Wayne County MI Archives Court.....Cooper, Vs Alden 1837
************************************************
Copyright.  All rights reserved.
http://www.usgwarchives.net/copyright.htm
http://www.usgwarchives.net/mi/mifiles.htm
************************************************

File contributed for use in USGenWeb Archives by:
Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 August 9, 2008, 6:34 am

Source: Cases In Chancery
Written: 1837

CASES IN CHANCERY.

David Cooper and Charles Jackson v. Hiram Alden and others, Commissioners of 
Internal Improvement, and the Mayor, etc., of Detroit.

Order for injunction by officer out of court: Motion to dissolve. An 
injunction granted by a justice of the supreme court, in cases where the 
statute authorizes it, stands upon the same footing as if granted by the 
Chancellor; and in either case it is competent for the defendants, in 
vacation, and before they put in their answer, to move to dismiss the 
injunction for want of equity in the bill.

Lot owners in Detroit, rights of in streets. Purchasers of lots in the city of 
Detroit acquire no other or greater rights from the fact that said city was 
laid out by the governor and judges of the late Territory of Michigan, under 
an act of Congress authorizing them so to do, than they would acquire if the 
same had been laid out by an individual who had legally dedicated certain 
portions for streets and alleys.

Rights of lot owners in streets: Power of city to lease street. Purchasers of 
lots bounded on a street or square acquire a right to have such street or 
square preserved and appropriated to the uses for which it was dedicated, and 
the city, in the absence of any express authority, has no power to lease any 
portion of such street or square, to be used for a purpose destructive of the 
ends for which it was originally dedicated. (a.)

Injunction to prevent improper appropriation of street. Where land is 
dedicated to a particular purpose, and the municipal authorities undertake to 
appropriate it to an entirely different one, they may be restrained by 
injunction, on the application of an adjoining lot owner, from so doing.

Corporate powers of Detroit. The corporation of the city of Detroit has no 
power except that which is conferred by the act of incorporation or other acts 
specially relating thereto. (b.)

Commissioners of internal improvement, power of to appropriate streets. The 
commissioners of internal improvement have no right, under the general powers 
conferred on them, to appropriate a portion of a street in the city of Detroit 
for the purpose of erecting offices and other buildings thereon. (c.)

Injunction against public officers. Equity has undoubted jurisdiction to 
interfere by injunction where public officers are proceeding illegally and 
improperly, under a claim of right, to do any act to the injury of individual 
rights. (d.)

The bill in this case was filed September 20, 1838, and stated that 
complainant Jackson was the owner in fee of the west half of lot number 43, 
and that complainant Cooper was the owner in fee of the east half of said lot, 
and also the entire lot 42, both of said lots being in section six of the city 
of Detroit, according to the plan of the city made and adopted by the governor 
and judges of the late Territory of Michigan, pursuant to the provisions of an 
act of congress for that purpose.

That said lots were situated adjoining and fronting on a public street called 
Michigan Grand avenue, 200 feet wide; that said street was laid out and 
established as a public street and open space, not only for the free and 
uninterrupted use of all the citizens as a street, but for the ornament of 
said city, and more especially for the convenience, benefit, use and 
healthfulness of the lots adjacent to and situated on said avenue; that 
complainants, and those through and under whom they claim, had been in the 
full, peaceable, quiet and uninterrupted possession of said lots and of said 
avenue, as an easement, for more than twenty-five years last past; that they 
gave a much greater price for the lots than they would have done, had they 
supposed they did not acquire a vested right in said avenue as permanent and 
indefeasible as in the lots themselves; that they had expended large sums of 
money in improving said lots, had erected expensive buildings and actually 
resided thereon with their families for several years.

That the mayor, recorder, aldermen, etc., of the city of Detroit, September 4, 
1838, executed a lease to the people of the State of Michigan, reciting that,

"Whereas, Pursuant to a call of the mayor of the city of Detroit, a meeting of 
the freemen was held at the city hall, in said city, on Thursday, the second 
day of August, A. D. 1838: And whereas, after said meeting was duly organized, 
and the object of the call explained, the, following resolution was adopted by 
said meeting, viz:

"Resolved, That the common council of said city be authorized to lease to the 
State of Michigan a space in Michigan Grand avenue, between the city hall and 
Bates street, adjoining Bates street, sixty feet in width and extending one 
hundred and forty feet towards the city hall, for the purpose of erecting a 
brick building for a depot for passenger cars, and for other purposes 
connected with the operations of the Central Railroad; and also the privilege 
of laying a track or tracks from the present termination of the railroad, in 
the most eligible manner, to the aforesaid ground between Bates street and the 
city hall.

