author: Ostrander, J.

text:
    CORNING v. POTTER.
    1. Drains — Statutes—Petition to Extend — Injunction.
    Section 4379, 2 Comp. Laws, authorizing the cleaning, widening, or extending of a drain upon the petition of five freeholders having specified interests, applies to the improvement of a drain in existence, not to the construction of branches or laterals to such drain, nor the extension of a single drain into a system of laterals and branches.
    2. Same — Drain Commissioner — Delay—Excuse for Delay.
    The amount of work in the hands of a county drain commissioner preventing his action upon the petition for more than two years was a sufficient excuse for the delay.
    8. Same.
    In so far as the work done upon the drain that already existed was an improvement, to the drain, it was supported by the petition and was to that extent valid.

      4. Same — Amendment—Jurisdiction.
    The drain commissioner did not lo?e jurisdiction of the petition by reason of the amendment to the statute, Act No. Ill, Pub. Acts 1907, changing the requirements as to those signing the petition.
    5. Same — Constitutional Law.
    Nor is the drain law unconstitutional for omitting to provide for equal notice to nonresident landowners: the provision for such notice is ample.
    Appeal from Gratiot; Searl, J.
    Submitted April 10, 1912.
    (Docket No. 86.)
    Decided October 1, 1912.
    Rehearing denied December 18, 1912.
    Bill by Anna Corning, as executrix and trustee of the estate of William Corning, deceased, against Elon P. Potter, Gratiot county drain commissioner, and others, for an injunction.and other relief. Prom a decree for complainant she appeals.
    Modified and affirmed.

      G. W. Davis, for complainant.

      George P. Stone, for defendant Potter.
   Ostrander, J.

The bill was filed to restrain the return of certain lands as delinquent for drain taxes, to have such taxes adjudged to be void, and for a further decree determining that the proceedings in the probate court to obtain the right of way for a drain, the order establishing it, and, in fact, that all of the drain proceedings, were taken without jurisdiction. At the hearing a decree was entered, reciting that all of the proceedings for the establishment and location of the drain, prior to the application to the probate court for the appointment of special commissioners, were regular and valid, but that the proceedings taken to condemn the land of the complainant and the assessment of taxes thereon were null and void. It was therefore ordered that the collection of the taxes and the return of the lands by the county treasurer as delinquent for said taxes be perpetually restrained and enjoined; and the drain commissioner was authorized to begin proceedings de novo to secure or condemn the right of way for the drain across complainant’s land and for a reassessment of taxes thereon. The defendants, the county drain commissioner and the county treasurer, have not appealed from the decree. The complainant has appealed, and her contentions are in this court discussed under five propositions, stated by her as follows:

“First. The application for the drain did not confer jurisdiction upon the commissioner to lay out the seven drains mentioned therein as one drain, nor to act at all thereunder, even though the place sought to be drained thereby constitutes in its entirety one watershed.
“Second. If the petition to the commissioner conferred upon him jurisdiction to lay out the drains, he lost such jurisdiction by delay for more than two years.
“Third. The amendment to the statute in relation to the qualifications of the petitioner for a drain, which amendment was made pending the delay of the commissioner to act on the petition, and was without a saving clause as to pending proceedings, deprived such proceedings of all legal force as authority to the drain commissioner to proceed to lay out, establish, or construct the drain.
Fourth. The statute does not provide equal notice to nonresidents that it does to residents of the proceedings, to take their land for right of way for the drain; and it is therefore unconstitutional and void.
“Fifth. The circuit court, in chancery, had jurisdiction of the subject-matter in controversy, for the purpose of restraining the return of complainant’s land for the illegal drain tax, and to remove the cloud from the title of her land, created thereon by the levy of such tax, and also to adjudge void the proceedings whereby it was attempted to take her land for the right of way for the drain; hence it has jurisdiction to grant to her complete relief, and for that purpose to adjudge the petition for the drain to be insufficient to confer jurisdiction on the commissioner to proceed over again to acquire the right of way, or to re-levy the tax.”

