Pulcifer v. Bishop

• Citation: 246 Mich. 579,225 N.W. 3
• Decision Date: 17 April 1929
• Docket Number: No. 112.,112.
• Parties: PULCIFER et al. v. BISHOP et al.
• Court: Supreme Court of Michigan

246 Mich. 579

225 N.W. 3

PULCIFER et al.

v.BISHOP et al.

No. 112.

Supreme Court of Michigan.

April 17, 1929.

Appeal from Circuit Court, St. Clair County, in Chancery; Eugene F. Law, Judge.

Suit by Harriet N. Pulcifer and others against John Bishop and another, who filed a cross-bill. Decree for plaintiffs, and defendants appeal. Affirmed in part, and modified in part.

Argued before the Entire Bench. Bishop & Weaver, of Detroit, for appellant Bishop.

Walsh, Walsh & O'Sullivan, of Port Huron, for appellant Orttenburger.

John B. McIlwain, of Port Huron, for appellees.

CLARK, J.

The bill and cross-bill seek, principally, quieting title and determination of certain property rights. Plaintiff had decree. Defendants have appealed.

In 1899 James A. Green owned, title in fee, subject to mortgage, a parcel of land on St. Clair river in St. Clair county. A highway extended across the east end of this property, adjacent to, and parallel with, the river, which highway is now a paved trunk line known as St. Clair drive. A narrow strip of river bank, part of the parcel, was between the highway and the river itself; nearly all of the parcel was west of the highway. In 1900 Green executed and later placed on record a plat of the parcel in conformity with the statute dividing it into 78 lots, all west of the highway, shown on the plat as St. Clair drive, and part of them fronting on the same. In the central part of the plat is a bottleshaped piece of land, between two streets or ‘parkways,’ designed Oak Grove Park, with the neck of the bottle 98.48 feet wide bordering on the highway. Immediately south of the southerly lots as shown by the plat is a street called ‘Greenwood Avenue,’ and next south of that a ‘canal’ and next south ‘lot A,’ which is from nearly 3 feet to nearly 6 feet wide and 994 feet long; its south line being the south boundary of the subdivision. It is said that this lot of strange shape was platted to deny access to the canal to occupants of land south of the subdivision. The dedication recites that streets and alleys are dedicated to the use of the public. The plat indicates no severance or reservation of the water front. St. Clair river is shown on the plat as adjoining St. Clair drive. The narrow strip or bank between the highway and the river is not delineated nor reserved on the plat.

Title to the subdivision was conveyed to Oak Grove Park Company, which company sold and conveyed all lots platted for sale. The deeds recorded contained a clause:

‘The first party guarantees second party that he shall have access to the beach fronting said subdivision in common with the other lot owners in said subdivision.'

Later the company gave quitclaim deed of the subdivision to Palmer; he in turn gave like deed to Oaks Land Company; and it in turn gave like deed to defendant Bishop, who claims to own the park site, the canal, the water front, and lot A. The trial court decreed him to be the owner in fee thereof, subject, however, ‘to the easement, use, benefit and enjoyment by the owners of lots in said plat.'

Defendant Bishop complains of the decree as applied to the park and the canal, contending that they have never been accepted by any public authority by use or otherwise, citing many of our cases. In this suit no claim of right is asserted for or against the public. If the owner of the subdivision had sold no lots, or if it had reconveyance to it of all lots sold, and if it then sought to close, as against the public, the streets, park, etc., a different question might appear.

As affecting the public, this court is committed to the rule, obtaining in many other states, ‘that the mere making of the sale of lots with reference to a map or plat prepared or adopted by the owner does not constitute an irrevocable dedication to the public, but amounts to a mere offer of dedication, which may be withdrawn if not accepted by the public within a reasonable time, * * *’ 18 C. J. 120, but it is also the rule in this and other states that the platting and sale of lots constitute a dedication of streets, etc., delineated on the plat as between the grantors and the purchasers from them.

It is said in Dillon on Mun. Corp. (5th Ed.) § 1090:

‘In this connection it must be kept in view that the platting and sale create certain rights in the grantees of the original owner, which, as between the...