Village of Grandville v. Jenison
| Decision Date | 24 December 1890 |
| Citation | 47 N.W. 600,84 Mich. 54 |
| Court | Michigan Supreme Court |
| Parties | VILLAGE OF GRANDVILLE v. JENISON et al. |
Appeal from circuit court, Kent county, in chancery; MARSDEN C BURCH, Judge.
Godwin, Adsit & McKnight, (E. A Maher, of counsel,) for appellant.
Taggart, Wolcott & Ganson, for appellee.
The bill in this cause was filed to restrain the defendants from erecting a building in what is described in the bill as "South Street," in the village of Grandville, and to require the defendants to tear down and remove a building partially completed by them there. The defense is that the place where the building was being erected is not a public street, but property which the defendants had purchased and have a right to erect their building on. The facts relied on by complainant to establish the existence of a street, are that in 1837 the owners of the land where the village of Grandville is situated made a plat thereof into lots and blocks, and showing streets and alleys intended for public use, in accordance with which the village has since been built, and property conveyed from time to time. This map was neither acknowledged nor recorded as required by the statute of 1827, then in force. 2 Terr. Laws 577. The original plat was of the E. 1/2 of the N.E. 1/4 of section 18, in the township of Wyoming. The eastern addition to this plat was of the N.W. 1/4 of the N.W. 1/4 of section 17. It does not appear whether these plats were made at the same time, nor is it important, as the land in question is on the eastern addition, and it is conceded that that plat was made in 1837. South street, as indicated on these plats, commenced at the south-west corner of the N.E. 1/4 of the N.E. 1/4 of section 18, and ran from thence east on the eighth line to the south-east corner of the N.W. 1/4 of the N.W. 1/4 of section 17. At the time these plats were made, there were very few actual settlers at Grandville. The expectations of the proprietors of the plat, in regard to the growth of the village, were not realized. The village was not incorporated as a village until 1885, and has now a population of only about 600. Prior to 1871, no steps had ever been taken towards opening or improving South street. In 1857 one Nicholas Osterhout bought, and had conveyed to him a piece of land described as block 12, eastern addition to the village of Grandville. Block 12, according to the plat before referred to, was bounded on the north by Ferry street, on the west by East street, on the south by South street, and on the east by Church street. At the time of Osterhout's settlement there, none of these streets except East street were open or in use. He built his house fronting on East street near the south-west corner of the block, and south of that, and upon what on the plat was shown as South street, he built his barn. In this way he continued to occupy the premises until August, 1871, when he conveyed a strip of land 66 feet wide, through block 12, for the use of the Grand Rapids & Holland Railroad Company for a right of way. In October following he conveyed to the same railroad company "all that part of block 12, lying south of the portion of said block heretofore deeded to said railroad company, and bounded on the east by Church street, on the south by South street, and on the west by East street." The land so deeded by him to the railroad company was that upon which his house was situated. Soon after his house was removed and the depot of the railroad company built not far from but slightly east of the same site. The barn was also removed from South street. During that same season a stave-mill was erected something over a block east of East street, and a little south of South street. There was no convenient means of access to this mill. On October 3, 1871, a petition was made to the highway commissioners of the township of Wyoming, by Mr. Knowles, at that time station agent of the railroad company, and six others, who described themselves as freeholders of that township, requesting them "to open State street, in the village of Grandville, from East street to Church street, and also to lay out and establish a public highway commencing at some point on Church street, south of the Grand Rapids & Holland Railroad land, running east to it, parallel to and adjoining the land of said railroad company to Ottawa street." It will be noticed by reference to the plat, a copy of which is appended, that State street is a diagonal street, running north-east, and crossing East street a short distance south-west of the point at which it would form a junction with South street.
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It appears that a Mr. Keils, the owner of the land through which State street would run, if opened, objected to the opening of that diagonal street, but offered, in case the commissioners would act upon it, to give sufficient land, along his north line, east of East street, and lying immediately south of the eighth line between East street and Church street, to make as shown on the plat, a street of four rods in width from East street to Church street. Mr. Freeman, who was at that time one of the commissioners of highways, was examined as a witness for the complainant, and testified that the commissioners acted upon this offer, and proceeded to lay out a street four rods wide, commencing at East street and running due east to the stave-mill, then in operation. He testified that the street so laid out was immediately adjoining the land deeded by Osterhout to the railroad company, as the south part of block 12. Through the center of this newly-laid street was a fence running east and west, supposed to be built on the eighth line. There was also a fence running from the south-west corner of the railroad ground, south. These fences were ordered to be and were, in fact, removed. That upon the eighth line was moved, by Mr. Keils, two rods south, so as to form the southerly line of the street, and that along the East street was taken down. It appears that Mr. Knowles, representing the railroad company, and the owners of the stave-mill were the principal movers in the proceeding to open up a street, and that the street so opened corresponded with that shown upon the plat as South street. Mr. Freeman testified that he thought a record of the opening of this street was made, but no record appears in the town-clerk's office, and, as the petition under which he acted did not ask for the opening of the street, which was in fact opened, it is not important that no further record was made of the action taken. It must be conceded that the commissioners were acting without jurisdiction in attempting to open South street upon a petition which asked for the opening of State street. However irregular this action of the commissioners may have been, the parties immediately interested acquiesced in it; the street was opened and improved, and, during the following four or five years, was in constant use for travel by those who had business at the stave-mill, or with the depot. There was also a family named Fleming, living near the stave-mill, who used this road in going to and from the business part of the village. During the year 1872 the overseer of highways expended some labor upon the street so laid out, but in 1873 declined to do so upon the ground that the labor was more needed in other localities. The proprietors of the stave-mill expended considerable labor in turnpiking and improving the street. In 1876 the stave-mill discontinued business, and the buildings formerly used as a stave and planing mill were only used in a small way as a cooper-shop, but public travel was not discontinued entirely over this street. The testimony shows that people continued to live in the Fleming house, and that the cooper-shop continued to be operated more or less, and that persons having occasion to visit either of these places were compelled to travel over this street, unless they trespassed upon the railroad and other private grounds. This situation continued until the last of August, 1889, when the defendants entered into possession of the north half of South street, fronting upon East street, and commenced the erection of a two-story frame building. They claimed the right to do so under a deed from Nicholas Miller, dated the 23d day of August, 1889, conveying to them "the north half of South street, so called, on the south side of block 12, in the village of Grandville, Kent county, Michigan, being two rods front on East street according to the recorded plat thereof." Miller claimed title from Nicholas Osterhout under a deed dated the 16th day of July, 1889, conveying the same description of land. On September 10th, after the defendants commenced the erection of their building, action was taken by the village council to prevent the same. The village marshal was instructed to notify parties obstructing South street to...
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