Brown v. Gardner

1 Harr. Ch. 291

• Court: Michigan Court of Chancery
• Decided: July 1, 1841
• Status: Published

Opinion

The Chancellor.

The bill in this case was filed to restrain the defendants, Commissioners of Highways for the township of Cottrelville, from opening a highway through premises, a part of which the complainant alleges had been used for a garden for some twenty years and a part as an orchard of more than four years growth.

The bill was filed under the provisions of the statute inhibiting any road from being laid out without the consent of the owner through any orchard of more than four years growth, or garden which had been occupied as such more than four years before the laying out of such road.

The answer of the defendants inhabitants and officers of said town expressly .denies that the said road was laid out or opened through any such garden or orchard. Proofs on both sides have been taken.

It is si ngular that in relation to a matter of fact which from its very nature WO would suppose must be apparent one way or the other, we should meet with such direct contradiction as is found in the bill and the answer.

The proof however, to some extent, but not altogether, explains it. t shall not undertake to go through Wifh the entire mass of testimony taken in this cause. With regard to what is called in the evidence the lower farm, it does not seem to me that the road can be considered as passing through an orchard of more than four years growth Within the meaning of the act.

The statute must receive a reasonable construction. The object of it was to protect orchards from being cut up and severed without the consent of the oWner. But one small tree and one broken stump and those as it would seem of less than four years growth when the road Was laid out, and detaehedfrom the trees in an orchard adjoining, were included in the road.

There is some evidence of an intention 'to continue the appropriation of this ground for the purpose of an orchard. But where the fact is one of so doubtful a character and the injury so slight, it does not seem to me that the court for this cause is authorized to retain this suit, and close up this road, which has been laid out, made and fenced, or award an issue quantum, iamwificatus.

As to the garden on the upper farm there is somewhat more difficulty. Many respectable Witnesses residing in the immediate vicinity say that the grounds in question have not been used for a garden. Others swear positively that they have been so used for several years. I am inclined to think, after a careful examination of the testimony, that the new road does encroach some thirty feet in the widest place Upon what the last witnesses mean when they speak of a garden.

Some culinary vegitables have been raised on different portions of this piece of ground for many years; whether it has been so use devery year is very doubtful. The same portions of the ground do not seem to have been occupied for these p'urposes each year. And from the testimony it would seem not to have been very carefully cultivated, or to have produced much. And this explains the testimony of those Witnesses residing in the immediate neighborhood, who testify that the road does not pass through any garden. From the manner in which this ground has been used, the manner in which it was found, or rather from the fact that during a portion of the time-it has been partially without a fence ; it is doubtful whether it can be called a garden within the meaning of'the act. It would appear that it was not regularly enclosed, and set apart as a garden. But admitting that by possibility, it may be regarded as a garden within the meaning of the act, does this present such a case as calls upon this court to interfere, when if the complainant is entitled to any remedy, the courts of law can afford the same relief which is now sought here? The injury, if any, is very slight. Some of the witnesses say that the complainant has sustained no injury; all place the damages at a small sum. The jury who were empannelled to assess the damages found that the complainant would sustain no injury.

The jurisdiction of this court to interfere, and restrain public officers who are-acting illegally to the manifest injury of others, is well settled. But the grounds on which this court interferes in such cases, is to prevent great or irreparable injury. Such is not the case here. The road was laid out and opened before the service of the injunction. There is nothing in the case from which to infer that the^Commissioners acted in bad faith or intended any wanton violation of the rights of the complainant. The indispensable necessity for a change in the locality of this road is established. I find no evidence of unfairness or partiality in the summoning; or the conduct of the jury summoned to assess the damages. But it is argued that as the court has acquired jurisdiction for the purpose of granting the injunction, it should retain it for the purpose of giving damages to the complainant. It would be competent for this court so to do. It is sometimes done. In a clear case of gross and wanton injury by public officers, undercolor of their office, if the purposes of justice would be better subserved than by sending the complainant to a court of law, I should be disposed to do so. But in a case like this, when the officers seem to have acted in good faith, when it is doubtful whether any trespass] has been committed, and when, if it should beso found, the damages, if any, must be very trifling, and a court of law can afford the complainant an adequate remedy, 1 do not think this court is called upon to keep these defendants here, and send an issue to the county of St. Clair, first to try the fact whether the .land in question was a garden or not, and then if so found, to .assess the damages.

The convenient administration of justice will be better subserved by leaving the complainant to his suit at law in the county where the lands are situated and where the witnesses'reside.

Bill dismissed.