Attorney General v. Murray , 225 Mich. 170 ( 1923 )

A bill in equity was filed by the attorney general in the circuit court of Ingham county asking permanent injunction to restrain defendant from maintaining an alleged nuisance consisting in an encroachment of a building upon a public street of the city of Mackinac Island, on the Island of Mackinac, in the county of Mackinac. Defendant made a motion in the nature of a demurrer to dismiss the bill on jurisdictional grounds, which was denied, and the proceeding appealed to this court for review.

Introductorily the bill describes the location of the island of Mackinac, having upon it a State park used as a summer resort by the people of this State and others, alleges that the principal business of the city is to supply the wants of resorters; that defendant is owner in the regular chain of title of a described parcel of land in said city, being a part of lot or private land claim 332. That in the original grant from the United States of said land claim and all other lands patented on the westerly and southerly shore of the island a strip 100 feet wide along the water's edge was reserved for use as a public highway and "at all times" since has been so used, for 50 years or more, "and is the main street or highway of and for the city of Mackinac Island, and is the principal business street of said city."

The ground stated and relief asked in said bill are as follows:

"That the said defendant, David W. Murray, has without right, title or warrant therefor, on the premises above described, in this that the said defendant has constructed and maintained on said above described premises certain permanent buildings now being used by the said defendant, or his lessors, for mercantile purposes; that said buildings are entirely within the limits of the said public street or highway and are between the traveled portion of said street and the water's edge.

"That the public use of said street or highway through the premises of the said defendant, as above described, has been limited by the above set forth encroachments and obstructions so placed by the said defendant on said public street to such an extent that the traveled portion thereof is at the present time limited to a width of, to wit: Fifty feet. That the limiting of the traveled portion of the highway at this place on said street, because of the congested and crowded conditions of the street, particularly during the summer months, creates an unwarranted and unlawful interference with the rights of the public in and to such streets.

"That the above encroachments and obstructions within the limits of said street or highway, as herein set forth, are undue, illegal and unwarranted interferences with the rights of the State of Michigan and the people of said State in and to the use of said public street or highway within the limits of one hundred feet, and as such has become and is a public nuisance. * * *

"Inasmuch, therefore, as the State of Michigan and the people of said State have no adequate remedy at law in the premises and can only be relieved in equity, your petitioner prays: * * *

"2. That the said defendant, David W. Murray, may be decreed to have no right, title, interest or privilege whatsoever, which would entitle him to occupy or use any portion of said above described premises within said street or highway for other than street or highway purposes.

"3. That said encroachments and obstructions, as herein set forth, * * * be decreed to be a public nuisance and an illegal and unwarranted interference with the rights of the State of Michigan and the people of said State in and to the use of said street or highway, and ordered removed from the limits of said highway forthwith.

"4. That the said defendant, David W. Murray, may by order of this court, be forever restrained and enjoined from keeping, maintaining or constructing any encroachments or obstructions on any part of said street or highway on said premises."

The three grounds of demurrer urged in the briefs of defendant's counsel are, want of equity jurisdiction, the Ingham county circuit court, in chancery, has no jurisdiction over the subject-matter of the suit. and the attorney general is not a proper party to institute the proceedings.

The second and third grounds are to a degree interlaced. It is manifest that the locus in quo, or place in which the cause of action is alleged to have arisen or the wrong charged is alleged to have been done, is on Mackinac Island in the county of Mackinac. Patents for the original grant of the land, to which reference is made in the bill for greater certainty, show that the fee of this street was conveyed to the grantee subject to the easement of a highway. An interest in land, if not the title, is necessarily in dispute and involved. In such case it is evident the provisions of our statute relative to the place for commencing litigation both in law and in chancery (3 Comp. Laws 1915, § 12340) would preclude commencing this suit in Ingham county were it not for the following clause in subdivision 12:

"And when it may be necessary to file a bill or information or to commence any proceeding in chancery on the party (part) of or in behalf of the State the same may at the election of the attorney general be commenced in the circuit court for the county of Ingham on the equity side thereof and said court shall have complete jurisdiction and full power and authority in the premises."

The first question which naturally suggests itself in connection with this exceptional venue clause in the statute is whether it was "necessary" or within the authority of the attorney general to file this bill in behalf of the State to protect public interests or suppress the alleged invasion of them. It is not shown to have been filed on the relation or complaint of any one, is not directed to the action of any officer or public body, nor to meet any emergency or threatened invasion. The situation as shown by the bill is that there is an open, unobstructed traveled portion of the right of way 50 feet wide between which and the water's edge defendant has constructed and maintained permanent buildings which are being used by him, "or his lessors," for mercantile purposes. When they were constructed or how long they had been maintained there and used for business purposes is not shown.

The statements of fact in the bill are to be taken as true; but if contradictory they nullify each other, and pertinent matters of common knowledge or public record may be resorted to in construing them.

The bill advises that the offense charged is being committed in the incorporated city of Mackinac Island on its principal business street, causing a crowded or congested condition of the street "particularly during summer months." It appears that the city was incorporated by Act No. 437 of the Local Acts of 1899, including in its boundaries "all of Mackinac Island and Round Island" (a small island close adjacent), and embraced the "navigable waters adjacent to said city for a distance of one mile from the shore line of said islands." Official statistics show that in 1904 said city had a population of 736, and in 1920, 493.

The bill alleges that within said city is "a system of streets and highways dedicated to public use" and used by the people of the State, how extensive the system or to what extent used is not shown. Manifestly it cannot connect with or become a part of any general thoroughfare or trunk line highway system of the State. It is of necessity peculiarly local in character and use.