"Now, therefore, be it known, that the common council of said city, in 
obedience to the resolution of the freemen of said city, above recited, so far 
as they have power and authority under the city charter and amendments 
thereto, and without the intervention of a jury to assess private damages, and 
in this manner so to do, do hereby lease to the people of the State of 
Michigan all that space of ground in the center of Michigan Grand avenue, in 
said city, between the city hall and Bates street, sixty feet in width on the 
west side of Bates street, adjoining said Bates street, and extending one 
hundred and forty feet towards the city hall, for the purpose of erecting 
thereupon a brick building, to be used as a passenger car house and for 
railroad offices, connected with the operations of the Central railroad only. 
And the said common council, so far as they have power, as aforesaid, do 
hereby also grant to the people of the State of Michigan the other privileges 
in said resolution of the freemen above recited, for the purposes therein 
specified.

"It being always understood, however, and these presents are upon these 
express conditions, and not otherwise, viz:

"That these presents and the privileges and ground hereby granted and leased 
to the people of said State, shall continue and be in force so long as said 
ground and the buildings thereon to be erected, and said privileges, shall be 
used and occupied for the purposes hereinbefore specified and mentioned, and 
that as soon as they shall cease to be thus used and occupied, they shall all 
and singular forthwith revert to the mayor, recorder, aldermen and freemen of 
the city of Detroit, and these presents from thenceforth be null and void.

"And upon the further condition, that no more than one track or railway shall 
be placed or made across Woodward avenue, from the present termination of the 
railroad, for the purpose of arriving at said passenger car house.

"And upon this further condition, that in case the people of said State, or 
their agents, or the commissioners of the Central railroad, or the acting 
commissioner thereof, do not, within one month from this date, notify the 
common council of said city of the acceptance of this lease and privileges 
hereby granted, subject to the provisions, conditions and understanding 
hereinbefore and hereinafter contained, or in case the said people or their 
agents, or said commissioners or commissioner, or his or their successors in 
office, do not, within the period of one year from and after the date of such 
notification to said common council, have erected and completed the aforesaid 
brick building, and in use for the purposes aforesaid; then, and in each of 
these cases, these presents shall cease, be inoperative, null and void. And 
these presents are upon this further express condition and understanding, and 
not otherwise, viz: that the said State of Michigan shall and will, from time 
to time, and at all times, save harmless and keep indemnified said common 
council and every member thereof, and the mayor, recorder, aldermen and 
freemen of the city of Detroit, of and from all damages, sums of money, costs, 
charges, troubles, suits and expenses which they or any of them shall or may, 
at any time hereafter, be put unto, by being compelled to pay damages or sums 
of money to individuals, by reason of said common council having executed 
these presents, or on account of said space of ground and privileges hereby 
granted being used or occupied as aforesaid. In testimony," etc.

That if said road should be constructed and laid down as contemplated, it 
would pass along the entire front of complainants' dwelling houses and 
premises on Michigan Grand avenue, and near to the same; and that if the 
building contemplated by the lease should be erected, it would greatly 
incumber said avenue, and block up and obstruct the free use of the same, and 
extend across the entire front of said lots, to the great annoyance and damage 
of complainants. The bill charged that the lease was made without authority; 
it further stated that the commissioners of internal improvement did, on or 
about the same day the lease was made, accept the same in behalf of the people 
of the State of Michigan, and by a resolution of the board directed the acting 
commissioner on the Central railroad to go on and erect the buildings, and lay 
down the track of the railroad, as contemplated in the lease, without 
providing any compensation whatever for complainants' damages; that Hiram 
Alden, the acting commissioner, had employed engineers and other persons, and 
actually commenced the construction of said road and buildings, and threatened 
to continue the same; that the necessary grade for said road would elevate the 
same from one to three feet above the general level of said avenue.

The bill prayed an injunction to restrain the commissioners from constructing 
the road and erecting the buildings, in said Michigan Grand avenue, etc. 

Upon proof of the sickness of the chancellor, an injunction was granted, 
according to the prayer of the bill, by the Hon. George Morell, one the 
justices of the supreme court, September 20, 1838.

A motion was now made to dissolve the injunction for want of equity in the 
bill.

P. Morey, attorney-general, for defendant Alden.

1. The complainants do not show such rights as will authorize the court to 
interfere in their behalf by injunction, nor such a case as will sustain a 
decree.

2. If the. court should be against us on the first point, then we say, that by 
their own showing in the bill, they have an ample and complete remedy at law 
for the injury complained of; for if they have rights to sustain this 
proceeding, they must have sufficient to sustain a suit at law for the 
trespass; or, if their property is injured, they can appeal to the appraisers 
under the provisions of the 15th section of the act for the regulation of 
internal improvement, etc., page 197, session laws of 1837.

