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Dean & Co. Win Suit Against Railroad And City

Dean & Co. Win Suit Against Railroad And City image
Parent Issue
Day
31
Month
July
Year
1903
Copyright
Public Domain
OCR Text

Judge Lockwood Decides That First Street Cannot Be Closed

Complainants Have Property Rights in First Street that Must Be Preserved--Railroad Enjoined from Building Embankment

The decision of Judge Harry A. Lockwood, of Monroe, who heard the case of Dean & Co. to enjoin the Ann Arbor Railroad company and the city of Ann Arbor and its officers from building an embankment in and across First street and from closing or diverting First street and for a decree compelling defendants to keep First street from William street to Liberty street in good repair and in a condition reasonably safe for public travel, has been filed and is against the railroad company and the city. It holds in substance that Dean & Co. have a property right in this street and that they will be damaged by having to cart goods from the freight house of the railroad to their warehouses a considerable distance farther than at present. The railroad is enjoined from building the proposed embankment and diverting First street. It is suggested, however, that the grades may possibly be separated at this point by means of a viaduct, but that is a matter for the city to determine.

The decision refers to the opening of the before mentioned streets a long time prior to the granting of permission by the common council to the railroad to construct its tracks, in 1872, and fixing the grade of the railroad at the then existing grade of the streets.The decision cites the ownership of lots, 12, 13 and 14 of block 3, south of Huron street, range 2 east, according to plat of Wm. S. Maynard's addition at that time and the transfer to the railroad company of a right of way across said lots and the portions of the lots so taken, and also the purchase of these lots in 1883 by the defendants in this case, except the land conveyed to the railroad company. The building of warehouses and oil tank by complainants and of a side track by defendant railroad company so that cars could be unloaded at the warehouses are also mentioned. The cost of these improvements to Dean & Co. is placed at about $8,000.

Judge Lockwood then takes up the provision of the ordinance of last year providing for the raising of the grade of five east and west streets where they cross the railroad tracks and the lowering of others. He cites the provision of the ordinance diverting First street and the notification to the railroad company the day following the passage of the ordinance that they (Dean & Co.) would resist by legal proceedings, if necessary, any attempt to do the work contemplated. He then refers to filing of this bill March 7, 1903, the issuance of a preliminary injunction restraining defendants from building any embankment, either in First street or in front of the premises of complainants and from in any way closing or diverting First street. He refers to the dissolution of this injunction and in fact reiterates the history of the case to the present time.

Judge Lockwood then reviews the work to be done at the various street crossings in order to bring them to the general plan of the proposed grade and cites that this will necessitate and embankment at First street crossing 12 to 15 feet high with walls of masonry at the bottom, if need be to keep same within the railroad company's 50 feet right of way. If this embankment be made it will occupy most of the street in front of complainant's premises. All the street left open in front of complainant's premises would be about 32 feet wide at the north line and would narrow to nothing at a point about 75 feet south of the north line. All the balance of the street in front of complainant's premises would be entirely obstructed and practically vacated and abandoned as a public highway, It also appears from the evidence that no provision is to be made for the crossing of the railroad tracks at First street. It also appears, says Judge Lockwood, that the intention to open First street along the westerly side of the defendant railroad to Liberty street has been abandoned.  There is no evidence that the city intends to vacate or abandon that portion of First street north of the railroad right of way and between it and Liberty street. The driveway which furnishes ingress and egress from complainant's property and First street with trucks and wagons is near the north line of lot 12. If the embankment is constructed across First street the complainants can still get to this driveway into their property on First street from the north, but cannot get to their property on First street from the south. The portion of First street north of the railroad right of way will be a cul de sac. It appears, says Judge Lockwood, from the evidence that the value of the complainant's premises for the purpose for which they are used will be depreciated, if the proposed embankment is constructed, and that complainants will have to traverse considerably farther in getting to the freight house and that there will be added expense in trucking their goods and that the added expense will amount to several hundred dollars a year. There is no evidence that complainants will suffer any damage except what may follow from the closing of First street. The controlling question is have the complainants a property right in First street, which is to be taken for the proposed improvement. They claim they have and defendants submit if they have that it confined to that portion of the street upon which the property abuts, and is omitted to the reasonable right of access by way of ingress and egress. If defendant's contention be right the question remains whether a reasonable access can be had after the embankment has been built. I am satisfied, says Judge Lockwood, that the building of the proposed embankment in First street will amount to a taking of the property of complainants. 

The fact that the former owners of these lots conveyed a right of way to the railroad company does not give it the right to totally obstruct this street. A decree is entered enjoining defendant from building the proposed embankment in First street unless within twenty days the defendants or one of them secure from complainants the right so to do, or institute proper proceedings to acquire such right. The decree does not prevent the railroad company and the city from agreeing upon some manner of crossing First street so as not to unreasonably obstruct it. A separation of grades by means of a viaduct may be practicable, but this is a matter to be determined by the city.