author: D. E. Holbrook, J.

text:
    KETHMAN v OCEOLA TOWNSHIP
    Docket No. 77-4299.
    Submitted December 5, 1978, at Lansing.
    Decided January 16, 1979.
    Leave to appeal denied, 406 Mich 960.
    Plaintiff, Robert C. Kethman, purchased a 90-acre parcel of land in Oceola Township, Livingston County, on a land contract. This parcel of land would be landlocked were it not for a 33-foot wide access easement appurtenant to the property. The township enacted an ordinance on Januray 6, 1972, which requires that all private roads serving access to more than one parcel of real estate be 66 feet wide. Seeking to divide and develop the property for sale, plaintiff petitioned the township for a variance from the above requirement.
    The township’s board of zoning appeals granted the variance at a hearing on June 15, 1972. Nearly a year later, the township zoning administrator notified the plaintiff that the township considered the "land use permit” to be void and of no effect due to the failure of the board of appeals to keep minutes of the meeting at which it was granted. The plaintiff’s application fee was returned and he was invited to reapply for a variance. At the time that the plaintiff was notified of the revocation of the variance, he had commenced construction of a road bed on his right-of-way.
    The plaintiff then appeared before the township’s board of zoning appeals for a rehearing on the variance. On this occasion his "land use permit” was declared null and void and an earlier stop work order, which had been placed on plaintiff’s property and later lifted, was reinstated.
    The plaintiff then commenced an action in Livingston Circuit Court seeking an order enjoining the township from further interference with the development of plaintiff’s property and seeking monetary damages from the defendant, alleging that actions taken to enforce the ordinance constituted an unconstitutional "taking” of private property. The court, Paul R. Mahinske, J., rendered judgment for the plaintiff, reinstating the variance and awarding damages, apparently on a contract theory. The defendant township appeals, alleging 1) that the trial court erred in holding the original variance to be valid, 2) that any rights obtained by the plaintiff at the original hearing were rendered null and void by the plaintiffs misrepresentations at that hearing, and 3) that the award of damages and the amount of damages awarded were improper. Held:

      References for Points in Headnotes

       82 Am Jur 2d, Zoning and Planning §§ 316, 358.

       82 Am Jur 2d, Zoning and Planning § 337.

       82 Am Jur 2d, Zoning and Planning § 317.

       82 Am Jur 2d, Zoning and Planning § 151.

       82 Am Jur 2d, Zoning and Planning § 21.

       82 Am Jur 2d, Zoning and Planning § 6.

      1. The failure of the defendant township’s board to keep an adequate record cannot be used by the defendant to render the plaintiffs variance null and void.
    2. The plaintiff offered evidence at trial that he had been required to present a "rough” sketch of his intended development only, not a precise description of his plans. The trial court’s conclusion that the plaintiff was not guilty of fraudulent misrepresentations in the original hearing was based on ample evidence and was not clearly erroneous and is binding on appeal.
    3. The township acted beyond its authority in ordering the reconsideration of the validity of the plaintiffs variance several months after the original hearing.
    4. There is no support in the record for the award of damages to the plaintiff. The revocation of the variance did not constitute a breach of contract and there is no evidence to support a conclusion that a taking of private property occurred.
    Affirmed in part and reversed in part.
    1. Zoning — Towns — Board of Appeals — Record of Proceeding — Variances.
    A township whose board of zoning appeals is responsible for maintaining the records of its own proceedings will not be heard to say later that a variance granted to a property owner is null and void because of the board’s own failure to keep an adequate record.
    2. Zoning — Towns — Board of Appeals — Hearings — Fraudulent Misrepresentation — Factual Determination — Appeal and Error — Court Rules.
    A trial court’s factual determination that a plaintiff was not guilty of fraudulent misrepresentations in an original hearing before the board of zoning appeals of a defendant township is binding on appeal where there is ample evidence to support the trial court’s determination and the determination is not clearly erroneous (GCR 1963, 517.1).
    3. Zoning — Board op Appeals — Powers — Rehearing — Statutes.
    Zoning appeal boards are not courts nor possessed of the powers of a court but are limited to the enabling statutes and ordinances creating them; hence,- where no power to grant rehearings of their determinations has been conferred, they have no power to do so, since they are without the inherent power in such respect (MCL 125.271 et seq.; MCL 5.2963[1] et seq.).

    4. Zoning — Towns — Board op Appeals — Inherent Powers — Implied Powers — Variances — Statutes.
    A township’s board of zoning appeals is imbued with no inherent powers and has only those powers invested in it by statute or ordinance; therefore, there was no statutory authority to order the reconsideration of the validity of a variance granted to a plaintiff by a board of zoning appeals and a township acted beyond its power in ordering such a reconsideration several months after the original hearing at which the variance was granted, and this power will not be implied.
    5. Zoning — Towns — Torts — Municipal Corporations — Governmental Immunity.
    Governmental units as a general rule are protected by the doctrine of governmental immunity from tort liability arising out of the governmental function of zoning.
    6. Zoning — Towns — Board op Appeals — Variances — Revocation of Variange — Contracts — Breach op Contract.
    Revocation of a zoning variance by a township does not constitute a breach Of contract even though its zoning board of appeals was not free to remove the variance at will.
    7. Zoning — Towns — Variances — Revocation op Variance — Award op Damages — Constitutional Law — Taking of Private Property.
    An award of damages to a property owner in an action against a defendant township for the improper revocation of a zoning variance which had been granted to the property owner may be upheld, at least in part, if the facts of the case indicate that the defendant has unconstitutionally taken private property for its own use.

      Drury & Pikkarainen, P.C., for plaintiff.

      Foster, Swift, Collins & Coey, P.C. (by Theodore W. Swiñ and William K. Fahey), for defendant.
    Amicus Curiae: Bauckman, Reed, Lang, Schaefer & Travis, for Michigan Township Association.
    Before: D. E. Holbrook, Jr., P.J., and D. E. Holbrook and Cynar, JJ.
   D. E. Holbrook, J.

Plaintiff is the land contract purchaser of a 90-acre parcel of real property in the defendant township. Were it not for a 33-foot wide access easement appurtenant to his property, the plaintiff’s acreage would be landlocked. The defendant township’s zoning ordinance, enacted January 6, 1972, requires that all private roads serving as access to more than one parcel of real estate be 66 feet wide. Seeking to divide and develop his property for sale, plaintiff petitioned the defendant for a variance from the above requirement on June 15, 1972.

The plaintiff alleged that on the above date he was granted a variance at a hearing of the defendant’s board of zoning appeals. Nearly a year later, the plaintiff was notified by the township zoning administrator that the township considered his "land use permit” to be void and of no effect due to the board of appeals’ failure to keep minutes of the meeting at which it was granted. The plaintiff’s application fee was returned and he was invited to reapply for a variance exempting his access road from the 66-foot requirement.

The plaintiff received the above communication on May 24, 1973, at which time he had commenced construction of a road bed on his right-of-way. He continued to work toward the completion of his private road* apparently at an accelerated rate, until the defendant placed a stop-work order on his property May 31. This order was lifted soon after, upon the advice of defendant’s attorney, and the plaintiff resumed construction. On June 14, 1973, the plaintiff appeared before the defendant’s board of appeals for a rehearing of his petition for a variance; on this occasion his "land use permit” was declared null and void. Further, the stop-work order on plaintiffs property was reinstated.

Plaintiff filed a complaint in circuit court on September 4, 1973, alleging that defendant’s ordinance was void as applied to plaintiff, that the defendant’s action in discontinuing the permit was arbitrary and capricious, and that the plaintiff suffered substantial damages as a result of his loss of potential purchasers. The plaintiff requested that the township be enjoined from further interference with his development and in a second count sought $180,000 damages from the township, alleging that actions taken to enforce the subject ordinance constituted an unconstitutional "taking” of private property.

Despite various defenses raised by the township, the circuit court rendered judgment for the plaintiff, reinstating the plaintiff’s variance. The court also found the plaintiff to be entitled to $110,172.25 in damages, apparently on a contract theory. The defendant township appeals from this decision by right, assigning several errors.

The defendant first contends that the lower court erred in holding the original variance granted to plaintiff to be valid. The defendant maintains that its zoning board of appeals’ failure to comply with the written record requirements of MCL 125.271 et seq.; MSA 5.2963(1) et seq. (the township zoning enabling act) rendered the original variance granted plaintiff void ab initio. In making this argument, the defendant township relies upon several cases holding that a decision rendered by a zoning appeal board upon either conclusory findings or upon no record at all is invalid as a denial of due process. Tireman-Joy-Chicago Improvement Ass’n v Chernick, 361 Mich 211; 105 NW2d 57 (1960), Thomas v Busch, 7 Mich App 245; 151 NW2d 391 (1967), Badanek v Schroskey, 21 Mich App 582; 175 NW2d 784 (1970), Sitz v General Motors Corp, 24 Mich App 119; 179 NW2d 675 (1970).

Each of the cases cited by the defendant, however, began as a suit by neighboring property owners challenging the action of the zoning board. None of these cases involved a party to the proceeding later attempting to invalidate the outcome reached in that proceeding on due process grounds. These cases provide even less support for the proposition advanced by defendant township, i.e., that the body responsible for maintaining the record of a proceeding may later rely upon its own nonfeasance to render the action taken void.

The defendant township will not be heard to say that the decision reached by its own appeal board was "’a whimsical conclusion, and wholly unwarranted under the facts’”, Tireman, supra, at 217; nor will the party responsible for the proper conduct of these proceedings be heard to claim that it has been " 'denied the essence of a hearing * * * [or] kept in ignorance of the things controlling the action of the board’ ”, Tireman, at 218. The cases cited by the defendant township should not be read so broadly as to require reversal at the behest of the defendant. As against the defendant township, the variance granted plaintiff on June 15, 1972, was not rendered null and void by the township board’s failure to keep an adequate record.

The defendant next claims that any rights obtained by the plaintiff at the original hearing were rendered null and void by the plaintiff’s fraudulent misrepresentations at that hearing. Twp of West Bloomfield v Chapman, 351 Mich 606; 88 NW2d 377 (1958). The defendant contends that the plaintiff was granted a variance in reliance upon his testimony that the subject parcel was to be divided into eight lots and that the plaintiff had personally unsuccessfully approached the owners of the land adjoining his right-of-way in an attempt to purchase additional land for width. According to the defendant, its appeals board rejected the plaintiff’s second petition for a variance when it learned that the plaintiff now intended to divide the parcel into 11 separate lots and that in fact the plaintiff had never personally approached the said landowners. The plaintiff offered evidence tending to show that the proceeding at which his variance was granted was very "informal”. He testified that he was asked merely to submit a "rough” sketch of his intentions. The plaintiff alleged that he was never instructed to present a precise description of his plans which would be immutable. The plaintiff also testified that he had informed the board simply that the neighbors had been approached, not that he had personally attempted to purchase additional right-of-way. According to the plaintiff, his land contract vendor had approached the abutting landowners on his behalf.