3. By the provisions of the 20th section of the act relative to the city of 
Detroit, approved April 4, 1827, and the 1st section of an act to amend the 
same, approved June 29, 1832, the common council are vested with full power 
and authority "to make or alter" streets and "generally to do and perform 
under the by-laws and ordinances or other directions of the common council," 
whatever may be for the regularity, public health, and convenience of the city.

And by the lease set out in the bill, all this power is delegated to the board 
of internal improvement. This, it is contended, must operate as an estoppel of 
any claim of the complainants, and as a relinquishment of damages by the city 
of Detroit; and on this ground, it is contended there is no equity shown in 
complainants' bill, or rather that their own showing divests them of a right 
to interfere.

4. But conceding all other grounds, it is still contended that the "right of 
eminent domain" under our constitution and laws, must remain with the 
sovereign power, the people; and that the defendant, Hiram Alden, acting 
commissioner of the Central railroad, who appears for the purpose of making 
this motion, was but acting as the agent of the people in the exercise of this 
right, in doing the acts complained of in the bill, and consequently that no 
court can interfere with or restrain him and his associates, in the exercise 
of the power thus delegated to them by the sovereignty of the State.

It is urged that this right of "eminent domain" was intended to be exercised 
by the legislature, and that it is fully delegated to the commissioners of 
internal improvement by the 15th section of the act for the regulation of 
internal improvement, and for the appointment of a board of commissioners, 
approved March 21, 1837. (See session laws of 1887, pages 197 and 198.)

The following authorities are referred to as fully sustaining the construction 
contended for. (Rogers v. Bradshaw, 20 Johns., 735, and cases cited; Wheelock 
v. Young and Pratt, 4 Wend., 647; Beekman v. Saratoga and Schenectady R. R. 
Co., 3 Paige, 72, 73, and cases cited; Varick v. Smith and Attorney-General, 5 
Paige, 137; The Mohawk Bridge Co. v. The Utica and Schenectady R. R. Co., 6 
Paige, 560 to 565; and the Charles River Bridge Co. v. The Warren Bridge Co., 
11 Peters, 536 to 583, and the cases cited.)

5. It is contended also, that the allegations in the bill show that the people 
of the State of Michigan, the grantees in the lease, which the complainants 
seek to have delivered up to be canceled, should have been made parties to the 
bill, and that the injunction should be dissolved because their rights cannot 
be infringed in a case to which they are not parties.

Woodbridge & Backus, contra. (Argument omitted.)

The Chancellor.—A preliminary objection is made by the counsel for the 
complainants, that the injunction in this case, having been allowed upon the 
bill, as sworn to, and no answer having been put in, nor the state of the case 
varied, it is not competent, or according to the course of practice, to move 
to dissolve on the same state of facts in vacation.

Our statute (R. S., 376, sec. 103) authorizes the justices of the supreme 
court severally, to "exercise the powers of the chancellor, with respect to 
the granting of injunctions," in certain cases. An injunction granted by a 
justice of the supreme court, in cases where the statute authorizes it, stands 
upon the same footing as if granted by the chancellor, and in either case, it 
is competent for the defendants in vacation, and before they put in their 
answer, to move to dissolve the injunction for the want of equity in the bill. 
(See Minturn v. Seymour, 4 Johns. Ch., 173.)

It is urged by the counsel for the complainants, that the mayor, recorder and 
aldermen had no authority to make the lease to the commissioners of internal 
improvement; that the city of Detroit, having been laid out by the government 
of the United States, and lots purchased with reference to the plan of the 
city, adopted by the government at the time of laying out the same, the 
purchasers have acquired vested rights of such a character, that the plan of 
the city, thus adopted and established, cannot be changed or in any manner 
interfered with, even by the full and express authority of legislative power, 
and that the exercise of such a power is regarded in the light of a revocation 
of a grant, or the violation of the obligation of a contract, and the cases of 
Fletcher v. Peck, and Dartmouth College v. Woodward, are cited in support of 
this doctrine. I cannot view the question in this light. I am unable to 
perceive that the United States, by authorizing their trustees, the governor 
and judges, to lay out a town, intended to convey or did convey, any other or 
greater rights to purchasers of lots in the premises, than would be acquired 
by purchasers of lots where an individual had laid out a town or city, and had 
legally dedicated certain portions for streets and alleys, on which lots were 
bounded. But it is undoubtedly true that purchasers of lots bounded upon a 
street or square, acquire a right and are interested in its preservation, and 
the application of such street or square to the uses for which it was 
dedicated; and should any city corporation, without full and express authority 
so to do, undertake to grant any portion of such public street to other 
individuals, to be used for any purpose which should be destructive of the 
ends for which such street was originally dedicated, such grant would be void. 
It is not necessary to discuss at present, the extent or the limits of the 
legislative power to authorize an improvement in a city or town, by the change 
of a plan, or a mere easement as a right of way for a railroad, or even the 
absolute appropriation, for the purpose of erecting permanent public buildings.

