Welch v. City of Lincoln Park , 268 Mich. 440 ( 1934 )

Defendant appeals from a decree holding the thoroughfare known as Emmons boulevard in the city of Lincoln Park in law and in fact a boulevard, setting aside the special assessment roll of its paving, ordering a refund of the assessments paid by abutting property owners, with interest at five per cent., and permanently enjoining the collection of the unpaid balances on such assessments.

The easterly boundary of the city of Lincoln Park is the south branch of the Ecorse river, which is also the westerly boundary of the city of Wyandotte. The 80-foot thoroughfare, with parkways 22 feet wide on both sides of a 36-foot pavement, crosses the river over a bridge and continues through the city of Wyandotte to Jefferson avenue on the east. Fort street on the west and Jefferson avenue on the east are main arterial highways, Emmons boulevard connecting the two without any distinguishing characteristics or features in either city except the absence of ornamental street lights in Lincoln Park, which had been removed by the city in 1931 just prior to the filing of this bill of complaint. The contiguous property in Lincoln Park, known as Emmons Orchard Subdivision No. 1, was platted by its proprietors and accepted in its present condition by the township board of Ecorse on March 17, 1920, while that lying in Wyandotte, known as Emmons Orchard Subdivision, was platted by its proprietors September 25, 1916, and accepted by the then village of Ford and the township of Ecorse.

The trial court found that:

"Emmons boulevard, which was a continuous street from Jefferson street to Fort street, was platted and dedicated by the same proprietors, prepared in the same manner in both said present municipal corporations, * * * and since it appears also that the provisions for boulevards and the method of maintaining them is by general taxation rather than a special assessment, and other provisions incident thereto in the two city charters are practically identical, there is but one answer to this proposition, and that is that Emmons boulevard in the city of Lincoln Park is a boulevard, and that the city officers had no authority in improving it to raise money by special assessment on the abutting property for that purpose, since it is mandatory under the provisions of the charter that such money be raised by general taxation."

The trial judge, after a personal inspection of the thoroughfare in both cities, considered our opinion inCoburn v. City of Wyandotte, 245 Mich. 314, controlling. There Mr. Justice MCDONALD, speaking for the court, held Emmons boulevard in the city of Wyandotte to be in law and in fact a boulevard. No other conclusion seems possible and the case is controlled by that decision.

Defendant raises the further question of res judicata and says in its brief:

"Defendant wishes to call to the attention of this court the case of Erlich v. City of Lincoln Park, No. 177502, Wayne county circuit court, in chancery. This was a suit by the plaintiff in behalf of himself and other taxpayers similarly situated, for the same relief as here sought by the plaintiffs. The case was heard on the merits by Honorable James S. Parker and decision and decree rendered holding that Emmons boulevard in the city of Lincoln Park was not a boulevard in fact."

The record does not contain the pleadings and the unappealed decree in that cause, but merely the colloquy of court and counsel. None of the plaintiffs here were parties to that action and the opinion and decree before us are silent as to the matter. While this appeal is a trial de novo, we are not inclined to require additional proofs because of the lack of identity of parties plaintiff in the two actions. See City of Detroit v. Railway Co., 134 Mich. 11 (104 Am. St. Rep. 600); Fowler v. Blount,191 Mich. 575, and Kavanaugh v. Baird,241 Mich. 240.

The decree is affirmed, with costs to plaintiffs.

NELSON SHARPE, C.J., and POTTER, NORTH, FEAD, WIEST, BUTZEL, and EDWARD M. SHARPE, JJ., concurred.