author: Montgomery, J.

text:
    JOHNSON v. CITY OF MARQUETTE.
    1. Highways and Streets — Defective Highways — Injuries to Travelers — Actions—Pleading—Variance.
    In an action against a city for wrongful death caused by a runaway team, a declaration counting upon the team being frightened at a defective railway crossing is not variant from proof that they were frightened by noise at a furnace before they came to the crossing, where it appears that they were also frightened at the crossing and that the previous fright had not resulted in the driver losing control of them in such sense as to make their previous fright the proximate cause of the injury.

      2. Same — Snow and Ioe — Unnatural Accumulation — Negligence-Question for Jury.
    Whether an unnatural accumulation of snow and ice at a railroad crossing, occasioned by shoveling from the railroad track so as to produce a hump on either side of the track, was an actionable defect in the highway for which the city was liable, held, under the evidence, to be a question for the jury.
    3. Same — Runaway Team — Control of Driver.
    A horse that merely shies or starts and for a moment has his own way is not for that reason to be considered beyond control.
    4. Same — Defective Highway — Frightened Horses — Proximate Cause of Injury.
    Whether the proximate cause of an injury inflicted by a runaway team was a defect in the highway which increased their fright and caused their driver to lose entire control of them, or a previous fright caused by the noise of a furnace near the highway, held, under the evidence, to be a question for the jury.
    Error to Marquette; Stone, J.
    Submitted May 13, 1908.
    (Docket No. 1.)
    Decided September 10, 1908.
    Case by Laughlin Johnson, administrator of the estate of Margaret M. Johnson, deceased, against the city of Marquette for the negligent killing of plaintiff’s intestate. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      George P. Brown (William P. Belden, of counsel), for appellant.

      C. F. Button (8. W. Shaull, of counsel), for appellee.

      As to effect upon right of recovery, of fact that horse was frightened when accident occurred on defective highway, see note to Schaeffer v. Jackson Township (Pa.), 18 L. R. A. 100, and note to City of Denver v. Utzler (Colo.), 8 L. R. A. (N. S.) 77.

   Montgomery, J.

The plaintiff’s intestate, while driving in a cutter in a street in defendant city, was overtaken by a team which had escaped from its driver, Herman Prebe, and, admittedly without fault or negligence on her part, was trampled upon and mortally injured. This action was brought to recover damages from the city, upon the claim that the cause of the fright to the team which resulted in the loss of control by the driver was a defective condition in the highway. The annexed plat will show the condition of the street. The crossing of the highway in question over the switch of the Marquette & Southeastern Railway is indicated. The injury to the deceased occurred at a point some 350 feet north of this crossing. A team drawing a sleigh conveying upon it a load of wood and driven by Herman Prebe was approaching this crossing from the south, and while upon the bridge, at a point some 200 feet or less from the crossing, an unusual noise at the Carp furnace startled the team, they commencing to dance, and the driver was not able to bring them down to a walk until the crossing of the railway by

dence tended to show that an unusual and unnatural accumulation of snow had been formed at this point by shoveling from the railroad tracks onto the highway, at either side and into the traveled part thereof, snow which had formed a very steep embankment, the exact depth of which is not shown, but which was obviously a dangerous embankment. The jury awarded a verdict to the plaintiff, and the defendant brings error. The errors relied upon are a variance between the case made and the case attempted to be made by the proofs; that the defect in the highway, if there was any defect, was not the proximate cause of the death of Mrs. Johnson, it being contended that the proximate cause was the fright of the horses occasioned by the steam escaping from the furnace, and the negligence of the driver, Herman Prebe, in the manner in which he was driving the horses and the manner in which he stood on the sleigh, and his failure to equip his horses with sleigh bells.

The question of whether there was a variance between the declaration and the proofs is so closely connected with that of whether the condition of the highway was the proximate cause of the injury, that the discussion of one necessarily involves a determination of the other. It is contended that the declaration counts upon the team being frightened at the railway crossing; whereas, it is said, they were frightened at the furnace. But if there was additional fright at the crossing, and if it should be determined that the previous fright had not resulted in the driver losing control of the team in such sense as to make their previous fright the proximate cause of the injury, we see no fault in alleging the fright which was the occasion of the injury as occurring at the railway crossing.

It is next contended that there was no negligence proven against the city of Marquette. This point was not very strongly pressed at the hearing. We do not think it open to serious question that there was evidence in this case that at this crossing there was an unnatural accumulation of snow and ice, occasioned by shoveling from the railroad track, so as to produce a hump on either side of the track of several inches in depth; thus increasing the height of the bank on either side. We think it was at least a question for the jury as to whether this left the highway in a condition reasonably safe and fit for travel. It is true that the natural accumulations of snow and ice and the natural results of traveling on the same do not of them[selves make a case of faulty highway which justifies a jury in finding a municipality in fault. But that is not this case, as the evidence was ample to show that snow was thrown and piled on this highway in such a manner as to make an unnatural hump or ridge on either side of the track.

Whether this condition of the highway was the proximate cause of the injury, presents the principal question in the case. The circuit judge left this question to the jury under instructions, the language of which is not complained of. It is contended, however, that there were no facts which warranted the submission of this question to the jury. The testimony upon this point was given by Herman Prebe, and was as follows:

“A. Well, I came along with my cord of wood, and coming onto the Carp bridge the horses, they were going, driving along gently and slowly. The horses were young, and gay, and dancing, and coming towards this end of the Carp bridge, right in front of the furnace, the horses got a little uneasy from the noise of the furnace. They were making some noise in the furnace. They seemed to take a stronger hold on the lines than what they had; and I was standing with my feet braced on the rack behind and holding my lines in my hands, trying to hold the horses down to a walk, and that is what I couldn’t do, the few steps from the furnace onto this crossing.
“Q. How fast were they going ?
"A. They were jumping up and down some; not drawing, but jumping up and down.
“Q. Sort of dancing, as horses will when they are excited ?
“A. Yes; they were dancing up and down, and me standing there then holding them in. I wanted to slow them down to a walk, and they wouldn’t walk them few steps. I didn’t get them to walk; and, coming onto this track, I got throwed off. * * *
“Q. How did you come to fall off the sleigh ? You say you were standing there braced, holding them in with the lines. How did you come to fall off ?
“A. Because the team was going on a little trot, and by this drop, and me falling off as soon as they got onto the track—
“ The Court: What threw you off ?
“A. Well; the drop of the track. * * * My lines dropped out of my hands after I fell; not before. I don’t remember them dropping out of my hands at all. They were in my hands when I started to fall. I did not let go of them before I fell. I have driven horses 10 or 15 years, and had had considerable experience in driving during that time. I am a farmer, and use horses in my business and haul wood to town more or less in the winter. I was driving that day in my usual manner. I was standing in the back of the box braced against the hind dashboard. I was not between the pile of wood and the dashboard. I was standing on the end of the bottom boards which stick out behind the dashboard. The sides of the box which come up one or two feet high also extend back beyond the hind end board. I didn’t think to brace against the sides. I stood behind, and had my knees against the end board and had the lines in my hands. I should think according to my experience I could handle the team as well there as if I were sitting on the load. I should judge the drop from the traveled part of the highway to the track would be from 18 inches to 2 feet. I could not tell whether the snow was packed down hard or not. I did not look at that. * * * When my horses ran away and threw me off at the crossing, they took the load of wood along with them; and, when I regained consciousness, it was standing in front of Rustenhoven’s saloon. I came into town afterwards with a load of wood. The wood was not spilled out at the crossing. I have had that team two years. It is a young team. They were not frightened at the furnace, but it is a young team, and always a little gay and dancing. They did not run away or anything like that. The noise of the furnace never affected my horses on any previous occasion so much as then. They had noticed the furnace before, but it is not every time the same noise came out of the furnace that it was then. I can’t remember of ever coming along there when there was such a noise that set the horses to dancing. This team ran away from me at home before this occasion. * * *
“Q. Were you doing all you could to stop your horses when they went into this crossing ?
“A. Yes, sir.
“Q. You are sure about that?
“A. Yes, sir.
“Q. Couldn’t you get them down to a walk before you got there ?
“A. No.
“Q. Do you say the furnace scared your team ?
“A. Yes, sir; that is where they got their hold on the lines.
“Q. Was it steam ?
“A. I couldn’t say; but it was a whistling noise from the furnace. What whistling they done or what they done I don’t know. They first commenced to dance when I was on the bridge.
UQ. Did you have the crossing in mind when you were trying to hold the horses down ?
“A. Yes, sir.
“Q. But you say they were jumping so you couldn’t get them down ?
“A. I couldn’t get them down to a walk getting onto the track.”

We have quoted this testimony at considerable length, as it bears upon the controlling question in the case. It must be conceded that, under our decisions, if it could be said that Prebe lost control of his horses and they were in fact running away and beyond control at the time they reached this crossing, the condition of the highway at that point could not be said to be the proximate cause of the injury. But we think the case should properly fall within the line of cases of which Langworthy v. Township of Green, 95 Mich. 93, is the leading case, in which it is held that a horse is not to be considered beyond control that merely shies or starts and for a moment has his own way. This case was followed in Gage v. Railroad Co., 105 Mich. 335, and has been recognized in numerous decisions, including the case of Bleil v. Railway Co., 98 Mich. 228, relied upon by counsel for plaintiff. We think it was open to the jury to say that, except for the condition of this highway, the driver had sufficient control of his team so that no serious consequences could have followed. It is true he was not able to bring them down to a walk in this short distance of less than 200 feet; but that absolute control of horses may be temporarily lost by the driver is an incident to travel upon the highway which public authorities are reasonably bound to take notice of. Such a movement of a team as would not be uncommon is not necessarily, a loss of control within the meaning of the authorities. See, on this point, Wharton on Negligence (2d Ed.), § 103; Olson v. City of Chippewa Falls, 71 Wis. 558; Simons v. Township of Casco, 105 Mich. 588. We think the facts are such as to justify the submission of this question to the jury.

Under the heading, “City Not Responsible for Consequential Damages,” it is contended that the city is not responsible for Prebe’s horses being frightened by the furnace company, and the city and Prebe are not joint wrongdoers. The question of whether there is sufficient causal connection between the defective highway and the injuries to the plaintiff’s intestate to justify the court in submitting this case to the jury has been sufficiently discussed in dealing with fhe question of proximate cause. If it is open to the jury to find that the driver would not have lost the control of the team but for the defect in the highway, then the connection between the wrong and the injury is sufficient to justify a recovery.

We discover no error in the rulings in the admission of testimony, and think there was a case for the jury.

The judgment is affirmed.

Grant, C. J., and Blair, Ostrander, and Hooker, JJ., concurred.


source: Caselaw Access Project

author: Hooker, J. Carpenter, J. Montgomery, J.

license: Public Domain

text:
    CITY OF KALAMAZOO v. CRAWFORD.
    1. Courts — Rules of Decision — Stare Decisis — Decision Based Upon Diverse Views.
    A judgment of this court, based on diverse views of the law held by the justices, who do not concur in the reasons and principles upon which it should be founded, is not binding as a precedent.
    2. Municipal Corporations — Public Improvements — Special Assessments — Power to Levy — Street Sprinkling.

      f The sprinkling of streets is of no substantial or permanent benefit to abutting property, and a law authorizing the assessment of the cost thereof against abutting property in proportion to benefits is unconstitutional. \ Montgomery, Blair, and Moore, JJ., dissenting. ^

    Certiorari to Kalamazoo; Adams, J.
    Submitted June 2, 1908.
    (Calendar No. 22,887.)
    Decided September 10, 1908.
    Mandamus by the city of Kalamazoo to compel Walter Crawford, city assessor, to prepare an assessment roll and levy a special assessment for benefits to be derived from street sprinkling. There was an order granting the writ, and respondent brings certiorari.
    Reversed.

      W. L. Fitzgerald, for relator.

      H. C. Jackson, for respondent.
   Hooker, J.

The charter of the city of Kalamazoo provides that the common council shall have the power to cause the public streets to be sprinkled where deemed necessary, and that the cost thereof may be paid by the city, or the same or any part thereof, as the council may by resolution or ordinance determine, be assessed on the property adjacent thereto and benefited thereby. The council having ordered an estimate of the cost of sprinkling a portion of Portage street, which estimate, after-wards made and filed, amounted to $958.54, the council by resolution directed the sprinkling of such portion of the street; that 10 per cent, of said sum be paid by the city from its general fund, and 90 per cent, be raised by special assessment upon the property abutting and fronting upon said street and benefited thereby, and that the assessor prepare an assessment roll and levy an assessment against the property so fronting and abutting, according to the benefits to be derived from such sprinkling. The assessor refused to do this, and upon application the circuit court issued a mandamus commanding compliance by the assessor with the direction of the council.