If the ground had been dedicated to a particular purpose, and the city 
authorities had appropriated it to an entirely different one, it might afford 
ground for the interference of a court of chancery to compel an execution of 
the trust, by restraining the corporation, or causing the removal of the 
obstruction. (See Barkley v. Howell's Trustees, 6 Peters, 507.)

It is contended that the common council of the city of Detroit, in granting 
the lease set out in the bill, have exceeded their powers; that no such 
authority has been given to the city authorities by the statutes creating and 
governing the corporation, and that the act making such grant is void, and can 
in no manner affect the rights of the complainants. 
The authority of the common council to lay out, change or alter any street or 
highway, is contained in the second section of the act entitled "An act to 
amend an act entitled 'An act relative to the city of Detroit,' approved June 
29, 1832," which provides "that when any street, lane, alley, sidewalk, 
highway, water course or bridge, is proposed to be laid out, established, 
opened, made or altered by the said common council in said city, due notice 
shall be given to all persons whose property will be affected thereby, and a 
jury shall be drawn," etc., "who, after being sworn, shall go on to the 
premises on which it is proposed to lay out, establish, open, make or alter 
any street, lane, alley, sidewalk, highway, water course or bridge, as 
aforesaid, and from an actual view of the premises, shall, upon their oaths, 
determine whether the public improvement or convenience require the thing 
proposed should be done, and if they agree in the affirmative, then they shall 
proceed to assess the damages, if any, upon any property affected thereby, 
respectively, to each owner or occupier thereof, and the said damages shall be 
paid before such improvement or alteration shall be made, and within one month 
after the verdict, which shall be returned to, and recorded in the mayor's 
court, shall have been rendered," etc.

The other sections of the acts relative to the city of Detroit, referred to, 
have no application to the present case. The corporation of the city of 
Detroit have no power, except that which is derived from the act incorporating 
the same, or the acts specially relating thereto. (See The People v. The 
Corporation of Albany, 11 Wend., 544; Oakley v. The Trustees of Williamsburg 
and Monroe, 6 Paige, 262.)

Does the statute above referred to authorize the corporation of the city of 
Detroit, by a vote or lease, to make a permanent appropriation of a part of 
one of the streets of the city for the purpose of erecting a large and 
permanent building, and to the great injury of individuals? Is it such an 
alteration or change of the public street as is contemplated by the act? The 
corporation have not pretended to follow the forms of law. It is so alleged, 
and their acts show it to be so. The lease is carefully guarded. It says: "The 
common council so far as they have power and authority, under the city charter 
and amendments thereto, and without the intervention of a jury, to assess 
private damages, and in this manner so to do, do hereby lease to the people of 
the state of Michigan," etc. This lease purports to have been executed by 
virtue of a resolution of a public meeting of the freemen of the city of 
Detroit. But this cannot vary the case; a portion, or even a majority of the 
citizens cannot legislate upon the rights of others in this way. It is 
competent for individuals to stipulate as to their own rights or their own 
property, but they cannot in this way interfere with the rights or property of 
others.

The hasty conclusions of a public meeting, regulated by no forms or rules of 
proceeding, would be substituted for the safe guards of our constitution and 
laws. It would be deserting at once the learning and the labors of the 
statesmen and law-givers who have endeavored to define and protect the rights 
of property among other rights, and submitting all to the passions or 
interests which should prevail at the moment. If it is competent to lease a 
street in this manner to be occupied for this purpose, it would be for any 
other purpose; and whoever should happen to be the individual whose dwelling 
was approached in this manner, would be fully sensible of the danger and 
inconvenience of such an exercise of power. It is not in the power of the city 
authorities, at all events, under the existing laws, to make such a grant to 
the injury of any individual; and the complainants may properly treat this 
proceeding, as far it interferes with their rights, as void, and as conferring 
no authority upon the commissioners of internal improvement to erect the 
building complained of, to their injury. But it is insisted that if it should 
be found that the common council exceeded their powers in granting the lease 
in question, still the commissioners of internal improvement have full 
authority to do the acts complained of by the bill.

This presents a difficult and important question. By the thirteenth section of 
the act for the regulation of internal improvement, etc. (Session Laws of 
1887, page 196), the board of internal improvement are authorized and required 
to establish the rates of toll, etc., and "to erect all such toll houses, 
weighing scales, offices, and other edifices; and also to purchase such 
grounds for the convenience thereof as they may think necessary for the 
convenience and profitable use of their canals or railroads," etc.

