Ford v. City of Detroit

The facts involved in this case are set forth in Mr. Justice EDWARD M. SHARPE'S Opinion. They, however, should be supplemented with the following statements. In the case heard by the late Judge Covert in which plaintiffs were not parties, a final decree was entered enjoining the city from appropriating the 60-foot park for street purposes and ordering it to restore the property to its former condition. The court held that the taking of the property was unlawful and that the only way the city could use the property as a street was through condemnation proceedings. Instead of restoring the property at once as ordered by the court, the city immediately began condemnation proceedings. Upon objection made, the recorder's court of the city of Detroit entered an order dismissing the petition and the proceedings for condemnation. On appeal we reversed the trial court and directed it to proceed with a trial of the condemnation case. City of Detroit v. Judge of Recorder's Court, 253 Mich. 6. The jury assessed damages in such an amount that the city believed that the cost exceeded the benefits and thereupon discontinued the proceedings. This it had a right to do prior to the confirmation of the verdict. In re Board of Education of Cityof Detroit, 242 Mich. 658. The instant case was heard in December, 1931, but the trial judge did not hand down his opinion until July, 1934, because, as he stated in his opinion, he hoped that when the property was replaced to its original condition as a park the plaintiffs would withdraw their claim. He also found that the property had been restored to its original state. The record containing the testimony heard in 1931 obviously did not show this subsequent restoration. Plaintiffs in their brief do not deny that it was so restored, but call attention to the fact there is no testimony to this effect. The court in the findings of law made the following statement:

"This court has not the decision of Judge Covert, who heard the chancery action before him, but is informed that the decision was that the city be permanently enjoined from proceeding with this plan of laying their pavement through the strip in question, and requiring them to restore the property to its original state, which has been done."

It further stated near the end of the opinion:

"This court has withheld its decision in this matter for an unusual and really unwarranted time, mainly hoping that when the property was replaced in its original condition, as a park, that the plaintiffs would withdraw their objections."

No objections were taken by the plaintiffs to the findings of the court nor is there any cross-appeal. Even had the property not been restored to its original condition, defendant was bound by judicial decree to make such restoration. Plaintiffs, although not parties to the first chancery case, could by appropriate action force the restoration if not made, and further, can enjoin the misuse of the property. We therefore have a case where the city unlawfully tried to divert the use of the property to that of a roadway instead of a narrow parkway originally intended to adorn the highway but which possibly might have become of more service if used as part of the highway. There was plainly a misuse of the property. The city was therefore enjoined and ordered to restore the property. Seeing the wastefulness of first restoring the property and then condemning it, the city immediately began condemnation proceedings and during the pendency of the court proceedings made no effort to restore the property. The cost of such restoration, if the park was to be used as a street, would unquestionably have been a sheer waste of money. Nothing at all was done with the property during this long wait. This again was a misuse of the property since under the terms of the dedication the property was to be used only as a park. Misuse or nonuse does not as a rule work a forfeiture. Neither misuse nor nonuse alone will be sufficient to constitute an abandonment of land dedicated to a public use so as to work as a reverter to the dedicators. McAlpine v.Railroad Co., 68 Kan. 207 (75 P. 73, 64 L.R.A. 85, 1 Ann. Cas. 452); Williams v. First Presbyterian Society, 1 Ohio St. 478,510; Goode v. City of St. Louis, 113 Mo. 257 (20 S.W. 1048); 4 McQuillin, Municipal Corporations (2d Ed.), § 1737; 3 Dillon, Municipal Corporations (5th Ed.), § 1106. The rule is well stated in Barclay v. Howell's Lessee, 6 Pet. (31 U.S.) 498, as follows:

"If this ground had been dedicated for a particular purpose, and the city authorities had appropriated it to an entirely different purpose, it might afford ground for the interference of a court of chancery, to compel a specific execution of the trust, by restraining the corporation, or by causing the removal of obstructions. But, even in such a case, the propertydedicated would not revert to the original owner. The use wouldstill remain in the public, limited, only, by the conditionsimposed in the grant."

There is no doubt that the acts of the city constituted a misuser and not an abandonment, for they come within all the definitions of misuser set out in the above cases, and as stated in Brown v. City of East Point, 148 Ga. 85 (95 S.E. 962):

"Any use which is inconsistent, or which substantially and materially interferes, with the use of the property for the particular purpose to which it was dedicated, will constitute a misuser or diversion."

See, also, Village of Riverside v. MacLain, 210 Ill. 308 (71 N.E. 408, 66 L.R.A. 288, 102 Am. St. Rep. 164); Price v.Thompson, 48 Mo. 361, where under facts somewhat similar to the instant case the court held that there was a diversion or a misuse of the property.

In the instrument of dedication the grantors stated that a reversion to the grantors, their heirs and assigns would occur if the use of the property were "legally discontinued." As we have shown, there was no "legal discontinuance," but rather a misuser, and there being no abandonment, the plaintiffs may not recover.

The judgment is reversed, with costs to the defendant and without a new trial.

NORTH, FEAD, WIEST, and BUSHNELL, JJ., concurred with BUTZEL, J.