Horner v. City of Eaton Rapids

Grant, C. J. (after stating the facts). Did the petition, the permission granted by the council, the erection of the poles, the lighting of the city under the several contracts for nearly 11 years, and the use made of them to furnish light to a few private business houses, create a permanent contract between complainants and the city, and give them a perpetual, vested right in the streets? This is the sole question presented. If answered in the affirmative, easements in our public highways can be created in a very loose manner, and rest upon very slight foundations. Complainants had acquired no franchise from the State. Those cases (and many are cited by complainants) holding that where the State has granted to corporations the right to use the public highways for telegraphic and telephonic purposes, and the municipalities, under the authority vested in them, have by general ordinance provided for their erection so as not to interfere with or injure the public, contract relations exist, which the municipalities cannot afterwards take away, do not apply to this case. Complainants have only such rights [121] as the common council had the power to grant. It is important to determine first just what was granted. Complainants concede that they have no perpetual contract with the city for lighting, and that they have no rights based upon such contracts. If, therefore, the permission granted to erect these poles was granted upon the basis of contracts to light the streets of the city, complainants could be compelled to remove them when such contracts were at an end. They do not claim a right to extend their lines beyond those actually in use, and the decree so limits them. Their claim, therefore, of perpetual, vested rights, must rest entirely upon the proposition that they obtained permission to put in a commercial electric-lighting plant, and that the city lighting was incidental to that. The records of the common council contain not a word to indicate that the proposition was so understood by the •council. Public policy requires record evidence of the actions of common councils in municipal matters. They cannot rest in parol. The sole testimony in this case is the loose testimony of one of the complainants that there was a talk before the council about commercial lighting, and their having the exclusive right to do it. Complainants themselves did not understand that they were obtaining vested rights in the streets. Complainant Edward testified: “I never considered it in the light of a perpetual right at all; never claimed to have a perpetual right.” Complainants had no contracts with any one prior to the erection of the poles. They undoubtedly erected their plant upon the belief that they would be able to make contracts with the city, and the first lighting was done for the city. That complainants may have intended to do some commercial lighting was no concern of the city, and was not binding upon it. The fact that they stretched other wires along their poles, and extended them into a few business houses, without protest from the city, gave them no rights, nor is it any evidence •of what the original contract was. For 11 years they made no extensions except as ordered by the city. We [122] think it entirely manifest that the common council dealt: with the complainants upon no other basis than that of' furnishing lights for the city. Their conduct for 11 years renders this conclusion apparent. The furnishing of light, to private citizens was merely incidental. The control of the public highways is in the State, and not in the municipalities. Municipalities have only such control over the streets and highways as is conferred upon them by the legislature, either by express enactment or by necessary implication. In a recent and very carefully-considered opinion, written by my Brother Montgomery,. we held that “the power of a municipality to grant an easement in the street to a street-railway company is not inherent, but is derived from the legislature.” Detroit Citizens’ St. Ry. Co. v. City of Detroit, 110 Mich. 384 (35 L. R. A. 859, 64 Am. St. Rep. 350). See, also, City of Detroit v. Detroit City Ry. Co., 76 Mich. 425. When, therefore, private parties claim permanent easements in the streets, they must show clear title. There is no presumption in their favor. The presumption is against them. The right to erect poles in the public highway is as much an easement as the right to lay tracks for a street railway. No authority is found in the charter of the defendant for granting perpetual easements in its streets. The charter provisions relied upon are those giving power to the common council “to control and regulate the setting of awning and other posts and shade-trees in the streets and other public places in said city ”~(Act No. 347, Local Acts 1881, § 16), and “to provide for the public lighting-of said city with gas or otherwise” (Id. § 12). Under these provisions the city undoubtedly had the power to-contract with complainants to light the city. Putnam v. City of Grand Rapids, 58 Mich. 416; Attorney General v. City of Detroit, 55 Mich. 181. But these cases are no authority for granting perpetual easements'in the streets-under the provisions of this charter. Stevens v. City of Muskegon, 111 Mich. 72 (36 L. R. A. 777), does not apply. The improvement by the construction of a sewer [123] in that case was a permanent one, and was so intended. The public health of the city demanded it. The city had authority to provide for the construction of sewers. There was no contract for its use for a specified time upon payment of a certain amount by the city. The city was relieved from taxation. ■ It received a sufficient consideration for the rights granted to Stevens. Chicago Municipal Gas Light & Fuel Co. v. Town of Lake, 130 Ill. 42. Decree reversed and bill dismissed, with costs of both courts. The other Justices concurred.