The 15th section of the same act provides that "the said board are hereby 
empowered to receive any cessions or grants for the use of the people of this 
State, from any person or persons, of any lands through which any line of 
canal or railroad or other public work, shall have been located. Said board of 
commissioners, and every acting commissioner under their direction, shall be, 
and they are hereby, vested with all the privileges and powers necessary for 
the location, construction and keeping in repair all canals, railroads and 
other improvements of which they may have charge; and the said board, their 
agents or those with whom they may contract for working or repairing any of 
said works of internal improvements, or any parts thereof, may enter upon, use 
and excavate any land which may be wanted for the site of the same, or any 
other purpose which is necessary in the construction or repair of any of said 
works," etc.

It is said, by the counsel for the defendants, that these two sections give 
the commissioners full power and lawful authority to do all that it is alleged 
in the bill they have done, or contemplate doing.

Have the legislature, by these general powers, authorizing and requiring the 
commissioners to erect toll houses and other edifices, and to purchase the 
lands necessary for the convenience thereof, etc., authorized them in the 
manner complained of by the bill, to appropriate and occupy a public street 
for a permanent building, 140 feet long by 60 feet wide, to the great damage, 
as alleged in the bill, of the complainants?

After the most careful examination, I have been led to the conclusion that the 
legislature did not contemplate conferring this power on the commissioners, 
and that no such power is, by the act, conferred.

In order more fully to understand this question, it may be well to refer to 
the laws of the State of New York upon this subject, and the construction 
which has been given to the powers of the commissioners conferred by those 
laws.

By the 16th section of the revised laws of New York, full power is given "to 
erect on, and take possession of, and use all lands, streams and waters, the 
appropriation of which for the use of such canals and works, shall, in their 
judgment, be necessary." By the 19th section of the same law, it is 
provided "that whenever for the purpose of constructing a canal or making any 
extraordinary repairs or improvements, it shall be deemed necessary by the 
canal commissioners having charge of the work, to discontinue or altar any 
part of a public road on account of its interference with the proper location 
or construction of such work, he shall make or direct to be made, such 
discontinuance or alteration."

By the 24th section of the same law, the board of commissioners are authorized 
to erect such toll houses, offices and other edifices, and purchase such 
grounds for the convenience thereof, as may be deemed necessary for the 
profitable use of the canals," etc.

It would seem, then, that the legislature of the State of New York, only 
contemplated the discontinuance or alteration of any public road in case of 
its interference with the proper location or construction of the canal, 
repairs or improvements, and deemed it necessary to authorize it, by special 
authority, so to do. The general powers given to the commissioners in this 
act, are substantially the same as the powers conferred upon the commissioners 
of our State by the act above referred to. For the purpose of offices or 
edifices, I am inclined to believe that the laws of New York contemplate the 
acquisition of lands by purchase or grant, only. It certainly does not 
contemplate occupying a highway, in a case like the one now before this court; 
but only in cases where the highway shall interfere with the public works.

By the 13th section of the act of this State, before referred to, the 
commissioners are authorized to construct all houses and necessary edifices, 
etc., and to purchase lands for the convenience thereof, etc.; and it is urged 
that by the general powers contained in the 15th section of the same act, it 
is competent for the commissioners to appropriate a part of one of the public 
streets for the purpose of erecting thereon the proposed edifice, and to 
extend the railroad some twenty rods, as appears from the plat exhibited, from 
its present termination, and directly away from the route, and not as a 
connecting link between its points of termination. Can it be fairly inferred 
from the act, that it was contemplated to authorize the occupation and 
obstruction of highways for public buildings, in this way?

I cannot view the powers conferred by the 15th section in any other light than 
as applying to cases where it became necessary to appropriate property, and 
interfere with private rights, in carrying out the great objects of the law to 
connect the two points of termination by a continuous railway, and that the 
legislature did not contemplate or intend to confer the power to construct 
lateral ways to the distance here contemplated, and there appropriate a public 
highway for the purpose of a large permanent building for car houses and 
offices.

The strongest case to be found in support of the exercise of such broad 
powers, is the case of Rogers v. Bradshaw, 20 Johns., 735. In this case, where 
the route of the canal interfered with a turnpike road, the supreme court held 
that the commissioners were not justified in placing the road on adjoining 
lands, although it was proved in the cause that the one or the other must 
yield. On appeal to the court of errors, it was held that the general 
authority to discontinue a public highway included a turnpike; and, also, that 
under their general powers, it was competent for them to make this diversion 
of the turnpike from the necessity of the case, and that the legislature must 
have intended to confer this power, which was necessary to carry their general 
powers into effect. The court say: "the turnpike road was unavoidably 
encroached upon by the canal. Another road was indispensable before the canal 
was commenced, and the land taken was necessary for the road; and further, it 
is very certain the improvement of the canal at this place could not be 
prosecuted without the road."