In article 8 of our Constitution, which deals with "Local Government," section 28 provides:

"The right of all cities, villages and townships to the reasonable control of their streets, alleys and public places, is hereby reserved to such cities, villages and townships."

The charter of the city of Mackinac Island granted by a special act of the legislature is comprehensive, comprising 31 chapters which occupy approximately 100 printed pages of the local acts of that year. It provides in detail for all municipal activities and officers customary in city charters. Chapter 20 is devoted to "streets and public grounds," commencing with the general mandate:

"SECTION 1. The council shall have supervision and control of all public highways, bridges, streets, alleys, sidewalks and public grounds within the city and shall cause the same to be kept in repair, and free from nuisance."

Amongst other things the chapter provides:

"SEC. 2. The council shall have authority to lay out, open, widen, extend, straighten, alter, close, vacate or abolish any highway, street or alley in the city, whenever they shall deem the same a public improvement; and if in so doing it shall be necessary to take or use private property, the same may be taken in the manner in this act provided for taking private property for public use. * * *

"SEC. 3. When the council shall deem it advisable to vacate, discontinue or abolish any street, alley or public ground, or any part thereof, they shall by resolution so declare, and in the same resolution shall appoint a time, not less than four weeks thereafter, when they will meet and hear objections thereto — * * *

"SEC. 5. The council shall have authority, to determine and establish the grades of all streets, avenues, alleys and public grounds within the city. * * *

"SEC. 11. The council shall have the power to prohibit and prevent obstructions and encumbrances in, and encroachments upon the public highways, streets and alleys of the city, and to remove the same, and to punish those who shall obstruct, encumber, encroach or maintain any encroachments, upon or in any such highway, street or alley; and to require all such persons to remove every such obstruction, encumbrance and encroachment.

"SEC. 14. The council may regulate the use of the public highways, streets, avenues and alleys of the city, subject to the right of travel and passage therein. * * * and in addition to all other powers herein granted, the council shall have the same authority and powers over and in respect to the public streets of the city as are conferred by law upon highway commissioners in townships."

The last quoted provision apparently confers, by reference, upon the council amongst other things the power and duties imposed on township highway commissioners by chapter 7 of the general highway laws entitled "The obstruction of highways and encroachments thereon." 1 Comp. Laws 1915, § 4401 et seq.

Counsel for the respective parties take wide issue on this provision of the charter. For defendant it is claimed that by it the provisions of said chapter 7 become a part of the charter to the extent that its provisions furnish an adequate and exclusive remedy at law to the exclusion of all equity jurisdiction under any circumstances, citing amongst other authorities Township of Lebanon v. Burch, 78 Mich. 641;Township of Greenfield v. Norton, 111 Mich. 53, where language to that effect is pointed out; while plaintiff's counsel stand on the provision of section 12302, 3 Comp. Laws 1915, that equity shall have jurisdiction "to hear and determine all cases of encroachments upon the public highways, streets and public alleys in organized townships, incorporated villages and cities in this State," contending the special remedy for townships is at most but concurrent, citing Neal v. Gilmore, 141 Mich. 519;Hinckley v. Dennison, 169 Mich. 361; and, if as defendant contends, such provision of the charter could not control against the paramount rights of the public in and to public highways which the State in its sovereign power protects.

In passing upon the right of the attorney general to maintain this bill we do not find it necessary to follow supposititious arguments of counsel directed generally to the jurisdiction of equity courts in cases of obstruction or encroachment, or of Ingham county chancery court to entertain a bill filed by the attorney general in behalf of the State in a proper case, when "it may be necessary" to do so. Even when the power is undisputed, courts of equity are as a rule loath to interfere in such matters where the law makes other remedies available. It was incidentally said by this court in Attorney General v. Hane,50 Mich. 447, in dismissing the appeal of a suit brought in behalf of the State on the sole intervention of the attorney general to suppress an alleged menace to public health though apparently at the instance of others:

"The case must exhibit very remarkable features to authorize the attorney general to proceed as relator for the State at his own instance, and by information in chancery sue a private person to abate a mill-dam on the ground of its being hurtful to health."

We do not need to go to that extreme, as no question of public health is involved here. No remarkable features of an impelling nature are disclosed by this bill. It shows no emergency by reason of recent or threatened action to block this thoroughfare from public travel. The charge is a completed purpresture by erection and occupation of a permanent building upon a portion of the 100-foot easement for a highway which yet leaves unobstructed and undisturbed a traveled street 50 feet wide for the use of the 493 inhabitants of that community and visitors to their city, to supply whose temporary wants we are told "is the principal business of said city."

The Constitution gives said city the right to reasonable control of its streets, as does its charter, granted by special act of the legislature, which details the rights and duties of its council in exercising that control. It does not appear, beyond remote inference, and is not alleged that the council has been delinquent in or violated its official duties. There is no allegation of any demand upon or refusal of the council to act in the matter, nor of any application or notice to the council as to it by any of the inhabitants of or visitors to the city.

Both the State Constitution and city charter confer on the municipal authorities power to suppress the evil claimed to exist. It involves in the first instance a subject of local concern. Authority over and control of the street primarily rests with the city council. No charge of official malfeasance or nonfeasance is made against that body. The situation as disclosed by the facts stated in this bill neither shows necessity nor authority for the attorney general to act on his own motion in behalf of the State and bring a suit in chancery against a private party to abate by mandatory injunction the wrong complained of.

The order appealed from is reversed, and the bill of complaint demurred to will be dismissed.

McDONALD, CLARK, SHARPE, and MOORE, JJ., concurred with STEERE, J.