The principal question, and the one which receives the greatest attention from counsel, arises under the first of the propositions stated, and to understand it a considerable reference must be made to the facts. In the townships of Pine River and Arcada, in Gratiot county, there is a marsh, or swamp, more than six miles in length and in places two miles or more in width. It covers portions of sections 7, 8, 17, 18, 19^20, 29, 30, 31, and 32 in Pine River township and sections 5 and 6 in Arcada township. A creek known as Runyon creek, runs through a portion of this swamp, with an outlet in Pine River on section 5, in the township of Arcada. It is said, and the fact does not appear to be seriously disputed, that at some time two drains were laid in this marsh, or swamp, known as the Runyon Creek and Gallagher drains, and that, to some extent at least, they followed the channel of the creek. As would be supposed, the boundaries of the marsh, or swamp, are not regular, but branches or arms of it extend away from the main body of the marsh into higher lands. From the plat which is produced, it would appear that when the original drains were constructed, or after-wards, and before the present proceeding was instituted, and either by public authority or private action, some laterals were dug which connected with and emptied into the main drain; but upon this subject the record affords no specific information. It does not appear that the plan or scheme of drainage first adopted embraced or involved the idea of laterals to the main drains. The Runyon Creek and Gallagher drains connect the one with the other, and together form a continuous, and in purpose and accomplishment a single, drainage canal. In March, 1906, a petition, dated February 23, 1906, was filed with the county drain commissioner, in which it was represented that certain drains, known and designated as the Runyon Creek and Gallagher drains, needed—

"Cleaning out, deepening, widening and straightening the entire length of above-named drains; also the location and construction of branches. The cleaning out, etc., of main drain to commence near the west 1-8 line of sec. 5, Arcada township; thence following the general course of Runyon creek, across sections 31, 32, 29, 30, 20, 17; also the course of Gallagher drain across sections 17, 8, 5, and 6 in Pine River township. Said drains to be straightened at such points as may by you be deemed necessary.”

There followed a description of six branches, so-called, each described as running from a point in the main drain to a described terminal in the surrounding land; some of them extending to the right and some to the left of the main canal. Three of them enter the main drain above and two of them below the lands of complainant.

The petition continues:

“That such cleaning out, deepening, widening, straightening, and location of branch drains of said drain is a necessity, by reason of the old drains having become filled to such an extent as to render them useless as drains, and that dams are formed in many places, causing serious damage to property, and detrimental to public health, convenience, and welfare; that the depth and width be such as you may determine after a' survey has been made; that a strip of land four rods wide on each side of the center line be used as right of way for use in construction.”

The petition had 29 signatures. It recited that 5 of them, whose names are mentioned in the body of the petition, “ are the owners of lands liable to an assessment for benefits in the cleaning out, deepening, widening, straightening, and improving by adding branches.”

The county drain commissioner certified that on the 23d of April, 1907, in his official capacity, he personally passed over and along and examined the route of the proposed drain, and that from such examination he is of opinion that “said proposed drain is a necessity, and will be, if constructed, conducive to the public health, convenience, and welfare, and that the application for the said drain as proposed should be granted;” and he ordered and determined that a survey and measurement of the line of “said proposed drain” should be made. In July, 1908, a survey was made, and the minutes of the center line and the specifications for cleaning out, deepening and widening the main drains, and for locating and establishing the branches, appear in the record. The branches or laterals are described in these minutes by numbers, and the lengths are given therein as follows:

Length of main drain........................587.94 chains
Length of branch No. 1.......'...............132.00 chains
Length of Branch No. 2------..................28.80 chains
Length of Branch No. 3.... -20.25 chains
Length of Branch No. 4... 9.16 chains
Length of Branch No. 5..... 41.75 chains
Length of Branch No. 6__________-............84.00 chains
Total length of drain..................903.90 chains

