Tillman v. People

• Decision Date: 24 May 1864
• Court: Michigan Supreme Court
• Parties: James W. Tillman v. The People

12 Mich. 401

James W. Tillman v. The People

Supreme Court of Michigan

May 24, 1864

Heard May 4, 1864

Error to the Recorder's Court of Detroit, where plaintiff in error was convicted on a prosecution for obstructing a public alley. The facts sufficiently appear by the opinion.

Judgment of the Recorder's Court reversed, with costs and the conviction set aside.

G. V N. Lothrop, for plaintiff in error:

1. Is one of the interior openings in a city block, used only as a passage to the rear of lots, a highway, or only a private way or easement to the lots?

It must be one or the other: Ang. on Highways, 1, 3; 6 Pick. 62.

If it was a highway, then, of course, an obstruction would be an offense under the general laws of the state, and not the subject of municipal legislation as punishment on matters embraced within the general statutes or common law.

But it is clearly only a private way: The People v. Jackson, 7 Mich. 445; 3 Hill 606; 4 Cush. 339; 16 Barb. 251; 5 Seld. 258; 23 Barb. 115.

2. If this was not a public highway, could the abutting owners, all concurring, extinguish the easement and close it?

It seems to me plain that they could: 7 Mich. 451; 4 Cush. 339; 3 Hill 606; 5 Seld. 258, 260; 37 Penn. 503; 5 B. & Ald., 457.

Indeed, it seems doubtful whether the alley, regarded as a separate easement, does not at once become extinguished when all of the property over which it passes, and to which it was appurtenant, falls into the hands of one owner. For, generally, a man can not have an easement in his own estate. By merger the less interest is extinguished in the greater: 5 Met. 450; Wash. on Easements, 517.

Any act done by the owner of an easement, with respect to the dominant estate, which is inconsistent with the continuance of the easement, will operate as an extinguishment of it: 9 Met. 395; Wash. on Easements, 537, and cases cited.

And, a fortiori, when the titles of all the estates are united, any act of the owner, which shows that he intends that the easement shall no longer continue, must operate to destroy it.

C. I. Walker, for defendants in error.

Christiancy, J. Martin, Ch. J. and Campbell, J. concurred. Manning, J. was absent.

OPINION

Christiancy J.:

This was a prosecution against the plaintiff in error, by complaint in the Recorder's Court of the city of Detroit, for "obstructing and incumbering a public alley in said city, running westerly from the westerly line of Griswold street, between Jefferson avenue and Woodbridge street, by erecting upon and in said alley, a small office or building, contrary to the ordinances of said city."

The ordinance claimed to have been violated provides that "No person shall obstruct or incumber any public wharf, street, alley or other public space, with any article or thing whatsoever." See Revised Ordinances of 1863, chap. 29, § 5. This ordinance relates to no other alleys than such as are essentially of a public character, or which have, in some way, become established for the public use as public grounds; and which, therefore, the general public, or at least the people of the city, have a general interest in keeping, and a right to keep, unobstructed. The complaint must be understood (if it be sufficient for any purpose--a question we shall not discuss) as intended to describe the alley in question as one of this public character. The power of the common council to prohibit by ordinance the obstruction of alleys of a private nature made only by, or for the use of, the owners or occupants of particular lots, and depending only upon the consent or agreement of individual property holders, is not claimed, and could not be supported; though for purposes connected with public health the common council would doubtless possess certain powers over private alleys and other private property.

But neither the ordinance in question, nor the complaint in the case, would seem to have any reference to acts affecting the public health; both speak only of "obstructing and incumbering streets, alleys, etc." The object of this provision of the ordinance would seem to be mainly, if not entirely, so far as relates to alleys, to secure the use of them for purposes of passage and travel. And the language of the prohibition is appropriate to this end. The public character of the alley, so far as it depends upon it use, or the right of the public to use it, in this manner, can only be maintained on the ground that it is a public way or highway. Ways must be either public or private; there is no intermediate species of way for any purpose of passage.

Our first inquiry then is, was this alley a public way or highway at the time of the obstruction or incumbrance complained of?

The alley was laid down upon the plan or plat of the city made by the governor and judges in 1806-7, and, as exhibited upon this plan (upon paper), it extended through the block from Griswold street to Shelby street; but no part of the alley was ever opened by any one, or for any purpose, further west than the east line of the Campau lot, 132 feet west from Griswold street; thence through to Shelby street it has always remained closed. Across the west part of this 132 feet of the alley (which was formerly open) a brick building was erected within about six feet of the ground, to connect two stores (next the...