1. RIGHT OF OWNERS OF ADJOINING LOTS TO MATERIAL TAKEN FROM STREETS - SALE OF SAME BY CITY. - In grading a street for the purpose of paving, it was necessary to remove earth which the city had no occasion for, and the street commissioner sold the same to a party who removed and used it. In an action to recover the purchase-price the purchaser defended, claiming that the city did not own the earth, but that it was owned by the adjoining lot-owners. There was no showing that the earth was of any peculiar value, nor did it appear whether it constituted a part of the original soil, or was earth which the city had previously placed in the street. Held, that the defence was not maintainable.
2. RIGHT OF THE CITY—WAIVER.— Where soil is thus taken from a street in grading it, the city has the right to make use of it in improving the streets in any part of the city. If it is not needed for this purpose, and the city disposes of it by sale without objection by the lot-owners, it will be presumed, such lot-owners waived any objection they might have made.
3. WHETHER SOIL TAKEN FROM A STREET and not needed by the city would rightfully belong to adjacent lot-owners, is not decided.
Cooley, Thomas M., "Griswold v. Bay City" (1877). Articles. 2411.