The trial court chose to adopt the plaintiff’s portrayal of the subject hearing, and there is ample evidence to support this interpretation. This factual determination that the plaintiff was not guilty of fraudulent misrepresentations in the original hearing is not clearly erroneous and is therefore binding on appeal. GCR 1963, 517.1.

We find the variance originally awarded the plaintiff to have been valid. As a result, the question on review becomes whether the defendant township properly reconsidered and revoked the plaintiffs variance in June of 1973.

The township zoning enabling act, MCL 125.271 et seq.; MSA 5.2963(1) et seq., does not expressly provide for the rehearing of a granted variance application. Analogically, the city and village zoning enabling act, MCL 125.581 et seq.; MSA 5.2931 et seq., similarly does not expressly allow for such a rehearing, yet such a power has been implied under exceptional circumstances. In McVeigh v Battle Creek, 350 Mich 214; 86 NW2d 279 (1957), the appellant city was granted a rehearing before the zoning board of appeals seven days after the hearing during which the plaintiffs variance was granted. The trial court, citing general language of "finality after 5 days” contained in MCL 125.585(d); MSA 5.2935(d), held that as a matter of law such a rehearing must be held within five days. The Supreme Court affirmed, stating:

"It is urged by defendant, city of Battle Creek, that a zoning board of appeals has inherent power to grant a rehearing where no rights have intervened between entry of the original order and the order granting a rehearing. We note that neither the statute nor the zoning ordinance grants or authorizes a rehearing. We are not unmindful of the fact that zoning appeal boards are not courts, nor are they possessed of the powers of a court. Such boards are limited to the statute and the ordinance. It is our opinion that such boards do not have the inherent power to grant a rehearing" 350 Mich 214, 217; 86 NW2d 279 (1957). (Emphasis supplied.)

The court’s admonition is also relevant to a consideration of the authority of a township board to grant a rehearing. Here, also, neither the enabling act nor the defendant’s ordinance provides for the rehearing of a granted variance. Here, also, the appeal board is imbued with no inherent powers, and thus possesses only those powers expressly invested in it by statute or ordinance. See 3 Anderson, American Law of Zoning (2d ed), § 20.50, p 568. For this reason we hold that the defendant township acted beyond its authority in ordering the reconsideration of the validity of the plaintiffs variance several months after the original hearing. This power, not granted by statute, will not be implied. Given our resolution of this issue, we need not consider whether the plaintiff relied upon the instant variance to such extent as to create in him vested rights in its continuance. See Dingeman Advertising, Inc v Algoma Twp, 393 Mich 89, 98; 223 NW2d 689 (1974), City of Lansing v Dawley, 247 Mich 394; 225 NW 500 (1929), and Souter v Board of Zoning Appeals of the City of Grand Rapids, 63 Mich App 451; 234 NW2d 562 (1975). We do note in passing, however, that plaintiffs reliance upon the variance appears to have been substantial.

Finally, counsel for the defendant township, aided by the excellent amicus curiae brief submitted by the Michigan Township Association, challenge both the court’s authority to award the plaintiff damages and the amount of damages awarded. While the plaintiffs complaint seeks damages for the unjust taking of plaintiffs property, the trial court’s opinion describes the damages awarded in contractual terms. The plaintiff contends in defense of the court’s award that defendant’s revocation of plaintiffs variance was not a governmental function and that it was in fact a breach of contract to which governmental immunity does not apply, Zynda v Aeronautics Comm, 372 Mich 285; 125 NW2d 858 (1964). The appellant contends, on the other hand, that the court has awarded the plaintiff damages sounding in tort, a clear violation of the Michigan law of governmental immunity since the defendant was engaged in a purely governmental, nonproprietary, function: zoning. See: Galli v Kirkeby, 398 Mich 527, 534-535; 248 NW2d 149 (1976).

In order to remedy this confusing state of affairs, it is necessary that we briefly consider each of the possible bases for upholding the court’s award. First, it is clear that tort damages will not lie under the instant circumstances. The plaintiffs complaint and proofs do not support such an award, and the doctrine of governmental immunity is clearly applicable under Galli, supra.

Second, an award of damages based upon breach of contract is equally unsupportable. This Court considered a similar question in Midwest Teen Centers, Inc v Roseville, 36 Mich App 627, 629-630; 193 NW2d 906 (1971). In pertinent part that panel stated:

"Our examination of the law in this case has failed to reveal any authority whatsoever that would establish that this permit is a contract. On the contrary, the only case plaintiff cites on this point, Eastwood Park Amusement Co v Mayor of East Detroit, 325 Mich 60 [38 NW2d 77] (1949), clearly points in the opposite direction; namely, that this permit is a license and not a contract. There, the Michigan Supreme Court stated at 76 its approval of the language used in People v Schafran, 168 Mich 324, 330, 334 [134 NW 29] (1912), that:
" 'The licensee has no vested property right in his license; in fact, it would not be in the power of the legislature to make an irrepealable contract as to that which affects the public morals or public health so as to limit the exercise of the police power over the subject matter. * * *
" 'We have already covered the first, second, and third request to charge and have said that a license to sell liquor is not a contract but only a promise to enjoy the privilege on the terms named for a specific time, unless it be sooner revoked. The granting of a license is an exercise of police power, and does not include any contractual relations whatsoever. Stone v Mississippi, 101 US 814; 25 L Ed 1079 (1880).’
"The granting of this dance hall permit was clearly an exercise of the City of Roseville’s police power. There is no evidence of any consideration running from plaintiff to defendant which is a basic ingredient of any contract. Payment of a simple license or permit fee is not such consideration as will support the existence of a contractual relationship. There is no indication that this permit was anything more than a written promise to enjoy the privilege of operating a teen club, in Roseville, on the terms named for the period specified, subject to the city’s absolute right to revoke this privilege, pursuant to the procedure in condition 19.” (Emphasis supplied.)

See also: 101 CJS, Zoning, §239, p 1002; §314, p 1097 et seq.; 9 McQuillin, Municipal Corporations (3d rev ed), § 26.14, pp 29-30; 4 Rathkopf, The Law of Zoning and Planning, p 82-4. While the defendant township clearly was not free to revoke the plaintiffs variance at will, its action did not constitute a breach of contract. Souter v Bd of Zoning Appeals of the City of Grand Rapids, 63 Mich App 451; 234 NW2d 562 (1975), cited by the plaintiff in support of his claim, is not relevant to the instant issue.

Finally, the trial court’s award of damages may be upheld, at least in part, if the facts of this case indicate that the defendant township has unconstitutionally taken private property for its own use. As the Court explained in Armstrong v Ross Twp, 82 Mich App 77, 82-83; 266 NW2d 674 (1978):

"In Buckeye Union Fire Insurance Co v Michigan, 383 Mich 630, 640-644; 178 NW2d 476, 482-483 (1970), the Supreme Court held that the Legislature’s power to grant governmental agencies sovereign immunity is limited by the constitutional provision prohibiting the taking of private property for public use without compensation. Const 1963, art*10, §2. In Tamulion v State Waterways Commission, 50 Mich App 60, 66-67; 212 NW2d 828, 831 (1973), this Court recognized that a compensatory obligation arises under the constitution, not in tort, for inverse condemnation, and that sovereign immunity does not insulate the state from liability thereon.
"A township may not so restrictively zone property as to confiscate it. Property is not confiscated unless the ordinance 'would preclude its use for any purpose to which it is reasonably adapted’. Kirk v Tyrone Twp, 398 Mich 429, 444; 247 NW2d 848, 854-855 (1976), Kropf v Sterling Heights, 391 Mich 139, 163; 215 NW2d 179, 189 (1974). Mere disparity in value between uses, Brae Burn, Inc v Bloomfield Hills, 350 Mich 425, 433; 86 NW2d 166, 170 (1957), Reibel v Birmingham, 23 Mich App 732, 738; 179 NW2d 243, 246 (1970), or depreciation in value caused by rezoning, Lamb v City of Monroe, 358 Mich 136, 144; 99 NW2d 566, 570 (1959), will not justify a finding of confiscation.”

In this case, as in Armstrong, however, the plaintiff’s complaint and the proofs at trial do not support the conclusion that a "taking” has occurred:

"Each of the complaints alleges in conclusional terms confiscation, but in evaluating the complaint we ignore conclusions and look to the facts alleged. Binder v Consumers Power Co, 77 Mich App 343, 346-347; 258 NW2d 221, 224 (1977). In each case we find plaintiffs have pled depreciation in value, not confiscation. * * * Plaintiffs’ loss suffered in reliance upon the building inspector’s representation sounds in tort, not inverse condemnation. Since neither complaint alleges facts in avoidance of immunity, Ross Township’s motion for summary judgment should have been granted.” Armstrong, at 83. (Emphasis supplied.)

Since the record does not support the trial court’s award of damages, that portion of the lower court’s decision is reversed. In all other respects we affirm.

Affirmed in part and reversed in part. No costs, a public question being involved.

       Although denominated a “land-use permit”, the plaintiffs exemption from the requirements of defendant’s ordinance was clearly more properly termed a "variance”, see 3 Anderson, American Law of Zoning (2d ed), § 18.02, p 136.


source: Caselaw Access Project

author: R. M. Maher, J.

license: Public Domain

text:
    CITY OF FERNDALE v EALAND
    Docket No. 77-4344.
    Submitted December 12, 1978, at Detroit.
    Decided January 16, 1979.
    Remanded in lieu of leave to appeal, 406 Mich 963.
    The City of Ferndale brought an action against Herbert Ealand, Studio North Theatre Corp., the Studio North Theatre, Ross Cacavale, Edward L. Schuman, James D. Llewellyn and Stuart Gorelick, the owners and operators of the Studio North Theatre, alleging that the theatre was operating in violation of a city zoning ordinance regarding adult motion picture theatres and was, therefore, a nuisance per se subject to abatement. The city also alleged that the theatre was operating without a license required by a city ordinance and, therefore, sought an injunction prohibiting the theatre from continuing operations. The Oakland Circuit Court, Steven N. Andrews, J., granted the defendants’ motion for a directed verdict for failure to make out a prima facie case. Thereafter, on stipulation of the parties, the trial court agreed to reopen the case for the purpose of deciding the constitutionality of the portions of the city zoning ordinance dealing with adult motion picture theatres. The court found the ordinance unconstitutional. Plaintiff appeals from this finding and from the dismissal for failure to make out a prima facie case, alleging 1) that the defendants admitted that they were operating in violation of the ordinance, and 2) that the trial court erred in refusing to admit testimony regarding the contents of the film "Naked Came the Stranger”. Held:

    1. Although the defendants admitted that the film depicted "specified sexual activity”, they did not admit that the film was "distinguished or characterized by an emphasis on” such matter, as would be required for a violation of the ordinance.
    2. The trial court’s failure to admit the testimony of police officers regarding the contents of the film was error. The film was indisputably within the control of the defendants and it was incumbent upon them to produce it. When they failed to produce the film, the plaintiff was entitled to introduce secondary evidence of the film’s contents.

