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DeSale v. Millard

DeSale v. Millard, 66 N.W. 481 (Mich. 1896)
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Court
Michigan Supreme Court · State Highest Courts
Decided
March 11, 1896
Judges
Grant, Other
Citations
66 N.W. 481108 Mich. 5811896 Mich. LEXIS 1033
Disposition
Affirmed.
Headnotes
Injunction — Complainant as a Wrongdoer. Equity will not enjoin the closing of an alleged private alley at the suit of one who, in order to obtain a preliminary issuance of the writ, forcibly invaded the possession of the defendant, and destroyed a fence which the latter had erected for the purpose of closing the alley.
Summary
Appeal from Wayne; Donovan, J. Bill by Albert H. DeSale against William J. Millard and Thomas Martin to restrain the closing of a private alley. From a decree dismissing the bill, complainant appeals.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Grant

Text extracted by OCR from a scanned original; check the original for exact wording.

Grant, J.

The object of this suit is to enjoin defendants from closing a private alley alleged to exist in rear of the defendants’ lots and the one occupied by the complainant. Complainant is a tenant, and evidently is not the real party prosecuting this suit. He was not sworn as a witness. There are four lots in the block, the defendants ownings the outside lots, and complainant occupying one of the inside lots. The alley is a little less than seven feet wide.

Several defenses are raised, of which we need mention but one. The defendants contend that the alley was closed by the mutual consent and agreement of' all the lot owners, in pursuance of which the defendants had erected fences at each end, closing it. It had remained so closed for several months. Complainant’s agent, the active mover in the affair, was informed that he could *582 not serve an injunction unless tlie fence was down. He therefore went, tore down the fences, and then applied for a preliminary injunction, which was granted. The defendant Martin immediately, and before he had any knowledge of the suit or that any injunction was issued, restored his fence. When complainant’s agent went to serve the injunction, he found the fence restored. He thereupon employed some men, provided them with axes, and proceeded to destroy the fence. Defendant Martin was present, warned him off, attempted to defend his possession by force, was overpowered, the fence destroyed, and, after this was done, the injunction was served.

The complainant was not in position to invoke the aid of a court of equity. The defendants were in possession, peaceably; and whether lawfully or unlawfully it is not material to inquire. Equity will not interfere to assist a party who has obtained possession by force. People v. Simonson, 10 Mich. 335 ; McCombs v. Merryhew, 40 Mich. 725 ; Tawas & Bay County R. Co. v. Iosco Circuit Judge, 44 Mich. 479 ; Soule v. Hough, 45 Mich. 418 .

The decree is affirmed, with costs, but without prejudice to future proceedings.

The other Justices concurred.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

1901: 11908: 119012026peak 1901 · 1

Relies on it most ⓘ

  1. City of Mt. Clemens v. Mt. Clemens Sanitarium Co.86 N.W. 537 (Mich. 1901)
  2. Detroit Mineral Bath Co. v. Stroh Brewery Co.115 N.W. 717 (Mich. 1908)

Most recent

  1. Detroit Mineral Bath Co. v. Stroh Brewery Co.115 N.W. 717 (Mich. 1908)
  2. City of Mt. Clemens v. Mt. Clemens Sanitarium Co.86 N.W. 537 (Mich. 1901)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 4

DepthCaseCited by
Tawas & Bay Cnty. R.R. v. Circuit Judge, 44 Mich. 479 (1880) 38
People ex rel. Messler v. Simonson, 10 Mich. 335 (1862) 30
Gantz v. Toles, 40 Mich. 725 (1879) 16
Soule v. Hough, 8 N.W. 50 (Mich. 1881) 5

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