Board of Education v. Gilleland

157 N.W. 609, 191 Mich. 276, 1916 Mich. LEXIS 667

• Court: Michigan Supreme Court
• Decided: April 29, 1916
• Docket: Docket No. 17
• Status: Published

Opinions

Bird, J.

The city of Hastings constitutes a single school district. It was recently decided by the district to erect a new high school building. The board of ■education was desirous of locating it upon a plat of ground made up of a portion of Temple Square, a portion lNof the City Park, and that portion of a street known as “South Broadway,” which lies between them. The city council agreed to vacate these parcels on condition that the inhabitants were not opposed. A postal card vote developed that there was a majority in favor of the proposition, and the parcels were accordingly vacated by the council. For the purpose of acquiring the fee, condemnation proceedings under the statute followed, at which respondents appeared by counsel and interposed certain objections to the validity of the council proceedings, by which the parcels were vacated. Objection was made by counsel for the board that respondents had no such interest in the proceedings as gave them the right to appear as parties thereto. The circuit judge before whom the proceedings were had disposed of the questions raised on the merits, but did not rule upon petitioners’ objection, save by inference in allowing respondents to be heard. The condemnation proceedings resulted in the parcels being condemned, and compensation fixed. Respondents have removed the proceedings to this court by writ of certiorari, and several questions affecting their validity are made and argued. The question of the right of respondents to be heard in the proceedings must be first determined.

From the return of the circuit judge to the writ, it appears that the respondents are resident taxpayers of the district; that they reside on and own property fronting on South Broadway a block distant from the parcels vacated, but that they own no property adjacent to, or fronting upon, the parcels so taken. It further appears that the only inconvenience the respondents will suffer by reason of the closing of that portion of South Broadway is in traveling north from their homes. It will compel them to divert either to the east or west one block. It is a rule of law well established that a writ of certiorari is not available to an individual who has no direct or particular interest in the proceeding sought to be reviewed, unless he shows that he will suffer special injury beyond that which will affect him in common with the public or others similarly situated. Davison v. Otis, 24 Mich. 23; People v. Leavitt, 41 Mich. 470 (2 N. W. 812); Vanderstolph v. Boylan, 50 Mich. 330 (15 N. W. 495); Wolpert v. Newcomb, 106 Mich. 357 (64 N. W. 326) ; 6 Cyc. p. 768; 5 R. C. L. p. 256; 4 Standard Enc. of Procedure, 903. The same rule is also applied to other remedies. People v. Inspectors of State Prison, 4 Mich. 187; Miller v. Grandy, 13 Mich. 540, 551; Smith v. City of Saginaw, 81 Mich. 123, 127 (45 N. W. 964); Thomas v. Hamilton, 101 Mich. 387, 388 (59 N. W. 658); Brophy v. Schindler, 126 Mich. 341, 347 (85 N. W. 1114) ; Sweet v. Smith, 153 Mich. 674 (117 N. W. 59). It is held in People v. Schell, 5 Lans. (N. Y.) 352, that:

“The writ will not be sustained to review the proceedings of a highway commissioner in laying out a road, where it appears that the relator was not a party to the proceedings for laying out such road, and. has no direct interest in the road, either as owner of property over which it passes, or otherwise; the only interest which he claimed in the proceeding being that his business as a tavern keeper will be injured by the highway to be laid out, by the diversion of travel from the road on which his tavern is located."

The most that can be said of the situation here presented is that respondents will be inconvenienced by the closing of that portion of South Broadway which lies a block north of them, and in consequence they will be compelled to go one block either to the right or left. This inconvenience will not establish such an interest as will enable them to be admitted as parties to the proceeding. Buhl v. Depot Co., 98 Mich. 596 (57 N. W. 829, 28 L. R. A. 392). In this case a very similar situation of inconvenience is presented and it is held that the mere cutting off of one’s ingress and egress by the closing of a street, rendering it less convenient is damnum absque injuria. To the same effect see Sioux City Seed, etc., Co. v. Railway Co., 184 Mich. 181 (150 N. W. 841); City of Chicago v. Building Ass’n, 102 Ill. 379 (40 Am. Rep. 598). The frequency with which the rule has been applied where attempts have been made to interfere with municipal action, leaves no room for doubt that it should be applied in the instant case. It is suggested, however, that a larger right to intervene exists .where the municipality is dealing with parks and public grounds which have been dedicated to the public use. An examination of the reported cases discloses no such exception to the rule. 2 High on Injunctions states the rule as follows:

“And where, under a general power in a city charter to establish and regulate markets, the corporate authorities of the city are about to remove a market house, taxpayers, as such, have no sufficient ground for enjoining the removal, whatever may be the rights of adjacent proprietors and others injuriously affected thereby. So a taxpayer in a city, who files a bill in behalf of himself and other taxpayers to enjoin the city from selling a public park or square, is not entitled to the relief when he has no land abutting upon the square, and when he has no private interest involved other than or different from the body of taxpayers.” Section 1301.

In Tifft v. City of Buffalo, 65 Barb. (N. Y.) 460, the complainant sought to restrain the defendant city from selling a public square to the Union Hotel Company. It appeared that the public square was situate between Main and Washington streets; that complainant was the owner of property fronting on Main and Washington streets, but that he owned no property fronting on the park. The question being raised that complainant was not a proper party to maintain the suit, the court held “that he had no standing in a court of equity entitling him to maintain the action.”

We therefore conclude that respondents did not have the required interest to authorize them to intervene in these proceedings. This'leaves the court without power to consider the other important questions raised by the record. The writ, having been improvidently granted, will be dismissed, with costs to the petitioners in the condemnation proceedings.

Stone, C. J., and Kuhn, Moore, Steere, Brooke, and Person, JJ., concurred with Bird, J.