The learned circuit judge was of the opinion that the cause was distinguishable from that of Stevens v. City of Port Huron, 149 Mich. 586, in that, while the assessment in that case was based upon the frontage of the parcels ássessed, it is required to be based in the present case upon benefits to the respective parcels in proportion to value, as they shall be determined by the assessor, and that, as the plurality opinion in the case cited was signed by but four judges (Mr. Justice Carpenter having concurred upon the ground that the legislature had not conferred upon the council of Port Huron the authority to assess in proportion to foot frontage), it was not an authoritative adjudication of the point upon which the plurality opinion made the case turn, and, considering the question an open one, granted the writ. It is before us by certiorari.

The learned circuit judge was right in his conclusion that the determination in the case of Stevens v. City of Port Huron was not, beyond that case, decisive of any question there raised. It was therefore incumbent upon him to pass upon the questions raised as open ones. It has been held by many courts that a decision by a divided court does not settle the law for other cases. That was the opinion of Marshall, C. J., in Etting v. Bank of U. S., 11 Wheat. (U. S.) 78 (1826), and is held in the following cases: Bridge v. Johnson, 5 Wend. (N. Y.) 342 (1830); People v. Mayor, etc., of New York, 25 Wend. (N. Y.) 252 (1840); Morse v. Goold, 11 N. Y. 281 (1854); Hopkins v. McCann, 19 Ill. 115 (1857); Town of Durham v. Railroad Co., 113 N. C. 240 (1893); In re Griel's Estate, 171 Pa. 412 (1895); Hanifen v. Armitage, 117 Fed. 845 (1902).

In City of Dubuque v. Railroad, 39 Iowa, 56 (1874), it was said that, “A judgment of this court, based on diverse views of the law held by the judges, who do not concur in the reasons and principles upon which it should be founded, is not binding as a precedent,” a proposition so obvious that there is little excuse for questioning it. See, also, 7 Enc. Pl. & Pr. p. 44 et seq.; 26 Am. & Eng. Enc. Law (2d Ed.), pp. 165, 167; 24 Am. & Eng. Enc. Law (2d Ed.), p. 715, and note. Some recent cases may be found in 11 Cyc. p. 746. The rule was recognized in People v. Regents of the University, 18 Mich. 482, and Lyon v. Ingham Circuit Judge, 37 Mich. 378. The reasons given in the plurality opinion in the case of Stevens v. City of Port Huron necessarily cover this cause.

As we see no occasion for changing our views there expressed, we are of the opinion that the order of the circuit court should be reversed, and the writ of mandamus denied, with costs of both courts to the respondent.

Grant, C. J., and McAlvay, J., concurred with Hooker, J.

Carpenter, J.

Section 42, chap. 16, of the charter of the city of Kalamazoo, reads:

“ The city council shall have power to cause the public streets, highways, avenues and alleys in said city to be sprinkled whenever deemed necessary. The cost and expense thereof may be paid by the city, or the same or any part thereof, as the council may by resolution or ordinance determine, be assessed on the property adjacent thereto and benefited thereby. All assessments provided for in this section may be levied and collected as by this act provided for levying and collecting special assessments.” Act No. 648, Local Acts 1907.

Section 9 of chapter 23 — the chapter relating to special assessments — reads:

“If the assessment is directed to be according to benefits, the city assessor shall assess upon each lot such relative portion of the whole sum to be levied as shall be proportionate to the estimated benefit resulting to such lot from the improvement.” Act No. 475, Local Acts 1897.

Other provisions of this chapter make clear what is above indicated, that the assessment in such cases is made against the lot and the owner of the lot benefited by the proposed improvement. Early in 1908 the common council of said city decided to sprinkle that part of Portage street situated between the south line of Main street and the north line of Bryant street, for the period from May 1 to November 1, 1908. They ascertained that the estimated cost of this sprinkling was 1958.54. They determined that 10 per cent, of this amount should be paid by the city out of the general fund, and that the balance of said amount, 90 per cent, of the estimated cost, “beraised by special assessment upon the property abutting and fronting on said street between the points named and benefited thereby,” and directed the city assessor to levy an assessment upon said property ‘ ‘ according to the benefits to be derived by said sprinkling.” Respondent, said city assessor, declined to make said levy, upon the ground that the law authorizing the same is unconstitutional. This mandamus proceeding was instituted to compel him to make said levy. ■ It was heard in the circuit court, and the prayer of relator granted. Respondent appeals to this court.

Is the law in question constitutional ? A similar question was raised in Stevens v. City of Port Huron, 149 Mich. 536. There under a law granting authority to levy and collect special assessments to defray the expense of sprinkling streets, the city of Port Huron proceeded to make such an assessment upon the adjacent property, “in proportion to the number of feet fronting, abutting or touching on such street.” The case was decided by a divided court. Three of the justices were of the opinion that the law was constitutional, and that it gave authority to pursue the method there adopted. Four of the justices were of the opinion that the law was unconstitutional; and that for that reason the assessment was invalid. One of the justices, the writer of this opinion, concurred in holding that assessment invalid, not upon the ground that the law was unconstitutional, but upon the ground that it did not authorize an assessment in proportion to frontage. Holding this view, a consideration of the constitutional question was unnecessary, and upon that subject there was no occasion to express my views. If there is found in that opinion any expression which indicates these views — and I doubt if there is — counsel for respondent is quite right in saying that that expression is a mere dictum. Under these circumstances, we all agree that Stevens v. City of Port Huron is not controlling. It is not an authoritative determination that a law authorizing the city to assess the expense of sprinkling a street upon the adjacent property in proportion to benefits is constitutional or unconstitutional.

I think that substantially all the authorities agree as to the principle by which the constitutionality of such a law will be determined. Says Justice Cooley in his work on Taxation (3d Ed.), p. 1154:

“The justice of demanding the special contribution is supposed to be evident in the fact that the persons who are to make it, while they are made to bear the cost of a public work, are at the same time made to suffer no pecuniary loss thereby; their property being increased in value by the expenditure to an amount at least equal, to the sum they are required to pay.”

It is said in a note to that page, citing Adler v. Whitbeck, 44 Ohio St. 539:

“ The whole theory of a special assessment is based on the doctrine that the property against which it is levied derives some special benefit from the improvement.”

If, therefore, it can be said as a matter of law that the land will not be specially benefited by the improvement in question — that is, that its value will not be enhanced— there can be no special assessment, and the law authorizing a special assessment for such an improvement is unconstitutional and void. Tested by this principle, is the law in question constitutional ? Opposing answers have been given to this question by different courts. The authorities are collected in the opinions of Justices Hooker and Moore in the Stevens Case. The conflict is due, not to a difference respecting the determining principle, but apparently to different answers to this question: Does the sprinkling of a street increase the value of the abutting property ? The courts which sustain the constitutionality of the law answer this question, “Yes.” Those which decide that the law is unconstitutional answer it, “No.” The above authorities and sound reasoning justify our saying that the law in question is unconstitutional if it can be said, as a matter of law, that the sprinkling of Portage street, between May 1 and November 1, 1908, will not increase the value of the abutting property. We proceed to consider that question. It is manifest that if the owner of any such abutting property were to sell the same after November 1, 1908, or if he were to sell before, with the right of withholding possession until that date, he could obtain no increased price, because of the circumstance that the street was sprinkled from May to November. The circumstance that the street is sprinkled from May to November would, in such a case, be entirely immaterial. The utmost that can be said is that the sprinkling increases the value of the property during the street sprinkling period. During that period it contributes to the comfort, and perhaps to'the health, of the occupant of the property, but it does not benefit any other person interested therein.

