text:
    Tunis Ryerson et al. v. Samuel D. Eldred et al.

      Writ of assistance, when to issue from Circuit Court. When a decree was made in this Court,- requiring the complainant to deliver up the possession of certain premises, and the cause was remitted to the court helow for the purpose of an accounting — Beld, that the application for a writ of possession must he made in the court helow.

      Heard and decided April 6th.

    Appeal from Muskegon Circuit, in Chancery.
    Motion for writ of assistance.
   In this case, a decree was made at the January term of this court, requiring the complainant to deliver to Samuel D. Eldred the possession of certain real estate which was in controversy, and the cause was remitted to the court below, for the purpose of an accounting between the parties.

Mr. Lothrop now moved, — on papers showing that complainant refused to deliver possession of the premises, — for an order for a writ of assistance. •

The Court denied the motion; holding that the cause haying been remitted to the court below, the application could only be made in that court.


source: Caselaw Access Project

author: Campbell J.

license: Public Domain

text:
    Thomas Ryan v. George W. Brown et al.

      Voluntary deed: Consideration. A voluntary deed, without consideration, can only be avoided by some one having equities against it. — 15 Mich. 9k.

      Riparian Rights: The ownership of lands, bordering upon a stream, extends over the bed to the middle of such stream, when it is a river. Any erection which can lawfully be made in the water, within those lines, belongs to the riparian estate, and the complete control and the use of such land covered with water is in the riparian owner, except as it is limited and qualified by such rights as belong to the public at large, to the navigation, and such other use if any, as appertains to the public over the water. — $ Mich. 18; 10 Id. 125.

      United States grant to Michigan for Sault St. Marie's Canal, extent of. The grant to the State of Michigan of land — to locate a canal upon at the Sault Ste Marie, extends only to the military reserve, and does not include private property below it.

      Enforcement of State Proprietary Rights. Where the State sets up proprietary rights over property, they can only be maintained upon proof of a valid grant, or legal appropriation upon an inquest in form of law.

      Sault Ste Marie Canal Board: Obstructions. The Sault St. Marie Canal Board have such a control over the canal and its approaches as to be authorized to remove such obstructions to the legitimate use of the canal as are unlawful. But they have no such judicial authority as to make their finding of any conclusiveness upon the fact of illegality, and, if they interfere with private rights, they act at their peril, and are responsible for tbeir conduct.

      Riparian Rights: Public Streams: Encroachments. In waters, whose beds are public property, erections by riparian owners, are unlawful, not because they are nuisances, but because they are encroachments on the public domain. But, when the ownership is private, and the public rights are simply easements, or privileges, the owner may use it as he chooses, subject always to the condition that he does not interfere with the full public enjoyment.

      Riparian Rights: Junj; Navigation. In the case of natural water courses, the extent to which private improvements are compatible with the public use, must depend upon circumstances, and must always be a question of fact. The owner’s use is prima facie lawful.
    The right of the public for purposes of navigation must be considered as appurtenant to the ordinary means of navigation, rather than to small and insignificant boats, and it is no nuisance to erect reasonable wharves and similar improvements, as these are essential to modern commerce.

      State Canal: Sault St. Marie's River: Obstructions. When certain erections built upon private property for dock purposes, and not encroachments on the natural navigation of the river, were sought to be removed by the u Sault St. Marie Canal Company,” as obstructing its canal navigation:

      Held, That erections in the St. Mary's River, at the head of navigation, and serviceable to navigation, did not become unlawful by the subsequent opening of the canal, and cannot be appropriated or destroyed for canal purposes until paid for by the State. Said canal is in no sense a part of the Ste. Marie’s River, but an independent water way to connect the river above the falls with the stream below, and similar to a turnpike.
    The State has no more right to interfere with private property, -without compensation, to make or improve a canal, 'than it has for a road upon land.

      Constitutional law : Streams within State: Internal police. Under Art. 18, § h of the Const, of 1850, which declares that no navigable stream shall be either abridged or dammed, without authority from the Board of Supervisors of the proper county under provisions of law:

      Held, That the provisions refer only to such streams as are wholly within the State, and which at any given point must be under the control of one or more boards of county officers. The provision relates to the internal police, and does not apply to streams which are State boundaries.

      Held, also, That the word “abridged” should read “bridged,” as the clause was so adopted by the Convention.

      Equity Jurisdiction: Trespass: Official oppression. When a trespass is calculated to do permanent damage to the freehold, the jurisdiction of chancery will be exercised. And where it is an act of official oppression by public officers and agents, under color of office, a less grievance constitutes a ground for an interference of equity, than when the trespass is by a private person.

      Heard April 16.

      Decided April 20.
    Appeal in Chancery, from Chippewa Circuit.
    The bill in this case was filed in the Circuit Court for the county of Chippewa, in Chancery, to restrain ■ the defendants from committing a trespass on the property of complainant by removing a dock, warehouse and certain sunken cribs, intended as the support of a dock in St. Mary’s river, at the village of Sault Ste Marie. An injunction issued, which, upon final hearing, was dissolved as to one portion of the property, and made perpetual as to the residue.
    The defendants appealed to this Court.

      Diviglit May, Attorney General, for appellants.
    Complainant files his bill for a perpetual injunction against the removal by defendants of a part of an old wharf and some sunken cribs, designed as an extension thereof, situate, as he alleges, on lots 76 and 77, of private land claims, at the Sault Ste Marie, according to Whelpley’s survey.

      These lots, he alleges, he bought of Ebenezer Warner; the first, in January, 1863, and the second, in April of the following year, -when Warner was in possession.
    That there was a valuable wharf on the river front of said lots on the Ste Marie river more than twenty years before the filing of the bill, which continued and was used until replaced.by the one now standing; and that, when complainant bought, there was a number of sunken cribs, filled with stones, designed, as a foundation for a wharf in front of said lots, and necessary for that purpose; that the wharf now standing, was constructed about fifteen years before the filing of the bill, and the sunken cribs about five years. That there was a warehouse on said wharf; that the said wharf, warehouse and sunken cribs are not within the navigable waters of the river, and never have been, but are parts and parcels of said lots, and of complainant’s property therein, and have always been peaceably occupied by the complainant, or some one through whom he claims title.
    Complainant then alleges that defendants are insolvent; and that they are proceeding to destroy said wharf and cribs, thereby causing him irreparable injury: and prays answer under oath, and a perpetual injunction against their action.
    It will thus be seen that complainant bases his case and his right to relief solely on the ground that the wharf and cribs are not, and never have been, within the navigable waters of the river, but are within the limits of the two lots mentioned. If he fails to substantiate this case, his bill must be .dismissed, notwithstanding lie may show other equities, which would have entitled him to relief had they been set forth. — Thayer v. Lane, Walk. Oh. 200; Warner v. Whillalcer, 6 Mich. 13S; Bloomer v. Henderson, 8 Id. 395; Barrows v. Baughman, 9 Id. 213; Wurcherer v. Hewitt, 10 Id. 453; Peckham v. Buffam, 11 Id. 529; Perkins v. Perkins, 12 Id. 456', Moran v. Palmer, IS Id. 367; See also Story Hq. PI. § § 241-2, 264-8; Lube Hq. PI. 24, and note 1, 25-6.

      The evidence, Ave insist, proves t that the obstructions sought to be removed are within navigable waters.
    1. Any stream capable of being used in the transportation of any kind of property to market, whether in- boats, rafts, or single pieces, whether guided by the hand of man or floated at random on the water, is a public stream, and subject to the public easement. — Morgan v. King, 80 Barb. 9; Rhodes v. Otis, 88 Ala. 578; 2 Mich. 519.

    There can be no question, therefore, not only that the St. Mary River was navigable, but that the Avhole of the locus in quo Avas covered Avith navigable water; since the whole of it- was not only capable of the inferior species of navigation, protected by the case of Moore v. Sanborne, but was sufficient for most species of Avater craft, and some part of it, for the largest class of lake vessels.
    But complainant has introduced some evidence from which he Avould have the court infer that he has confined his improvements to the channel bank. We have to say of this:
    There is no evidence of the existence of any channel bank distinct from the shore; but, on the contrary, it appears that there is a gradual deepening of the water from the shore line out. In any navigable stream the public right is limited to the channel. — Porter v. Allen, 8 Ind. 1; Dalrymple v. Mead, 1 Grant’s cases, 197; Williams v. Wilcox, 8 A. & K. 811); Hart v. Mayor &c. of Albany, 9 Wend. 581); Dorman v. Benson, 8 Mich. 25; Rice v. Ruclcliman, 10 Id. 125.

      2. Where is vested the poAver of control over navigable waters ?
    This power is unquestionable in the state. — Commissioners, <&c. v. Withers, 29 Miss. 21; Spooner v. McConnell, 1 McLean, 81)5; Gilman v. Philadelphia, 8 Wallace, 718, 71)1); Pollard’s Lessees v. Hagan, 8 How. 825.

    The state haA'ing the power to control, has also the power to improve; and she may judge of the expediency of improving her public rivers, and execute and provide for executing such works of public improvement as she deems important. — Same case; State Const. Art. 18, Gould v. Hudson R. R. Co. 6 N. Y. 622; Button v. Strong, 1 Black. 1 — 82; Houck on Rivers, 195, 6, 7, 8, 9, 200-1.

