Warren v. The City of Grand Haven

• Decision Date: 21 July 1874
• Citation: 30 Mich. 24
• Court: Michigan Supreme Court
• Parties: Alfred Warren and others v. The City of Grand Haven and others

30 Mich. 24

Alfred Warren and others v. The City of Grand Haven and others

Supreme Court of Michigan

July 21, 1874

Heard April 28, 1874

Appeal in Chancery from Ottawa Circuit.

Decree reversed, and a decree entered in accordance with the prayer of the bill, as to all the complainants who appealed.

William A. Pratt, for complainants.

J. W Champlin, for defendants.

Cooley J. Christiancy and Campbell, JJ., concurred. Graves, Ch. J. did not sit in this case.

OPINION

Cooley, J.:

This is a suit to restrain the collection of taxes assessed upon the real estate of complainants fronting on Washington street in the city of Grand Haven, to meet the expense of constructing a sewer in that street. By the city charter as amended in 1869 (Sess. L., 1869, Vol. 3, p. 1411, § 14), the common council were given authority to make such improvements, either by general tax or by tax "to be assessed against the owners or occupants of the premises the value of which is increased" thereby. The council chose the latter mode, and provided by general ordinance that whenever they should have directed by ordinance or resolution the expense of any local improvement to be assessed against the owners or occupants of premises the value of which is increased by the improvement, they should determine what premises are so increased in value, and thereupon the mayor should forthwith proceed to make an assessment on said premises according to the provisions of such ordinance or resolution, and that such assessment should be made in proportion to which such premises are improved by the improvement. The records of the council show that certain parties petitioned, February 29, 1872, for the construction of a sewer in Washington street, from Third street to Grand river; and that on April 11, 1872, the city surveyor presented an estimate of the expense of the same, amounting to $ 2,671.25. The council thereupon resolved that the contract for the construction of the sewer be let to the lowest responsible bidder after the publication of proposals, and that a special tax of $ 2,671.25 be raised for the purpose of constructing the same; also, "that said tax be assessed against the owners or occupants of the premises the value of which is increased by said improvement, and that the following described premises are hereby determined to be the premises the value of which is increased by such improvement, that is to say: lots 11," etc. (describing a number of lots), "of the village, now city of Grand Haven, according to the recorded plat thereof." Also, "that the mayor be and is hereby instructed to proceed forthwith to make an assessment and tax roll in accordance with the provisions of the preceding resolution, and the ordinance in such case made and provided. And that the warrant affixed to said assessment or tax roll shall direct the treasurer to collect the same within thirty days from the date of such warrant."

Acting under these resolutions the mayor proceeded to make out an assessment roll, which he returned to the council with the following certificate attached:

"State of Michigan, County of Ottawa, ss.--

"I hereby certify that the foregoing is the assessment roll for the Washington street sewer tax, made pursuant to a resolution of the common council of the city of Grand Haven, in said county, on the eleventh day of April, 1872, providing for the laying of a sewer in Washington street, from Third street to Grand river in said city, and to which I subscribe my name, this first day of May, A. D. 1872.

"(Signed) Geo. E. Hubbard,

"Mayor of the city of Grand Haren."

By this assessment roll a uniform tax of one dollar nine cents per foot front on Washington street was levied on all the lots enumerated in the resolutions of the council, each of said lots being bounded on Washington street, either in front or at one of its sides. The roll was submitted to the council May 2, and on motion of Alderman Clubb, May 23 was fixed for hearing appeals therefrom. On the day last named the hearing of appeals was postponed for one week, and on May 30 the roll was confirmed, Alderman Clubb being absent. And thereupon a warrant was issued to the city treasurer for the collection of the tax, with two per centum additional for collection fees. The complainants, who own in severalty a number of the lots taxed, then filed their bill to enjoin the collection, and this being dismissed at the hearing, a part of the complainants appeal.

The first objection to the tax which we shall notice is, that the council had no right to cause a sewer to be constructed in this street without first taking proceedings to appropriate the land for the purpose under the right of eminent domain. This objection was based upon evidence put into the case to show that the street never was regularly platted, and only became a street by acts in pais constituting a dedication; and the argument is that the property in the soil belongs to the adjacent owners, subject to an easement for the purposes of travel only, and consequently could not lawfully be taken for a sewer without the consent of the owners, unless after compensation assessed and paid or secured. If we should concede the title to be in the adjacent owners, we cannot agree that the conclusion insisted upon would follow. The dedication of land to the purposes of a village or city street must be understood as made and accepted with the expectation that it may be required for other public purposes than those of passage and travel merely, and that under the direction and control of the public authorities it is subject to be appropriated to all the uses to which village and city streets are usually devoted, as the wants or convenience of the people may render necessary or important: Kelsey v. King, 32 Barb 410; West v. Bancroft, 32 Vt. 367; Dillon Mun. Corp.,, §§ 544, 545. One of these uses is the construction of sewers, which are usually laid under the public streets; and the custom to lay them there must be assumed to be had in view when a way is dedicated, and the act of dedication is a waiver of any claim...