It is said that sprinkling the street increases the rental value of the adjacent land, and that therefore it increases the value of the land. Is this true ? Sprinkling a street increases the rental value of abutting land — if it increases it at all — during the street sprinkling period, and no longer. The circumstance that Portage street was sprinkled during the summer season of 1908 will not enhance the rental value of property abutting thereon during the season of 1909. In so far as rental values for the year 1909 will be affected by the sprinkling of Portage street, it will be the sprinkling for 1909, and not for 1908. The circumstance that the street was sprinkled in 1908 affords no justification for saying that it will be sprinkled in 1909. Whether it is sprinkled in 1909 depends upon what the municipal council may in 1909 decide to do. It may be said, then, of the claim of enhanced rental value, that it merely affords another illustration of the benefits which result from street sprinkling to the occupant of the adjacent property, and that on analysis it only serves to strengthen the statement heretofore made that all the benefits: rom street sprinkling accrue to the advantage of such occuj ant, and none to the owner of the land. It might be very just, in such case, to tax said occupant to pay for the benefit he receives, but by the law under consideration the tax is not assessed against the occupant. It is assessed upon the land, and thus it is assessed upon the owner of the land, and upon the owner of every interest in the land. The interest of a mortgagee may in such cases be taken in payment of the tax. This law compels the land — the owner of the land— to pay for the benefits accruing to the occupier. Is such a law constitutional ? Is it lawful to compel the owner of land to pay for the temporary benefits received by the occupant of the land ? The owner and the occupant may be two different persons. The occupant may be a tenant. In that case he receives the entire benefit resulting from sprinkling the street. It would violate sound principles of constitutional law to hold that in such case the owner— the landlord — should pay for those benefits, or that his property might be taken to pay for them. It would be equally lawful to compel the landlord to pay for his tenant’s medicines or groceries. Again, though the owner may be occupying the land, his title may be subject to a mortgage or other valid lien. In that case the holder of the mortgage or other lien will receive no benefit from sprinkling the street, and yet his interest will be taken to pay for the benefits accruing to the mortgagor in possession. This would take the private property of one person for the benefit of another, contrary to the provision of the Constitution that “ no person shall be deprived of property without due process of law.”

The law under consideration gives to municipal officers no authority to exempt from special assessment property occupied by tenants, or property occupied by the owners, whose title is subject to mortgages or other liens. On the contrary, the language of the law and its entire scheme forbids such exemptions. To make that law constitutional, it must be construed to confer authority upon municipal officers to make special assessments against so much of the abutting property as may be in the possession of the one having the entire title, and at the same time to exempt therefrom other property whose occupants are equally benefited by the sprinkling of said street. The language of the statute permits no such construction. To so construe it would be to rewrite it, to make a new law — a law abounding with unfairness and unjust discrimination. This the courts cannot do. But I do not place my decision that the law is unconstitutional solely upon the ground that municipal officers are not authorized to exempt from special assessments land occupied by a tenant, or by others who have not the entire title. This might invite the legislature to pass a law containing provisions authorizing such exemption. My present convictions require me to say that such a law, too, would be unconstitutional. Nor in saying this am I violating the rule that the courts should not express an opinion upon the constitutionality of a law unless essential to its decision. If I did not say it, the argument might be advanced that the law under consideration might be given a constitutional application, in this case, upon the presumption that all the property proposed to be assessed along Portage street is in the occupancy of persons having the entire title thereto. I proceed, therefore, to state my reasons for believing that a law assessing against the owner of the entire title, and occupying his land for benefits resulting from sprinkling the street adjacent to his property, is unconstitutional. I have shown in this opinion that the benefits resulting from street sprinkling are temporary in their nature, and accrue solely to the occupant. The owner, if not in possession, obtains no benefit. If in possession, he obtains no other or greater benefits than does a tenant in possession. In other words, if those benefits accrue to the owner, they do so, not because he is the owner, but because he happens to be the occupant. If street sprinkling is not a benefit to the land when ownership and right of occupancy are in two different persons — and I submit that this opinion shows that it is not — then it is not a benefit when ownership and occupancy are united in one person. The benefit in each case accrues to the individual occupying the land; it does not accrue to the land itself. To assess one’s land for such benefit because he happens to be the owner as well as occupant, and to exempt from assessment his neighbor’s, who is not the owner — and it will rarely happen that some of the land on a street sprinkled by a municipality is not occupied by a tenant— would be an unjust, and, in my judgment, unconstitutional, discrimination. By the special assessment he would be compelled to pay for the benefits he receives from the street sprinkling, and he would also be compelled, as a general taxpayer, to contribute toward the payment of the benefit his neighbor, the tenant, receives. I think this would deny him the equal protection of the laws, contrary to the Fourteenth Amendment of the United States Constitution. Moreover, I may add, at the risk of saying more than it is necessary to say, that the theory that the temporarily increased convenience and comfort of the occupant resulting from sprinkling the street is accompanied by a corresponding increase in the rental value of the land, even in case it is occupied by the owner of the entire title — and the constitutionality of the law must rest upon that theory — is, in my judgment, unsound. Reflection leads me to deny that this increased convenience and comfort has any recognized money value. No doubt many people would regard it as a convenience cheap at any price. Others would say it was a luxury for which they cared nothing, or which they could not afford to buy. The law must say that it has no salable value, or, at least, that its salable value bears no proportion to its cost. It cannot, therefore, be said that money spent in paying for sprinkling a street can be added to the rental value of abutting land.

I conclude that the law in question is unconstitutional, and that the order made by the circuit court must be reversed.

Ostrander, J., concurred with Carpenter, J.

Montgomery, J.

(dissenting). The question presented in this case is somewhat narrower than was that in Stevens v. City of Port Huron, 149 Mich. 536. In the present case there appears to be no doubt that authority was conferred, by the charter of the city, to impose the tax for sprinkling, and it appears also that the tax was imposed upon the property specially benefited in proportion to the benefits received. In my view, the authority for this is shown in the opinion of Mr. Justice Moore in Stevens v. City of Port Huron, supra, and the cases there cited.