      References for Points in Headnotes

       29 Am Jur 2d, Evidence § 448.

       29 Am Jur 2d, Evidence § 485.

       29 Am Jur 2d, Evidence §§ 452, 456.

       50 Am Jur 2d, Lewdness, Indecency, and Obscenity § 26. 82 Am Jur 2d, Zoning and Planning § 122.

       16 Am Jur 2d, Constitutional Law § 119.

       16 Am Jur 2d, Constitutional Law § 122.

      3. The Court of Appeals refuses to reach the constitutional issue because it is not ripe for decision.
    Reversed and remanded for trial.
    1. Evidence — Best Evidence Rule — Original Document — Absence of Original — Extrinsic Evidence.
    The so-called best evidence rule requires that the original of a document be produced at trial, or its absence properly accounted for, before extrinsic evidence of its contents may be introduced.
    2. Evidence — Best Evidence Rule — Photographs.
    The best evidence rule is generally applied to photographs as well as written instruments.
    3. Evidence — Best Evidence Rule — Exceptions — Secondary Evidence — Original in Possession of Opposite Party.
    An exception to the best evidence rule provides that a party is entitled to introduce secondary evidence of a document’s contents where the original is in the possession of an opposing party and that party has been put on notice that the contents would be a subject of proof at trial.
    4. Evidence — Notice — Best Evidence Rule — Production of Document — Secondary Evidence — Exceptions.
    The pleadings themselves, in some cases, may constitute sufficient notice to require an adverse party to produce a document, the contents of which will be asubject of proof at trial, and to permit the introduction of secondary evidence of the contents upon a failure to produce the document.
    5. Constitutional Law — Adult Motion Picture Theatres — Content of Films — Ordinances.
    An adult motion picture theatre is defined in terms of the content of films exhib.ted therein; therefore, such content is a central issue in any case alleging a violation of an ordinance by operation of an adult motion picture theatre.
    6. Constitutional Law — Zoning — Ordinances — Infringement of Rights — Ripeness.
    A party must first demonstrate that his rights have been infringed upon by the enforcement of a zoning ordinance in order to challenge the constitutionality of the ordinance.
    7. Constitutional Law — Denial of Rights of Another.
    A party may not raise the denial of constitutional rights of another, except in limited circumstances.

      Robert J. Turner (John Katsoulos, of counsel), for plaintiff.

      Taylor & Rubin, for defendants.
    Before: Danhof, C.J., and R. M. Maher and D. C. Riley, JJ.
   R. M. Maher, J.

Plaintiff brought this action in 1975 against defendant owners and operators of the Studio North Theatre, alleging that the theatre was operating in violation of the city zoning ordinance and was, therefore, a nuisance per se subject to abatement under MCL 125.587; MSA 5.2937 Plaintiff also alleged that defendant theatre was operating without the license required by another city ordinance. After considerable procedural difficulties not material to this appeal, the matter at last came on for trial in 1977. At the close of plaintiffs proofs, the trial court granted defendants’ motion for a directed verdict for failure to make out a prima facie case. Several days thereafter, the court agreed on stipulation of the parties to reopen the case for the purpose of deciding the constitutionality of the portions of the city zoning ordinance dealing with adult motion picture theatres. The court fpund the erdinance uncenstitutienal. From this finding, and frpm the dismissal ef the action for failure to make out a prima facie case, plaintiff appeals.

On July 30, 1973, the Ferndale City Commission adopted ap ordinance amending the city zoning ordinance to prohibit, inter alia, establishment of an adult motion picture theatre within 1,000 feet of any building containing a residential, dwelling or rooming unit, Ferndale Ordinances, No 610, § 24.01. The ordinance defines adult motion picture theatre as:

"An enclosed building with a capacity of fifty (50) or more persons used for presenting material distinguished or characterized by an emphasis on matter depicting, describing or relating to 'specified sexual activities’ or 'specified anatomical areas,’ (as defined below), for observation by patrons therein.” Ferndale Ordinances, No 610, § 24.00(2). (Emphasis added.)

On September 15, 1975, plaintiff City of Fern-dale filed a complaint alleging that the Studio North Theatre was an adult motion picture theatre showing a film entitled "Naked Came the Stranger” in violation of the zoning ordinance and petitioning for an injunction prohibiting the theatre from continuing operations. In their answer, defendants admitted that the named film depicted "specified sexual activities”, but denied that Studio North was an adult motion picture theatre within the meaning of the ordinance.

Plaintiff claims on appeal that defendants, through their pleadings and through statements of their attorneys, admitted that they were operating in violation of the ordinance. We disagree. Although defendants admitted that the film depicted "specified sexual activity”, they did not admit that the film was "distinguished or characterized by an emphasis on” such matter, as required by the ordinance. Moreover, defendants emphatically denied that Studio North was an adult motion picture theatre as defined by the ordinance. It is true, as plaintiff claims, that the attorney for defendant Llewellyn conceded at the first hearing in the case that the theatre showed the type of material described in the ordinance. It is not clear, however, that this admission is any broader than that contained in the answer to the complaint. Even if the attorney’s statement might be construed as an admission that the ordinance was being violated, it is binding only on his client, not on the other defendants, who had apparently not even been served with process at the time this statement was made, see Ghezzi v Holly, 22 Mich App 157; 177 NW2d 247 (1970), Smith v Woronoff, 75 Mich App 24; 254 NW2d 637 (1977).

The question of whether Studio North was an adult motion picture theatre thus awaited proof at the trial, proof which would inevitably entail a showing that the film specified in the complaint was "distinguished or characterized by an emphasis on matter depicting, describing or relating to 'specified sexual activities’ or relating to 'specified anatomical areas’ ” as defined by the ordinance, Ferndale Ordinances, No 610, § 24.100. To that end, plaintiff sought to introduce testimony of police officers, who had viewed the film in question at Studio North, regarding the contents of the film. The trial court, however, refused to admit such testimony, on grounds that the best evidence rule required the production of the film itself as evidence of its contents. Plaintiff claims on appeal that the trial court erred in refusing to admit testimony regarding the contents of the film. We agree.

The so-called best evidence rule requires that the original of a document be produced at trial — or its absence properly accounted for — before extrinsic evidence of its contents may be introduced, Paul v University Motor Sales Co, 283 Mich 587; 278 NW 714 (1938). The rule is generally applied to photographs as well as written instruments, 32A CJS, Evidence, § 792(7), p 124. See also Kennedy v Bay City Taxi Cab Co, 325 Mich 668; 39 NW2d 220 (1949). An exception to the rule, however, provides that a party is entitled to introduce secondary evidence of a document’s contents where the original is in the possession of the opposing party, and that party has been put on notice that the contents would be a subject of proof at trial, Muir v Kalamazoo Corset Co, 155 Mich 624; 119 NW 1079 (1909), Attwood Brass Works v Aero-Motive Manufacturing Co, 347 Mich 693; 81 NW2d 371 (1957). In some cases, the pleadings themselves may constitute sufficient notice to réquire an adverse party to produce the document, and to permit the introduction of secondary evidence upon his failure to do so, Rose v Lewis, 10 Mich 483 (1862), see also Muir v Kalamazoo Corset Co, supra.

Applying these rules to the case at bar, we find that the contents of the film "Naked Came the Stranger” was a subject of proof at the trial, and that defendants were put on notice of that fact by the pleadings. The complaint made it clear that Studio North was alleged to be an adult motion picture theatre, as defined in the ordinance, by reason of having shown the named film. Because an adult motion picture theatre is defined in terms of the content of films exhibited therein, such content is a central issue in any case alleging a violation of the ordinance by operation of such a theatre. When defendants in their answer denied that Studio North was an adult motion picture theatre, the issue was joined. The film being indisputably within the control of defendants, it was incumbent upon them to produce it. When they failed to do so, plaintiff was entitled to introduce secondary evidence of the film’s contents.

The trial court’s refusal to admit the testimony of police officers regarding the contents of "Naked Came the Stranger” was error. We must, therefore, reverse and remand for a new trial, in which plaintiff shall be permitted to offer secondary evidence of the film’s contents.

The court below, recognizing that the fundamental question raised in the lawsuit had not been reached, acceded to the parties’ request to decide the constitutionality of the ordinance in question, even though he had already dismissed the action for failure of plaintiff to make out a prima facie case of violation of the ordinance. The parties have submitted the same question for decision by this Court. However, we decline to reach the constitutional issue, because we find that it is not ripe for decision.

In order to challenge the constitutionality of a zoning ordinance, a party must first demonstrate that his rights have been infringed upon by enforcement of the ordinance, Kropf v Sterling Heights, 391 Mich 139; 215 NW2d 179 (1974), Kirk v Tyrone Twp, 398 Mich 429; 247 NW2d 848 (1976). Except in limited circumstances not present in this case, a party may not raise the denial of the constitutional rights of another, Mary v Lewis, 399 Mich 401; 249 NW2d 102 (1976).

In the case at bar, the trial court refused to enforce the ordinance against defendants, finding that plaintiff had failed to establish a violation. Defendants can, therefore, have suffered no infringement of their rights as a result of enforcement of the ordinance, and have no standing to challenge' its constitutionality. If on retrial of this cause the trial court once again finds no violation of the ordinance, the constitutional issue need not be reached. If, on the other hand, defendants are found to be in violation of the ordinance and are enjoined from further operation of their business, they will have standing to raise the issue and the trial court must decide it. In that event, the constitutionality of the Ferndale zoning ordinance may properly be brought before this Court for decision. Unless and until that time arrives, we will not discuss the question.

Reversed and remanded for a new trial. No costs, a public question being involved.