    In other words, the right to decide what improvements shall be made in navigable AVaters, is in the state, and not in the owners of the adjacent banks, or of any jury. The whole of the navigable stream being subject to. the public easement, the state may at any time improve and make the Avhole more useful for the public service.
    Private individuals can acquire rights adArerse to those of the State only by legislative authority, or, Avithin the canal limits, perhaps by permission of the board of control.
    Any permanent appropriation of any part of navigable water by an individual, cannot be protected on the pretense that enough is still left for the accommodation of others.— Hart v. Mayor Sc. of Albany, 9 Wend. 584.

    The question whether navigation is impeded cannot be gone into by defendant; it is enough that he is creating an obstruction Avithin the limits of the public highway. — Same case, p. 596; Angelí on Tide Waters, 208; Regina v. Randall, 1 Gar. and M. 496.

    If any man could gain a permanent right in a public highway by simply encroaching upon it, it would certainly be very simple and easy to acquire such rights everywhere, but especially in the newer parts of the state; and the more unscrupulous and secret the proceedings of the trespasser, the greater Avould be the rights which he might acquire.
    We have not been able to find authority sanctioning this rule; and, on the contrary, Ave think it clear that one thus encroaching on the public right of navigation does so at the peril of being removed at any time when the state authorities decide the removal necessary.
    Private rights cannot be claimed adverse to the public, short of an occupation of twenty years; but it has been held that even an acquiescence for twenty years in an obstruction will not prevent it’s being abated as a public nuisance. — Renwich v. Morris, S Hill, 628.

    3. There is no showing of irreparable injury.
    It is a general rule that an injunction will not be awarded to restrain a mere trespass. There must be something special in the case, like irreparable injury, which makes the remedy, at law inadequate, or equity has no jurisdiction And the facts which constitute the irreparable injury must be set forth. — See Adams’ Eq. 209, 210, and note; Willard’s Eq. 881-8; 9 Wend. 577; 1 O. E. Green, H. J. Oh. 426; 2 Id. 76; 8 Id. 215, 298.

    The only ground upon which it is claimed in this case that the remedy at law is inadequate, and the injury irreparable, is the insolvency of defendants. But this is expressly denied by the answer, and no attempt is made to sustain the bill by evidence on this point.
    4. If the bill is dismissed as to Brown, it must be dismissed as to the other defendants also. The claim by authority derived from Brown, and a successful defense by him, inures to their protection. — Buchoz v. Lecour, 9 Mich. 281; Ross v. Davis’ Ex. I J. J. Marsh. 386; Harrison’s heirs v. Devennah, 2 Bibb, SJfi; Olason v. Morris, 10 Johns. 521/..

      L. S. Trowbridge, solicitor for complainant and appellee.
    1. The deeds of the complainant from his grantor are alleged to be without consideration, and in trust, but those allegations are entirely unsupported by proof, and being only on information, and not responsive to the bill cannot prevail, unsupported by proof, against the positive sworn statements of the bill.
    But the defendants are in no position to question the consideration df these deeds. It does not concern them: they admit that the legal title passed to Ryan, and his possession, which is really the only matter in issue, is clearly established by the proof.
    2. The defendants, however, set up in their answer a right to remove the structure in question, like a plea of grant or title to the premises in question^ under the Act of Congress of August 26th, 1852, granting to the State of Michigan a certain strip of public land 400 feet wide, on which to build a canal.
    In answer to this it is submitted that, even if this plea were sustained by the proof, it would not justify defendants in ousting the complainant of his peaceable possession, by a forcible entry. The law provides an entirely different method for trying titles.
    Lots 76 and 77 are private property. The forty years possession of the complainant and his grantors would presume a grant. But more than this: these claims have been recognized, adjudicated and allowed as such, and as to the Government title, appropriated under the Act of Congress of Sept. 25th, 1850, to those entitled, and for the purposes therein provided for.
    A grant may be made by a law as well as by a patent, and confirmation by a law is as fully to all intents and purposes a grant, as if it in terms contained a grant de novo. Strother vs. Lucas, 1% Peters, IfUf; Stockton vs. Williams, 1 Doug. {Mich.) 51¡.6.

    But, again: The premises and structures in question are not embraced in the canal grant.
    That was a grant of a strip of land 400 feet wide “through the public lands known as the Military Reservation at the Falls, at St. Mary’s River.” This is the whole extent of the land granted, on which to locate the canal. 10 TJ. S. Stat. at Large, 35.

    The premises in question 'constituted no part of the Military Reservation, and the grant did not, and could not include them. The Military Reservation was surveyed and laid out at tlie same time, and under the same Act of Congress, as private claims 76 and 77. The canal grant was a mere gift from the United States to the State, pro tanto, towards the construction of the canal.
    If the State should desire to appropriate private rights and property situate outside of the limits of the gift, in finishing or improving the work, it is left to acquire such rights and property in a legal and constitutional way.
    This point is, of itself, sufficient to put an end to the defense of title or right, under the canal grant.
    3. It was urged on the trial in the Court below that because the premises in question are outside of the limits of private claims 76 and 77, as marked on Whelpley’s map, the complainant had no right to the possession of them.
    The owner of the bank is entitled to every beneficial use of the soil under the river, which can be exercised with a due regard to the public easement. — Lorman v. Benson, 8 Mich. 18; 10 Id. 125.

    It will not be denied that the premises in question are, at least in front of private claims 76 and 77, as shown by Whelpley’s map, and they come clearly within the decisions above quoted.
    It may be urged that, inasmuch as private claims 76 and 77, like others in the vicinity, are bounded on the water front with a designated line, therefore it was intended to reserve all outside of that line for the use of the government.
    "Grants of land, bounded on rivers, or upon the margins of the same, or along the same, above tide water, carry the exclusive right and title of the grantee to the centre of the stream, unless the terms of the grant clearly denote the intention to stop at the edge or margin of the river.” 8 Eents Com., J27; Middleton v. Pritchard, 8 Scam., 510; Ex-parte Jennings, 6 Cow., 518; State v. Gilmanton, 9 E. H., Jfil; Starr v. Child, 20 Wend., Id., 149;

      Canal Coin’s. ¶. the People, 5 Wend., Id., JfiS; Canal Corn’s, v. Kempshall, 26 Wend., Id., Jfi4i Qavit v. Chambers, 8 Ohio, 495; King v. King, 7 Mass., 496.

    The right of the riparian owner to the stream is as sacred as other private property, and the State cannot appropriate the water to public uses by artificial erections or improvements, without making compensation. The People v. Canal Appraisers, IS Wendell, 855.

    According to all these authorities, the main question in any case is, who owns the shore? and whoever owns the shore, by whatever mode of expression or description, takes to the middle of the stream, unless there be decided language showing a clear intention to stop short at the water’s edge.
    4. The first ground of defense rests upon the theory that the structures in question are an impediment to the public right of navigation in St. Mary’s Biver.
    Under the decisions in Lorman v. Benson, and Rice v. Rioddiman, before referred to, the complainant and his grantors had a right to erect and maintain the structures in question, -and the defendants had no right to remove them, unless they were impediments to the public right of navigation in said river.
    This species of public right does not pertain to artificial highways, such as canals and the like. It pertains only to natural highways; that is, those created by nature, such as navigable rivers and the like.
    The right is founded solely on the public good and interests, and it is therefore limited. Though absolute for public purposes, yet it extends no further than the public good requires. A stream cannot be considered a navigable stream unless the public good requires its use and servitude for some purpose; it . may be for fixating vessels, or it may be for floating logs, but it must be for some purpose common to the public.
    It was urged in the court below, by the Attorney General, that the question whether any particular structure is an obstruction to navigation, is never a question of fact for a jury, but always a question of law for the court. This doctrine leads to such manifest absurdities that it would seem unnecessary to combat it at any length.
    It is respectfully urged that such a question is always a question of fact under the law; a question of fact, too, depending upon various circumstances, such as the breadth of the stream, the depth of water, and especially the sort or kind of use for which the public good requires it.
    The true test, then, of this public right of navigation in any particular case, will be, not the depth of water alone, nor the breadth of the stream alone, but both of these in connection with the use and purpose for which the stream is required by the public good.
    5. The second ground of defense is, that the structures in question are an impediment to the navigation of the St, Mary’s Falls Ship Canal.
    In regard to this it is observed,

      First. That such navigation has been created since the wharf was built, and it is now sought to be enlarged since the row of cribs (part of the Warner addition) was built.

      Second. The public right of navigation pertaining to natural navigable rivers, which has been noticed, has no existence in artificial streams or channels. — Moore v. San-born, 2 Mich. 5%J¡..

   Campbell J.

Complainant being owner of certain dock property in the St. Mary’s River at the foot of the Rapids, and just below the Canal entrance, had certain cribs, placed there by his grantor, intended as a foundation for additional docks on a line with the outer end of the old dock, which last, after the canal was built, had presented an angle to the line of direction of the canal. The new docks, as projected, were intended to remove this angular projection, by building a dock in a line substantially coinciding in direction with the side of the canal as extended. The old dock, being at the head of river navigation, had its front at a considerable angle with the general direction of the stream, as the river widened out below the rapids, and vessels could proceed no further up stream; and such a position was favorable to turning. When the canal was opened, vessels entering it would pass the outer point of the dock, and at certain stages of the wind might have found inconvenience from being brought in contact with the angle, if of light enough draft to approach it. The new dock would have presented an even front parallel with the canal line.

