the city of Detroit.

They also then gave in evidence a deed from the governor and judges to Thomas Palmer, dated September 8th, 1831, of lot number 2 of said section, describing said lot as lot 2 according to said plan, without giving its metes and bounds. Also a deed from Thomas Palmer to Francis L'Etornour, dated March 13th, 1832, of the same lot, with the same description. Also a deed from L'Etornour to James Williams, dated April 28th, 1854, of the same lot, but describing it as fifty feet by eighty, and bounded on the east by public alley. Also a deed of the same lot from James Williams to Charles Jackson, describing it as fifty feet by eighty, and bounded on the east by public alley.

William Champ testified that he was acquainted with the locus in quo from 1836 to 1850, during which time he and his father lived on lot number 1 of said section 8. The whole section was a public common down to 1836, with occasionally a house or yard fenced in. Lot 1 had a building on it. In 1848, Mr. L'Etornour built a shop on lot 2, on what is now claimed as an alley. He first asked permission of witness to put it there, and agreed to remove it when witness wanted to use the alley. He put his shop within three or four feet of the west line of lot 54, and the east line of the alley, filling up the alley to within said three or four feet. Lots 1, 2, 3 and 54 were fenced as early as 1840. In 1838, there were only two buildings on the whole square. There were posts on the lines of the alley, across the corners of lots 3 and 54, which appeared as though it had been fenced. It was not fenced in 1838 and 1840. Witness does not know that the adjacent corners of lots 3 and 54 had been fenced on the lines of the alley. Before L'Etornour put up his shop in the alley, lot 2 had been fenced in up to within three or four feet of lot 54, and he set his shop on the line of the fence. There was no fence on the west line of lot 54, north of lot 1. There was nothing about there, prior to 1838, to indicate an alley. In that block, lots 4, 3, 55, 53 and 54 were uninclosed. There was no use of the alley as such, from lot 1 out to State or Rowland street. There has been no use of the locus in quo as an alley since L'Etornour's shop was put on it, and the same ground was inclosed by his fence before that time. Witness used lot 54, and not the alleged alley to accommodate his back premises. Lots 3 and 54 are fenced so as to touch each other. They have been thus inclosed since Mr. Jackson bought lot number 2 in 1854. Prior to that time, the corners where lots 3 and 54 touch each other, were not fenced across. Persons could go to L'Etornour's shop from lot 54, or from northerly. Jackson occupied lot 54 as a stone and lumber yard. Lot 3 has been occupied to the corner of lots 2 and 54 since Jackson bought lot 2. There was never anything to indicate that the southeast corner of lot 3 was cut off in any way. That corner was inclosed as early as 1842. This alley was never marked, worked, or used as an alley, and it could not be while L'Etornour's shop was there. There was always two or three feet open of what was called an alley, and not fenced till Jackson fenced it. While witness occupied the premises he applied to the common council for leave to put a drain in the alley, and put it in by their leave.

Francis L'Etornour testified that he formerly occupied lot number 2. He took possession of it in 1831 or 1832; put a building on it in 1832; moved his family on in 1842, and stayed till 1854. In 1831, the land about there was all a common. Witness owned lot number 2, fifty feet by eighty, and occupied the twenty feet in rear of lot 2, but did not assume to own it. Witness asked Champ, in 1848, if he was willing witness should put a shop there. The shop was 18 feet by 32, and that the wood-shed covered 18 feet by 50 of the alley. The shop stood on blocks. Thomas Palmer never said anything about the alley, but witness told James Williams that the shop was in the alley.

When witness took possession the ground was all a common.

He was the first occupant of the block, and occupied the whole of lot 2, alley and all, to within two feet of lot 54. There was then no use of it as a street or alley. Witness fenced in the alleged alley in 1831 or 1832. There was no particular reason for leaving two feet of it uninclosed. From 1831 till now, it has all, except two feet adjoining lot 54, remained in occupancy as private property. Witness went across the northwest corner of lot 54 to get out that way, first asking permission of Jackson so to do. He claimed that corner to a square as his private property. There was no fence on the west line of lot 54, north of lot 1, and lot 3 was fenced out square to lot 54 as early as 1834 or 1835, without paying any attention to any alley.

Nicholas Thelan testified that he was city surveyor. He produced Hathan's map of the city, so called, and it was given in evidence, in connection with the deeds of L'Etornour and Williams, which refer to it. The witness stated that, according to this map, lot 2 is fifty by eighty feet. There is in fact no alley there now; it is stopped up. The alley is laid down on this map as claimed by the people.

John Blindbury testified that he had known the premises for nine years. He occupies lot 1. When he first came there a shop was in the alley, and a small strip of the alley and a part of lot 54 were used to pass on. Witness's men drove teams through there by the shop. He came there in 1850; and in 1855 the shop was moved by Jackson on to the north end of lot 54. This space then remained open for about from four to six weeks. At one time there was a hole under where the shop had been, with water in it, and the deputy marshal notified him to fill it up. He refused because it was on the rear of Jackson's lot. A day or two after he was notified again and then filled it up. About that time Jackson fenced up the alley. He put a fence across about six feet from lot 1, and another on the west line of lot 54. From four to six weeks, when Jackson moved the shop, there was nothing to prevent teams passing through the alley. Witness don't know that at any one time a team could have been driven through that alley without obstruction;...