       The ordinance provides for waiver by a petition signed by 51% of persons living or doing business within a radius of 1,000 feet of the theatre.

       "Specified sexual activities” and "specified anatomical areas” are defined as follows:
      "(4) FOR THE PURPOSE OF THIS SECTION, "SPECIFIED SEXUAL ACTIVITIES” IS DEFINED AS:
      "(I) Human genitals in a state of sexual stimulation or arousal;
      (II) Acts of human masturbation, sexual intercourse or sodomy;
      (III) Fondling or other erotic touching of human genitals, pubic region, buttock or female breast.
      "(5) FOR THE PURPOSE OF THIS SECTION, SPECIFIED ANATOMICAL AREA” IS DEFINED AS:
      “(I) Less than completely and opaquely covered:
      (A) Human Genitals, Pubic Region, (B) Buttock, and (C) Female breast below a point immediately above the top of the areola; and
      (II) Human male genitals in a discernibly turgid state even if completely and opaquely covered.” Ferndale Ordinances, No 610, § 24.00(4), (5).

       Plaintiff claims that the other defendants were bound by Llewellyn’s statements because he was their employee. However, there was no showing that Llewellyn was authorized to speak for his employers in this matter, a prerequisite to finding that they were bound by his admissions, cf. Owen v Birmingham Federal Savings & Loan Ass’n, 27 Mich App 148; 183 NW2d 403 (1970).

       Should defendants produce the film itself, secondary evidence would, of course, not be admissible. We note, however, that defendants represented to the court below that it is impossible to produce the equipment necessary for viewing the film because of its lack of portability.

       We note that defendants do not contend that the statute is overbroad in its scope, cf., Broadrick v Oklahoma, 413 US 601; 93 S Ct 2908; 37 L Ed 2d 830 (1973).


author: N. J. Kaufman, J.

text:
    PEOPLE v ANDREWS
    Docket No. 77-4899.
    Submitted October 12, 1978, at Detroit.
    Decided January 16, 1979.
    Johnny M. Andrews was convicted of first-degree murder in connection with the robbery of a restaurant in the Recorder’s Court for the City of Detroit, Joseph A. Gillis, J. Defendant appeals alleging error in the admission of prosecutorial references to the defendant’s unemployment or poverty in order to show a motive to commit the offense. Held:

    1. The trial court committed reversible error in overruling the defendant’s objections to the admission of evidence regarding the defendant’s poverty or unemployment where the evidence was offered to show a motive to commit the offense. Such evidence is legally irrelevant to the issue of guilt or innocence.
    2. The Court of Appeals will not allow the admission of evidence of a defendant’s poor financial situation to show a motive for an offense.
    Reversed and remanded.
    D. E. Holbrook, Jr., J., concurred in the result only.
    1. Criminal Law — Homicide — First-Degree Murder — Witnesses — Appeal and Error — Defendant’s Financial Situation — Motive for Offense — Relevance.
    A trial court commits reversible error in a trial for first-degree murder where it overrules a defense objection and permits a prosecutor to question a defense witness regarding the unemployment or poor financial situation of the defendant or the witness in order to show the defendant’s motive to commit the offense; such evidence is legally irrelevant to the issue of guilt or innocence.
    References for Points in Headnotes

       5 Am Jur 2d, Appeal and Error § 624.
    40 Am Jur 2d, Homicide § 560.
    81 Am Jur 2d, Witnesses §§ 432, 433, 532.

       21 Am Jur 2d, Criminal Law § 85.
    29 Am Jur 2d, Evidence §§ 249, 251-257.

      2. Criminal Law — Evidence — Motive for Offense — Presumption of Innocence.
    The Court of Appeals refuses to allow evidence of a defendant’s poverty or unemployment to show a motive for an offense; to do so would effectively establish a two-tiered standard of justice and demolish pro tanto the presumption of innocence.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Michael R. Mueller, Director, Prosecutor’s Repeat Offenders Bureau, and Larry L. Roberts, Assistant Prosecuting Attorney, for the people.

      Leonard Townsend, for defendant.
    Before: M. F. Cavanagh, P.J., and D. E. Holbrook, Jr. and N. J. Kaufman, JJ.
   N. J. Kaufman, J.

On November 14, 1977, defendant was jury-convicted of first-degree murder, MCL 750.316; MSA 28.548, in connection with the January 30, 1977, robbery of a restaurant in which an employee was shot and killed. Defendant was sentenced to life imprisonment and appeals as of right.

At trial the defense was alibi. Defendant did not take the stand, but his girlfriend, Carolyn Ferguson, testified that defendant was with her in Cleveland at the time the crime was committed. Then on the cross-examination of Ferguson, the following occurred:

"Q [By the prosecutor] Can you tell me where Mr. Andrews was working back in January?
"MR. ROTH: That is objected to. That is strictly hearsay. How is she going to know?
"THE COURT: Well, if she knows.
"A I don’t know where he was working.
"Q I’m sorry?
"A I don’t know nothing about him working back in January.
"Q Does that mean he wasn’t working and you don’t know —
"A He wasn’t. He was with me all the while.
"Q Oh, he wasn’t working then?
"A No.
"Q Were you employed back in January?
"A No.
"Q Was Mr. Andrews employed in Cleveland after he supposedly got there?
"A No.
"Q Can you tell me how you were supporting yourself then?
"MR. ROTH: I object to that. That has no bearing on this case.
"MR. WOUCZYNA: My response is that it does, your Honor. It provides a motive.
"THE COURT: I will overrule the objection.
"Q How were you supporting yourself back then, Ma’am?
"A Well, I was getting welfare assistance; but I wasn’t in no hurt for no money, you know, I was making it.
"Q How were you making it?
"A Like my mother and them, if there was really anything I needed, you know, I could always go to my people for it. It wasn’t no big thing.
"Q How was Mr. Andrews supporting himself?
"A When we were together, what was mine was his.”

In closing argument, the prosecutor again referred to unemployment:

"I think it’s interesting and somewhat helpful because it surely could provide a motive for Mr. Andrews’ actions that neither Carolyn or Mr. Andrews was employed either before in January or after —
"MR. ROTH: I’m going to raise an objection to the insinuation by the prosecutor. The mere fact a man isn’t working is not indicative to the fact he’s going to commit a crime, and that is the insinuation being brought by the prosecutor. I think that’s going too far afield. I think the Court should admonish him and tell him to restrict himself to the facts and not insinuations that didn’t occur.
"THE COURT: Well, if the jury remembers that testimony, they may consider it. If no such testimony occurred, then you may disregard what Mr. Wouczyna said.
"MR. WOUCZYNA: Thank you, your Honor. May I continue?”

Michigan courts have on several occasions deplored prosecutorial references to defendant’s unemployment or poverty. Apparently, however, prosecutors are not getting the message: Whether defendant — or his girlfriend for that matter — was poor or unemployed is legally irrelevant to the issue of guilt or innocence. This Court refuses to "assume that wealth exerts a greater attraction on the poor than on the rich”. To do so would "effectively establish a two-tiered standard of justice and demolish pro tanto the presumption of innocence”. Our system of justice and its constitutional guarantees are simply too fragile to permit this type of unfounded character assassination. As stated in People v Henderson, 80 Mich App 447, 454; 264 NW2d 22 (1978):

“The motive for a theft offense seldom requires explanation. The motive is so pervasive that its proving will establish little more than the defendant’s typicality; such proof increases but little the likelihood that this defendant is guilty of the charged offense. If poor and rich share a common and obvious motive, then why prove poverty?”

The questioning and argument in the case at bar cannot be excused as inadvertent, as unobjected to, as invited by defense counsel, or as “fleeting references” in a hotly contested trial. Here the prosecutor specifically stated that he was introducing the subject of unemployment to show motive, and the trial court overruled defense counsel’s timely objections to the testimony and argument. We must reverse defendant’s conviction and remand for a new trial. “Unless we enforce the rules we encourage their violation * * * ”, People v Farrar, 36 Mich App 294, 299; 193 NW2d 363 (1971).

Reversed and remanded.

D. E. Holbrook, Jr., J., concurs in the result only._

       See, e.g., in addition to cases cited infra, People v Johnson, 393 Mich 488, 496-499; 227 NW2d 523 (1975), People v Hammond, 394 Mich 627; 232 NW2d 174 (1975), People v Osborne, 75 Mich App 600; 256 NW2d 45 (1977), lv den 402 Mich 810 (1977), and People v Leverette, 84 Mich App 268; 269 NW2d 559 (1978), Cf. People v Jackson, 77 Mich App 392; 258 NW2d 89 (1977), lv den 402 Mich 830 (1977).

         People v Henderson, 80 Mich App 447, 453; 264 NW2d 22 (1978).

        People v Ronald Green, 74 Mich App 601, 606; 254 NW2d 788 (1977), rem’d 401 Mich 802 (1977), op on remand 79 Mich App 186; 261 NW2d 253 (1977).

       See People v Thomas Jones, 73 Mich App 107; 251 NW2d 264 (1976), People v Baldwin, 74 Mich App 700; 254 NW2d 619 (1977), People v Martin, 75 Mich App 6; 254 NW2d 628 (1977), People v Thomas, 86 Mich App 752; NW2d (1978).

       In view of the controversy within this Court, on retrial the trial court would be better advised to instruct on malice as an element of murder. Defendant’s remaining issue dealing with "hearsay identification” is clearly without merit.


author: J. H. Gillis, J.

text:
    NICHOLAS v McDANIEL DEPARTMENT OF NATURAL RESOURCES v NICHOLAS
    Docket Nos. 77-5203, 77-5204.
    Submitted December 11, 1978, at Lansing.
    Decided January 16, 1979.
    Leave to appeal applied for.
    William and Caroline Nicholas, husband and wife, built a footbridge on their property across Burgess Creek in 1970, thus preventing passage through the creek. Burgess Lake has no inlet and only the Burgess Creek outlet which flows 800 feet into another lake, through its outlet into a pond, and thereafter past a waterwheel, through a culvert and other creeks, lakes and rivers until it ultimately empties into the Grand River. The property surrounding Burgess Lake is private with approximately 50 riparian owners including Russell E. McDaniel and Richard Rademacher. The Nicholases own frontage on Burgess Lake and the land on both sides of Burgess Creek where the footbridge was constructed. On August 1, 1975, the Nicholases brought an action in Montcalm Circuit Court, alleging that the McDaniel and Rademacher children had trespassed on Burgess Creek and requested a restraining order to prevent further trespass. The restraining order was granted, Leo B. Bebeau, J., and plaintiffs then sought temporary and permanent injunctions. On October 14, 1975, the State of Michigan filed a complaint against the Nicholases alleging that the bridge deprived riparian owners on Burgess . Lake of their right to navigate Burgess Creek and praying that Burgess Creek be declared navigable. By stipulation of the parties, the Nicholases suit against McDaniel and Rademacher for trespass was consolidated with the state suit against the Nicholases. Montcalm Circuit Court, Charles W. Simon, Jr., J., declared Burgess Creek to be navigable and ordered the Nicholases to cease and desist from blocking access to it. The Nicholases appeal. Held: Riparian owners are entitled to the exclusive possession of a lake and its outlet creek only where both are completely surrounded by their land. Burgess Creek is a useful passageway for persons wishing to travel by boat or canoe from Burgess Lake into lower lakes, ponds, creeks and rivers. The Nicholases do not own all of the land surrounding this chain of lakes and streams; therefore, Burgess Creek is navigable and the Nicholases should be prohibited from obstructing free passage by riparian owners located on Burgess Lake.