The bill charged defendants with threatening and attempting to remove the cribs and the extremity of the original dock, and they justified as authorized to remove them, as obstructions to navigation; their authority being an order of the Canal Board to that effect.

The answer does not show, and the proof very clearly disproves the fact, that the original or extended dock would have been any obstruction to the natural navigation of the river. It appears quite as clearly, that the altered dock would have been more convenient for shipping after the canal was opened than the old one. And the testimony, so far as it shows any inconvenience to navigation as it stands, which is very slight, shows at the same time, that the inconvenience would not have arisen except for the .action of the defendants, in dredging and removing the structures upon the premises concerning which the controversy arises. We think, if the questions in the case depended on the existence, of a nuisance in fact to the improved navigation, that the facts show rather that a widening out of the canal entrance over these premises would be a desirable improvement, than that these docks, as left to be maintained under the decree of the court below, would amount to such nuisance. The Circuit Court dissolved the injunction as to the lower end of the proposed addition, which would have presented an angle at the east end (and concerning which there might have been more controversy, if the rights of the parties depend on the - riparian theory asserted by the defense), and only maintained it as to the rest.

The answer set up, but without any proof on the subject, that Ryan, the complainant, received his title from the former owner, "Warner, without consideration, and upon a trust for his benefit. But defendants are in no wise concerned with such an inquiry, and a voluntary deed, without consideration, can only be avoided by some one having equities against it. — Jackson v. Cleveland, 15 Mich. 94.

The case, therefore, stands upon the rights of the complainant as a riparian owner, and those of the state as proprietor of the canal, and also as guardian of the rights of the public. And the defense rests not only upon a general denial of the rights of riparian owners to improve their property by wharfage, but also upon an assertion of proprietorship in the state of the property embraced within a strip four hundred feet wide, which is claimed to extend down the River over the lands in dispute.

Unless very clearly confined within less limits by the terms of the grant, we have held the settled law of this state recognizes every ownership of lands upon streams as extending over their bed, to the middle of the stream, when it is a river. Any erection which can lawfully be made in the water within those lines belongs to the riparian estate. And the complete control of the use of such land covered with water is in the riparian owner, except as it is limited and qualified by such rights as belong to the public at large to the navigation, and such other use, if any, as appertains to the public over the water. — Lorman v. Benson, 8 Mich. 18; Rice v. Ruddiman, 10 Id. 125.

The complainant’s title is not shown to have been restricted in any way, except as it would thus be subject to any rights of the public in the use of the stream. And so far as the strip of four hundred feet wide is concerned, it never approached this land. It is granted by the act of Congress providing for the canal, as a part of the lands included in the Military Reservation, through which the canal was to be built; the act giving the right of way, and granting that width of land for its location and that of the necessary appurtenances. — 10 L. of U. S. 35-36. There is nothing in the act assuming to override any private rights, or to include in this grant any land outside of the Reserve-It had been for many years a disputed point whether the State could cross the Reserve without permission, and if it could, there might have been difficulties in the way of condemning land, not being a part of the ordinary domain, but set apart for public purposes, and supposed to be withdrawn from plenary local jurisdiction. This grant removed any doubts upon this subject, but the United States did not and could not give the state any control over private property. That is always subject to the eminent domain for public improvements, and the state authority on that subject was already paramount; but, in order to take property for public purposes, it must be paid for. And, if the state should set up any proprietary rights over the property involved in this litigation, they can only be maintained upon proof of a valid grant, or legal appropriation upon an inquest in form of law.

The controversy, therefore, is narrowed down to the single inquiry, whether the defendants are justified in removing the structures of complainant as unlawful obstructions to navigable water, and as nuisances which they are ' authorized under the direction of the Canal Board to abate.

That board has such a control over the canal and its approaches, as to be authorized to remove such obstructions as are unlawful. But they have not, and could not have, any such judicial authority as to make their finding of any conclusiveness whatever, upon the fact of illegality. Such action must be had at their peril, and can never justify themselves or others in interfering with any rights lawfully existing. They become wrong-cloers as soon as they attempt to interfere with private property lawfully existing where they assail it.

The defendants. claim that this property was in fact unlawfully placed in the stream, and within the jurisdiction of the board to remove. And it is asserted that every erection in the water is unlawful, as interfering with the right of navigation, which extends over the whole stream to the shore.

In those waters whose beds are public, and not private property, erections by riparian owners are unlawful, not because they are nuisances, in the proper sense of the term, but because they are encroachments on the public domain, and they are as unauthorized as would be the erection of houses or barns upon public land away from the water, by an adjoining landholder. But, where the ownership is private, and the public rights are simply easements or privileges upon it, the owner may do what he pleases, 'so long as it does not injuriously affect the public enjoyment. On land, where roads are laid out of a prescribed width, the law or the authorities having determined that width to be desirable, the right to encroach upon the way cannot be very extensive. But where the way exists in a watercourse, whose boundaries are variable and laid down without human intervention, the extent to which private improvements are compatible with the public use must depend upon circumstances, and must always be a question of fact. The owner’s use is lawful until shown to be unlawful. It is plain enough that there are streams which cannot safely be encroached upon at all, while there are others so considerable that they could not be appreciably injured by a very extensive system of dockage or' other erections in their beds.

The rights of the public for purposes of navigation must be appurtenant to the ordinary means of navigation. Small boats can land where large ones do, but large ones cannot go where small ones can. It would be absurd to apply rules to the enjoyment of rights of navigation, as if canoes and scows, instead of ships and steamers, did the business of the country. If wharves and similar conveniences were not allowed upon our large streams, the shipping business would become practically worthless. It can never be unlawful for a land owner to make such wharves and landings as will accommodate all vessels ordinarily using the stream, unless there are some exceptional circumstances, as narrows, bends, or the like, which may in particular cases render his structures improper. Then the private right must yield to the public right. But where they do not conflict, there is no wrong done.

In the case before us, the original wharf went out into the stream as far as the proposed extensions. No vessel could pass above it, as it was just below the Bapids, and was the extreme upper limit of navigation. For all practical purposes the navigable stream began there.

It is admitted that before the canal was built, the wharf was a. necessity, and operated as a very great convenience to vessels. And from the end of the wharf to the old shore line, even if it had been deep water, the space was not more than an ordinary steamer’s length, while, in fact, the proof shows that it approached shoal water so nearly, that at that point the water, which was deeper lower down, was too shallow to accommodate ' large vessels. There was nothing which could be called navigable water available above it.

This structure being lawful, and any additions which could have been made to it above, being in no way adapted to interfere with navigation, the State undertook, not to improve the navigation of the riverj which practically ended there — the- Sault being an insurmountable obstacle — but to make an artificial water-course in the shape of a canal, to connect the waters above the Falls with the stream below. This canal is in no sense a part of the river. It is as distinct from it as if the waters it connects were two separate streams. The rapids severed the upper and lower' waters as effectually as if they flowed in different channels. The canal is an independent water-way, like a turnpike, which can only be used upon such conditions as the State, under the Congressional grant, might lawfully impose. The premises in question are not within it, and have never been assumed under the eminent domain- for ■ public use. The erections are not charged in the answer to obstruct any but canal navigation, and the proofs show that such is the only effect, so far as they are obstructions at all.

The State has no more right to interfere with private property without compensation, to make or improve a canal, than it has for a road upon land. And if the canal entrance is desired to be made wider, and the widening is over private property, which, in the absence of the canal» could have been kept improved without any impropriety, the State may unquestionably have it condemned by some process of law provided for the purpose, Or may purchase it of the proprietor; but it cannot be taken arbitrarily. It is as much the owner’s freehold as if it were upland.

It was suggested on the argument that these improve" ments were prohibited by section 4, article 18, of the Constitution of 1850, which declares that “No navigable stream in this State shall be either abridged or dammed without authority from the Board of Supervisors of the proper county, under the provisions of law.”

The constitution, as reported in its several stages, and as published, with the joint certificates of the Secretary of State, and Mr. Swegles, principal secretary of the convention, as having been enrolled and signed, uses the word “bridged” instead- of “abridged,” which latter is a word not commonly used in such connection. — Convention Debates, xxxvii, 909, 828, 830, 831.

Whichever may be the correct reading, it is, we think, plain that this provision refers only to such streams as are wholly within-the state, and which at any given point must be under the control of one or more boards of county officers, instead of in part subject to the jurisdiction of a foreign country, with which no board of supervisors could lawfully treat or hold any official intercourse. The provision ■ was adopted as relating solely to our internal police, where the authorities acting under state law could. entirely regulate the use of ,the stream for the purposes proposed. ■

It was also claimed that the injury complained of was not such as to authorize the interference of a court of equity. But, where a trespass is calculated to do permanent damage to the freehold, the jurisdiction has always been exercised, and the circumstances of this case show that the injury must be very serious if permitted. It is not necessary to consider the insolvency of the defendants, for the remedy does not depend upon it. The case also involves an abuse of authority by public officers and agents, under color of office; and ever since the case of Osborn v. Bank of U S. 9 Wheat. 738, it has been held that such official oppression would make it proper to interfere upon a less grievance than would justify proceedings on private misconduct, for reasons that are too obvious to require explanation. But, as before stated, the injury itself is, in this case, such as to give jurisdiction, independent of the position of the actors.

