Schermerhorn v. Todd

• Decision Date: 13 June 1883
• Citation: 16 N.W. 304,51 Mich. 21
• Court: Michigan Supreme Court
• Parties: SCHERMERHORN v. TODD.

16 N.W. 304

51 Mich. 21

SCHERMERHORN v. TODD.

Supreme Court of Michigan

June 13, 1883

A purchaser of lots by reference to a plat, which shows such lot to abut on a street marked out on the plat, will only acquire the right to the use of the street, and of all connecting streets, and to have them kept open for their whole length, for the enjoyment of his purchase, where, from equitable circumstances, the grantor is estopped from disputing the right.

Upon examination of the circumstances in this case, it is evident that there exists no such estoppel, and that complainant has not been deprived of any right that he ever enjoyed, and the decree dismissing the bill is affirmed.

Appeal from St. Joseph.

D.E Thomas, Charles Upson, and H.H. Riley, for defendant.

COOLEY, J.

The purpose of the bill in this case is to enjoin the defendant from inclosing and occupying with buildings, and for his private business, certain parcels of land which complainants claim have been made public streets by dedication; or, if not public streets, their private ways for the enjoyment and use of complainants in connection with certain lots owned by them, and which abut on one of the supposed streets or ways. The facts appear to be that one Read, in the year 1872, being the owner of certain lands in the township of Nottowa, St Joseph county, platted a village thereon, which he named Nottawa, and caused his plat to be recorded, but without the statutory execution and acknowledgment. The Grand Rapids &amp Indiana Railroad ran across the land platted, and the company had a station-house and side track there. West of the land of this company a street was marked on the plat, which was named Railroad street. Complainant Schermerhorn bought five of the platted lots near the railroad station, all lying together and three of them appearing to abut on Railroad street. Upon two of these lots he built a store, which a tenant now occupies. Sturgis street crosses Railroad street at this point, and is a public highway much used. South of Sturgis street other streets were laid down on the plat crossing Railroad street in the following order: Graham street, Wallace street, William street, and South street. South of the last-named street were block 23 on the west and 22 on the east side of Railroad street, and these were purchased by complainant Bell. The deeds to Schermerhorn and Bell referred to the plat as a part of the description. Bell occupied his blocks for agricultural purposes. The main highway north and south is Nottawa street, running parallel to Railroad street, and having East street between them.

The proposed village never acquired much population, and was never incorporated. Lying adjoining it, and coming nearly up to Railroad street on the west, is a little lake; and it seems to have occurred to defendant to build ice-houses upon this lake, and make a business of shipping ice by the railroad. He therefore purchased the four blocks bounded by Wallace street, East street, South street, and the lake, and commenced the erection of ice-houses upon them. Up to this time Railroad street had never been opened or used as a public highway, and in its natural condition, through the land of defendant, it was incapable of such use because of low and marshy ground. Neither had Williams street, across the land of defendant, ever been improved or used as a highway; and defendant, in his preparation for improvements, ignored the existence of any public highways across his lands, and proposed to build regardless of street lines. When this was perceived, complainant Schermerhorn endeavored to induce the highway authorities of the township to take possession and improve Railroad street as a public highway; but they refused, and there is no claim that any offer of a dedication, made by the platting which Reed put on record, was ever accepted. When the highway authorities refused to interfere, the complainants filed this bill.

The bill sets out the platting of the village of Nottawa as a statutory platting, and alleges that Railroad street, and the other streets named, became public highways. It further sets out the purchase made by complainant Bell with reference to the plat, and avers that Railroad street furnishes a direct and safe way from his lands to the railroad station, post-office, etc., and connects at Sturgis street with the principal highway in that part of the country, and also, by way of Williams and Wallace streets, provides a way to desirable and convenient points on the lake for boating, fishing, and, in season, ice. It also describes the purchase by complainant Schermerhorn of the lots mentioned, and avers the importance of Railroad, Williams, Wallace, and East streets to the use of the lots as business property. It also alleges that the streets are important as public highways, and prays that defendant be enjoined from obstructing or interfering with their enjoyment The defendant answered, and the case was heard on pleadings and proofs, and the bill dismissed. In the decree entered by him, the circuit judge recites that this cause came on to be heard, and was signed by counsel and submitted, and afterwards, upon consideration thereof, it was found by the court that the public authorities have asserted no rights in or to the streets in question in this case, and to have declined to do so when requested, and have neglected and refused to improve Railroad street so as to make it fit for travel, and that the defendant had revoked the attempted dedication of said streets before this suit was brought, and that the whole village of Nottawa is but little more than a common.

And it was further found that heretofore the complainants have not used either of the alleged streets or parts of streets so far as they are obstructed, or required them for use, and neither have persons heretofore passing to or from complainant Schermerhorn's store or property traveled over the said parts of streets, but they have chosen other routes still open to them; and there is nothing to show that the patrons of the store of said complainant now use or desire, or ever will desire, to use the streets obstructed in any way to benefit complainant, or that complainant will ever be likely to need them for any purpose. The complainant Schermerhorn has not ever found it desirable to have an entrance to his store on Railroad steeet, and no damage or prejudice has yet resulted or is likely to result to him in consequence of the acts of defendant; and the streets were closed and large expenditures made before the bill in this cause was filed.

And the court further found that as to said complainant Bell, he has waived his right to be heard, and received a consideration which he still retains for so doing, and although the alleged grievance is, in one sense, of the same nature to both, it does not, as alleged, affect both these complainants in the same way, and may affect one and not the other. Therefore, it is ordered, adjudged, and decreed as follows: That the bill of complaint in this cause be and the same is hereby dismissed, with costs, to be taxed in favor of said defendant, and that said defendant have execution therefor.

All the facts here recited we find established by the evidence. The consideration mentioned as received by Bell was a small sum paid him by defendant for his consent to the exclusive occupation defendant contemplated, and which Bell, though subsequently claiming he did not fully understand the matter, has always retained. The question, then, is whether, in the light of these facts, complainants have any equities.

The question of misjoinder, which is made by the defense, we pass without decision. It was not called to the attention of the court below until the case was brought to a hearing on the...