      References for Points in Headnotes

       78 Am Jur 2d, Waters §§ 2, 66.

       78 Am Jur 2d, Waters § 87.

       78 Am Jur 2d, Waters §§ 44, 54.
    Rights of fishing, boating, or the like in inland lakes. 57 ALR2d 569.

       78 Am Jur 2d, Waters § 44.

       78 Am Jur 2d, Waters § 71.

       78 Am Jur 2d, Waters §§ 86-90.

      Affirmed.
    1. Navigable Waters — Strict Navigability — Qualified Navigability — Floatage and Fishing.
    Michigan recognizes two types of navigability: (1) strict navigability which includes those waters capable of being used for valuable boat or vessel navigation, and (2) qualified navigability, consisting of streams which are incapable of year around navigation but can be used to float logs to mills during the spring; a stream navigable in either the strict or qualified sense is open to the public for floatage and fishing.
    2. Navigable Waters — Public Use — Rights of Public — Recreational Use.
    Members of the public have the right to navigate and to exercise the incidents of navigation in a lawful manner at any point below high water mark on waters which are capable of being navigated by oar or motor propelled small craft; this is the recreational use test for navigable waters.
    3. Waters and Water Courses — Inland Lakes — Riparian Owners — Exclusive Possession.
    Riparian owners are entitled to the exclusive possession of a lake where the lake has no inlets or outlets and is completely surrounded by their land.
    4. Waters and Water Courses — Private Lakes — Navigable Waters — Inlets and Outlets.
    A lake which has no inlet and only one outlet and where all the land surrounding the lake and the land on both sides of the outlet is owned by one owner is a private lake, even though it is possible to float a boat up the outlet creek into the lake.

      5. Navigable Waters — Waters and Water Courses — Lakes — Creeks — Navigability.
    The navigability of a lake is not necessarily determined by the navigability of its outlet creek; the reverse is also true — the navigability of a creek is not necessarily determined by the navigability of the lake which is its source.
    6. Waters and Water Courses — Navigable Waters — Lakes — Creeks — Private Ownership — Public Rights.
    Riparian owners have the right to the reasonable use of the entire surface of a lake; however, this does not confer upon them the right to use an outlet creek because any such right is dependent upon their status as members of the public; each must be viewed separately where the property surrounding both the lake and its outlet creek are not in the hands of a single owner.
    7. Navigable Waters — Lakes — Creeks — Private Ownership — Public Rights.
    An outlet creek from a lake is navigable and public where evidence shows that the creek is valuable for travel by boat or canoe between property not owned by the same owner.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Jerome Maslowski and Randall Whitworth, Assistants Attorney General, for Department of Natural Resources.
    William C. Nicholas, in propria persona.

      Fraser, Trebilcock, Davis & Foster (by Donald A. Hines), for defendants.
    Before: R. B. Burns, P.J., and J. H. Gillis and V. J. Brennan, JJ.
   J. H. Gillis, J.

William and Caroline Nicholas (hereinafter referred to as plaintiffs) appeal from a declaratory judgment and permanent injunctive order dismissing the Nicholas claim for trespass against Russell McDaniel and Richard Rademacher (hereinafter referred to as defendants), declaring Burgess Creek to be navigable, and prohibiting plaintiffs from obstructing free passage through same.

The facts relevant to the disposition of this appeal are as follows. Burgess Lake has no inlet and only the outlet of Burgess Creek. The latter is approximately 800 feet long and empties into a 35-acre body of water known as Dogfish or Pine Lake. The outlet from this lake, Dogfish Creek, leads to Salt Springs (also called Mill Pond) which covers 3 to 5 acres. The outlet from this pond leads past a waterwheel, through a culvert under Baker Road, and ultimately into Wabasis Creek, Morgan Lake, the Flat River and the Grand River.

The property surrounding Burgess Lake is private. There are approximately 50 riparian owners with cottages on the lake including the defendants in this case.

Plaintiffs’ property consists of 120 acres and includes land fronting on Burgess Lake, the land through which Burgess Creek flows, seven-eighths of the property surrounding Dogfish Lake and the land on both sides of Dogfish Creek to a point approximately halfway between Dogfish Lake and Salt Springs.

In the fall of 1970 plaintiffs built a footbridge on their property across Burgess Creek. This prevented passage through the creek, although the evidence indicates that some people continued to use the creek by dragging a boat across the bridge.

Plaintiffs filed suit on August 1, 1975, alleging that defendants’ children had trespassed on Burgess Creek and requesting a restraining order to prevent further trespass. The restraining order was granted and plaintiffs then sought temporary and permanent injunctions.

On October 14, 1975, the State of Michigan filed a complaint against plaintiffs alleging that the bridge deprived the riparian owners on Burgess Lake of their right to navigate Burgess Creek and praying that Burgess Creek be declared navigable.

Pursuant to the parties’ stipulation plaintiffs’ suit against defendants for trespass was consolidated with the state suit against plaintiffs.

A nonjury trial resulted in a decision declaring Burgess Creek to be navigable and ordering plaintiffs to cease and desist from blocking access to it.

Michigan recognizes two types of navigability. Originally only those waters which were capable of being used for "valuable boat or vessel navigation” were considered navigable. When the great forests of this state were being felled many streams which were incapable of year around navigation were used to float logs to mills during the spring. Streams used for the latter purpose are sometimes referred to as navigable in the qualified sense. In re Martiny Lakes Project, 381 Mich 180; 160 NW2d 909 (1968). A stream navigable in either the strict or qualified sense is open to the public for floatage and fishing. Attorney General ex rel Director of Conservation v Taggart, 306 Mich 432, 442; 11 NW2d 193 (1943).

Recently another panel of this Court set forth a "recreational use” test for determining the issue of navigability. In Attorney General ex rel Director of the Department of Natural Resources v Hallden, 51 Mich App 176, 189-191; 214 NW2d 856 (1974), the Court stated:

"We therefore hold that members of the public have the right to navigate and to exercise the incidents of navigation in a lawful manner at any point below high water mark on waters of this state which are capable of being navigated by oar or motor propelled small craft.”

In the instant case the evidence indicates that it is possible to travel the entire stretch of water between Burgess Lake and Baker Road by canoe. In addition, Burgess Creek has been traversed by a number of people in various type boats ranging up to a 14-foot speed boat. In the latter case a motor was used the entire way except at a few points when crossing sunken trees.

Applying this evidence to the test announced in Hallden, supra, the trial court found that Burgess Creek was navigable.

This panel of the Court rejected the recreational use test in Pigorsh v Fahner, 22 Mich App 108; 177 NW2d 466 (1970), aff'd 386 Mich 508; 194 NW2d 343 (1972). However, in that case the lake in question had no inlets or outlets and was completely surrounded by the plaintiffs’ land. We held that the riparian owners were entitled to exclusive possession of the lake.

Plaintiffs cite Michigan Conference Ass’n of Seventh-Day Adventists v Comm of Natural Resources, 70 Mich App 85; 245 NW2d 412 (1976), in support of their position. That case involved Shellenbarger Lake, which had no inlet and only one outlet. All of the property surrounding the lake was owned by the plaintiff. The Court held that the lake was private even though it was possible to float a boat up the creek into the lake. The Court went on to state that since the land on both sides of the outlet creek was owned by the plaintiff it was private.

The rationale behind Pigorsh, the Shellenbarger Lake case as well as the other "dead-end” or detached lake cases is that these lakes are not useful for travel or transportation. In those cases the land surrounding each lake was owned by one or at most a few people who were seeking to exclude all others. Since the lakes led nowhere except to the plaintiffs’ land they were certainly not useful as highways or thoroughfares.

The stretch of water under consideration in this case is not a dead-end lake. Rather, it is a useful passageway for persons wishing to travel from Burgess Lake to Dogfish Lake, Salt Springs and Baker Road. Plaintiffs do not own all of the land surrounding this chain of lakes and streams.

Plaintiffs argue, nonetheless, that Burgess Lake is a dead-end lake with no public access and, hence, both the lake and creek are private. While there is some merit to this reasoning we do not think that it has application to this case.

First of all, whether Burgess Lake is navigable is not at issue. Secondly, the navigability of a lake is not necessarily determined by the navigability of its outlet creek. Michigan Conference of Seventh-Day Adventists, supra, at 88. We conclude that the reverse is also true — the navigability of a creek is not necessarily determined by the navigability of the lake which is its source.

Defendants in this case own land on Burgess Lake. As riparian owners they have the right to the reasonable use of the entire surface of the lake. Burt v Munger, 314 Mich 659; 23 NW2d 117 (1946). However, defendants’ status as riparian owners on the lake does not confer upon them the right to use the creek. Any such right is dependent upon their status as members of the public.

Therefore, we think that the reasoning of the dead-end lake cases is of limited applicability. Where, as in the instant case, the property surrounding both the lake and its outlet creek are not in the hands of a single owner each must be viewed separately.

The evidence shows that Burgess Creek is valuable for travel by boat or canoe between property not owned by plaintiffs on Burgess Lake and property not owned by plaintiffs on Dogfish Lake, Mill Pond and eventually Baker Road. We, therefore, conclude that the trial court was correct in finding it to be navigable.

Affirmed. Costs to appellees.

       "That there is a recognized distinction between the status of small streams which by the common law belong to the public for the limited purposes of flotation and fishing, and that of larger streams which are navigable 'in the more enlarged meaning of the term,’ admits now of no doubt.” In re Martiny Lakes Project, 381 Mich 180, 192; 160 NW2d 909 (1968).
      See also Grand Rapids v Powers, 89 Mich 94, 111; 50 NW 661 (1891), Bartke, Navigability in Michigan in Retrospect and Prospect, 16 Wayne L Rev 409, 412-419 (1970).