As complainant has not appealed, we cannot consider the propriety of the decree dissolving the injunction as to' the cribs below the .old dock. But the decree as made against the defendants must be affirmed, with costs.

Christiancy and Graves JJ. concurred.

Coóley Oh. J. did not sit, having been of counsel.


author: Ohristiancy J.

text:
    John King v. Daniel B. Harrington.

      Ejectment: Compensation to defendant for improvements: Statutory title and mesne profits: Setoff. The statute authorizing a defendant in ejectment to claim compensation in certain specified cases, for the value of improvements made hy him, confines the privilege to cases where the possession has heen held, and the improvements made by virtue of the specific titles mentioned in the statute — £ Comp. Laws, %.kf08. It excludes the cases where the defendant claims title in any other way.
    Where, therefore, a defendant entered into possession of premises and claimed title thereto, hy virtue of several tax titles, and a sheriff’s deed under execution sale, and made improvements, and continued in possession during six years, it was held that he did not come within the provisions of the statute.

      Held further, That though not entitled to compensation for improvements under the statute, yet he might still, hv way of set off, obtain compensation to some extent for improvements if the plaintiff ¿should proceed for the recovery of mesne profits. — $ Comp. L. § A,£02.

      Heard April 9.

      Decided April 20.

    Error to St. Clair Circuit.
    This was an action of ejectment. The defendant having claimed compensation for improvements under the statute —2 Comp. A. § § 4P93 to 6 — sought to defeat plaintiff’s title by proving title in himself; first, by deed made on a sale under execution; and, second, under several deeds from the Auditor General, for delinquent taxes. Judgment for possession was rendered in favor of the plaintiff, and a judgment for compensation for improvements in favor of the defendant.

      Mitchell & Farrand, and Maynard & Meddaugh, for plaintiff in .error.
    In this case, the plaintiff is the owner under a patent from the United States. The defendant is in possession claiming adverse title. ^
    The plaintiff’s title is undisputed; but defendant claims that he has such a title, and has had such possession as entitles him to compensation for improvements.
    The defendant holding and claiming under the sheriff’s deed, as well as the tax deed, cannot claim that he has been in actual possession oi tbe premises for six successive years before the commencement of the suit, claiming title by virtue of a sale made by the Auditor General, for the non-payment of taxes, and therefore is not entitled to compensation for improvements under section 4603 of the compiled laws.
    To entitle him to such compensation, he should have taken possession under, and relied only on, his tax title. He stands in the same position as if he had no tax title, and claimed only under sheriff’s deed;
    This statute is in contravention of the common law, and to entitle, a party to its benefits, he must be strictly within the statute. However much equity might abate from the damages in an action for the mesne profits, no decision goes to the extent of giving improvements against, or as contingent to, a recovery of possession. Improvements might be set off or recouped in the action for waste or mesne profits, but not set up to prevent or hinder the original recovery.— 1 Kent. Com. 884 J 5 Johns. 272 j 1 A. K. Marshall, 444 S 2 Johns. Gas. 281; 1 Johns. Gh. 887; 8 Wheat. 81 and 82.

    According to the strict rules of the common law, the owner recovers his land in ejectment, without being subjected to the condition of paying for the improvements which may have been made upon the land by an adverse possessor. — Blackwell on Tax Titles, 587 ; 4 Mete. (Ky.) 828.

      G. V. H. Lothrop, and G. F. Harrington, lor defendant in error.
    The action is ejectment, and the material facts are as follows:
    Plaintiff below claims under a patent issued to him May 22d, 1843.
    One Atwater attached the lands in question in a suit against plaintiff below; recovered judgment November 9th, 1849, under which said lands were sold by the sheriff and deeded May 20th., 1851, to Minnie and Ashley, who, March 22d, 1852, conveyed to the defendant.
    This attachment proceeding proved to be wholly void for want of jurisdiction.
    The land was sold for taxes, for 1847, 1849 and 1850, and the Auditor General, by three deeds, dated respectively November 20th, 1850, October 27th, 1852, and November 20th, 1854, conveyed said lands to defendants below.
    In the fall of 1852 said defendant entered into possession of said lands.
    On March 24th, 1854, said defendant being in possession, filed his bill in chancery against said plaintiff, and another “to avoid an alleged fraud in attempting to establish an unauthorized redemption of the attachment title.”
    In this proceeding a decree was rendered according to the object of the bill of complaint.
    In the present action of ejectment, the attachment sale and all the tax deeds were ruled to be invalid; and then the question arose as to the defendant’s right to be allowed compensation under sec. 4693 of the compiled laws.
    At the trial the plaintiff objected that the defendant could not give the tax deeds in evidence and claim possession under them, because, in the chancery proceeding, he had not, in any way, set up his tax titles. This involves, as I understand, the only question in the case, and the various errors all point to that.
    1. The tax deeds were the competent evidence of the fact that the lands had been sold at tax sale and deeded by the Auditor General. No authority need be cited to prove this.
    They were under the statute prima facie evidence of title. The burden of proof to show the invalidity of such deeds was thereby placed on the plaintiff. — Rev. Stat. of 184-6, § 82, p. 114; 1 Comp.' L.p. 818 (906); Sibley v. Smith, 2 Mich. 486; Lacey v. Davis, 4 Id. Ilf).

    The defendant had a right to put in all his tax deeds; in other words, to rely on all his itftles in defense, so held expressly in this court. — Tweed v. Metcalf, 4 Mich. 587; Amberg v. Rogers, 9 Id. 882; Case v. Dean, 16 Id. 80.

    2. The chancery proceedings constituted no. estoppel. A judgment or decree does not estop a person from raising, in a subsequent action, questions not litigated or decided in the first action. — Enauth v. Bassett, 84 Barb. 81; 16 N Y. 575.

    No acts work an estoppel in pais unless some one has been thereby induced to act in such way that it would now be inequitable to allow the contrary to be set up. Aclcley vs. Dygert, 88 Barb., 176; Dezell vs. Odell, 8 Hill, 226; Lawrence v. Brown, 5 N. Y., 894; Ohautauque BanJc vs. White, 6 Id., 286; Jewett vs. Miller, 10 Id., Jfi2; Dlumb vs. Cattaraugus Mut. Ins. Go., 18 Id. 892.

   Ohristiancy J.

This was an action of ejectment. The plaintiff in error, who was also plaintiff below, deduced a perfect title from the United States.

The defendants, having pleaded the general issue, and filed a claim for compensation for improvements under sections 4603 to 4606 of compiled laws, undertook, on.the trial, to defeat the plaintiff’s title by proving title in himself: 1st, under a deed made on a sale under an execution issued on a judgment in an attachment suit against the plaintiff, the proceedings in which he introduced in evidence; 2ndly, under certain deeds from the Auditor General for delinquent taxes. He also showed that he went into possession, claiming title from both these sources (the deed on- the execution sale and the tax deeds), and that, in reliance upon both, he had made large improvements on the land, and had remained in possession, relying upon all the deeds, for more than six 3rears before the commencement of the action.

Both the deed from the sheriff and those made under the tax sale, having, on the trial, been shown by the plaintiff to be invalid; the question arose whether the defendant, under these circumstances, was entitled to compensation for his improvements. The Circuit Court held that he was; and this is the question for our decision.

It is insisted, on the part of the defendant, that though he claimed under, and relied upon, both species of title, he did not the less claim under each; and that, though he claimed title under the sheriff’s deed, it is hone the less true that he “ claimed title by virtue of a sale made by the Auditor General for taxes,” and that this brings him within the words and intention of the statute, as clearly as if he had claimed title on the latter ground only.

This argument at first view seems plausible, as it appears to bring the defendant within the letter of the statute; and I confess I was at first disposed to doubt whether it did not also bring him within its intention. But on reflection, I am disposed to agree with my brethren, that the legislature having given this privilege to the defendant in ejectment in certain specified cases only, have by this specification just as clearly shown their intention to exclude every other class of cases from the operation of the statute, as if they had expressly so declared; and having therefore (as applied to this case) given the right only to a defendant claiming title by virtue of a sale made for taxes, the legislature must be supposed to have intended to exclude cases where the defendant claims title in any other way, and to have intended to confine the privilege to cases where the possession has been held and the improvements made in reliance solely upon the tax sale and deed, or at least upon this and some of the other modes specified in the statute.

We therefore think the defendant was not entitled to compensation for improvements under this provision of the statute; though he might still, by way of set off, obtain compensation to some extent for improvements under section 4602, if the plaintiffs should proceed for the recovery of mesne profits. The judgment of the Circuit Court, in so far as it relates to compensation to the defendant for improvements, must be reversed, with costs, and so far as it is in favor of tire plaintiff for the recovery of the lands, it must be affirmed. This being ejectment, the record should be remitted to the court below, as the defendant may (if this was the first trial) be entitled to a new trial under the statute.

The other Justices concurred.


author: Cooley Oh. J.

text:
    William Final v. Absalom Backus.