The order should be affirmed.

Blair and Moore, JJ., concurred with Montgomery, J.


author: Hooker, J.

text:
    RIDGEWAY v. CITY OF ESCANABA.
    1. Municipal Corporations — Personal Injuries — Notice of Claim — Statute—Liberal Construction.
    Statutes requiring notice to municipal corporations of olaims for personal injuries are liberally construed, and relief is not denied when, by any reasonable interpretation, the notice can be said to be in substantial compliance with the statute, or the defect in the notice has been waived by the council.
    2. Same — Defective Notice — Waiver of Defects.
    Where a notice to a city of a claim for a personal injury, filed pursuant to section 3173, 1 Comp. Laws, appears to be sufficient upon its face, there is no waiver of substantial defects therein, where it does not appear that the members of the council were aware of the defects, and the council never took action upon the merits of the claim, and all that was done was to appoint a committee to consult with the city attorney and investigate.
    3. Same — Waiver—Definition.
    To “waive” means to relinquish intentionally a known right, or intentionally to do an act inconsistent .with claiming it.
    4. Same — Notice of Injury — Description of Injury — Sufficiency.
    A notice to a city of a claim for a personal injury, filed pursuant to section 3173, 1 Comp. Laws, which describes the injury as a “ dislocated and broken right shoulder blade ” is not sufficient upon which to base a recovery on proof of a broken and dislocated collar bone upon the left side.
    ■5. Same — Statute—Construction—Statins Extent of Injury.
    The statute requiring the notice to state the “extent” of the injury is not satisfied by a notice which merely states the amount of the claim, but requires a substantially correct description of the injury suffered, disclosing its extent.
    Error to Delta; Stone, J.
    Submitted June 3, 1908.
    (Docket No. 7.)
    Decided September 10, 1908.
    Case by John Ridgeway against the city of Escanaba for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      A. H. Byall, for appellant.

      I. C. Jennings, for appellee.
   Hooker, J.

The trial judge directed a verdict for the defendant in this cause, and the plaintiff has appealed.

The action was for negligence, plaintiff alleging that he suffered an injury through a fall upon defendant’s defective sidewalk. The case was made to turn on the question of a variance between the pleading and the statutory notice of the injury, as given by plaintiff, and the injury proved. In other words, the trial judge was of the opinion that the proof showed that the plaintiff had not given a notice which set forth substantially the extent of the injury actually received, and that, although he had given a notice, it was a “wrong notice, wrong in fact.” The plaintiff’s notice stated that his injuries consisted of a dislocated and broken right shoulder blade, his declaration counted upon a broken and dislocated right shoulder, his testimony proved a broken and dislocated left collar bone. The statute (1 Comp. Laws, § 3173) provides:

“No city subject to the provisions of this act shall be liable in damages sustained by any person in such city, either to his person or property by reason of any defective street, sidewalk, cross-walk, or public highway, or by reason of any obstruction, ice, snow or other incumbrance upon such street, sidewalk, cross-walk or public highway situated in such city, unless such person shall serve, or cause to be served, within sixty days after such injury shall have occurred, a notice in writing upon the clerk or the deputy clerk of such city, which notice shall set forth substantially the time when and place where such injury took place, the manner in which it occurred, and the extent of such injury, as far as the same has become known, and that the person receiving such injury intends to hold such city liable for such damages as may have been sustained by him.”

It is admitted that the notice was seasonably filed with the city clerk. Upon its face it sufficiently stated the extent of the injury described in it. It was, upon its face, sufficient to admit of proof of such an injury as it described, but it is claimed that “a dislocated and broken shoulder blade or shoulder ” is not a proper description of a dislocated and broken collar bone, and that such injury to the left side of the person is not within the description “right’’side. The accident occurred on May 4th. The notice was dated May 18th, and was brought to the attention of the common council as early as May 21st, for on that day the council referred it to the city attorney. This action was commenced August 2d. The city attorney testified that, after he received the notice, he talked with the street commissioner and other officers, and was informed by them that the walk was in good condition, and upon the strength of this information he informed counsel for plaintiff that the walk was in good condition. He testified, also, that he was informed by an alderman and others that plaintiff was at work and had his left arm in a sling or tied up, and complained that it was hurt, and that he did nothing more until summer time, when a committee was appointed to confer with him, and he advised that the case be not settled, which advice was based on what he had heard.

We have been inclined to favor a liberal construction of statutes requiring notice of claims, and have not denied relief when by any reasonable interpretation the notice could be said to be in substantial compliance with the statute, or where the defect had been waived by the council. Several of the cases arose on notices required by city charters of varying provisions. Thus in Germaine v. City of Muskegon, 105 Mich. 216, where a charter provided “that if the claim is presented without an affidavit and rejected for that reason, it shall be a sufficient defense in any court to any action or proceeding for the collection of the claim,” it was held that the defect was waived “if the claim was not rejected for that reason.”

In Wright v. Village of Portland, 118 Mich. 23, the authority of a council to waive a defect in a notice was asserted. A similar holding will be found in Griswold v. City of Ludington, 116 Mich. 401, where it was held that where an unverified claim was received by the council without objection, and kept under advisement until after the time for filing a verified claim had expired, during which period it was carrying on negotiations with claimant, there was evidence tending to show a waiver, and it was a case for a jury. See Clark v. Village of Davison, 118 Mich. 420; Lindley v. City of Detroit, 131 Mich. 8. In the last case cited we indicate a doubt of the authority of a city attorney to waive a defect in the notice. In the present case there was no waiver by the council, for there is nothing to show that the members were aware of the defect in the notice, and, moreover, it never took action upon the merit of the claim. All that was done was to appoint a committee to consult with the city attorney and investigate the claim, and it is not certain that this was within the period of 60 days within which notice was necessary. In this connection the language used by Grant, J.,in Chamberlain v. City of Saginaw, 135 Mich. 64, is apropos:

“ In the case now before use the notice was void. The council took no action whatever, except to receive the communication and refer it to a committee. There was no waiver, unless it was the duty of the council to notify the claimant that such notice was void, point out wherein it was void, and give her an opportunity to present a valid one. Public rights are not, in my judgment, to be thus waived. The liability of municipal corporations for defective streets and sidewalks is purely statutory, and he who attempts to fasten that liability upon the municipality is bound to strictly comply with the statute. A waiver can only be predicated upon some duty of the corporation to act. No such duty is imposed by the statute, expressly or impliedly. After giving the notice both parties may rest, if they choose, and as they did in this case, without further action until the claimant sees fit to plant his suit. We are cited to no case and I find none, which holds that nonaction of a common council constitutes a waiver of the proceedings necessary in order to fasten liability upon the municipality. To waive means, in law, ‘ to relinquish intentionally a known right, or intentionally to do an act inconsistent with claiming it.’ In this case the common council had done nothing whatever to indicate to the plaintiff that it considered her notice valid, or that it intended to waive any notice.”

