Stevens v. City of Muskegon

• Decision Date: 09 December 1896
• Citation: 69 N.W. 227,111 Mich. 72
• Court: Michigan Supreme Court
• Parties: STEVENS v. CITY OF MUSKEGON.

69 N.W. 227

111 Mich. 72

STEVENS v. CITY OF MUSKEGON.

Supreme Court of Michigan

December 9, 1896

Error to circuit court, Muskegon county; Fred J. Russell, Judge.

Action by Washington C. Stevens against the city of Muskegon to recover damages for wrongful interference with rights under a municipal grant. The court directed a verdict for defendant and plaintiff brings error. Affirmed. Hooker J., dissenting.

P. W Niskern, for appellant.

William E. Hoyt, for appellee.

GRANT J. (after stating the facts).

1. If the plaintiff has not become vested with any property rights which courts should protect, it must be in consequence of some inflexible rule of law. The statute of frauds is invoked as imposing such a rule. If the plaintiff's right rested in parol, it might be held that it was such an interest in land that it could not be acquired by estoppel under the decisions of this court. Huyck v. Bailey, 100 Mich. 223, 58 N.W. 1002; Wood v. Railroad Co., 90 Mich. 334, 51 N.W. 263, and authorities there cited. Courts are not in harmony upon this subject; many authorities holding that municipalities are estopped to deny rights so acquired. We are, however, of the opinion that plaintiff's right does not rest in parol. The petition to the council specifically described and defined the use of, and the exact location of the sewer in, the streets and alleys desired, which use the common council had the undoubted authority to grant. The council referred it to the committee on sewerage, with power to act. This appears upon the record of the proceedings of the council. The committee did act, but there does not appear any recorded evidence of their report to the council. That they authorized the construction of the sewer is not disputed. Before plaintiff was permitted to proceed to its construction, he was required to give a bond. The council received this bond, approved by the proper officers, and it became part of the public records of the city. Every subsequent petition was just as specific, was treated in the same manner, and a similar bond executed, approved, and filed. The city needed sewerage. It was willing to relieve itself of taxation by giving to the plaintiff the right to construct, a system of sewerage at his own expense, but under the city's supervision, giving the right to the plaintiff to contract with lot owners to construct sewers from their own premises into it. Plaintiff's written proposition to the city was clear and explicit. The council virtually accepted it by conferring upon its appropriate committee the power to carry it into effect, and spreading that resolution upon their records. It is, however, unnecessary to hold that this was a sufficient acceptance of the proposition to satisfy the statute of frauds. The bond filed referred to the petition, and its acceptance and approval made the contract complete. In referring this petition to its committee, the common council was not acting in its governmental capacity, but in a quasi private capacity, as hereinafter determined. It is not necessary to grant this use of the streets by an ordinance. It was not a legislative act. The petition, the resolution, and the bond constituted a contract in writing by which the use of the streets was granted to the plaintiff. If A. makes a written proposition to B. to construct a tile drain from A.'s land across B.'s, stating its exact location, which is for the mutual benefit of both, and B. writes A. that he has authorized C. to act in the matter for him, and C. acts, takes a bond from A. to B. to construct it as proposed, delivers it to B., and A. then constructs the drain, is there not written evidence to satisfy the statute? In this proceeding the city stands in no better position than B. would in the proposed case. The same rules of law and equity apply in the one case as in the other. It is impossible to read the record in this case without reaching the conclusion that reports were made by the sewer committee to the council authorizing and approving this sewer. If this record contains all that is found in regard to this matter in the record of the common council proceedings, before is negligence on the part of some one in not properly keeping the records, or on the part of the council in not putting its proceedings in proper shape for recording. In such cases courts will not hunt for techicalities to defeat rights so clearly grounded in equity and good conscience, but will give a liberal interpretation to writings found, in order to satisfy the statute of frauds.

2. The use of the streets granted to the plaintiff was not a license, revocable at the will of the defendant. It is of little moment what name we give the right conveyed, whether an easement or an irrevocable license. It was known to the parties that plaintiff must incur great expenses, and it would be absurd to hold that he and the city entered into this arrangement for their mutual benefit with the understanding that the city might at any time revoke it, and impose the entire loss upon the plaintiff. The city has undoubtedly the right to superintend its construction, and to see that connections with other private sewers from lot owners are properly made, and to regulate its use so as not to be injurious to its citizens. With these restrictions, the plaintiff obtained a vested right to the use of his property. To hold otherwise would be a reproach upon the law.

3. Has the plaintiff pursued his proper remedy? He claims that the action of the council has virtually destroyed the value of his property. It is essential to determine just what the council has done. It has not attempted to destroy the sewer or to interfere with the right of those who are now connected with it to use it. By its ordinance, and the arrest of the plaintiff for its violation, it only attempted to interfere with his right to make other contracts in the future, and to connect other private sewers with his own. In passing the ordinance and enforcing it, the council was in the exercise of a governmental power, for which it is not liable in damages resulting from the enforcement of the ordinance by the city officials. The authorities recognize that municipalities act in two capacities the one governmental and the other quasi private. When acting in the latter capacity they are subject to the same rules that govern private corporations or individuals in their transactions with others. In the latter case the doctrine of strict construction is not applied, and courts do not look for express authority for the exercise of the power. The power is inherent in them to make contracts for lighting streets and public buildings, to secure water for fire and other purposes, and to construct sewers in order to protect the health of the inhabitants. It may be, and often is, difficult to determine in which capacity a municipality is acting in a given case, but the distinction is well settled. Chief Justice Nelson, in Bailey v. Mayor, 3 Hill, 539, thus states it: "The distinction is quite clear and well settled, and the process of separation practicable. To this end regard should be had, not so much to the nature and character of the various powers conferred as to the object and purpose of the legislature in conferring them. If granted for public purposes exclusively, they belong to the corporate body in its political or municipal character. But if the grant was for purposes of private advantage and emolument, though the public may derive a common benefit therefrom, the corporation quoad hoc is to be regarded as a private company. It stands on the same footing as would any individual or body of persons upon whom the like special franchise has been conferred." See, also, 1 Dill. Mun. Corp. � 445; Tied. Mun. Corp. � 324; Hill v. City of Boston, 122 Mass. 344, 359; Beers v. Dalles City (Or.) 18 P. 836; Barron v. City of Detroit, 94 Mich. 601, 54 N.W. 273; Burford v. City of Grand Rapids, 53 Mich. 98, 18 N.W. 571; Society v. Papila, 31 Pa. St. 189. The passage of the ordinance and its enforcement did not, therefore, give the plaintiff a remedy by an action at law to recover damages. Culver v. City of Streator (Ill. Sup.) 22 N.E. 810; Trammel v. Town of Russellville, 34 Ark. 105. We think the only appropriate remedy is by some proceeding to restrain the action of the council from interfering with the plaintiff's legal rights. An examination of the authorities will show that this is the usual remedy. Mayor, etc., of Baltimore v. Radecke, 49 Md. 217; Dayton v. Quigley, 29 N. J. Eq. 77; Spokane St. Ry. Co. v. City of Spokane Falls (Wash.) 33 P. 1072; Dill. Mun. Corp. � 420; Tied. Mun. Corp. � 396. It should be understood that this opinion is based entirely upon the case made by the plaintiff. If the defendant has any legal ground to defeat the right of the plaintiff to connect other sewers with his own, it does not appear upon this record. The judgment is affirmed, for the reason that plaintiff cannot maintain an...