      Setting aside of default; Discretion of Court: Common Law Record.. The setting aside of a default, and the proceedings based thereon, by the Circuit Court, „ pertains exclusively to the practice of such court, and forms no part of a common law judgment-record. It constitutes no ground of allegation of error,

      Amendments: Rower of Circuit Court: Name of Party. Under the Statute — # Comp. L. §k,U15 — allowing amendmets, the Circuit Court has power to permit the incorrect statement of the name of a party to the record, to be amended.
    In this case, the plaintiff’s name was erroneously stated in the writ as “Absolem Baxter,” instead of “Absalom Backus.”

      Assignment of right of action for toi't: General rule: Exceptions. As a general rule, the right of action for a tort is not the subject of assignment. But the rule applies only to those torts which are merely personal, and which, on the death of the person wronged, die with him.
    Bights of action for such torts as survive to the personal representatives may be assigned so as to pass an interest to the assignee, which he can enforce by suit at law.
    The assignee of a demand, originating in favor of an assignor, for the conversion of logs obtained by a trespass upon certain land granted to the assignee may bring trover in his own name. — # Comp. L. U159; Sess. Laws, 1868, p. 102.

      Evidence, presumption as to existence of, on the trial: Record. When no objection was made to the introduction of certain deeds, held, that this court would not consider the objection that it did not appear that the grantors in the deeds owned the land described therein; and the Court will not assume, in the absence of evidence in the record, that their relevancy did not appear.

      Conveyance: Title of acknowledging offices': Certificate of execution. The only description of official character of the person acknowledging a deed in New York was “ J. P.” appended to his name.
    The certificate prescribed by statute as to execution of deeds in other states was attached, and in due form, and also contained an attestation of the official character of said acknowledging officer as a Justice of the Peace. Held competent evidence.

      Trover: Time of conversion: Value. Prior to the assignment of the right of action in this case, the logs in question were removed from Sanilac county, the place of cutting, to an adjoining county (Saginaw) and there manufactured into lumber.
    In an action of trover for their conversion, the plaintiff offered evidence tending to show the value of the logs in Saginaw. Held competent.
    Although the owner of the land from which they were taken might have have treated their removal as a conversion, he was not compellable to do so, but could have followed the logs and reclaimed them at Saginaw.
    The plaintiff, therefore, had a right to treat the time of the manufacture of the logs into lumber, as the period of conversion.

      Written evidence; Oral evidence to the same point, effect of. Where written evidence was introduced, showing the time of the purchase of certain land upon which a trespass had been committed, and oral evidence to the same point was admitted; held, that though unnecessary, it could not prejudice the defendant.

      New Trial; Diswetion of Court s Deem'd. The granting of motions for new trials is in the discretion of the Court, and* constitutes no part of the record.

      Heard April 16.

      Decided April 20.

    Error to Saginaw Circuit.
    Tbis was an action of trover to recover the value of certain logs.
    The summons erroneously described the plaintiff as Absolem Baxter.
    In the declaration the true name was given; to wit, Absalom Backus.
    The default of plaintiff was duly entered by defendant and made absolute, on the ground that no declaration had been filed corresponding with the title of the plaintiff as described in the summons.
    Subsequently, the Court granted the defendant leave to amend the writ by inserting the true name of plaintiff.
    The default of plaintiff was thereupon set aside.
    The cause proceeded to trial, and the jury rendered a verdict for plaintiff.
    The defendant moved for a new trial for the reasons:
    First: That the Court admitted irrelevant and incom-t petent testimony.
    Second: That the verdict of the jury was against the weight of testimony.
    Third: That the verdict was excessive.
    The motion was overruled and judgment was entered for plaintiff.

      Upon the trial the plaintiff offered in evidence a copy of a certain deed of conveyance. , The defendant objected because there was no subscribing witness, and because there was no proof of the' execution of the deed, or otherwise, to entitle it to be received in evidence. The certificate of the proper officer was attached thereto, and complied with the provisions of the statutes of Michigan regarding such conveyances.
    ' The Court overruled the objection, and the defendant excepted.
    The plaintiff, further to maintain and prove the said issue, offered in evidence a copy of a certain other deed.
    The plaintiff then offered a certain other deed in evidence.
    The defendant objected, because there was no subscribing witness and, no proof of its execution, and because its execution did not appear to have been acknowledged before any officer authorized by law to take the same: the initials “ J.” P. being attached to his name.
    The certificate of the proper officer was attached to the deed and [complied with the provisions of the laws of Michigan. It also described the officer who acknowledged the deed as being a Justice of the Peace.
    The plaintiff, further to prove the issue on his part, called Wm. Pinkerton, who, being sworn, testified: that he -cut pine logs for the defendant under a written contract, upon certain lands of the defendant in the county .of Sanilac, adjoining the land described' in the deed introduced in evidence from Stebbins and wife to the plaintiff; and also gave evidence tending to prove that he and his men cut a number of pine trees on the northwest quarter of the southwest quarter of section eight, township thirteen, north range twelve east, and that he put the defendant’s mark upon the logs cut from the said land, and banked them on the Cass River in said Sanilac county, for defendant; and after that, run them, with the logs he cut from defendant’s land for defendant, to the jam one-half mile above plank road bridge, at Cook’s, above Bridgeport, and about ninety miles from where they were cut; that he began cutting on the 13th of November, 1866,'and finished on the 5th or 6th of April following, and quit drawing logs then; that when put in the river some of the logs were worth $10 per thousand, and the balance $7 per thousand feet, and that he thought the trees were cut on plaintiff’s land in January, 1867.
    The plaintiff then called James A. Walker, who, being sworn, gave evidence tending to prove that he was one of the firm of Dolsen & Walker, and sawed between six and seven hundred thousand feet of logs for defendant, marked with his mark at their mill on the Saginaw River, in Saginaw county, in the year 1867.
    The counsel for the said plaintiff then put the following question to said witness: “What was the value of the logs you sawed that year for the defendant?” but the counsel for the defendant objected to said question and the evidence thereby sought to be given, because it was irrelevant, incompetent, not pertinent to the issue; and because it would not prove the value of the specific property claimed in this suit, and because it would be proving the value of the logs in the county of Saginaw, while the conversion was alleged to have been in the county of Sanilac. The court overruled the objection, and defendant excepted.
    The said witness answering said question, testified, that the logs were worth ten dollars a thousand feet, at their boom in the Saginaw river.
    The counsel for the plaintiff then offered the plaintiff, Absalom Backus, Jr. as a witness, who testified, “That in the summer of the year 1867, he called on the defendant to try to induce, him to settle for the timber cut on his land; he said that he had none of his timber.”
    The counsel for the plaintiff, then asked him “ when did you purchase that land?”

      The defendant objected. The court admitted it, and defendant excepted.
    • Plaintiff replied, “ that he made purchase of the land on the 24th or 25th of March, 1867; 'that he and Stebbins talked about any trespass having been committed on the land, and that his was to be the right to prosecute for any such trespass, for his own benefit; that he asked Stebbins if he, plaintiff, should go on the land and find timber had been cut, what should he do, and that Mr. Stebbins replied: If there has, you are authorized to prosecute and collect pay for the timber that has been cut off.”
    Plaintiff then introduced a letter from Stebbins, enclosing a written authority from him to the plaintiff to prosecute for any trespass committed upon the land.
    Defendant objected to its introduction, as being irrelevant, and not stamped pursuant to law.
    The plaintiff then offered to put a five cent United States Internal Eevenue Stamp on said letter. The defendant’s counsel objected, that said stamp was insufficient, and not of the amount required by law.
    The court overruled the objections, and defendant excepted.
    The defendant, ‘William Final, testified that good common logs were worth on the bank about $6 per M feet; and ones and twos were worth from $10 to $12 per M feet. And, on cross-examination by counsel for plaintiff, said Final testified as follows: “ My logs netted about $11 per M feet altogether.”
    The following are the assignments of error:

      First. — The Circuit Court erred in entertaining the motion of the plaintiff, Absolem Baxter, to amend by inserting the name “Backus, Jr.,” in place of the name “ Baxter.”

      Second. The court erred in granting the said motion to amend the name of the plaintiff, and erred in ordering the summons and all subsequent proceedings amended, by striking out the word “ Baxter ” and inserting “ Backus, Jr.” in lieu thereof.

      Third, The court erred in setting aside the default of the plaintiff, Absolem Baxter, and the order making said default absolute and interlocutory judgment, without any motion having been made therefor, or entered in the special motion book, pursuant to the rules of said court.

      Fourth. The court erred in allowing the plaintiff, Absolem Baxter, to move to amend the plaintiff’s name as aforesaid, and in entertaining said motion while said plaintiff was in default, and before said default and the order making the same absolute, and rendering - interlocutory judgment thereon, had been set aside and vacated.

      Fifth. The Court erred in receiving the affidavit of I. M. Smith, as the basis of the aforesaid motion to amend, and in granting said motion for matters appearing in said affidavit.

      Sixth. The court erred in overruling the motion for a new trial, and in rendering judgment against the defendant William Final.

      Seventh. The court erred in allowing the plaintiff/ Absalom Backus, Jr., to read in evidence the deed of conveyance, a copy of which is annexed to the bill of exceptions, marked Exhibit “A.”