Neither was there any evidence of waiver by the city attorney, if he could waive a defect in any case, which we need not decide. There is nothing in this case to indicate a waiver by the council.

This was not a notice that was defective upon its face, and the case must turn here, as it did in the trial court, upon the question of its containing a substantial statement of the extent of the injury so far as it was known. It certainly misdescribes the injury. It states an injury that had not been suffered. There was no broken shoulder blade, nor was the shoulder dislocated, and there was no. injury whatever to his right arm, shoulder, shoulder blade, or clavicle, the entire description of the injury must be discarded, and that would leave the notice wanting in any description of the injury actually suffered. It would be no more definite than the one held insufficient in the case of Tattan v. City of Detroit, 128 Mich. 650. In so far as there might be any difference, it is misleading, by describing injuries not suffered. Barribeau v. City of Detroit, 147 Mich. 125.

Counsel urge that no description of the injury was necessary under the language of the statute, which he says mentions the extent of the injury, but not the nature, and he argues that this refers only to the amount of his claim. We do not so understand the statute, unless it is to be practically emasculated by construction. We must say that the legislature intended to give to defendants in such cases some protection against unjust raids upon their treasuries by unscrupulous prosecution of trumped-up, exaggerated, and stale claims, by requiring a claimant to give definite information to the city or village against whom it is asserted, at a time when the matter is fresh, conditions . unchanged, and witnesses thereto and to the accident within reach. It is a just law, necessary to the protection of the taxpayer, who bears the burden of unjust judgments. It requires only ordinary knowledge and diligence on the part of the injured and his counsel, and there is no reason for relieving them from the requirements of this statute that would not be applicable to any other statute of limitation. We have never held a notice ineffective when it could reasonably be said to be a substantial compliance with the law, but we think that cannot be said of this notice.

We find no error, and the judgment is affirmed.

Grant, C. J., and Blair, Montgomery, and Ostrander, JJ., concurred.


author: Grant, C. J.

text:
    PIERRE VIAUS MAPLE CO. v. DAIRY & FOOD COMMISSIONER.

    1. Food — Maple Syrup —Adulteration —Statutes —Construction.
    Section 5007, 2 Comp. Laws, regulating the manufacture and sale of maple sugar, etc., is complete in itself and covers the entire subject, and it, rather than the “ pure food law ” (Act No. 193, Pub. Acts 1895), governs the manufacture and sale of a mixture of maple and cane syrups under the name of “Pure Canadian Maple Syrup and Cane Syrup;” whence the sale of such mixture without a label stating the percentage of each of such syrups contained therein, as prescribed by the maple sugar statute, is unlawful.

      2. Same — Adulteration—What Constitutes.
    The word “adulteration,” as used in the maple sugar statute (section 5007, 2 Comp. Laws), means the mixture of any foreign substance, wholesome or unwholesome, with maple sugar.
    Appeal from Delta;' Stone, J.
    Submitted June 3, 1908.
    (Docket No. 8.)
    Decided September 10, 1908.
    Bill by the Pierre Yiaus Maple Company to enjoin Arthur C. Bird, dairy and food commissioner, and another, from interfering with the sale of certain foods. From a decree overruling a demurrer to the bill, defendants appeal.
    Reversed, and bill dismissed.

      Arthur H. Ryall (Thomas E. Lannen, of counsel), for complainant.

      John E. Bird, Attorney General, and George S. Law, Assistant Attorney General, for defendants.
    Complainant is the manufacturer of a brand of syrup known as the “Pierre Yiaus Pure Canadian Maple Syrup and Cane Syrup;” the trade-mark being the letters “P. V.” The bill alleges that the Canadian pure maple syrup exceeds the amount of cane syrup. It sets forth efforts made with the pure food commission to agree upon a label which shall comply with the law, the failure of these negotiations, the representations made to the trade by the defendants that the sale of this syrup is illegal, and the injurious effect upon the complainant’s business, and prays that the defendants be restrained from in any manner interfering with its business. To this bill of complaint the defendants demurred, upon the ground that the syrups mentioned in said bill of complaint are not labeled as required by the laws of this State. The demurrer was overruled, and the defendants have appealed.

       Rehearing denied November 2, 1908.

   Grant, C. J.

(after stating the facts). It is urged by the attorney general that the sale of this mixture is in violation of section 5007, 2 Comp. Laws, reading as follows:

That it shall be unlawful for any person, dealer, firm, manufacturer or corporation to manufacture and sell, or offer for sale, any maple sugar, maple molasses or maple syrup that is in anywise adulterated with common sugar, beet sugar, glucose or any other foreign substance without distinctly marking, stamping or labeling the article or the package containing the same with the true and appropriate name of such article and the percentage in which common sugar, beet sugar, glucose or any other foreign substance enters into the composition of the same.”

It is urged by the complainant that the case falls within Act No. 193, Pub. Acts 1895, known as the “Pure Food Law,” and entitled:

“An act to prohibit and prevent adulteration, fraud and deception in the manufacture and sale of articles of food and drink.”

Section 1 (2 Comp. Laws, § 5010) of the act prohibits the sale or having in possession with intent to sell any article of food which is adulterated within the meaning of the act. Section 2 (2 Comp. Laws, § 5011) defines the term “food” to include all articles used for food or drink. Section 3 (2 Comp. Laws, § 5012) states what articles shall be deemed to be adulterated. The section closes with the following proviso:

Provided, further, That the provisions of this act shall not apply to mixtures or compounds recognized as ordinary articles or ingredients of articles of food, if each and every package sold or offered for sale bear the name and address of the manufacturer and be distinctly labeled under its own distinctive name, and in a manner so as to plainly and correctly show that it is a mixture or compound, and is not in violation with definitions fourth and seventh of this section.”

The court held that this syrup came within the pure food law (Act No. 193), and not under the act prohibiting the adulteration of maple sugar, etc., and that it came within the proviso above quoted.

We think the court was in error. The act in regard to the manufacture and sale of maple sugar is complete in itself, and covers the entire subject. It was intended to prohibit the manufacture and sale of maple sugar under any name without labeling the product with the true and appropriate name, stating thereon the percentage of any other ingredient used in its manufacture. The title of the act is, “An act to prohibit the adulteration of maple sugar, maple molasses and maple syrup.” The word “ adulteration” in this statute means the mixture of any foreign substance, wholesome or unwholesome, with maple sugar. The evident purpose of the statute is to compel all persons manufacturing or selling maple sugar to inform the public, not only of what the product is composed, but the proportions of each article used in the manufacture.

