Plumer v. Johnston

• Decision Date: 14 October 1886
• Court: Michigan Supreme Court
• Parties: PLUMER v. JOHNSTON and another.

29 N.W. 687

63 Mich. 165

PLUMER v. JOHNSTON and another.

Supreme Court of Michigan

October 14, 1886

Error to circuit court, Wayne county.

Ejectment.

Lillibridge & Latham, for appellant, Samuel A Plumer.

User by the public of city streets does not constitute acceptance. People v. Jones, 6 Mich. 176; Tillman v People, 12 Mich. 401; Detroit v. Detroit & M. Ry Co., 23 Mich. 173; Baker v. Johnston, 21 Mich 319; County of Wayne v. Miller, 31 Mich. 447; Field v. Village of Manchester, 32 Mich. 279.

John Ward, for appellees, Susie Johnston and another.

A grant of land abutting on a highway conveys it to the middle of the highway. 3 Kent, Comm. (13th Ed.) 432-434; Sizer v. Devereux, 16 Barb. 160; Kneeland v. Van Valkenburgh, 46 Wis. 434; Pettibone v. Hamilton, 40 Wis. 402; Jarstadt v. Morgan, 48 Wis. 245; S.C. 4 N.W. 27; Woodman v. Spencer, 54 N.H. 507; Low v. Tibbetts, 72 Me. 93; Watson v. Peters, 26 Mich. 508; Purkiss v. Benson, 28 Mich. 538. See, also, Smith v. Lock, 18 Mich. 56; Karrer v. Berry, 44 Mich. 391; S.C. 6 N.W. 853; Sinclair v. Comstock, Har.Ch. 404.

CHAMPLIN J.

Plaintiff brought ejectment to recover a parcel of land situated in Detroit, Wayne county, designated as that part of lot 2 of the subdivision of private claim 729 bounded and described as beginning at the northwest corner of said lot 2; thence easterly, along the north boundary line of said lot 2, 25 feet; thence southerly, on a line parallel with the westerly line of said lot 2, to the northerly boundary line of Baker street; thence westerly, along the northerly line of Baker street, to the westerly boundary line of said lot 2; thence northerly, along the westerly boundary line of said lot 2, to the place of beginning,--the same being a strip of land about 25 feet wide and 94.68 feet long, lying north of Baker street, and adjacent to and westerly from the westerly boundary line of lot A of Sanderson's resubdivision of lots 18, 19, and 20 of the subdivision of the north part of outlot 2, private claim 729, of the city of Detroit.

The cause was tried before the circuit court for the county of Wayne, without a jury, and the court made and filed a written finding of facts, and his conclusions of law thereon, as follows: "The plaintiff, on the fifteenth day of November, 1869, was the owner in fee-simple of the land included in the plat, of which Paper A, hereto annexed, is a copy, to the middle of Twenty-first street, as laid down thereon, and made said plat at that date, his wife joining with him in it, (dedicated the streets and alleys thereon as set forth in said copy,) and had the approval of two of the three commissiones of plats indorsed on said plat, as appears thereon, but not otherwise accepted by municipal authority, and thereupon had the same recorded, and that the twenty-five feet in width adjoining lots 18, 19, and 20, in the plat at the westerly ends of the lots, is the lands described in the plaintiff's declaration, and the land in controversy in this suit; that the strip west of the said twenty-five feet, marked on said plat as the west part of Twenty-first street, was never platted or dedicated by the owner thereof as a part of the street, and that he has, within two years last past, erected a brick structure thereon; that the paper annexed marked 'B' is a map of the property in question, and that adjacent thereto; that the plaintiff and his wife, by full warranty deed of title, dated May 21, 1870, conveyed said lots 18, 19, and 20, with the privileges and appurtenances thereunto belonging, in fee-simple, to Charles Croakes, by a description of the premises conveyed in words as follows: 'All those certain pieces or parcels of land situate, lying, and being in the city of Detroit, county of Wayne, state of Michigan, and known and described as follows, to-wit: Lots numbered eighteen, (18,) nineteen, (19,) and twenty (20) of the subdivision of lot number two (2) of the subdivision of private claim seven hundred and twenty-nine, (729,) Jaques Godfrey farm, which said lots 18, 19, and 20 of said lot 2 are further described in Samuel A. Plumer and Addie L. Plumer's subdivision of said lot 2, as recorded in Liber 1 of Plats, on page 253, in the office of the register of deeds in said county of Wayne;' and that the title in fee to the premises, with said privileges and appurtenances thus conveyed, pass, by a regular chain of subsequent warranty deeds, on the first day of June, 1874, to Walter Sanderson; that said Sanderson thereafter resubdivided said lots 18, 19, and 20 by a plat recorded July 17, 1874, into four lots, fronting south, on the north side of Baker street, with an alley in the rear, designated 'A,' 'B,' 'C,' and 'D,' of which plat Exhibit C, attached hereto, is a copy, and that said lots A and B, with the privileges and appurtenances thereunto belonging, have come, by a connected chain of conveyances, to the defendant Susie Johnston, and that defendant Cyrus Johnston is her husband, and that they are living on said lot A; that the city of Detroit built a sewer in the alley at the rear or northerly ends of said lots A, B, C, and D, leading to the westerly line of the twenty-five feet aforesaid, and down the westerly line thereof, into the sewer, continuing down Twenty-first street, south of Baker street, and that the people using the alley leading north from the westerly side of said 25 feet to Hammond street, the next street north of Baker street, have passed thereover, going into and through said alley, and that the said twenty-five feet has not been worked as a public street by the city of Detroit, or recognized, in any other way than the manner aforesaid, by the city, or any of its officers; that on the ninth day of January, 1885, said Twenty-first street north of Baker street was vacated and discontinued as a street by the common council of the city of Detroit, upon a petition presented and prosecuted by the plaintiff; that in the winter of 1884-85, after the vacation of said street, and before the commencement of this suit, the defendants inclosed the twenty-five feet in controversy by a post and board fence, and have since been holding possession of the same; but previous to said date, and in the summer of 1883, plaintiff had inclosed said 25 feet with a fence, and held possession thereof with his fence, until said defendants, in the spring of 1884, removed plaintiff's said fence, and afterwards inclosed it for themselves as aforesaid, the parcel in the mean time remaining uninclosed.

"And further finds, as conclusions of law thereon, (1) that, after making the plat, (Exhibit A,) on the fifteenth day of November, 1869, and the conveyance by plaintiff to Charles Croakes, on the twenty-first day of May, 1870, the plaintiff ceased to have any right to the occupation or possession of the lands lying within the limits of Twenty-first street, as marked on said plat; (2) that by the vacation of said Twenty-first street by the resolution of the common council of the ninth day of January, 1885, as stated, the right to the possession of said lands lying within the limits of said street, and for which this suit is brought, was not revested in the plaintiff; (3) that the plaintiff is not entitled to recover the premises described in his declaration, and the defendants are entitled to a judgment of no cause of action, to be entered, with costs against the plaintiff to be taxed.

[Signed] "JOHN J. SPEED, Circuit Judge."

So much of Exhibits A and C as is material to show the location of the premises appears below.

In the instrument dedicating the plat (Exhibit A) to public use there appears this reservation: "Reserving to ourselves, however, said street and alleys, whenever the same may be discontinued by law."

The claim of the plaintiff is that land dedicated as a street does not become such unless there is an acceptance of the dedication manifested by some act of the public authorities either formally confirming or accepting the dedication, or by...