      Eighth. That the verdict of the jury was erroneous, and manifestly against the evidence in the case, and because the evidence in the case did not sustain and authorize said verdict.

      Ninth. The court erred in allowing the plaintiff, Absalom Backus, Jr. to read in evidence on the trial of said cause, the deed of conveyance, a copy of which ¡is annexed to the bill of exceptions, and marked exhibit “B.”

      Tenth. The court erred in deciding the following question, “ What was the value of the logs you sawed that year for the defendant?” might be put to the witness, James A^ Walker, and in receiving the answer thereto in evidence.

      Eleventh. The court erred iu deciding that this question, “ When did you purchase that land ? ” might be put to the witness, Absalom Backus, Jr. and his answer thereto received in evidence.

      Twelfth. The court erred in admitting and allowing to be read in evidence the letter from T. P. Stebbins to Absalom Backus, Jr.,' dated August 1, 1867, set forth in the bill of exceptions.

      Peale & Ciarle, for plaintiff in error.
    The plaintiff below being in default, could only move to set the default aside, and the Circuit Court therefore erroneously entertained plaintiff’s motion to amend, he being out of court, until the judgment of ml pros was vacated. — Creeps Pr. 299 j Coole v. Allen, 3 Tyrw. 378; 5 Taunt. 649; Sparrow v. Naylor, 2 Bl. 876, 759; 1 Tidd’s Pr. 421, 2, 68 and 60; 8 Barn. & Aid. 272; 8 Boiol. 404l 1 Hodge, 75.

    Courts will not allow amendments which change the parties to the action, unless there is something in the record to authorize the amendment. More especially is this the rule in relation to amendments that change the plaintiff. — 8 Chitty, Pr. 199; 1 Bowl. R. 519; 2 Id* 683; 1 Chitty, PI. 14; 1 Story, 310; 8 Sergt. & Rawle, 58; 4 Coto. 148, 158; 22 Wend. 608; 11 Illinois, 587 ; 27 Id. 39; Peterbaughs III. Pr. 527 ; 3 Conn. 157; 1 Bac. Abr. A. Misnomer; 5 Watts, 378.

    The rules and practice require a special motion to set aside a default within four days after its entry. The motion on which the order was based was only to amend. Courts will not grant what is not prayed for. — Circuit Court Rules, 27 and 29; 1 Burrill, Pr. 336; 10 Wend. 547; 1 Cow. 185.

    ■ The court erred in receiving the affidavit of I. M Smith, in support of motion to amend. The carelessness of the plaintiff’s attorney formed no ground for the change of parties, when the plaintiff ooulcl himself remedy the mistake by another suit, and the affiday^t of I. M. Smith, is not entitled in the suit, and is not a part of the record, or to be noticed as such. — Peterlaughs, Pr. 817; S Qilm. 866; 14 Illinois, 58; 8 Ghitty, Pr. 588; 8 Tyrw. 887; 1 Burrill, Pr. 842; 4 Scam. 419; 11 Illinois, 586; 8 Bowl. 197 and 78; 2 Id. 485; 1 Mich. 115; 8 Id. 117, 126; 2 Gow. 509.

    The deeds were improperly admitted in evidence. It does not appear that the grantors in the deeds owned the lands therein described. The proof therefore did not make them competent or relevant. —12 Mich. 481.

    The second deed having been executed after the trees were severed from the soil and made personalty, was not relevant to the point in issue, viz: the ownership of the logs by plaintiff. —11 Mich. 535; 1 Greenl. JEv. § 51.

    The certificate of acknowledgment to said deed is insufficient, because the letters “J. P.” are not an official description. — Rood v. School Bist. No. 7, 1 Bouglass, 502; 1 Burrill, Pr. 848; 2 Sergt. & Rawle, 457; 2 Phillips Mv. p. 585, N. 418; 2 Yeates, 229; 3 Gaines, 128.

    The certificate to this deed did not prove that W. Baker was a Justice of the peace, because the clerk was only authorized to certify that “the person whose name was subscribed to the certificate of acknowledgment, was at that date thereof such officer as he is therein represented to be.” — 2 Gomp. L. ¶. 889, § 2729; 4 How. 522; 1 M. & S. 599; 13 Pick. 172; 6 Gow. 265; 14 Pick. 448; 1 Greenl. Mv. § 498; 2 Phillips Mv. 255; Governor v. Bell, 8 Murph. 881; 88 Maine, 297.

    Evidence of the value of logs sawed that year in Saginaw County for defendant (below) was inadmissible; not being confined to the property when converted. “In trover, the general rule • of damages is the value of the property taken at the time of conversion,” and “for the conversion of timber, is its value when first separated from the freehold.” — Sedgwick on Dam. Ifl4, n 1; Read v. Fairbanks, 21/. Eng. L.^ & E. 224; S. C. IS G. B. 692; Moody v. Whitney, 38 Maine, 174-

    Oral evidence as to when plaintiff bought the land, was inadmissible under the “statute of frauds,” and as contradicting the deed to plaintiff. “Where written evidence of a fact exists all parol evidence is excluded.” — 1 Phillips Ev. 576 and 587, n 7; 2 Gomp. L. § 8179; 1 Qreenlf. Ev. § 275, 277.

    The letter from Stebbins to Backus was inadmissible because not stamped pursuant to law. — U. S. Statutes at Large, Act July 18, 1866, p. 149; United States Int. Rev• Law of I864, Schedule B; Emerson Guide, 168; U. S. Statutes at Large, Act March 8, 1865, p. 481.

    It was irrelevant, not being either proof of sale of the timber, or assignment of the right of action for its conversion. A tort is not assignable. “It being the sale of a suit and therefore void, as maintenance.”
    It did not substitute plaintiff in the place of Stebbins as the owner. — 6 Gush. 286; 28 Vermont, 531; 2 Oomst. 293; 8 Wheat. 268; 12 Wend. 298.

    The court erred in denying motion for new trial, because improper evidence was admitted. The deed to plaintiff, if competent evidence, proved conclusively that the plaintiff was not the owner of the land when the trees thereon were converted into personal property. —11 Mich. 585; 4 Barn. & Cress. 941; 1 T. R. 55; 1 Ghitty, PI. 149.

      Webber & Smith, for defendant in error.
    1. The first five assignments of error cannot be considered, as the questions were addressed to the discretion of the court below, and the defendant (below) pleaded to the declaration as amended.
    2. The sixth assignment, alleging error in overruling motion for a new trial, is one this court will not consider on a writ of error. Motions for a new trial are addressed to the discretion of the court.
    3. As to the seventh assignment, there was no error.— The deed was duly certified as required by statute, and was admissible in evidence without further proof.
    4. The eighth assignment cannot be considered here. The bill of exceptions does not purport to give all the evidence in the case, and error must affirmatively appear.
    5. The ninth assignment stands on the same grounds as the seventh. The deed was properly certified.
    The tenth assignment shows no error. It was competent for the plaintiff to prove the value of the logs at the place of conversion. The plaintiff might show the conversion at any point arid might give evidence as to the value at different places, so that in case the jury should find a conversion at one or another of the places, they might have evidence of the value at that place before them. Even if erroneous, this evidence did not prejudice the defendant below, because when he was called as a witness he testifies to a higher value.
    6. The eleventh and twelfth assignments relate to same point,' and will be considered together.
    The logs were cut from the lands in question, in the winter of 1866-7. The land was deeded to Stebbins in 1858. The deed from Stebbins to Backus is dated March 26, 1867, and was acknowledged April 3, 1867. There being no question but that Mr. Final had the logs from this land, it was only important for him to know that in case Backus shorild recover against him for the logs, he would not be liable thereafter to an action therefor in the name of Stebbins. The proof given by Backus and by the letter from Stebbins was only for the purpose of showing that the right of action was in Backus, and that Stebbins consented thereto. It was competent to prove that Stebbins resided in the State of New York, that at the time of the purchase by Backus, neither party knew of the actual condition of the land, as to whether any timber had been cnt, and that it was the understanding and agreement, that in buying the land, Backus bought it as it was in the state of nature, with the timber thereon, and that it was agreed, in case it should be found that timber had been taken by trespassers, the right to prosecute should belong to the purchaser.
    It was not necessary that the letter should be stamped. It was not a new. contract between the parties. It was rather a recognition of a previous contract: written evidence of an existing state of facts. But before reading the letter in evidence, it was actually stamped with an agreement stamp in court. It is held in Massachusetts that the United States Revenue Stamp Law, as to the introduction of papers in evidence, only applies to the courts of the United States. Carpenter et. al. vs. Smiling, 97 Mass. 452, 458; Lynch vs. Morse, Id. 458.

   Cooley Oh. J.

The several errors alleged in this record will be considered somewhat in the order in which the supposed objectionable proceedings took place in the progress of the cause.

The third assignment of error relates to the action of the court in setting aside the default of the plaintiff and the proceedings based thereon.

This action pertains exclusively to the practice of the court, and forms no part of a common law judgment record ; it cannot therefore constitute a ground of allegation of error. — Pearson v. Eaton, recently decided.

The first, second, fourth and fifth assignments of error are based upon the proceedings of the court in permitting an amendment to correct the name of the plaintiff, which by the mistake of his attorney was erroneously given in the writ.

