Wiley v. Murray

• Decision Date: 19 December 1923
• Docket Number: No. 53.,53.
• Citation: 225 Mich. 170,196 N.W. 446
• Parties: WILEY, Atty. Gen., v. MURRAY.
• Court: Michigan Supreme Court

225 Mich. 170

196 N.W. 446

WILEY, Atty. Gen.,

v.MURRAY.

No. 53.

Supreme Court of Michigan.

Dec. 19, 1923.

Appeal from Circuit Court, Ingham County, in Chancery; Leland W. Carr, Judge.

Bill by Merlin Wiley, Attorney General, against David W. Murray. From an order denying a motion in the nature of a demurrer to dismiss, defendant appeals. Reversed.

Argued before WIEST, C. J., and FELLOWS, McDONALD, CLARKE, BIRD, SHARPE, MOORE, and STEERE, JJ.

Bird and Fellows, JJ., dissenting.Prentiss M. Brown, of St. Ignace (Edward Osgood Brown, of Chicago, Ill., of counsel), for appellant.

Merlin Wiley, Atty. Gen., and J. E. Converse, Asst. Atty. Gen., for appellee.

STEERE, J.

A bill in equity was filed by the Attorney General in the circuit court of Ingham county, asking permanent injunction to restrain defendant from maintaining an alleged nuisance, consisting in an encroachment of a building upon a public street of the city of Mackinac Island, on the island of Mackinac, in the county of Mackinac. Defendant made a motion in the nature of a demurrer to dismiss the bill on jurisdictional grounds, which was denied, and the proceedings appealed to this court for review.

Introductorily, the bill describes the location of the island of Mackinac, having upon it a state park used as a summer resort by the people of this state and others, alleges that the principal business of the city is to supply the wants of resorters; that defendant is owner in the regular chain of title of a described parcel of land in said city, being a part of lot or private land claim 332; that in the original grant from the United States of said land claim, and all other lands patented on the westerly and southerly shore of the island, a strip 100 feet wide along the water's edge was reserved for use as a public highway, and ‘at all times' since has been so used, for 50 years or more, ‘and is the main street or highway of and for the city of Mackinac Island, and is the principal business street of said city.

The ground stated and relief asked in said bill are as follows:

‘That the said defendant, David W. Murray, has without right, title, or warrant therefor, on the premises above described, in this that the said defendant has constructed and maintained on said above-described premises certain permanent buildings now being used by the said defendant, or his lessors, for mercantile purposes. That said buildings are entirely within the limits of the said public street or highway, and are between the traveled portion of said street and the water's edge. That the public use of said street or highway through the premises of the said defendant, as above described, has been limited by the above set forth encroachments and obstructions so placed by the said defendant on said public street, to such an extent that the traveled portion thereof is at the present time limited to a width of, to wit, 50 feet. That the limiting of the traveled portion of the highway at this place on said street, because of the congested and crowded conditions of the street, particularly during the summer months, creates an unwarranted and unlawful interference with the rights of the public in and to such streets. That the above encroachments and obstructions within the limits of said street or highway, as herein set forth, are undue, illegal, and unwarranted interferences with the rights of the state of Michigan and the people of said state in and to the use of said public street or highway, within the limits of 100 feet, and as such has become and is a public nuisance.

* * *

‘Inasmuch, therefore, as the state of Michigan and the people of said state have no adequate remedy at law in the premises and can only be relieved in equity, your petitioner prays:

* * *

‘(2) That the said defendant, David W. Murray, may be decreed to have no right, title, interest, or privilege whatsoever, which would entitle him to occupy or use any portion of said above-described premises within said street or highway for other than street or highway purposes.

‘(3) That said encroachments and obstructions, as herein set forth, * * * be decreed to be a public nuisance and an illegal and unwarranted interference with the rights of the state of Michigan and the people of said state in and to the use of said street or highway, and ordered removed from the limits of said highway forthwith.

‘(4) That the said defendant, David W. Murday, may, by order of this court, be forever restrained and enjoined from keeping, maintaining or constructing any encroachments or obstructions on any part of said street or highway on said premises.’

