Wayne County MI Archives Court.....Devaux, Vs The Mayor 1837
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 August 9, 2008, 6:34 am

Source: Cases In Chancery
Written: 1837

FIRST CIRCUIT.

Mary Devaux v. The Mayor, etc., of the city of Detroit.

Plat of Detroit: Power of common council to open streets. Complainant went 
into possession of a lot in Detroit, in 1809, and in 1821 received a 
conveyance of the same from the governor and judges of Michigan Territory. 
Nearly thirty years after she took possession, the common council of Detroit, 
on a claim that a street was laid out through the lot originally, proceeded to 
open the same. On bill filed for the purpose, held, that the council should be 
enjoined from opening the street until they had established their title at 
law. (a.)

Titles to land should be tried at law. A court of chancery is not the 
appropriate tribunal for the trial of titles to land. (b.)

Motion to dissolve an injunction. The case is sufficiently set forth in the 
opinion of the chancellor.

A. D. Frazer and J. A. Van Dyke for the motion.

D. Goodwin contra.

The Chancellor.—The bill states that the complainant and those under whom she 
claims, have been in possession of the lot since 1809; that it has been 
inclosed by a fence since that time, and that valuable improvements have been 
made upon it, etc.; that defendants are about proceeding summarily and without 
pursuing the forms of law, to pull down the fences and remove the buildings, 
etc.; that in addition to the possession, she holds the lands by deed 
emanating from the governor and judges of the late Territory of Michigan, 
dated April, 1821.

The answer admits the possession, but sets up that Longdon, the grantor of the 
complainant, held a part of the land under a permission from the governor and 
judges, and that he took possession of the residue without authority, and that 
the deed of 1821 is uncertain in its description, and does not include the 
land in controversy, and that by the plan of the city said street was laid out 
sixty instead of fifty feet wide.

It is an admitted fact that the complainant and those under whom she claims, 
have been in possession and have had this property inclosed for nearly thirty 
years; and the question is, shall the defendants, after such a length of 
possession, be permitted to take forcible possession, and remove the fences 
and building, without first establishing their right by legal process?

It appears to me but just, that the complainant, after such a length of 
possession, should be protected in the enjoyment of this property until an 
adverse right be established.

It is urged that the governor and judges, being trustees, with defined powers, 
after having laid out and established the plan, had no authority, either to 
grant to any one the right to occupy a part of the street, or to grant the 
deed of 1821.

After ground had been dedicated and appropriated for a public street, and 
rights acquired with reference to the plan, they had no authority to 
appropriate it to a different purpose.

But it appears in this case, that the land in question was never used or 
appropriated as a street, and the dedication of it is attempted to be shown by 
reference to the plat, and on this ground the court is asked to dissolve the 
injunction, without any establishment of the right in opposition to a 
possession and improvement of thirty years.

The complainant seems to have acquired a confirmation of her claim by the deed 
of 1821, from the same board which is alleged to have established the plan of 
the city. It is said that this deed is imperfect, but it is manifest that it 
contemplated the same premises. There are cases where the abandonment of a 
street may be presumed by non-user. There having been a possession and 
improvement for so long a period; the land in question having never been used 
as a street, it would be obviously unjust to permit this forcible entry 
without the defendants first establishing a right at law. (See Varick v. 
Corporation of New York, 4 Johns. Ch., 53.) And this court is not the 
appropriate tribunal for the trial of titles to land. (Abbott v. Allen, 2 
Johns. Ch., 521.)

The injunction must be continued until the defendants establish their right at 
law.

Motion denied.

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(a.) The effect of the plan of the governor and judges in establishing streets 
in the city of Detroit, was much considered in People v. Jones, 6 Mich., 176, 
and Tillman v. People, 12 Mich., 401. In the former case it was held, that the 
plan did not, of itself, make public highway of that portion of the projected 
streets which was covered by private claims and occupied as private property, 
and in both cases it was decided that the plan alone did not establish a 
street without some act on the part of the public accepting the offered 
dedication. From both it is also inferable that the right to accept might be 
lost by lapse of time in connection with other circumstances, making it 
operate unjustly upon private lot owners.

(b.) See also Blackwood v. Van Vleet, 11 Mich., 252. It has, however, a 
jurisdiction conferred upon it to quiet the title of the party in possession; 
as to which, see Rowland v. Doty, ante, p. 3, and cases cited.

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

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