If the court had jurisdiction to permitj such an amendment, its action in allowing it like that in setting aside a default, would be purely a matter of discretion, and should not be introduced into a judgment record.

The plaintiff in error has referred to several cases which he thinks establish the position that the court has no authority to permit such an amendment, unless, which was not the case here, there is something in the record to amend by.

The most of these cases however, are cases where the amendment had the effect to change the parties to the suit. Such was the case in Wilson v. Wallace, 8 Sergt. & R. 53; Chamberlain v. Hite, 5 Watts, 373, and Willink v. Renwick, 22 Wend. 608, in each of which it was sought to add a party by amendment, and in Peck v. Sill, 3 Conn. 157, where it ivas sought to strike out the name of a party plaintiff. Such an amendment would obviously change altogether the ground of recovery, and we do not doubt the correctness of the decisions which hold it not permissible. There are some cases, however, where the amendment to correct the name of the plaintiff has been held, in the absence of any statutory provision applicable to the case, to be inadmissible. — Albers v. Whitney, 1 Story, 310 ; Lake v. Morse, 11 Ill. 587; while on the other hand in Elliott v. Clark, 18 N. H. 422, the Supreme Court of New Hampshire, permitted such an amendment to be made. “We are of opinion,” say the court “ that the power to amend depends not upon the question, whether the amendment changes the name, but whether or not it really changes the party. If it only cures a mistake in the name of the party in fact prosecuting the writ, it may be made. But if it introduces a different party it is inadmissible.”

Wé think, however, that this question is settled by our statute of amendments, which permits the court in which any action shall be pending to amende any process, pleading or proceeding in such action, either in form or substance, on such terms as shall be just, at any time before judgment rendered therein. — Comp. L. §4416, and which, in specifying the defects for which a judgment shall not be stayed, reversed, impaired or in any way affected, expressly mentions any mistake in the name of any party or person.— Comp. L. §4419,

Under the statute from which ours is taken, errors in the names of plaintiffs have been suffered to be amended in New York; — Agent of Mount Pleasant Prison v. Rikeman, 1 Denio, 279; and the same ruling has been had in Massachusetts; — Kincaid v. Howe, 10 Mass. 203; Sherman v. Connecticut Bridge, 11 Id. 338. In Wight v. Hale, 2 Cush. 486, the court speaking of an amendment of the name of one of the plaintiffs from Wright to Wight say, “that the court were not only authorized but required to allow the amendment, cannot admit of a doubt. By the Revised Statutes, Ch. 100, § 21, it is enacted that no writ, process, declaration or other proceeding in the courts, in course of justice, shall be abated, arrested, quashed or reversed for any circumstantial error or mistake, when the person and case may be rightly understood by the court; and by the 24th section it is further enacted, that no judgment shall be reversed for any defect or imperfection in matter of form which might by law have been amended; and by the Statute of 1839, Ch. 151, § 1, it is provided that amendments, not material to the merits of the case, and by which the opposite party cannot be prejudiced^ may be allowed without payment of costs. It has been argued for the defendant that by the amendment a new plaintiff and a new firm were introduced, but we think it clear that such was not the effect of the amendment. The effect was properly to correct a clerical mistake, which had occurred by the misnomer of one of the plaintiffs, and it is quite clear that such a mistake may be corrected by amendment.”

This decision, under a statute quite similar to ours, appears to us reasonable, and fully warrants the action of the court below in this case.

The twelfth error goes to the right of the plaintiff to maintain the action upon a' demand. originating in favor of his grantor, for the conversion of logs obtained by a trespass upon the land granted to him, and which was assigned to him before the commencement of suit.

Our statute— Comp. L. § 4,159, as amended in 1863, permits the assignee of any bond, note or other chose in action, to sue and recover the same in his own name; and it is not claimed that this action is improperly brought, provided the demand is properly assignable.

The position is, that the right of action for a tort is not the subject of assignment; and this, we understand to be the general rule. — 1 Spence, Eq. Juris. 180-1; 2 Id. 868 to 873; Adams’ Eq. 54; Story’s Eq. Juris. § 1040, g; Carroll v. Potter, Walk. Ch. 365; Rice v. Stone, 1 Allen, 566; Comegys v. Vasse, 1 Peters, 213. But this rule applies only to those torts which are merely personal, and which, on the death of the person wronged, die with him; while torts for taking and converting personal prop-* erty, or for injury to one’s estate, and generally all such rights of action for tort as would survive to the personal representatives, may, it seems, be assigned so as to pass an interest to the assignee which he can enforce by suit at law. —North v. Turner, 9 Sergt. & R. 234; Butler v. The N. Y. & E. Rail Road, 22 Barb. 110; People v. Hudson R. R. R. 4 Duer, 74; Waldron v. Willard, 3 E. D. Smith, 488; McKee v. Judd, 12 N. Y. 622; Rice v. Stone, 1 Allen, 566; Jordan v. Gillen, 44 N. H. 424.

The seventh and ninth assignments of error relate to the admission in evidence of certain deeds which purported to be executed in the State of New- York, and which were certified in the manner required by our statute to entitle them to record.

In their brief, counsel claim the admission to have been erroneous, on the ground that it does not appear that the grantors in the deeds owned the lands therein described, and that, consequently, they were irrelevant.

It is a sufficient answer to this, that no objection on that ground appears to have been taken on the trial, and we cannot assume on this record that their relevancy did not appear. It is also claimed that one of them was imperfect in acknowledgment, the abridgment “ J. P.” appended to the name of the person taking the acknowledgment being the only designation of official character; and this, it is claimed, has no understood meaning in the law. Our statute, however, prescribes what shall be the evidence that a deed, executed out oí the state, is properly acknowledged according to the laws of the state where the execution takes place; and that evidence is furnished in due form by the certificate appended to this deed. The officer who certifies to the due execution of the deed, explains the meaning of the abbreviation by attesting the official character of the person employing it.

The tenth error is based upon the admission of evidence to show the value of logs taken from the land trespassed „upon, after they had been removed to Saginaw, in an adjoining county to that in which the trespass was committed.

The action was trover for the conversion of these logs, and as, upon the theory of the plaintiff’s case, they were the property of his assignor, as well after they reached Saginaw as before, we perceive no error in receiving evidence of their value at that place. The actual change in the character of the property appears to -have taken place when they were manufactured into lumber there; and although the owner of the land from which they were taken might have treated their removal from the land as a conversion,' he was not compellable to do so, but might have followed the logs and reclaimed them at Saginaw. This being so, the plaintiff had a right to treat the time of the manufacture of the logs into lumber as the period of conversion, and to recover théir value accordingly.

The eleventh assignment of error is upon the admission of oral evidence of the time when the plaintiff bought the land on which the trespass was committed.

Of tbis it is sufficient to say that it could not possibly prejudice the defendant.

The plaintiff put his deed in evidence, as well as the written assignment of the demand sued upon; and the oral evidence appears to us to have been wholly unnecessary and entirely harmless.

Under the twelfth assignment of error, the want of a stamp upon the instrument which transferred the right of action to the plaintiff, is relied upon as rendering it invalid.

The bill of exceptions is not very clear upon this point, but the inference from the language employed is, thgt at the time the instrument was actually received in evidence, it had upon it a proper revenue stamp; and we do not therefore feel called upon to consider the question whether the law of Congress, excluding unstamped instruments from being received as evidence, has any application to the State courts.

The sixth and eighth assignments of error are based upon the action of the court in refusing a new trial. That action, like the order permitting an amendment of the writ, was purely matter of discretion, and constitutes no proper part of the record. It should not have been returned upon the writ of error, and, being returned improperly, we can take no notice of it.

We find no error in the record, and the judgment must be affirmed, with costs.

The other Justices concurred.


author: Christiancy J.

text:
    Myron F. LeRoy v. East Saginaw City Railway.

      Corporation: 'Special tax: Exemption from general tax. By the laws of 1861 and 1863, under which plaintiff below was incorporated, it was required to pay an annual specific tax of 1J- per cent, on its paid-in capital, and this was to be “in lieu of all other taxes upon all the property of said Company.”

      Held, that the company were exempt from all other taxes.

      Replevin: Property seized fo?' taxes: Public law, notice of. The Statute— Comp. Laws §5008 — provides that no replevin shall lie for any property taken by virtue of any warrant for the collection of any tax, assessment, or fine in pursuance of any law of this State.

      Held, that this provision must be construed as applying only to cases in which a valid tax might, by possibility, have been imposed and collected by regular and proper proceedings under statute authority.

      Hpld further, that the said law regarding corporations being a general law the collector was bound to take notice of it, and it could not avail him that the tax roll did not show that the party taxed was a corporation.

      Tax Collector, how far protected by regular warrant. The fact that the tax warrant was regular, upon its face, and disclosed no illegality, cannot afford protection to the collector in this action.
    It goes only to the extent of protecting him from personal responsibility as a trespasser or wrong-doer. It cannot be made the foundation of a right or claim against others, nor confer any right of property, which alone is in issue in an action of replevin. — 1 Doug. 199.

      Replevin; Detinet: Demand. Under the statutes of Michigan the action of replevin is always in the detinet, whether the taking be wrongful or not. Where, therefore, the taking was wrongful, and the plaintiff establishes his right to the property, his action cannot be defeated by a failure to make a prior demand ; such failure not going to the right of action. —10 Mich. 357, 369, 370.