        Putnam v Kinney, 248 Mich 410; 227 NW 741 (1929), Winans v Willetts, 197 Mich 512; 163 NW 993 (1917), Giddings v Rogalewski, 192 Mich 319; 158 NW 951 (1916).

       This is not to say that defendants have no rights with respect to the outlet. If plaintiffs dammed the creek, defendants would be entitled to an injunction to return the water of the lake to its natural level. Krieg v Kaufman, 206 Mich 622; 173 NW 338 (1919). However, it would appear that unless the stream is held to be navigable, defendants would have no right to use it for transportation. See Lepire v Klenk, 180 Mich 481; 147 NW 503 (1914).


author: N. J. Kaufman, P.J.

text:
    DARIN & ARMSTRONG v BEN AGREE COMPANY
    Docket No. 78-160.
    Submitted November 14, 1978, at Detroit. —
    Decided January 16, 1979.
    Leave to appeal applied for.
    Ellis Funk, an employee of Ben Agree Company, was injured on the job when he fell through a hole in the roof. Ben Agree paid Funk worker’s compensation benefits and then brought suit against Darin & Armstrong, Inc., the general contractor, and General Motors Corporation, the owner. Judgment for plaintiff. The Supreme Court aifirmed as to Darin & Armstrong but reversed as to General Motors on the basis of instructional error, Funk v General Motors Corp, 392 Mich 91; 220 NW2d 641 (1974). No new trial was held because Darin & Armstrong satisfied the entire judgment.
    Darin & Armstrong then brought an action against Ben Agree in Genesee Circuit Court, seeking contractual and common-law indemnity. Summary judgment for defendant Ben Agree, Ollie B. Bivins, Jr., J. The court’s opinion stated that since Darin & Armstrong had been found guilty of negligence in the Funk case, it was not entitled to common-law indemnity. The contractual indemnity theory was also rejected on the ground that an indemnity provision in the contract did not specifically provide for indemnity of Darin & Armstrong against its own negligence. Plaintiff appeals. Held:

      References for Points in Headnotes

       41 Am Jur 2d, Indemnity § 24.
    57 Am Jur 2d, Negligence §§ 4, 11.

       41 Am Jur 2d, Indemnity § 28.

       53 Am Jur 2d, Master and Servant §§ 142, 159.

       46 Am Jur 2d, Judgments § 397.

       46 Am Jur 2d, Judgments §§ 397, 521.
    Mutuality of estoppel as prerequisite of availability of doctrine of collateral estoppel to a stranger to the judgment. 31 ALR3d 1044.

       46 Am Jur 2d, Judgments §§ 522, 523, 564.
    Judgment obtained by third person against indemnitee as conclusive against the latter, irrespective of its conclusiveness against indemnitor, in indemnitee’s action against indemnitor for amount paid in satisfaction of judgment. 24 ALR2d 329.

       46 Am Jur 2d, Judgments §§ 397, 564.

       41 Am Jur 2d, Indemnity § 15.

       41 Am Jur 2d, Indemnity §§ 9, 10.

       41 Am Jur 2d, Indemnity §§ 3,16.

       5 Am Jur 2d, Appeal and Error § 546.
    46 Am Jur 2d, Judgments § 463.

      1. A plaintiff must be free from fault in an action for indemnity. An indemnity action cannot be maintained where the fact of personal negligence was actually litigated in an earlier full trial on the merits (Funk), and was a fact fatal to recovery in Darin & Armstrong’s subsequent action against the Ben Agree Company.
    2. The defense of collateral estoppel is inapplicable in an action for indemnity where judgment in an earlier action rested upon personal negligence, a fact fatal to recovery, because this situation is subject to a well-recognized exception to the requirement that collateral estoppel does not apply unless the estoppel is mutual.
    3. The indemnity provision in the contract, drafted by Darin & Armstrong, could not be construed to provide an indemnity against its own negligence.
    4. An indemnity provision in the agreement between Darin & Armstrong and Agree which would provide for indemnification of Darin & Armstrong against damages for injury or property damage due to the sole negligence of Darin & Armstrong would be against public policy and void and unenforceable.
    5. Where Darin & Armstrong was found guilty of negligence in the prior action (Funk), a subsequent action for indemnification is improper because this would be akin to contribution, which is forbidden by Michigan courts where worker’s compensation is involved.
    Affirmed.
    1. Indemnity — Torts — Master and Servant — Freedom From Fault — Active or Causal Negligence.
    A general contractor seeking common-law indemnity from a subcontractor after the payment of a judgment for injuries sustained by an employee of the subcontractor, where the subcontractor was not a party to the action or judgment, must be free from personal fault; the general contractor, as plaintiff in the indemnity action against the subcontractor, is required to plead and prove freedom from active or causal negligence on its part.
    2. Indemnity — Torts — Master and Servant — Preventive Measures.
    Generally, the party best suited to adopt preventive measures and thereby reduce the likelihood of injury should be liable in an action for indemnity.
    3. Master and Servant — General Contractors — Safety Precautions — Avoidable Dangers — Prevention of Injury.
    It is part of the business of a general contractor to assure that reasonable steps within its supervisory and coordinating authority are taken to guard against readily observable, avoidable dangers in common work areas which create a high degree of risk to a significant number of workmen.
    4. Estoppel — Collateral Estoppel — Prior Lawsuit — Relitigation of Issues — Parties and Privies.
    Collateral estoppel precludes relitigation of issues actually determined in a prior lawsuit between parties or their privies.
    5. Estoppel — Collateral Estoppel — Prior Lawsuit — Mutuality of Estoppel — Relitigation of Issues — Parties and Privies.
    Mutuality of estoppel is for all practical purposes coextensive with the requirement of identity of parties or privity; collateral estoppel, which precludes relitigation of issues actually determined in a prior lawsuit between parties or their privies, will not apply unless the estoppel is mutual.
    6. Estoppel — Mutuality of Estoppel — Subsequent Actions — Indemnity — Satisfaction of Judgment — Findings of Fact —• Facts Fatal to Recovery — Indemnity Action Barred.
    A well-recognized exception to the requirement of mutuality of estoppel in a subsequent action exists in cases involving a relationship such as principal and agent, master and servant, or indemnitor and indemnitee; an indemnitee, in an action to recover from the indemnitor the amounts paid in satisfaction of a judgment obtained against him by an injured person, is bound by all findings without which the judgment could not have been rendered, and if the judgment in the earlier action rested on a fact fatal to recovery in the action over against the indemnitor, the latter action cannot be successfully maintained.
    7. Estoppel — Collateral Estoppel — Subsequent Actions — Indemnity — Negligence — Recovery.
    An action for indemnity cannot be successfully maintained where there is an assertion of collateral estoppel defensively by a defendant against the plaintiff who in a previous action was found to be personally negligent, a fact fatal to the plaintiff’s recovery, because there was an actual litigation of this issue in a previous full trial on the merits.

      8. Indemnity — Contracts — Construction op Contracts — Negligence — Intention op Parties.
    Indemnity provisions in a contract should not be construed to provide indemnity to an indemnitee for its own negligence unless such intention clearly appears from the language used.
    9. Indemnity — Building Construction Agreements — Negligence — Indemnification Clauses — Public Policy — Statutes.
    Building construction agreements purporting to indemnify the promisee against liability for damages arising out of bodily injury to persons or damage to property caused by or resulting from the sole negligence of the promisee or indemnitee, his agents or employees, are against public policy and are void and unenforceable (MCL 691.991; MSA 26.1146[lj).
    10. Indemnity — Concurrent Negligence — Contribution — Workmen’s Compensation — Exclusive Remedy.
    Indemnity provisions in a contract between a general contractor and a subcontractor cannot be utilized for indemnification of the general contractor for damages for injuries to the subcontractor’s employees who were injured in the course of employment where the general contractor was guilty of concurrent negligence because this would be akin to contribution which is forbidden by Michigan courts where worker’s compensation is involved.
    11. Appeal and Error — Complaints — New Theories on Appeal — Court Rules.
    A court rule requires that a complaint set forth a demand for judgment for the relief that the pleader seeks and the complainant may not shift ground on appeal and come up with new theories after being unsuccessful on those presented in the trial courts (GCR 1963, 111.1[3]).

      Joselyn, Rowe, Jamieson & Grinnan, P.C. (by Christopher L. Terry), for plaintiff.

      Harvey, Kruse & Westen, P.C. (by John A. Kruse and Michael F. Schmidt), for defendant.
    Before: N. J. Kaufman, P.J., and V. J. Brennan and Bashara, JJ.
   N. J. Kaufman, P.J.

On February 27, 1967, Ellis Funk, an employee of Ben Agree Co., a plumbing subcontractor, was injured on the job when he fell through a hole in the roof. Funk recovered workers’ compensation benefits from Ben Agree, and then brought suit against Darin & Armstrong, Inc., the general contractor, and General Motors Corporation, the owner. Darin & Armstrong notified Ben Agree of this action and requested that Agree take over the defense. Agree refused to do so. A jury trial was then held, and a verdict was returned against General Motors Corporation and Darin & Armstrong. The Supreme Court affirmed as to Darin & Armstrong, but reversed on the basis of an instructional error as to General Motors Corporation. Funk v General Motors Corp, 392 Mich 91; 220 NW2d 641 (1974). No new trial was held because Darin & Armstrong satisfied the entire judgment.

Darin & Armstrong then brought the present action on March 24, 1976, seeking contractual and common-law indemnity from Ben Agree. In an order issued December 20, 1977, the trial court granted summary judgment to Ben Agree. GCR 1963, 117.2(1). The court’s opinion stated that since Darin & Armstrong had been found guilty of negligence in the Funk v General Motors Corp action, it was not entitled to common-law indemnity. The contractual indemnity theory was also rejected, because the court found that the provision in question did not provide specific indemnity of Darin & Armstrong against its own negligence. Darin & Armstrong now appeals as of right, challenging both of these determinations and also contending that its complaint stated a cause of action for Agree’s breach of warranties to perform the work in a safe and workmanlike manner.

First, as to common-law indemnity, the party seeking such indemnity must be free from personal fault, i.e., free from active or causal negligence. Husted v Consumers Power Co, 376 Mich 41; 135 NW2d 370 (1965), Minster Machine Co v Diamond Stamping Co, 72 Mich App 58; 248 NW2d 676 (1976). Liability should fall upon the party best situated to adopt preventive measures. Dale v Whiteman, 388 Mich 698, 706; 202 NW2d 797 (1972), Minster, supra, at 62.

