Devaux v. Mayor of Detroit , 1 Harr. Ch. 98 ( 1839 )

The Chancellor.

The bill states that the complainant and those under whom the 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, &c.; that defendants are about proceeding summarily and without pursuing the forms of law, to pull down the fences and remove the buildings, &c.; 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 1

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 i.s 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 alledged 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 vs. Corporation of New York, 4 Johns. Ch. Rep., 53.) And this court is not the appropriate tribunal for the trial of titles to land. Abbott vs. Allen, 2 Johns. Ch. Rep., 521.

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

Motion denied.