Is it to be inferred from the reasoning in the above cited case, that the 
general provisions of our statute above cited, reach a case like the present? 
Here the proposed erections are manifestly not absolutely necessary to carry 
into effect the general powers of the board of commissioners, but the road is 
extended to a distance from the line of the railroad, and the public street in 
front of the dwellings of the complainants permanently appropriated.

Would the court, in the case above cited, have construed this as coming within 
the meaning of the statute? It is believed not.

But it is said the discretion is vested in the board of commissioners, and 
that no other tribunal should interfere. This is probably the correct view of 
the exercise of the powers clearly given them by law, and the exercise of 
which is necessary to carry out the objects contemplated by the act. But is it 
true, that by virtue of their appointment, they may exercise unrestrained 
power over the property or rights of others, and that no remedy exists but an 
appeal to the legislative power? This would be subverting and overturning one 
of the first principles of our government.

A liberal construction of the powers the board of commissioners have granted 
to them, and necessary for the important objects of their appointment, should 
be given; but if those powers are exceeded, to the injury of the rights of 
individuals, the courts, of course, when appealed to, must hear and decide.

This court has undoubted jurisdiction to interfere, by injunction, where 
public officers are proceeding illegally or improperly, under a claim of right 
to do any act to the injury of the rights of others. (See Mohawk and H. R. R. 
Co. v. Artcher, 6 Paige, 88; Oakley v. Trustees of Williamsburg, Id., 264; 
Gardner v. Trustees of the village of Newburg, 2 Johns. Ch., 162; Belknap v. 
Belknap, Id., 468.)

The commissioners would not, perhaps, be trespassers unless they acted in bad 
faith; but when this court is appealed to, to protect the rights of parties, I 
know of no rule nor of any reason that will excuse it from adjudicating upon 
the law and the rights of these parties, as it would be compelled to do in 
every other case.

This, then, being the view entertained by the court, the question recurs, have 
the powers attempted to be exercised by the board of commissioners been 
granted by the legislature? If this extension from the line of the road, and 
the car house and offices, etc., proposed to be erected, are authorized by the 
act, what is the limit of the powers of the commissioners? If it may be 
extended twenty rods, it may, upon the same principle, be extended one hundred 
rods. If the street in front of the residences of these complainants, may, by 
virtue of these general powers, be occupied for the purposes here 
contemplated, and there is no remedy, I can see nothing to prevent the 
occupation of the street in front of the residence of any other individual for 
a furnace for the manufacture of engines, and another for a shop for the 
manufacture of cars or carriages, for store houses, or for a dwelling house 
for the residence of the receiver of tolls. I cannot well perceive where the 
limits of this implied power are to be found. It is a conclusion from which I 
cannot escape, that the legislature, by the general term of canals, railroads 
and other improvements, and authority to occupy any lands wanted for the site 
thereof, or for any other purpose necessary in the construction and repair of 
any of said works, did not intend to confer powers of the kind here claimed; 
but the term "other improvements," must have reference to the improving the 
navigation of rivers and the various works of internal improvement under their 
charge.

That the legislature did not contemplate, after authorizing and requiring the 
board to build edifices, etc., and to purchase such lands as were necessary 
for the convenience thereof, giving power to occupy lands and highways without 
consent or purchase in the manner here complained of; and that lands, etc., 
were only to be taken against the consent of the owners on the grounds and for 
the reasons for which such powers are usually given, from the necessity of the 
case, where the taking is necessary to carry into effect the great general 
objects in view. Such has been the course in New York and elsewhere, so far as 
I have been able to ascertain.

The right of the legislature to grant such powers of appropriating lands or 
highways for the erection of offices, edifices and other public buildings of 
the kind here contemplated, it is not intended now to discuss; but if such 
powers are granted, it is but reasonable to presume it will be definitely done 
as in the State of New York, and as was done by our legislature in extending, 
the Central railroad down Woodward avenue, in the city of Detroit, and not by 
implication, and with proper safeguards.

It has been urged that the statute of March 20, 1837, section 2, required that 
the surveys of the several routes should be first made; that notice should 
then be given, and after hearing those interested, the commissioners should, 
then proceed to establish such routes, and file in the office of the secretary 
of state, accurate plans of such surveys and locations. That, as it is alleged 
in the bill, and there being no answer, of course no denial, that the 
extension complained of was ordered by a resolution, merely to make this 
extension according to the terms of the lease, and alleged to have been done 
without law or right, and without observing the mere forms of law; that the 
proceeding is irregular, and the parties cannot show it to have been legally 
done by reference to the statute merely, but must show affirmatively and 
positively, by way of answer, that they have pursued its forms and kept within 
the powers granted.