The three grounds of demurrer urged in the briefs of defendant's counsel are: Want of equity jurisdiction, the Ingham county circuit court in chancery has no jurisdiction over the subject-matter of the suit, and the Attorney General is not a proper party to institute the proceedings.

The second and third grounds are to a degree interlaced. It is manifest that the locus in quo, or place in which the cause of action is alleged to have arisen or the wrong charged is alleged to have been done, is on Mackinac Island, in the county of Mackinac. Patents for the original grant of the land, to which reference is made in the bill for greater certainty, show that the fee of this street was conveyed to the grantee subject to the easement of a highway. An interest in land if not the title is necessarily in dispute and involved. In such case it is evident the provisions of our statute relative to the place for commencing litigation both in law and in chancery (section 12340, Comp. Laws 1915) would preclude commencing this suit in Ingham county, were it not for the following clause in paragraph 12:

‘And when it may be necessary to file a bill or information or to commence any proceeding in chancery on the party (part) of or in behalf of the state the same may at the election of the Attorney General be commenced in the circuit court for the county of Ingham on the equity side thereof and said court shall have complete jurisdiction and full power and authority in the premises.’

The first question which naturally suggests itself in connection with this exceptional venue clause in the statute is whether it was ‘necessary’ or within the authority of the Attorney General to file this bill in behalf of the state to protect public interests or suppress the alleged invasion of them. It is not shown to have been filed on the relation or complaint of any one, is not directed to the action of any officer or public body, nor to meet any emergency or threatened invasion. The situation as shown by the bill is that there is an open, unobstructed traveled portion of the right of way 50 feet wide, between which and the water's edge defendant has constructed and maintained permanent buildings, which are being used by him, ‘or his lessors,’ for mercantile purposes. When they were constructed or how long they had been maintained there and used for business purposes is not shown.

The statements of fact in the bill are to be taken as true, but if contradictory they nullify each other, and pertinent matters of common knowledge or public record may be resorted to in construing them.

The bill advises that the offense charged is being committed in the incorporated city of Mackinac Island, on its principal business street, causing a crowded or congested condition of the street, ‘particularly during summer months.’ It appears that the city was incorporated by Act No. 437 of the Local Acts of 1899, including in its boundaries ‘all of Mackinac Island and Round Island’ (a small island close adjacent), and embraced the ‘navigable waters adjacent to said city for a distance of one mile from the shore line of said islands.’ Official statistics show that in 1904 said city had a population of 736, and in 1920, 493.

The bill alleges that within said city is ‘a system of street and highways dedicated to public use,’ and used by the people of the state; how extensive the system or to what extent used is not shown. Manifestly it cannot connect with or become a part of any general thoroughfare or trunk line highway system of the state. It is of necessity peculiarly local in character and use.

In article 8 of our Constitution, which deals with ‘Local Government,’ section 28 provides:

‘The right of all cities, villages and townships to the reasonable control of their streets, alleys and public places is hereby reserved to such cities, villages and townships.’

The charter of the city of Mackinac Island, granted by a special act of the Legislature, is comprehensive, comprising 31 chapters, which occupy approximately 100 printed pages of the local acts of that year. It provides in detail for all municipal activities and officers customary in city charters. Chapter 20 is devoted to ‘Streets and Public Grounds,’ commencing with the general mandate:

‘Section 1. The council shall have supervision and control of all public highways, bridges, streets, avenues, alleys, sidewalks and public grounds within the city, and shall cause the same to be kept in repair, and free from nuisance.’

Amongst other things the chapter provides:

‘Sec. 2. The council shall have authority to lay out, open, widen, extend, straighten, alter, close, vacate or abolish any highway, street or alley in the city, whenever they shall deem the same a public improvement; and, if in so doing it shall be necessary to take or use private property, the same may be taken in the manner in this act provided for taking private property for public use. * * *

‘Sec. 3. When the council shall deem it advisable to vacate, discontinue or abolish any street, alley or public ground, of any part thereof, they shall by resolution so declare, and in the same resolution shall appoint a time, not less than four weeks thereafter, when they will meet and hear objections thereto. * * *

‘Sec. 5. The council shall have authority to determine and establish the grades of all streets, avenues,...