In the original lawsuit by Funk, Darin & Armstrong was found personally, actively negligent. In • upholding the jury verdict, the Court stated at 104:

"We regard it to be part of the business of a general contractor to assure that reasonable steps within its supervisory and coordinating authority are taken to guard against readily observable, avoidable dangers in common work areas which create a high degree of risk to a significant number of workmen.”

The above statement followed a discussion of the necessity to place "ultimate responsibility” on the general contractor for job safety, the recognition that as a practicál matter, often only the general contractor is in a position to provide safety features, and finally, the facts shown in the jury trial: That Darin & Armstrong’s project superintendent made repeated tours of the job site throughout each day, a job site where the complete absence of safety equipment for people working 30 feet above ground was "obvious to even the most casual observer”. Funk, supra, at 103. This is not "passive negligence”. See Moore v Lewis Manufacturing Co, 406 F Supp 1225, 1227 (ED Mich, 1976). To allow indemnification on these facts would be to defeat the Supreme Court’s intention in Funk.

134

However, that does not end the inquiry. Since Ben Agree was not a party to the Funk lawsuit, yet seeks to apply the Funk ruling to the present case, there is a substantial question as to whether the rule of mutuality of estoppel will allow Agree to do so.

Collateral estoppel precludes relitigation of issues actually determined in a prior lawsuit between parties or their privies. Senior Accountants, Analysts & Appraisers Association v Detroit, 399 Mich 449, 458; 249 NW2d 121 (1976). But collateral estoppel does not apply unless the estoppel is mutual. Howell v Vito’s Trucking & Excavating Co, 386 Mich 37; 191 NW2d 313 (1971). Mutuality of estoppel is for all practical purposes coextensive with the requirement of identity of parties or privity. Braxton v Litchalk, 55 Mich App 708, 721; 223 NW2d 316 (1974).

As noted in Braxton, and also in DePolo v Greig, 338 Mich 703; 62 NW2d 441 (1954), well-recognized exceptions to the mutuality rule exist where there is a relationship of principal and agent, master and servant, or indemnitor and indemnitee. These exceptions are confined to the defensive assertion of collateral estoppel. Howell, supra at 46-47, fn 7. The rule with respect to indemnity was stated as follows in Anno: Judgment obtained by third person against indemnitee as conclusive against the latter, irrespective of its conclusiveness against indemnitor, in indemnitee’s action against indemnitor for amount paid in satisfaction of judgment, 24 ALR2d 329, 330:

"Irrespective of whether a judgment obtained by an injured person against an indemnitee is conclusive upon the indemnitor under the general rules governing the conclusiveness of judgments, the authorities which have considered the subject of this annotation as a distinct question hold * * * that an indemnitee, in his action to recover from the indemnitor the amounts paid in satisfaction of a judgment obtained against him by an injured person, is bound by all findings without which the judgment could not have been rendered, and that, if the judgment in the earlier action rested on a fact fatal to recovery in the action over against the indemnitor, the latter action cannot be successfully maintained.”

Accord, 46 Am Jur 2d, Judgments, § 564, pp 725-726; Restatement Judgments, § 107, p 511.

In the case at bar, Darin & Armstrong’s claim is one for indemnification, and Ben Agree seeks to assert collateral estoppel defensively. The judgment against Darin & Armstrong in the prior action rested on a fact fatal to Darin & Armstrong’s recovery here, namely, Darin & Armstrong’s personal negligence. This issue has been "actually litigated” by Darin & Armstrong in a full trial on the merits. In addition, Darin & Armstrong notified Ben Agree of that action and requested Agree to take over the defense. In this factual situation the court correctly dismissed the action for indemnity. Builders Supply Co v P J McCabe, 366 Pa 322; 77 A2d 368; 24 ALR2d 319 (1951). We do not see the Supreme Court’s opinion in Howell, supra, as forbidding such a result.

Next, Darin & Armstrong argues that the following provision in its contract with Ben Agree allows indemnification:

"You agree to protect, defend, indemnify and hold harmless Darin & Armstrong, Inc., from all liabilities, claims or demands for injury or damage to any person or property arising out of or occurring in connection with the performance of this order.”

This provision, drafted by Darin & Armstrong, cannot be construed to indemnify Darin & Armstrong against its own negligence, because such an intention does not clearly appear from the language used, and Darin & Armstrong has not pointed to any surrounding circumstances which would support such a construction. Meadows v Depco Equipment Co, 4 Mich App 370, 375-376; 144 NW2d 844 (1966), Fireman’s Fund American Insurance Companies v General Electric Co, 74 Mich App 318, 323-326; 253 NW2d 748 (1977).

Even if the contractual provision could be read, in light of surrounding circumstances, as indemnifying Darin & Armstrong against its own negligence, the provision would be void as against public policy. MCL 691.991; MSA 26.1146(1); Ford v Clark Equipment Co, 87 Mich App 270; 274 NW2d 33 (1978). Nor could the provision be utilized to indemnify Darin & Armstrong for its concurrent negligence; this would be akin to contribution, which is forbidden by Michigan courts where workers’ compensation is involved. Husted, supra; Minster, supra; Jordan v Solventol Chemical Products, Inc, 74 Mich App 113; 253 NW2d 676 (1977).

Finally, Darin & Armstrong contends that it "has pleaded a valid claim for contractual damages in the form of indemnification for Agree’s breach of its express and implied warranties that the plumbing work would be performed in a safe and workmanlike manner”. It is unclear whether Darin & Armstrong is seeking indemnification or contract damages. If it is seeking indemnification, its claim must fail for the reasons outlined above. If it is seeking damages, we must hold that such a claim was insufficiently pled.

GCR 1963, 111.1(3) requires a complaint to set forth "a demand for judgment for the relief that the pleader seeks”. Darin & Armstrong’s complaint did not ask for breach of contract damages; it was framed solely on issues of indemnification. Moreover, Darin & Armstrong failed to mention breach of warranties in its briefs to the trial court, and the trial court did not address this theory of recovery in its opinion. As stated in Three Lakes Ass’n v Whiting, 75 Mich App 564, 581; 255 NW2d 686 (1977):

"This, however, was not the argument presented to the trial court. Plaintiff may not shift ground on appeal and come up with new theories here after being unusccessful on the one presented in the trial Court. Thompson v Ecorse, 7 Mich App 492; 152 NW2d 51 (1967), Rinaldi v Livonia, 69 Mich App 58, 64; 244 NW2d 609 (1976).”

The judgment of the trial court is affirmed. Costs to appellee.

       The proper course of action would have been for Darin & Armstrong to file a third-party complaint against Ben Agree in the original lawsuit. See Dale v Whiteman, supra.

         See Nash v Sears, Roebuck & Co, 383 Mich 136; 174 NW2d 818 (1970).


author: D. C. Riley, J.

text:
    PEOPLE v SHANNON
    Docket No. 78-207.
    Submitted December 13, 1978, at Detroit.
    Decided January 16, 1979.
    Joseph E. Shannon was convicted of receiving and concealing stolen property valued over $100, arising from his possession of a stolen car, Recorders Court of Detroit, Patricia J. Boyle, J. The defendant appeals alleging that it was reversible error for the trial court to instruct the jury on the fact that the defendant’s alibi witness was present but that the defendant had decided not to call the witness and to allow the prosecutor to refer, during closing argument, to the nonproduction of the alibi witness. Held:

    1. It was reversible error for either the trial court or the prosecutor to inform the jury of the defendant’s failure to call the alibi witness where the defendant filed a notice of alibi but did not testify or offer any other proof.
    2. The prosecutor’s allusions to items found in the car in question as stolen items was improper since no testimony was presented to show that the items were in fact stolen.
    Reversed and remanded.
    1. Witnesses — Criminal Law — Alibi Witnesses — Nonproduction of Witnesses — Jury.
    Informing a jury of a defendant’s failure to produce an alibi witness where the defendant had previously given notice of an alibi defense unduly denigrates the defendant’s case when he later chooses to present no evidence.

      References for Points in Headnotes

       75 Am Jur 2d, Trial §§ 736, 771.

       29 Am Jur 2d, Evidence § 148.

       29 Am Jur 2d, Evidence §§ 157, 440.
    Validity and construction of statute requiring defendant in criminal case to disclose matter as to alibi defense. 45 ALR3d 958.

       75 Am Jur 2d, Trial §§ 193, 194, 736, 771.
    Prejudicial effect of argument or remark that adversary was attempting to suppress facts. 29 ALR2d 996.

       29 Am Jur 2d, Evidence § 708.
    75 Am Jur 2d, Trial §§ 193,194.
    Prejudicial effect of argument or remark that adversary was attempting to suppress facts. 29 ALR2d 996.

      2. Constitutional Law — Criminal Law — Right to Remain Silent — Failure to Testify — Presumption of Innocence — Statutes.
    A criminal defendant’s failure to testify may not be commented upon by the court or the prosecutor; a defendant is under no duty to take the stand or proffer evidence, but rather may remain silent protected by the presumption of innocence (MCL 600.2159; MSA 27A.2159).
    3. Evidence — Alibi — Notice — Inadmissibility of Evidence — Federal Rules of Criminal Procedure.
    The Federal Rules of Criminal Procedure provide that evidence of an intention to rely upon an alibi defense, later withdrawn, or of statements made in connection with such intention, is not admissible in any civil or criminal proceeding against the person who gave notice of the intention (FR Crim P 12.1[f]).
    4. Witnesses — Criminal Law — Alibi Witnesses — Nonproduction of Witnesses — Prosecutor’s Comments.
    Comment by a prosecutor on the nonproduction of an alibi witness, where a defendant produces no testimony to support an alibi after giving notice of an alibi defense, improperly shifts the burden of proof to the defendent.
    5. Criminal Law — Evidence — Res Gestae — Inferences — Prosecutor’s Comments.
    Normally the facts and circumstances surrounding the commission of a crime are properly admissible as part of the res gestae; however, use of any evidence by a prosecutor is improper where it is used to create prejudicial inferences through the prosecutor’s own comments and where the inferences are unsupported by the evidence.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Brian Marzec, Assistant Prosecuting Attorney, for the people.

      Ostrowski, Wilson, Belanger & Boman, P.C., for defendant on appeal.

      Before: Danhof, C.J., and R. M. Maher and D. C. Riley, JJ.
   D. C. Riley, J.

