Village of Grandville v. Jenison

• Decision Date: 28 July 1891
• Citation: 49 N.W. 544,86 Mich. 567
• Court: Michigan Supreme Court
• Parties: VILLAGE OF GRANDVILLE v. JENISON et al.

49 N.W. 544

86 Mich. 567

VILLAGE OF GRANDVILLE v. JENISON et al.

Supreme Court of Michigan

July 28, 1891

Affirming 47 N.W. 600.

MORSE, J.

This case will be found reported in 84 Mich. 54, 47 N.W. 600. The opinion was filed on the last meeting of the court before the retirement of Mr. Justice CAHILL from the bench. A rehearing was granted, on motion of defendants, mainly for the reason that some of the members of the court, especially the writer of this opinion, feared that, perhaps, they had not, in the limited time afforded between the first hearing and the filing of the first opinion, given the case the full and searching consideration that it deserved. Since then we have most carefully examined and studied the record, and are satisfied that the opinion written by Mr. Justice CAHILL is correct in every particular. The main question raised upon the rehearing is one of fact, to-wit, whether "South Street," so-called, or that portion of it occupied by the building of the Jenisons, has become a public highway by user. There seems to be no ground whatever for disputing the fact, which is well established, that an arrangement was made under attempted, but not legal, proceedings to lay out a street, by which South street, as shown on the old plats, was opened in 1871 from East street, through as far as a stave-mill then in operation, and that in the following year it was turnpiked by highway labor. This portion of South street included that part of the street now occupied by the Jenisons' building. The street has been traveled more or less ever since, and the evidence seems to be conclusive that at the corner where the Jenisons' store is situated it has always been traveled until obstructed by them. It is true that a road cannot be established by user of any greater length or width than the use makes it, but the defendants are in no position to complain, or aver in their defense, that the whole length or width of South street, as it appears upon the old plats, or as it was opened in 1871 has not been continuously traveled ever since such opening as long as it appears without serious dispute that the travel upon the portion of the street upon which their building encroaches has been continuous for upwards of 17 years before they erected their store building. There also seems to be a substantial want of equity in the defense. Nicholas Ousterhout, through whom they claim title, never had any deed to this...