Tuller v. City of Detroit

• Citation: 56 N.W. 1032,97 Mich. 597
• Court: Michigan Supreme Court
• Decision Date: 04 December 1893
• Parties: TULLER v. CITY OF DETROIT.

56 N.W. 1032

97 Mich. 597

TULLER v. CITY OF DETROIT.

Supreme Court of Michigan

December 4, 1893

Error to circuit court, Wayne county; George S. Hosmer, Judge.

Ejectment by Elizabeth Tuller against the city of Detroit. Judgment for plaintiff. Defendant brings error. Reversed.

John J. Speed, (T. T. Leete, Jr., of counsel,) for appellant.

Henry Walbridge, for appellee.

LONG J.

This is an action of ejectment for a strip of land which is now used as a public street, known as "Piquette Avenue," extending from Hastings to Russell street, on lot 2 subdivision of fractional sections 29 and 32. Plaintiff became the owner of out-lot 2 of such subdivision in 1869. In 1884 the city commenced proceedings to open an avenue from Hastings to Russell street through this outlot leaving a portion of the outlot on each side of the new street, giving a frontage for lots on both sides of the street. The condemnation proceedings were taken under the provisions of Act No. 281, Local Acts 1883, which provides among other things, that, in determining the amount of damage where only a part of the lot is taken, the jury should take into consideration the amount of the benefits which the portion not taken would receive from the improvement, and that these damages should not be stated separately, but the net amount only should be awarded. The jury found that the benefits received offset the damages awarded for the property taken, and therefore made no award of damages, and no assessment upon the plaintiff's property was ever made. After the verdict of the jury in the case in favor of opening the street, the city opened, graded, and worked it, and it was being used as a public highway at the time of the commencement of this action of ejectment. On the trial but two questions were raised by the plaintiff: (1) That the act under which the condemnation proceedings were had is unconstitutional; (2) that, even if the act be valid, the plaintiff had no notice of the proceedings for the taking of her land for public use. The court below was of the opinion that the act under which the condemnation proceedings were had is unconstitutional, and also that the plaintiff had no notice of the proceedings to condemn, and directed the verdict in favor of the plaintiff. The city presented three requests to charge, which the court below refused. These requests, together with the claims made by the plaintiff, present the legal questions arising in the case, and are as follows: (1) "In this case plaintiff claims that defendant has become liable in this action because of certain condemnation proceedings taken in the recorder's court to acquire the use of the land in question for a public street, and that the land is now used for the purposes of a public highway. I charge you that, under the law, plaintiff cannot recover in this action." (2) "It appears from the testimony that defendant took condemnation proceedings in the recorder's court of the city of Detroit in 1884, to acquire the use of the land in question for the purposes of a public street; that plaintiff in 1885 knew that the street had been worked and graded; that she afterwards built a sidewalk upon one side of the street, conforming to the line thereof; that the land has not been assessed for taxes since 1885, and the defendant has caused the same to be paved and improved. I charge you that, under the law, plaintiff is now estopped from denying the validity of the proceedings taken to condemn the land for street purposes." (3) "The jury have the right to consider from all the evidence whether plaintiff knew that the defendant was expending money in the improvement of the land for the uses of the street, and, if you believe she had such knowledge, and permitted such expenditure to be made without protest, you have a right to find that she is now estopped from denying the validity of the proceedings taken to condemn said land."

The court was not in error in holding that ejectment will lie against a municipal corporation. Armstrong v. City of St Louis, 69 Mo. 309; Cowenhoven v. City of Brooklyn, 38 Barb. 9. The court...