After the views expressed on other points in this case, it may not be very 
material for the purposes of this motion to decide this question. But, as it 
may be convenient as a question of practice, it may be proper to express my 
views upon this point. This is a motion to dissolve an injunction without 
answer, and for want of equity in the bill.

So far as the statute, which is a public law, goes to show that the acts of 
the commissioners, as set out in the bill, are within their powers, and to be 
exercised in the manner therein stated, so far is it competent to show by it, 
they are lawfully authorized to perform the acts they are alleged to have 
performed, and that the complainants have no just cause of complaint, and that 
hence results a want of equity in the bill.

It has been further said in the argument, that the legislature, by their act 
of April 6, 1838, have themselves put a construction upon the powers of the 
commissioners, and that further legislation was necessary to authorize a 
further extension of the railroad from its present termination.

This act provides that the commissioners are hereby authorized, with the 
consent of the common council of the city of Detroit, to extend the tracks of 
the Central railroad from its present termination down Woodward avenue to its 
intersection with Atwater street, and thence each way along said Atwater 
street as far as said commissioners may deem best for the public good, etc.

This may not be of decisive consequence in the decision of this question, but 
it certainly may be regarded as confirmatory of the views heretofore expressed 
of the proper construction of the general powers of the commissioners. The 
commissioners themselves, by asking and obtaining a lease of the city, and by 
the uncontradicted allegations of the bill, acting in pursuance of it, and 
making it the basis of their proceeding in this matter, seem to have taken the 
same view of their powers.

But it is said that whatever views may be taken of the powers under which the 
commissioners acted, still the complainants have not made a case of such an 
interference with their rights, as calls for the interposition of this court 
by injunction.

It must be remembered that the allegations contained in the bill are not 
denied, and that, for the purposes of this argument, they must be taken as 
true, as admitted.

In regard to the injury, the bill alleges, in substance, that the 
complainants, and those under whom they claim, have been in possession for 
more than twenty-five years; that the complainants have laid out large sums of 
money in erecting buildings, and preparing residences for themselves and their 
families; that the obstructing said street by buildings and permanent fixtures 
would render the complainants' premises uncomfortable, inconvenient and 
unsafe, in proportion as the said street should be contracted or obstructed; 
and that, should said avenue be permanently contracted, their plans of making 
said premises a place of residence would be wholly defeated, and they would be 
compelled, to their great loss and damage, and in violation of their vested 
rights, either to suffer hazard, inconvenience, annoyance and wrong, or to 
abandon their improvements, made on said premises, and seek elsewhere a place 
of residence.

That if said building shall be erected, as contemplated by said lease, it will 
greatly encumber, block up and obstruct the free use of the same; and will 
extend across the entire front of lot 42, and nearly all of the eastern half 
of lot 43, the property of the complainants, to the great annoyance and damage 
of the vested rights of complainants and other proprietors of lots on said 
avenue. That the board of commissioners have directed said building to be 
erected, etc., to the great wrong and injury of complainants, without 
pretending to provide any compensation for the great damages the complainants 
would sustain thereby, and without pretending to pursue any of the mere forms 
of law. That defendants, or some of them, have commenced breaking up the 
streets, etc., and that they fear, unless restrained, they will go on and 
erect said building, dig up and encumber said avenue, to the great and 
irreparable loss and damage of the vested rights of complainants. That the 
street, as they believe, must be elevated from one to three feet, etc.; that 
they will be deprived of all passage, except at the peril of the lives and 
safety of themselves, families and property, by reason of the cars, engines 
and other vehicles passing and re-passing upon said railroad, and collected 
about said contemplated depot; and that said railroad and building will be a 
great and intolerable nuisance to the said complainants' said premises, and 
render the same wholly unfit and unsafe as a place of residence for the 
complainants and their families, and that their premises would be in danger of 
fire from engines passing and being stationed so near them, etc.; with other 
allegations of similar import, and to which it is not necessary further to 
refer. The foregoing are referred to, merely to show the character of the 
averments in the bill, and to test the question whether such a case is made, 
which standing uncontradicted, that the court is bound to interfere.

It is said that as there is a plat accompanying the bill showing the extent of 
the obstruction contemplated, this court can, without denial of the strong 
allegations of the bill, which are sworn to by the complainants in this cause, 
infer that they are mistaken in their views, and that they do not sustain such 
an injury as they have alleged. This would be going quite too far. The 
substantial allegations of the bill must be held to be true until denied. Is 
there, then, such a case made as renders it the imperative duty of this court 
to permit the injunction allowed by the judge of the supreme court to stand 
until an answer?

