Detroit & Mackinac Railway Co. v. Sioux City Seed & Nursery Co.

Brooke, J, (after stating the facts). During the pendency of the cause, complainant proceeded with the erection of its new passenger depot, and the same has now been completed and stands squarely across Saginaw street where said street was closed by the action of the city authorities. Complainant has expended in the purchase of land and in the erection of this building upwards of $75,000. Thelearned circuit judge who heard the case held: “That the closing of Tenth and Saginaw streets and the alley in block 7 will work no such serious loss or injury to defendant as to justify the interference of a court of equity [671] to restrain the completion of a great and much needed public improvement.” With this conclusion we quite agree. It is apparent that defendant now has ingress and egress to its property by means of two streets — on the west, Saginaw street north of Tenth street, and on the east, Tawas street. It is urged by defendant that access to its property by way of Saginaw street is impossible by reason of the occupancy of a portion of that street by the Michigan Veneer Company. That occupancy, however, is not shown to be by virtue of any action of the city authorities in closing said street, and it would seem (in the absence of such action) that defendant would have a right to the use thereof as a public street. The most that can be said of the case made by defendant is that its customers approaching it from certain directions will be obliged to adopt a somewhat circuitous route, instead of going from Ninth street directly up Saginaw street to defendant’s premises, as heretofore they have been able to do. If defendant has suffered damage by reason of the acts of the complainant in the premises, that damage is readily ascertainable and is recoverable in a suit at law. Buhl v. Union Depot Co., 98 Mich. 596 (57 N. W. 829, 23 L. R. A. 392), and cases there cited; Baudistel v. Railroad Co., 113 Mich. 687 (71 N. W. 1114); Beutel v. Sugar Co., 132 Mich. 587 (94 N. W. 202). It is urged by appellant that before proceeding with the erection of its depot which occupies a portion of Saginaw street, south of Tenth street, it was the duty of the complainant to proceed to condemn defendant’s interest therein and to pay such damages and compensation to defendant as might be awarded. It is contended that this duty is imposed by 2 Comp. Laws, § 6234, par. 5, which reads as follows: “And in case of the construction of such railway upon any public street, lane, alley, or highway, the same shall be on such terms and conditions as shall be agreed upon between the railroad company and the common council of [672] any city, or the village board of any village, or the commissioners of highway of any township in which the same may be; but such railway shall not be constructed upon any public street, lane, alley, highway or private way until damages and compensation be made by the railroad company therefor to the owner or owners of property adjoining such street, lane, alley, highway, or private way, and opposite where such railroad is to be constructed either by agreement between the railroad company and each owner or owners, or ascertain as herein prescribed for obtaining property or franchises for the purpose of its incorporation to be paid to the owner thereof, or deposited as hereinafter directed.” We think it is clear that the paragraph quoted and relied upon relates solely to the construction of the railway, and has no bearing upon the right of the railroad company to occupy a portion of a legally vacated street with its depot. Highway Com’r of Ecorse Township v. Railroad, 148. Mich. 436 (111 N. W. 1090). Our attention is not directed to any statute under which the complainant could have proceeded in the manner suggested. The cross-bill prays for injunctive relief only. Upon the argument it was suggested by counsel for appellant that this court should not presently enjoin complainant from using the depot it has constructed, in part upon the vacated street, but that it should make an order that such injunction issue unless within six months complainant should institute proceedings against defendant to condemn. This course, if authorized and followed, would preserve no right to defendant not already possessed by it under the present decree. It would simply be defendant in a proceeding instead of plaintiff. Its measure of damages would be the same in either case. The decree is affirmed, with costs. Moore, C. J., and Steere, McAlvay, Blair, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.