Brown v. Township of Byron

Brooke, C. J. (after stating the■ facts). Plaintiff claims that the township became liable for injuries sustained by him upon this temporary highway, which he claims is a public highway within the meaning op the statute, for two reasons: (1) Because it was connected with a public highway in such a way as to become part of it, the. opening and terminus being the public highway. (2) Because it was held out to the public as a public highway, and the public were invited and induced to use it as a public highway. Many authorities are cited'by plaintiff, alleged by him to support his contention. With reference to those cited from this State, it is sufficient to say that the question, though presented in the recent ca,se of Hayden v. Township of Bangor, 182 Mich. 601 (148 N. W. 691), was undetermined, for the reason that plaintiff’s recovery was there held to be barred upon the ground of contributory negligence. We have frequently held that the liability of municipalities for injuries upon highways is purely statutory, is in derogation of the common law, and cannot be enlarged by construction. See Miller v. City of Detroit, 156 Mich. 630 (121 N. W. 490, 132 Am. St. Rep. 537, 16 Am. & Eng. Ann. Cas. 832), and cases cited. The statute under which plaintiff seeks to recover limits recovery to bodily injuries sustained— “upon any of the public highways or streets in this State, by reason of neglect to keep such public high [588] ways or streets, and all bridges, sidewalks, crosswalks and culverts on the same in reasonable repair, and in condition reasonably safe and fit for travel.” 2 How. Stat. (2d Ed.) § 2462. Public highways can be established in two methods only under the law of this State: (1) By proceedings instituted by the commissioner of highways of a township upon written application of freeholders and notice to landowners to be affected, appraisement • of damages, and the making of a proper record in the office of the township clerk. 2 How. Stat. (2d Ed.) §§ 2174 to 2179. These proceedings must conform strictly to ’statute, or they are void. Price v. Stagray, 68 Mich. 17 (35 N. W. 815); Dixon v. Commissioner of Highways, 75 Mich. 225 (42 N. W. 814). By the second method public highways may be established by user. 2 How. Stat. (2d Ed.) § 2193. It is clear that at the point where plaintiff was injured the defendant township of Byron had not established a “public highway” within the meaning of that term as used in the statute upon which liability is predicated. We are of opinion that one who travels outside of the limits of a legally established highway must be held to do so at his peril, so far as his statutory remedy against the township is concerned, even though the municipality has, without legal authority, either alone or in conjunction with others, constructed a temporary way for his accommodation. The judgment is affirmed. Person, Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.