People ex rel. Chope v. Detroit & Howell Plank Road Co.

Graves, J.

This is a suit in equity in the name of the State to enjoin the setting up a new toll gate structure in place of a former one removed by the company.

The complaint is, that if made, the intended erection will be a public nuisance. After answer and proofs the court below dismissed the cause, and from this decree an appeal was taken.

Some questions have been mooted which require no discussion at this time. The case is governed Joy former decisions. Detroit v. Detroit & Erin Plank Road Co., 12 Mich., 333 ; Att’y Gen’l on rel. of McKay v. Detroit § Erin P. R. Co., 2 Mich., 138 ; Detroit & Howell Plank R. Co. v. Fisher, 4 Mich., 37 . The criticism of the first case and the suggested distinction between the effect of the amendment of the charter of the Detroit & Erin Company and the amendment of defendant’s charter do not appear to the court as important.

*198 When the State gave the company the right to build their road from a point in the city, and the right to erect gates according to their reasonable discretion, but subject to the condition that none should be placed in the city, it contemplated the city as it then ivas in respect to limits, and meant that the privilege given within the city should not extend so far as to allow gates to be set up there, and on the other hand that the restriction should be confined territorially to the then fixed and known bounds of the city. The State could not have designed that as fast as it might enlarge the city boundaries, the defendant’s franchise covering the right to place toll-gates should be correspondingly annihilated and the gates themselves, thereby brought within the limits, be instantly converted into a public nuisance. Hall v. The State, 20 Ohio, 7; City of Somerville v. O’ Neil, 114 Mass., 353 ; Barber v. Rorabeck, 36 Mich., 399 . It is noteworthy in this connection that it is the State and not the city which complains. In view of the power and privilege given by the charter, the gate ought to be regarded for the purpose of this case as though the site had ‘been directly designated by the State.

The company originally chose it in the exercise of a discretion the State had conferred, and this discretion does not seem to have been improperly used. Certainly for many years the State acquiesced. The privilege has never been withdrawn and the charter has not expired. The impediment could not have become unlawful by the mere flow of time. The fact that the State itself tolerates railroad crossings near the place and has thereby consented to» the incidents which naturally happen there in consequence of the concentration and combination of different ways will hardly entitle it to turn round and assail the defendant’s gate as a public nuisance. This privilege of crossing was granted to two of the three roads possessing it sometime after the defendants located their gate, and if either franchise ought to be modified by conditions or give way on the ground that the coterie of interferences is injurious to the public, it is not certain that it should be that *199 of the defendants. But the case does not prove that the gate or the railroads or all together make a public nuisance there.

The plan of structure does not appear to be one not competent to be adopted in the exercise of that discretion the defendants possess under their charter. What the State authorizes it cannot prosecute as a nuisance. Among other authorities see First Baptist Church v. Utica & Schenectady R. R. Co., 6 Barb., 313 , and cases; Hentz v. Long Island R. R. Co., 13 Barb., 646 ; People v. Denslow, 1 Caines, 177 ; Cooley’s Const. Lim., 594.

The decree of dismissal must he affirmed with costs against the relator.

The other Justices concurred.