Of this, if the most respectable authorities furnish a guide, and if the views 
previously expressed in this cause are correct, there can be very little 
doubt. In 6 Paige, 264, Oakley v. The Trustees of Williamsburgh, where the 
trustees were proceeding to dig down a street, the chancellor says: "if the 
trustees have no such powers as they have assumed to exercise, then this 
appears to be a very proper case for the allowance of an injunction, to 
restrain an illegal proceeding by them, to dig down and alter the grading of 
the street as established, which, as alleged in the bill, will be a material 
injury to the value of the property of these complainants." The cases cited, 2 
Johns., 463; Belknap v. Belknap, 1 Vesey, 188; Slush v. Trustees of Morden 
College; Agar v. The Regents Canal Com., Cooper, 77, and 6 Paige, 88, are also 
in point, and show that jurisdiction in this class of cases has been in 
constant exercise.

The case of Corning and others v. Lowrie, 6 Johns Ch., 440, is strictly 
analogous. This was a bill for an injunction to restrain the defendant from 
obstructing Vestry street, in the city of New York, and averring that he was 
building a house upon that street, to the great injury of the plaintiffs, as 
owners of lots on, and adjoining that street; and that Vestry street has been 
laid out, regulated and paved, for about twenty years. The chancellor 
distinguished this case from that of the Attorney-General v. The Utica 
Insurance Company, inasmuch as here was a special grievance to the plaintiffs, 
affecting the enjoyment of their property, and the value of it. The 
obstruction was not only a common or public nuisance, but worked a special 
injury to the plaintiffs, and upon these grounds the injunction was granted. I 
am unable to distinguish this case from the one under consideration.

It results, then, that, having jurisdiction of the subject matter, and being 
appealed to by those who, as they allege, are suffering wrong and injury, and 
who have made a case coming clearly within the authority of adjudged cases, 
the duty of this court is imperative; it is one from which it dare not shrink, 
however much it may regret that this question has arisen.

It is but due, and of this the court is fully conscious, that the public 
officers should be sustained in the exercise of the powers which are granted 
them; but when appealed to, upon a question of individual rights, it can have 
no other duty but to apply the law to the case. It cannot be improper further 
to say, that in the prosecution of the work here complained of, it is beyond 
doubt that the board of commissioners have acted in the most perfect good 
faith.

A great variety of other questions have been raised and discussed, in the 
course of this laborious investigation. They have been intently and carefully 
considered, but not being material in the decision of this motion from the 
conclusion to which I have arrived, it is not deemed necessary to discuss them 
further in this preliminary stage of the cause.

The motion to dissolve the injunction must be denied.

Motion denied.

-----------------
(a.)—See People v. Carpenter, 1 Mich., 173. See, also, a very full discussion 
of this general subject in Milhau v. Sharp, 17 Barb., 435; Same v. Same, 28 
Barb., 228; same case on appeal, 27 N. Y., 611.

(b.)—The general inclination of courts seems to have been to construe all 
charters of incorporation strictly, and to require the corporation in all 
cases to show legislative authority for the powers it assumes to exercise. See 
Dunham v. Rochester, 5
Cow., 465; Mayor of Savannah v. Hartridge, 8 Ga., 23; Rochester v. Collins, 12 
Barb., 559; Reed v. Toledo, 18 Ohio, 161; Mt. Pleasant v. Breeze, 11 Iowa, 
339; Bennett v. Birmingham, 31 Penn. St., 15.

(c.)—In People v. Carpenter, 1 Mich., 173, it was said that neither the common 
council of Detroit nor the governor and judges (the legislative authority) of 
Michigan Territory could authorize the exclusive use of any of the streets of 
the city by individuals. This is unquestionably true so far as the 
appropriation would interfere with the vested rights of adjoining individual 
lot owners, and to that extent the case of Carpenter supports the present.

(d.)—See Brown v. Gardner, post. 290. The right to restrain public officers by 
injunction, when proceeding illegally, was also recognized in Williams v. 
Detroit, 2 Mich., 560; Woodbridge v. Detroit, 8 Mich., 274; Palmer v. Rich, 12 
Mich., 414; Miller v. Grandy, 13 Mich., 540; Conway v. Waverly, 15 Mich., 257; 
School District v. Dean, 17 Mich., 223; Ryan v. Brown, 18 Mich., 196; Kinyon 
v. Duchene, 21 Mich., 498.

Additional Comments:
CASES DETERMINED IN THE COURT OF CHANCERY FOR THE STATE OF MICHIGAN
BY ELON FARNSWORTH, Chancellor 

File at: http://files.usgwarchives.net/mi/wayne/court/cooper24gwl.txt

This file has been created by a form at http://www.genrecords.org/mifiles/

File size: 45.9 Kb