Board of Education v. City of Dearborn

Sharpe, J. Plaintiff sought vacation of a part of Haggerty avenue in the city of Dearborn in order to increase the size of its property fronting thereon by the acquisition of certain lots across the street therefrom. Its petition therefor to the common council of defendant city was denied. *440 The question here presented is whether such action on the part of the council was an abuse of the discretion vested in that body by the law. Tomarzewski v. Palmer Bee Co., 223 Mich. 565; In re Spears, 227 Mich. 525; In re Petition of Hendricks to Vacate Street, 251 Mich. 336. In the first of these cases it was said: “In the absence of clear abuse of discretion or fraud the courts may not review the action of the council determining' the necessity of vacating streets. ’ ’ The plaintiff desired to secure the land across the street for playground purposes. The street, if vacated, would, of course, add to the size thereof. But this in itself would not warrant vacation. The practicability of constructing an underground passage was the subject of much discussion. Many of the witnesses believed that to be the best solution of the problem. The necessity of continuing the use of the avenue as a through street in this growing part of the city was a subject on which the witnesses differed. The action of the council was concurred in by the unanimous vote of all the members present. The trial court, who heard and saw the witnesses and viewed the premises, found that “there was an honest dispute as to the merits of this proposition.” The evidence supports this finding, and under it the plaintiff was not entitled to the relief prayed for. The decree entered dismissing the bill is affirmed. As it appears that the defendant also appealed from certain orders made by the court, no costs will be allowed. Butzel, C. J., and Wiest, Clark, McDonald, Potter, North, and Fead, JJ., concurred.