
    Maria G. Stockton, vs. John S. Freeman et al.
    
    A city charter giving authority to prevent the obstruction or incumbering of streets, alleys, Ac., does not authorize the common council to require, by resolution, t\e removal of fences, so built as to appropriate a portion of said streets, by the City Marshal.
    Whether the Charter of the City of Flint gives the Common Council authority to act in case of encroachment upon streets — Quere.
    
      Genesee Circuit,
    
    
      August Term, 1870.
    This is an action of trespass, brought to recover damages for tearing down and removing a certain fence on the northerly side of Black River, in Stockton’s west addition to the City of Flint. The plea is the general issue, with a notice that the defendants will prove under the same, that the fence mentioned in the plaintiff’s declaration was not (at the time the injuries were supposed to have been committed) standing upon or near the northerly line of Black River , but was “ standing in and npon Ann Arbor Street, which is a public highway, and was an obstruction to said street; and that the' plaintiff had been duly notified by the Common Council of th§ City to remove the obstruction” — “ And not having done so, the defendant Freeman, being Marshal of the City, was ordered by the Council to remove the obstruction: and called upon the other two defendants to aid him in so doing.”
    
      Fenton & Newton, for the Plaintiff.
    
      II. R. Lowell and L. Walker, for the Defendants.
   By the Court,

Turner, Judge.

Without stopping to inquire as to the sufficiency of the notice given to the plaintiff to remove her fence, it is important to determine whether the defendants were justified in doing what they did do, by virtue of the orders under which they acted. If the fence in question was in the street as claimed by the defendants, it was clearly an encroachment and not an obstruction. - This fact is evident from the testimony of all the witnesses who have testified on that subject. Under the 8th Subdivision of Section (9) Njne of the City Charter, the Common Council have authority to “ prevent the incumbering of .streets, side-walks, cross-walks, lanes, alleys, bridges or other public places in any manner whatever.”

Section 31, among other things gives them power to cause “ the grading, leveling and repairing of all streets and alleys side-walks, cross-walks, parks and public grounds in said City and to prevent the obstruction or encumbering thereof.’’

At a meeting of the Common Council, held on the first day of September, the City Surveyor reported to them that Ann Arbor Street was encroached upon by a fence, and at the same meeting the Council passed the following Resolution,

Resolved, That the City Attorney be, and he is hereby instructed to take the necessary steps to cause the obstructions to be removed from Ann Arbor Street, so that said street may conform to the plat of the same made by the City Surveyor, and presented to the Council this evening.”

At a subsequent meeting of the Council, held, on the 15th of September, their record shows the following :

“ Report presented from the City Attorney, submitting certain Resolutions, and recommending their adoption, to carry out previous instructions of the Council in relation to the removal of obstructions in Ann Arbor Street.”

The Resolutions were then adopted by the Council, and are as follows:

Resolved, That Ann Arbor Street, from Kersley Street to Court Street, be cleared of obstructions eáused by fences placed therein, and all persons having any fence or fences in said street, be required to remove the same within 15 days of the passage of this resolution.”
u Resolved, That in ease; any person or persons, having any fence or fences in Ann Arbor Street, between Kersley and Court Streets, should fail to remove the same within the said 15 days, then the City Marshal is hereby directed and required to proceed to remove such fence or fences forthwith, and report at the first meeting of this Council thereafter, his doings, and the expense incurred thereby, abd such expense shall be paid by the owner of such fence.”
“Resolved, That in clearing said Ann Arbor Street of said obstructions, the survey of said ' street by the City Surveyor Newcombe, be the guide to determine what fences are encroachments on said street.”
R'-soired, That the City Marshal forthwith serve a copy of the foregoing Resolutions upon all persons owning property on said Ann Arbor Street, and having a fence or fences encroaching on said street.”

It will be seen from these proceedings (and other evidence ■in the case) that the City Surveyor reported that the fence in question (according to his survey) encroached upon the street; that the Common Council then passed one resolution ordering the street to be cleared of obstructions caused by fences placed therein, which the surveyor had reported as encroachments.

And another, that in clearing the street of obstructions, the survey aforesaid should be the guide to determine what fences are encroachments.

And another directing the Marshal to serve -a. copy of the Resolutions on “ all persons having fences (not obstructing.) but encroaching on said street.

It is evident that the Common Council in passing these Resolutions, regarded the encroachment upon a highway the same as an. obstruction, or in other words, that they were one and the same thing. The Statute provides what the proceedings shall be when a highway is encroached upon, and also where it is obstructed : and the proceedings in the two cases are entirely different. lst. C. L. 867 — Laws of 1861, 153. The City of Grand Rapids vs. Hughes 15 Mich. 54.

As no proceedings have been had which are authorised by the charter or by the general statutes of the State, for the removal of encroachments, it follows that the resolutions of the Common Council were no justification to the defendants, and that the plaintiff is entitled to Recover her damages, proved to be $10, together with costs.

Whether the charter of the City of Flint gives the Common Council authority to act in case of encroachments upon streets: — (fuere.  