      Heard April 16th.

      Decided April 20th.

    Error to Saginaw Circuit.
    This was an action of replevin, brought by the East Saginaw Railway Company against the City Tax Collector for certain property levied upon for the non-payment of taxes.
    A verdict was rendered for plaintiff below.
    The facts are stated in the opinion.

      B. J. Brown, for plaintiff in error.
    This is an action of replevin in the cepit, brought for the recovery of one pair of mares, mentioned in the declaration.
    The action cannot be maintained unless the property was unlawfully taken.
    The warrants annexed to the assessment rolls, it is admitted, were in due form of law; and the marshal was therein directed to collect the tax. But the Circuit Court, in effect, held the rolls to be void on their face, as against the defendant . in error for the reason, to adopt the language of the charge, that it “was only liable to pay specific taxes to the state,” and was “not liable to assessment upon the rolls offered in evidence.”
    Is this a correct statement of the extent of its lia bility? Is it exempt from special assessments for public improvements, which, if not paid, are spread over the city rolls? See charter of East Saginaw, title 6, section 44. — Laws of 1859, ’61, ’65; LeFevre v. Mayor of Detroit, 2 Mich. 586; Loclcivood v. St. Louis, 21¡. Mo. 20.

    If it be assumed that the property of the defendant in error was exempt from general taxation, this exemption did not appear on the face of the rolls. It depends upon the existence of extrinsic facts.
    The warrant and rolls were regular upon their face, and trespass would not lie against the officer. — Sheldon v. Van Buskirk, 2 FT. Y. 1/.77; Savacool v. Boughton, 5 Wend. 170; Patchin v. Bitter, 27 Barb. 8£; Ohegary v. Sheldon, 5 Ff. Y. 877; ’Abbot v. Yost, 2 Denio, 87; Alexander v. Hoyt, 7 Wend. 89; Bennett v. Burch, 1 Denio, 11¡.1.

    Hence replevin in the cepit cannot be maintained.— Richardson v. Reed, 1¡. Gray, HI; Hopkins v. Hopkins, 10 Johns. 878; Barrett v. Warren, 8 Hill 848; Kellogg v. (Churchill, 2 Ff. H. 1¡.12; Rextor v. Cfhevalier, 1 Mo. SJffi.

    2. The statute expressly declares that “No replevin shall lie for any property taken by virtue of any warrant for the collection of any tax, assessment or fine, in pursuance of any statute in this State.” — Comp. Laws, § 5008.

    No refinement of argument can take the case at bar out of the provisions of this, section. — People v. Albany, Common Pleas, 7 Wend. 8J5; O’Reilly v. Good, Barb, lfil; Freeman v. Howe, 21¡. How. U. S. IRfi; Gardner v. Campbell, 15 Johns. Ifl2; Stiles v. Griffith, 8 Yeates, 82.

      Webber & Smith, for the defendant in error.
    1. The defendant in error being organized as a corporation, under chapter 71 of the Compiled Luavs, Avas liable to pay a specific tax to the State — 1 Gomp. Laws, | %}088 — which the statute declares “shall be in lieu of all other taxes upon all the property of said company.” Therefore if there was an assessment on the general tax rolls against the said defendant in error, it was void on its face, and afforded no authority for the marshal to seize the property of the corporation.
    2. But it is claimed that the statute prohibits an action of replevin for property taken under a claim for a tax. — 2 Gomp. Laws, § 5008.

    To this we reply:

      a. The objection comes too late. It should have been taken by plea in abatement or by motion. — The People v. Albany, G. P. 7 Wend. p85; O’Beily v. Good, Barb. 5Jj.l.

    By pleading to the merits, the defendant below consents to a trial on the merits.

      b. The statute only prohibits the writ, when property is taken for a tax in pursuance of a statute of this state. The property in question was not taken for a tax in pursuance of any statute of this state, but for one directly against the statute.

      c. If we are correct in saying there was no tax against defendant in error on the rolls, then there was not even a pretense of authority for the seizure.

      d. The plaintiff below, if the tax was void, might as well bring this writ to recover his property as a party whose goods are taken in execution could bring it to test the question of exemption, and this has often been done, and the court has never refused "to enquire into the merits of such cases. — Elliott v. Whitmore, 5 Mich. 582; Smalley v. Masten, 8 Mich. 529.

    The case must now be disposed of on the merits, and if the court holds that there was no authority for the seizure, the marshal cannot have judgment for the amount of the tax, for it was void, and he had no special property — no lien — only a bare possession without right.
    Suppose a party pays his tax and then the collector should seize on pretense that it was not paid; or suppose no tax on the roll — or a ease of double assessment and a seizure, clearly such cases are not a taking of property for a 'tax in pursuance of any statute of this state, and the writ is not prohibited — neither is it the case now under consideration.
   Christiancy J.

This was an action of replevin brought by defendant in error, a corporation organized under chapter 71, compiled laws (to provide for the construction of train railways), and the Acts of 1861 and 1863 amendatory thereof, against the plaintiff in error, who was marshal and collector of taxes of the city of East Saginaw, who had levied upon and taken the property in question under warrants attached to his rolls, to satisfy state and county taxes, as well as certain city and local taxes assessed against the defendants in error.

The affidavit on behalf of the company upon which the writ of replevin issued, was that the property “had not been taken for any tax, assessment or fine levied by virtue of any law of this state, nor seized under any execution or attachment against the goods and chattels of said East Saginaw City Bailway, liable to execution,” &c.

By the act under which the defendant in error was incorporated, the corporation was required to pay annually a specific tax of one half of one per cent, on the whole amount of its capital paid in, which was to be paid to the State Treasurer on the first Monday of July in each year. This specific tax (with which the assessor and collector of taxes had nothing to do, and no power to assess or collect) is by the statute declared to be “in lieu of all other taxes upon all the property of said company.”

This is a public law of which all are bound to take notice. We are aware of no law, and have been referred to none, under or by virtue of which, the tax assessed upon this company (and which the defendant below was by his warrant commanded to collect), could have been imposed.

But, it is insisted by the plaintiffs in error that the action of replevin for the property thus taken by him, is forbidden by section four of chapter 152 Compiled Laws.

This section enacts that “N° replevin shall lie for any property taken by virtue of any warrant for the collection of any tax, assessment, or fine, in pursuance of any law of this State.”

The main object of this statute would seem to have been to prevent delays in the collection of the public revenue, and to drive parties claiming property seized for the payment of taxes, &c., to some other remedy, which should not, during the litigation, prevent the prompt collection of the tax.- — People v. Albany, (Com. Pleas,) 7 Wend. 485; O'Reilly v. Good, 42 Barb. 521; Stiles v. Griffith, 3 Yeates, 82.

To construe this provision as intended to apply only to cases in which the taxes — for which the property has been taken — have been imposed by authority of, and in full compliance with the statute authorizing any particular taxes, so as to render it a valid tax, in pursuance of such statute, would be to make the question of the maintenance of the replevin depend in all cases upon the validity of the tax to be determined upon the trial; and this would make the statute forbid only those actions of replevin which must equally have failed without the statute; On the other hand to construe the statute as applying to a case in which there is no statute authority for the assessment and collection of any tax by the officers who may have undertaken to assess or collect one; and where no possible proceeding of such officers could have given them authority to impose or collect any tax under any statute of the state (or to a case where the property of some other person than the party taxed, has been seized), would be to extend the statute to cases which do not come within its spirit or intent.

This provision must, therefore, be construed as applying only to cases in which a valid tax might, by legal possibility, have been imposed and collected by regular and proper proceeding under some statute authority. In this latter class of cases this provision would prohibit the action of replevin, though the statute authority might not have been fully complied with, and the proceedings might have been so far irregular, as to defeat a sale of real estate sold for such taxes.

It is urged, however, by the plaintiff in error, that though he may have been bound to know the law, he was not bound to know the facts which did not appear on his rolls or warrants; that these did not show that the party taxed was a corporation, that it might have been a copartnership — a fact to be determined by the assessors; and they having taxed the defendant on the rolls, he was bound to suppose the assessors had determined that the company was not a corporation, but a private association or partnership, and that he, the collector, was therefore protected by his warrants, which were regular on their face, not disclosing the illegality.

But the protection afforded on this ground does not go' far enough to avail the collector in this action of replevin. It goes only to the extent of protecting him from personal responsibility as a trespasser or wrong-doer. It cannot be made the foundation of a right or claim against others, nor confer any right of or to property, which alone is in issue in an action of replevin. This point was expressly decided in Beach v. Botsford, 1 Doug. Mich. 199.

As to the point raised by the plaintiff in error, that no demand for the property having been made before suit, this must be treated as an action of replevin in tbe cepit which will only lie where trespass would lie, it is sufficient to say that the action of replevin, under our statute is, in form, always in the d&tinet, whether the taking be wrongful or not; and that, where the taking was wrongful as against the plaintiff, and he establishes his right to the property, his action cannot be defeated by the failure to make a prior demand, such failure not going to the right of action. This was so held by this court in Trudo v. Anderson, 10 Mich. 357, 369, 370.

The judgment of the Circuit Court must be affiimed, with costs. _ ■'

The other Justices concurred.