Decree reversed, and bill dismissed, with costs of both courts.

Blair, Montgomery, Ostrander, and Hooker, JJ., concurred.


author: Blair, J.

text:
    Le ROY v. COLLINS.
    1. Dedication — Acceptance—Evidence.
    The action of the common council of a city in declaring certain alleys vacated is sufficient to negative and repudiate any acceptance of the dedication thereof tendered by the plat.
    3. Same — Effect—Rights of Owners of the Fee.
    Prior to the conveyance of any lots abutting upon a platted alley the owners of the fee of the lands on both sides thereof have complete power of disposition of the alley.
    8. Highways and Streets — Public Alley — Obstruction—Injunction — Evidence.
    On a bill to enjoin the closing of an alley, evidence examined, and held, conclusive that the land in question was not a public alley.
    4. Same — Injunction—Pleading—Theory of Bill.
    On a bill by abutting owners against the owner of the opposite lots to restrain interference with complainants’ right of passage through an alley, complainants claimed the right to use the alley to its entire width as shown by the plat (1) because it was a public alley; or (3) if private, because they had a prescriptive right to use it; but the evidence failed to sustain their first contention, and, as to the second, failed to show that they had a prescriptive right to use that portion of the alley to which defendant had title. Meld, that complainants were entitled to no relief against interference with that portion of the alley as to which defendant had no title, since their bill was not filed, nor the case heard, upon that theory.
    Appeal from Kent; Wolcott, J.
    Submitted June 3, 1908.
    (Docket No. 9.)
    Decided September 10, 1908.
    Bill by Simeon Le Roy and another against Joel Collins to enjoin the closing of an alley. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      A. G. 'Hindman, for complainants.

      William E. Grove, for defendant.
   Blair, J.

We quote from the brief of complainants and appellants the following statement of facts:

“Complainants own lot fourteen (14) and defendant and wife own fractional lots one (1), four (4), five (5), eight (8), nine (9), twelve (12), thirteen (13), and sixteen (16), and lots eighteen (18) and nineteen (19), all in block two (2), Coit & Co’s addition to Grand Rapids, Mich. According to the recorded plat, an alley sixteen (16) feet wide extends south from Hastings street (the north line of this block) four hundred and forty-five (445) feet along and past the rear end of complainants’ lot, and in front of defendant’s fractional lots 1, 4, 5, 8, 9,12,13, and 16, ending at the rear of defendant’s lot 19 in a cross-alley. Lots 18 and 19 face on Bridge street, and the remainder of defendant’s lots face to the west on the east side of this 16-foot alley. Complainants’ lot (14) faces the west on the east side of Lafayette street, and has a rear frontage on this alley. On the rear of the lot and on the line of the alley complainants have a barn with doors opening into the alley. On that part of the line between the lot and the alley not occupied by the barn is a fence in which is a gate used to pass to and fro from the rear of said lot into and through the alley. Just immediately before this suit was commenced, defendant planted a row of small elm shade trees about two feet east of the west line of the alley, one of which trees defendant planted opposite the door in complainants’ barn, and another opposite the middle of complainants’ gate. Defendant also commenced building a fence along the east side of said row of trees. These trees and this fence would shut off complainants from the use of said alley in connection with their said lot. This bill was filed and a temporary injunction granted restraining defendant from planting the trees and building the fence so as to cut off or interfere with complainants’ right in passing in and out of their said lot through the alley in the rear. Upon the hearing the circuit judge entered a decree for defendant dismissing the bill and dissolving the injunction upon the theory that the alley was the private property of defendant and wife, and that complainants had no right to use it. From this decree complainants appeal.”

The plat of Coit & Co.’s addition by the four original proprietors, D. W. Coit, Josiah Coit, George K. Johnson, and John Clancy, is dated June 14, 1858, was recorded in liber 6 of deeds, and, owing to a fire which destroyed the records, re-recorded June 10, 1861. As the deed from Johnson and wife to Tryon, hereinafter referred to, dated December 30, 1856, was recorded in liber 7 of deeds, it is reasonable to suppose that the plat recorded in ‘ ‘ Liber 6 of Deeds, pages 306, 307, 308, 309,” was executed and recorded prior to December 30, 1856. The plat contained, among other things, the following:

Blocks 1, 2, 3, and 4 are laid out with alleys, to wit: * * * That the alley of 16 feet wide in block 2 is parallel to Lafayette street and 124 feet therefrom and is 445 feet long, and connects with a 10-foot alley which is 188 feet long on the south line of lots 15 and 16.”

On December 30, 1856, George K. Johnson and wife conveyed to John C. Tryon, by warranty deed, the undivided one-quarter of the east one-half of the southwest one-quarter, section 19-7-11, and other lands, including complainants’ lot 14. By deed dated April 23, 1857, and recorded January 28, 1859, Daniel W. Coit and wife and Josiah Coit and wife deeded to John Clancy the undivided one-half of lot 14 and other lots. By deed dated May 14, 1857, John C. Tryon and wife deeded to1 John Clancy the undivided one-quarter of lot 14 and other lots. This deed was recorded January 28, 1859. From John Clancy the title to lot 14 came through intermediate grants to complainants ; the first deed fx’om Clancy being in 1870 and complainants acquiring their title in 1906. All of these conveyances of lot 14 were made by lot number, and referred to the recorded plat. December 6, 1867, George K. Johnson and wife deeded lots 18 and 19, of block 2, to defendant Collins. August 7,1868, Josiah Coit conveyed his interest in lots 1, 4, 8, 9,12,13, and 16 and also other lots in other blocks to¡Daniel W. Coit; “ this deed being given in pursuance of a partition of this and other property heretofore held in common by the parties hereto.” June 4,1873, Daniel W. Coit and wife, by Charles W. Coit, attorney, conveyed to defendant’s wife, Margaret Collins, “all of those certain pieces or parcels of land situate, lying and being in the city of Grand Rapids, county of Kent, State of Michigan,' and more particularly known and described as fractional lots 8, 9, 12, 13, and 16 of block 2 of Coit & Co.’s addition to the city of Grand Rapids.” Defendant testified that, at the time he purchased' these lots as agent for his wife, Mr. Coit—

“ Described the property as it is described in that deed, and said that he could not very well describe it any other way, but further said that that alley was vacated, and he pointed to this board fence that has been mentioned by Mr. Le Roy, and which is very clear in my own mind, and the fence east, on the west and on the east. There was a board fence there where the wall is now on the east, posts and boards running lengthways, also on the west side running clear through from this cross-alley that has-been mentioned, from the cross-alley through to Hastings street; or as far north as these lots went, that is whát Mr. Coit and I were talking about, .and he stated that that alley was vacated, but he sold me all the land between those two fences. He said he was selling me all of the land between those two fences and that that fence was the west boundary line of the land that he was selling to me. That is what he told me right on the ground.”

