Lirones v. Andrews

20 N.W.2d 259, 312 Mich. 423, 1945 Mich. LEXIS 340

• Court: Michigan Supreme Court
• Decided: October 8, 1945
• Docket: Docket No. 14, Calendar No. 42,955.
• Status: Published

Opinion

Starr, C. J.

Defendants appeal from a decree enjoining them from obstructing a portion of an alley between tbe properties of plaintiffs and de-, fendants in the city of Mt. Pleasant, and awarding damages for its obstruction. As defendants’ brief does not contain a statement of questions involved, as required by Court Buie No. 67, § 1 (1945), it will be stricken from tbe files. Klanowsky v. Colton, 274 Mich. 114.

Tbe original plat of tbe village (now city) of Mt. Pleasant, recorded in 1864, dedicated an alley 20 feet in width running north and south between Broadway and Chippewa streets. Lots 17 and 18 of said plat are located on tbe west side and lots 1 and 2 are located directly opposite, on tbe east side of tbe alley, lots 1 and 18 being adjacent to Broadway. In January, 1939, plaintiffs acquired title to tbe east % of lots 17 and 18, and in November, 1941, defendants acquired title to tbe west % of lots 1 and 2.

Tbe record indicates that more than 50 years ago a bouse was constructed on tbe property now owned by plaintiffs, which extended and encroached four or five feet on tbe alley, and that this hous¿ was on tbe property at tbe time plaintiffs purchased. Thereafter they constructed another building and a sidewalk, which together extended and encroached approximately 9.4 feet on tbe alley, leaving only tbe east 10.6 feet available for travel and use. Plaintiff’s buildings were used for residence and business purposes. Subsequent to defendants’ purchase of tbe property on tbe east side of tbe alley, tbe residence and garages thereon were removed. Trouble arose between tbe parties over their rights in tbe east 10.6 feet of tbe alley which remained open. Claiming that it bad been abandoned and that, as owners of tbe adjoining property, they bad1 tbe right to close it, defendants blockaded and shut off tbe alley.

Plaintiffs then began tbe present suit, alleging that tbe alley bad been used by adjoining property owners and the public for over 50 years and that it had never been abandoned or vacated. They asked that defendants be enjoined from interfering with their use of the alley and for damages resulting from its obstruction. The trial court entered decree requiring defendants to remove all obstructions placed in the alley, permanently enjoining them from interfering with'plaintiffs’ use thereof, and granting plaintiffs damages in the amount of $500. Defendants appeal, and, this being a chancery case, we review de novo.

As above mentioned, plaintiffs’ building and sidewalk encroached approximately 9.4 feet on the west side of the alley, leaving only the east 10.6 feet open and' available for use. However, questions relative to plaintiffs’ rights in said 9.4 feet or their liability for encroachment on the alley are not before us in the present case and are not determined. The only question is whether or not defendants have the right to close the east half of the alley and prevent its use by plaintiffs and the public.

From the record it appears that that part of the dedicated alley north of the properties of plaintiffs and defendants has never been used to any extent and has. apparently been abandoned by ■ nonuser. However, the record indicates that the parties and their predecessors in title kept the open portion of the alley between their" properties in usable condition by placing gravel and cinders thereon and that they used it for ingress and egress. There was also evidence that garbage haulers, the city, and others had used this open portion of the alley. None of the land in the dedicated alley had been assessed for taxation.

The recorded plat was notice to defendants of the dedication of the alley, and the deed by which they obtained title to the west half of lots 1 and 2 expressly provided; “together with all the first par ties’ right, title and interest in the alley along the west boundary of said lots as shown on the recorded plat thereof.” The respective conveyances to plaintiffs and defendants of lands on opposite sides of the alley carried the fee to the center line of the alley, subject, however, to the right of use in common by adjoining property owners and the public. Loud v. Brooks, 241 Mich. 452. Defendants purchased their property with knowledge of the existence of the alley and subject to the rights of plaintiffs therein. Murphy Chair Co. v. American Radiator Co., 172 Mich. 14.

The alley had never been vacated by legal proceedings, and from the facts shown we are convinced that the open portion thereof between the properties of plaintiffs and defendants had not been abandoned by nonuser. The fact that plaintiffs and their predecessors in title had encroached upon the west half of the alley did not give defendants the right to close the east half, which had remained open and was used in common. In other words, defendants cannot set up plaintiffs’ encroachment on the west half in defense of their wrongful blockading of the east half. The discontinuance or abandonment of the north part of the alley would not affect the portion kept in use. Gregory v. Knight, 50 Mich. 61. See, also, Wayne County Savings Bank v. Stockwell, 84 Mich. 586-(22 Am. St. Rep. 708).

Defendants claim that the alley had been abandoned, that plaintiffs and their predecessors in title were permissive users, and that their permissive use had been revoked. However, the record establishes that plaintiffs.’ use of the alley was not permissive but was by virtue of the recorded and dedicated plat and the long and continued use in common by the predecessors in title of both parties. Wesson v. Tolsma, 117 Mich. 384, In any event, the question of permissive use could not arise, as tlie alley bad not been vacated by legal proceedings or abandonment.

We conclude that plaintiffs are entitled to use tbe east 10.6 feet of tbe alley in common with defendants and tbe public. Tbe testimony reasonably establishes plaintiffs’ right to tbe damages awarded them. In view of our conclusions, other questions presented do not require determination. Tbe decree is affirmed, with costs of both courts to plaintiffs.

North, Butzel, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. Tbe late Justice Wiest took no part in tbe decision of this case.