We address a question of first impression in this state: whether, in a trial where defendant did not testify or offer any proof, the trial court committed reversible error by instructing the jury that the witness listed in defendant’s notice of alibi was present but defendant did not call him, and by allowing the prosecutor to comment on same.

Defendant Joseph Shannon was convicted by a jury on September 30, 1977, of receiving and concealing stolen property valued over $100, MCL 750.535; MSA 28.803, and was sentenced to a term of 40 to 60 months imprisonment. The evidence at trial showed that complainant’s automobile was taken from the front of his house on August 5, 1977, at approximately 1:20 a.m. Police officers Carroll and Prince arrived at the complainant’s house and made a police report. As they were returning to the station, they observed an automobile with its headlights off. A view of the license number revealed it to be the complainant’s stolen auto. The officers pursued the car for about a block before it stopped, at which time they saw two individuals exit. A chase proved futile; however, Officer Prince later observed the driver of the vehicle walking down the street and apprehended him. The officer identified him at trial as the defendant. A search of the vehicle disclosed five new tires, three packages of bedsheets, an eight-track tape deck, a movie projector and a box of slides. The complainant testified that none of these items belonged to him.

Defendant filed a notice of alibi pursuant to MCL 768.20; MSA 28.1043. During the trial, the proceedings were delayed while the alibi witness was brought from Jackson prison. However, after talking to the witness, defendant’s trial counsel decided not to call him. Further, the defendant himself did not testify.

The prosecutor asked the trial court to instruct the jury that defendant had filed a notice of alibi and the alibi witness was present, but the defendant had decided not to call him to testify. Defendant objected, but the trial court ruled that a police officer could testify that the alibi witness was present.

Consequently, the police officer was not called to the stand as defense counsel, faced with the officer’s testimony, instead agreed to the trial court’s instruction to the jury on the alibi witness’s whereabouts. The trial court informed the jury as follows:

"THE COURT: Ladies and gentlemen, before we proceed or before I proceed to make a few remarks, I want to apologize to you again for the delay.
"As you know, we were waiting for the arrival of a witness. You are instructed that the witness, Norman Avery, the witness listed in the Notice of Alibi filed by the defense in this matter has arrived and is available, but the defense has decided not to call the witness.”

The prosecutor further referred to the nonproduction of the alibi witness in his closing argument:

"Let me leave you with this observation, ladies and gentlemen. All the testimony of the People’s witnesses, Mr. McBain, Police Officer Prince and Carroll and Sergeant Friedman, all that testimony was uncontroverted. It was unchallenged by the Defendant’s alibi witness. The same witness we waited a day for, the same witness who finally arrived and was available to testify, the same witness whom the defense chose not to call.”

Defendant maintains on appeal that these comments, by impermissibly shifting the burden of proof to the defendant, were so prejudicial as to remove from him the benefits of a fair trial. We agree and reverse.

The prosecution principally contends that the court committed no error in taking notice of defendant’s alibi pleading as such pleadings may be introduced into evidence as part of the "public records” exception to the hearsay rule. MCL 600.2107; MSA 27A.2107. Therefore, it reasons, informing the jury of defendant’s notice of alibi and subsequent failure to call a witness was not erroneous because this information could already have been introduced at trial. Assuming, arguendo, the validity of this contention, it would only permit the lower court’s action to survive an attack based upon hearsay and does not reach the issue of whether defendant is unfairly prejudiced by such practice. There are numerous motions, pleadings and briefs in a court file that may be • public record, but would not be admissible at trial because of their prejudicial impact.

Informing the jury of defendant’s failure to produce an alibi witness where he had previously given notice unduly denigrates defendant’s case when he later chooses to present no evidence. At issue is the jury’s ability to draw an impermissible inference of guilt from defendant’s decision not to call an alibi witness and its relation to his involvement in the charged crime. A jury is left with the impression that by defendant’s unsuccessful attempt to follow through with his alibi, guilt is rendered more presumable and apparent.

But the failure to produce an alibi witness is not necessarily inconsistent with a defendant’s innocence. A witness may be withheld for a myriad of reasons, tactical or otherwise, such as a prior criminal record, or because of his susceptibility to cross-examination on collateral issues. Moreover, an alibi witness may suddenly refuse to testify, or change his testimony, which appears to have been a possibility in this case. For the same reasons it may be tactically unwise for the defendant to offer explanation to the jury of his reasons for not producing the witness.

It is axiomatic that defendant’s failure to testify may not be commented upon by court or prosecutor. MCL 600.2159; MSA 27A.2159, People v Hider, 12 Mich App 526, 529-530; 163 NW2d 273 (1968), People v Jordan, 7 Mich App 28, 30; 151 NW2d 242 (1967). Defendant is under no duty is take the stand or proffer evidence, but rather may remain silent protected by the presumption of innocence. This continuing presumption of innocence serves as the basis for the requirement that the state has a never-shifting burden to prove guilt beyond a reasonable doubt. The lower court’s instruction to the jury in effect restricted this presumption by allowing the jury to make adverse inferences from the alibi witness’s failure to testify. If no adverse inference can be drawn from defendant’s election, we see no reason to permit it in cases where he further elects not to better defend himself, here, through an alibi witness.

Further, there is no useful purpose served by informing the jury of defendant’s original intention to produce an alibi and his subsequent decision not to call a supporting witness. The notice of alibi requirement was provided for the benefit and protection of the public. People v Merritt, 396 Mich 67, 77; 238 NW2d 31 (1976), People v McFadden, 347 Mich 357, 363; 79 NW2d 869 (1956). Its purpose is to enable the prosecution to investigate the merits of such a defense prior to trial, Merritt, supra, and not to alert the jury of the defendant’s proposed defense.

Finally, we note that recent amendments to the Federal Rules of Criminal Procedure have made reference to a defendant’s notice of alibi inadmissible. FR Grim P 12.1 requires notice of alibi similar to Michigan’s statute. In addition, Rule 12.1(f) provides as follows:

"(f) Inadmissibility of Withdrawn Alibi. Evidence of an intention to rely upon an alibi defense, later withdrawn, or of statements made in connection with such intention, is not admissible in any civil or criminal proceeding against the person who gave notice of the intention.”

In sum, we conclude that the lower court’s instruction in the present case constituted reversible error. For the reasons cited above, we reach a similar holding concerning the prosecutor’s remarks during final argument.

In doing so we carefully distinguish cases allowing comment upon a defendant’s failure to produce a corroborating witness. See, e.g., People v Hunter, 218 Mich 525, 528-529; 188 NW 346 (1922), People v Ford, 59 Mich App 35, 39; 228 NW2d 533 (1975), People v Hooper, 50 Mich App 186, 197; 212 NW2d 786 (1973), lv den, 391 Mich 808 (1974), People v Gant, 48 Mich App 5, 8-9; 209 NW2d 874 (1973), People v Fuller, 44 Mich App 297, 299; 205 NW2d 287 (1973), aff'd, 395 Mich 451; 236 NW2d 58 (1975), People v Falkner, 36 Mich App 101, 109; 193 NW2d 178 (1971), rev’d on other grounds, 389 Mich 682; 209 NW2d 193 (1973). In those decisions the defendant himself testified or produced witnesses on his behalf. In the case at bar defendant never took the stand nor offered any other evidence. Where a defendant testifies to an alibi and calls no additional witnesses to support it, the prosecution, by commenting on the nonproduction of corroborating alibi witnesses, is merely pointing out the weakness in defendant’s case. When, however, the defendant produces no testimony to support an alibi, the prosecutor, by commenting on the nonproduction of alibi witnesses, is not exposing a weakness in defendant’s case, but is rather improperly shifting the burden of proof to the defendant.

Since the issue may arise in another proceeding, we briefly address defendant’s remaining allegation of error. At trial the prosecutor introduced testimony concerning the items found in complainant’s vehicle. Defense counsel objected, and in response the prosecutor argued before the court and jury as follows:

"Your Honor, that’s true that the Defendant is not being charged with any crime with regard to these articles. However, since one of the elements of this offense is knowledge that the car is stolen, I believe and I believe that’s where the materiality of this line of questioning lies, that the fact that there were a lot of objects in that car which were very probably stolen articles, I believe that that is material as to the knowledge of the Defendant I would ask to be allowed to continue.” (Emphasis supplied.)

The trial judge then ruled the testimony admissible as part of the "res”. Further, in his closing argument the prosecution again alluded to the stolen nature of the objects as they reflected upon defendant’s guilty knowledge.

Normally the facts and circumstances surrounding the commission of a crime are properly admissible as part of the res gestae. People v Mayes, 78 Mich App 618, 623; 261 NW2d 22 (1977), People v McPherson, 38 Mich App 534, 543; 197 NW2d 173 (1972), lv den, 391 Mich 771 (1974), cert den, 417 US 972; 94 S Ct 3179; 41 L Ed 2d 1143 (1974). In the present case, however, the innuendo created by the prosecutor was that the items were stolen and therefore defendant must have known the car itself was stolen. This was highly prejudicial, since the inference attempted by the prosecutor through his own comments in the presence of the jury was unsupported by the evidence. No proof was tendered establishing that the objects in the vehicle were the result of theft. The owner of the automobile testified the articles were not his, but the real owner was never called to verify their "stolen” character. Nor was any evidence presented indicating the items were not defendant’s or that he was in possession without consent of the owner. Without more, use of the evidence by the prosecutor in this manner was improper. See People v Campbell, 61 Mich App 600; 233 NW2d 103 (1975).

Reversed and remanded for a new trial.

       Reference to the transcript reveals the prosecution’s initial contentions worthy of only cursory discussion. They maintain that defendant’s trial counsel agreed to the court’s jury instruction. However, an examination of the record indicates that defense counsel strongly objected to any reference to alibi in front of the jury, and agreed to the instruction only when faced with a more undesirable alternative. It is further alleged that defendant’s attorney raised an alibi defense in his opening statement. Counsel never mentioned the word alibi and stated that defendant would testify that "he did not know about any automobile”. Nor was it ever mentioned that another witness would be called to testify.

       For example, motions to suppress illegally obtained evidence or to limit the permissible scope of impeachment, although part of the court record, are never admissible at trial because of their prejudicial nature.

       We do not believe the fact that defendant originally gave notice of his alibi compels a different result. Such notice, required to be given at least 10 days prior to trial, is mandated by statute and therefore leaves defendant little choice but to serve notice even though the merits of such a posture might not have been fully explored. For the reasons cited in the text, we believe it unduly prejudicial to penalize defendant for subsequent changes perhaps entirely outside of his control.