Defendant purchased lots 1 and 4 in September, 1885, receiving a warranty deed describing the lots as “fractional lots 1 and 4 of block 2, Coit & Co.’s addition.” At the same time he received a quitclaim deed describing the land conveyed, as follows:

“All those certain pieces or parcels of land situate in the city of Grand Rapids, Kent county, Mich., more particularly described as the east half of the vacated alley joining on the west fractional lots 1 and 4 of block. 2 óf Coit & Co.’s addition to the depth of 110 feet south of Hastings street, and the west half of the same alley to the depth of 70 feet south from the south line of Hastings street.”

In October, 1899, defendant purchased the city’s tax title to lot 5. The deputy city clerk testified with reference to certain vacation proceedings:

“ This is book B, a record of the common council proceedings. On page 349 I cannot say that I find any proceedings recorded with reference to alleys in block 3, Coit & Co.’s addition. I could say something about Coit & Co.’s addition. This has reference to a petition. On that page I find, under the head of ‘Petitions,’ the following:
‘3. O. Tryon and 12 others, relative to vacation of certain alleys in Goit & Co.’s addition. Accepted, and referred to the committee of streets.’ * * *
“I have made diligent search in the office for the petition, and have not been able to find it. I also find on page 383 in the same book the following:
“ ‘The committee to whom was referred the petition of J. O. Tryon and others relative to the vacation of certain alleys in Coit & Co.’s addition reported recommended that the prayer of the petitioners be granted. Report accepted, and, on motion, the alleys named in said petition were declared vacated.
“ ‘Yeas: Aldermen Avery, Bowen, Clancy, Hilton, Luoe, and McConnell — 6.
“ ‘Nays: None.’
“This is under date February 19, 1859. The entry on page 349 is under date December 3, 1858.
Mr. Grove: I offer in evidence the charter of the city of Grand Rapids for 1857, which was in force at the time the alley was vacated. Title 6, § 1, reads as follows:
“ ‘The common council of the city of Grand Rapids shall have full power to lay out, establish, open, extend, widen, alter, straighten, close, fill in or grade, vacate or abolish any highway, street, avenue, lane, alley, public grounds or spaces in said city when they deem it a necessary public improvement, and private property may be taken therefor, but the necessity for using such property, the just compensation to be made for the same, and the damages arising to any person for the making of such improvements, shall be ascertained by a jury of 12 freeholders residing in said city.’ ”

The trial judge held:

“It sufficiently appears by the evidence that this was a vacated alley the title to which was acquired by Mr. and Mrs. Collins, and that it was not and did not become a public alley. * * * If this was a private alley the title to which was in the defendant and his wife, which the court finds, there remains the inquiry whether the character of the use and enjoyment of the alley by the complainants and others was such as to give a prescriptive right. * * * At no time does it appear to have been used in opposition or hostility to Mr. Collins’ claims. Such use, therefore, however long continued, must be treated as permissive and not adverse.”

Whether or not the evidence supports the finding that the alley in question was legally vacated, the action of the common council was sufficient to negative and repudiate any acceptance of the dedication tendered by the plat. Plumer v. Johnston, 63 Mich. 165. And prior to conveyances by them of lots abutting on the alley the owners of the fee of the lands on both sides had a complete power of disposition of the alley. Comstock v. Sharp, 106 Mich. 176.

On the hypothesis that the evidence supports the finding of a vacation, John Clancy became vested with a half interest in the alley, since he had acquired such interest prior to the actual vacation. Defendant and his wife never having acquired the Clancy interest in this alley but only the half interest of the Coits, it seems plain that they never acquired the record title in the whole alley, and that the abutting owners of the lots on the west side of the alley acquired the other half interest.

Complainants’ bill of complaint, however, is predicated upon the theory, as stated therein:

“(2) That said Collins Place is a miniature public street or alley and a public highway and a public passageway about 20 feet in width extending through said block No. 2, from Hastings street on the north to Bridge street on the south and has been so used by the public generally, and any and all who cared to pass that way for any and all kinds of traffic for, to wit, 20 years and upwards last past and is still now being so used.
“(3) At the east end of lot 14 complainants have a bam occupying some 20 feet or 25 feet of the north portion of the east end thereof, and the remainder extending from said barn along the east end thereof and along said Collins Place, and to the south line of said lot 14 in the southeast corner thereof is a high board fence in which there is a gateway, and for passage to and from said lot 14 into and through said Collins Place.
“(4) Said gateway and gate have been maintained and used by complainants in passing to and from said lot through said Collins Place continually since their ownership of said property, and the same has been so maintained and used by complainants’ grantors and those holding and owning said property continually for the past 20 years, all claiming a good and perfect right to so use said gateway and said Collins Place. That said user of said Collins Place has been open, notorious, and adverse to any and all claim of a contrary right in said defendant, and with a claim on the part of the said users of an ownership of the right to so do.”

In the brief it is said:

“The question involved in this case is the right of complainants to use this 16-foot platted alley. Complainants claim (1) that this is a public alley; (2) that, if private, they have gained the right to the use of it by open, notorious, continuous, and adverse user under claim of right for more than the statutory period.”

We deem the evidence conclusive that this was not a public alley, and, considering the case as stated by the bill of complaint, we might stop here. But since the circuit judge considered and determined the second claim above stated, we will do likewise. This claim is based upon the hypothesis that the ownership of the alley, originally in defendant and his wife, has, by adverse user, become subjected to an easement in favor of the complainants which they originally did not possess. It is to be noted, also, that the bill of complaint and the brief proceed upon the theory that complainants’ rights attach to the entire alley.

Upon the theory of title in the defendant and his wife originally, we concur in the opinion of the circuit judge that, as against such title, the complainants have not sufficiently shown the acquisition of an easement in the entire alley by adverse user. Manifestly, the defendant’s wife should have been made a party to the suit, but, as the circuit court did not make this defect a basis of his decision, we have not considered it. Our determination of this case is based upon the case as presented by the pleadings and submitted to and considered by the circuit court.

The decree is affirmed, with costs.

Grant, C. J., and Montgomery, Ostrander, and Hooker, JJ., concurred.