Siegel Land Corp. v. City of Highland Park

SNOW, J. The defendant Farrand Avenue Improvement Association was incorporated under Act No. 161, Pub. Acts 1911 (2 Comp. Laws 1915, § 10130 et seq.), 'for the purpose of acquiring, owning, controlling, maintaining, and improving lands for the purpose of parks, etc., and holding the same in trust for the. municipality of the village of Highland Park, Michigan. After the organization of this association, part of lots six and seven of Highland Heights subdivision was deeded to it, the same to be laid out as a public park and used and maintained perpetually as' such, and for no other purpose, failure in which the land was to revert to the grantors and their heirs and assigns. The park was established facing Farrand avenue, and has been improved and maintained as such since 1912. *135 The plaintiff acquired land in the rear of the park, and constructed thereon a large apartment building, now occupied by 50 or more families. Entrance to the building is from Woodward avenue, along a small sidewalk running along the southerly line of the property. There is no way from the apartment onto Farrand avenue without walking across the park. Plaintiff knew this when it built the apartment, and during its construction attempted to obtain permission from the city of Highland Park, and from the improvement association, • to run a sidewalk across the park to the public sidewalk on Farrand avenue, which in each instance was denied. After the apartment was completed and occupied, the tenants commenced to go through the park onto Farrand avenue and to trample down the shrubbery, and do other injury. This caused the city to prepare for the erection of a fence on the edge of the property to prevent the use of the park as an entrance to the apartment. Plaintiff then filed its bill in this case to enjoin such construction. Defendants answered by way of cross-bill, secured an injunction to restrain plaintiff and its tenants from going through its hedge and over its premises, and prayed for the right to construct a wire fence along the line of their shrubbery. The chancellor, before whom the case was tried, dismissed plaintiff’s bill and granted to the defendants the relief prayed. It is impossible to conceive that any other disposition of the case could have been made. Plaintiff has not now, and never has had, the slightest right to the use of this property for an entrance to its apartment. Doubtless it feels great desirability in having an outlet on Farrand avenue, but the statute under which the defendant association was organized gives to the public no such right in its park. From whence, then, can come the right plaintiff contends for? An an *136 swer to this question is attempted by a claim that the act under which defendant 'was organized is unconstitutional. But if it is, no one would profit from it in this case excepting the grantors of the park, to whom it would revert. It is sufficient to say, however, that plaintiff is in no position to invoke this question, and its determination is not required. Schneider v. City of Grand Rapids, 211 Mich. 399; 6 R. C. L. p. 89. The decree of the trial court is affirmed with costs to appellee Farrand Avenue Improvement Association. Bird, C. J., and Sharpe; Steere, Fellows, Wiest, Clark, and McDonald, JJ., concurred.