Hawkins v. Township of Wyoming

232 N.W. 355, 251 Mich. 506, 1930 Mich. LEXIS 635

Opinion

Wiest, C. J.

Plaintiff claims that adverse possession has accorded her title to land designated as an alley and dedicated to the use of the public in a plat recorded in January, 1892, and filed the bill herein to have her title quieted. Defendants, by answer, raised issues of fact and law, asserted former adjudication, and, by cross-bill, ashed that plaintiff be enjoined from interfering with the alley. Plaintiff appealed from a decree dismissing her bill, confirming existence of the alley, and enjoining interference therewith.

If the alley was accepted by public user, or by the improvement of any part thereof, plaintiff could not, by encroachment thereon, acquire title. See Act No. 46, Pub. Acts 1907, as superseded but continued by section 12311, 3 Comp. Laws 1915. The alley was so used and improved at street intersections.

In 1927, plaintiff claimed that thé land in suit was part of a public alley, and filed a petition in the Kent circuit to have the alley vacated and the land in suit revert to her as owner of abutting property. She then also claimed title by adverse possession. The petition was heard upon pleadings and proofs and dismissed by decree. The decree was affirmed by this court. In re Petition of Hawkins, 244 Mich. 681. Pleadings in that proceeding left petitioner to her proofs upon the issue of adverse possession. Whether proofs were so made does not appear by this record. Whether made or not the pleadings constituted adverse possession a triable issue in the proceeding to vacate, and the decree therein was an adjudication that the land in suit was part of a public alley.

Plaintiff could not, by adverse possession commencing in 1910, acquire title to any part of the alley.

The decree in the circuit is affirmed, with costs to defendants.

Butzel, Clark, McDonald, Potter, North, and Head, JJ., concurred. Sharpe, J., did not sit.