The reason given for the delays on the part of the county drain commissioner is that the large amount of work in his office prevented earlier action. In May, 1909, he made an application to the probate court for the appointment of special commissioners to secure the necessary right of way, and on the 28th of May in that year a citation was issued by the court. The citation was published on the 9th and 16th days of July, 1909, and gave notice of a hearing on the 20th day of July, 1909, on which day the court made an order appointing special commissioners. Proof of publication of the citation appears to have been filed September 1, 1909, and the notices of the hearing were posted in Pine River township on the 9th of July, 1909. The Complainant, executrix and trustee, resides in the State of New York. There is no evidence that a copy of a citation was mailed to her; and no showing was made that her residence was not known to the drain commissioner. The drain was constructed substantially as applied for, and substantially in accordance with the first order of determination and the survey. The main line of the drain intersects the S. W. £ of section 20, Pine River township, owned by the complainant as executrix of the Corning estate; and a branch or lateral drain, known as Branch No. 3, extends from the main drain, now called and known as No. 73 drain,/across the E. ■§• of the S. W. £ of section 20 to land on theN. W. £ of the S. E. £ of section 20, owned by one Post. The cost of the improvement, the itemized account of which was made July 20, 1909, was $20,500. There is an item of $3,100 for constructing bridges. The amount of the contract for constructing Branch No. 3 is given at $251.10. As I understand the estimate or computation referred to, the cost of the six branches or laterals, exclusive of bridges (if there were any bridges or laterals), was about $4,400. To the township of Pine River was apportioned, for alleged public benefits, $3,177.50; to the land of the Corning estate for special benefits, $922.50. Besides the S. W. £ of section 20, the Corning estate owns the S. E. £ of section 19.

In some States of the Union (Nebraska is an example), the statute expressly permits the laying out and construction of lateral spurs of a drain, where that is necessary to secure the improvement, and whether they are mentioned in the petition or not. See Omaha, etc., R. Co. v. Sarpy County, 82 Neb. 140 (117 N. W. 116). It is the contention of the defendants (appellees) that in providing for extensions of existing drains our statute permits laterals, if such laterals are necessary to secure the improvement desired to'be made, when they are asked for in the petition. In the opinion filed in the court below, the point now considered was dismissed with the statement:

“This was one drain proceeding with six branches, all constituting one drainage system, and, under the authorities, was permissible” — and Patterson v. Mead, 148 Mich. 659 (112 N. W. 742), was cited.

Complainant moved the court for a rehearing upon two questions, one of them the one now under consideration; and it appears that a reargument was had, and a supplemental opinion was filed. Again referring to the Tins-man and Patterson Cases, the court said in part:

“ If three drains may all be cleaned out, deepened, and widened and extended under one petition, there is no good reason why a drain with branches, as in this case, may not be constructed under one petition, where the proposed branches are set out in the petition, and it is all undertaken and carried on as one'drain.' The objection is made that by allowing this to be done, owners of lands on these branches may secure a drain, where, if they were obliged to have the branch constructed as a separate drain, they would not secure it, because of not being able to get enough signers on a petition.' This same objection would apply where a drain turned h square corner, and was extended through a rise of ground, and in front of one farm only after reaching the low ground above the turn. Yet, it being one drain, no one would raise the question here presented. This drain is one drain, and drains one watershed. It has been constructed, and the evidence shows that it benefits the lands of complainant, and, I think, to the extent of the assessment made against same; but, as this assessment is set aside, that is not important now.”

In the case of Patterson v. Mead, it was objected, in proceedings instituted to review the action of the county drain commissioner and judge of probate, that three separate township drains, with their several assessment districts and their independent entities, could not be joined in a proceeding to deepen, widen, straighten, and extend said several drains. It was held there was no objection to a single proceeding by the county drain commissioner to open, widen, straighten, deepen, and extend three drains established by township drain commissioners, where it appeared that they in fact constituted one drainage canal, no portion of which could be much disturbed without affecting the entire drain. It was said:

“ The action contemplated by petitioners affects them all, and relates to the result to be accomplished by each of the three drains as originally constructed and the improvements which are now desired. These rulings are based upon the language of the statute, and are approved in Tinsman v. Monroe Probate Judge, 82 Mich. 562 (46 N. W. 780).”

The statute (2 Comp. Laws, § 4379) provides that when a drain, or any portion of it, needs cleaning out, straightening, deepening, widening, or extending, any five freeholders of the township, or townships, in which it is situated, one or more of whom shall be owners of land liable to an assessment for benefits in the cleaning out, etc., may make application in writing to the county drain commissioner, setting forth its necessity, provided that, whenever any such drain shall need straightening, deepening, widening, or extending, the same proceedings shall be had throughout in every respect as are provided in this act for the locating and construction of a drain in the first instance. This section deals, not with a system of drainage, but with an established drain. In the case at bar, petitioners refer to an established drain, or drains, and ask for improvements thereto. What improvements were warranted F This depends upon the meaning of the word ‘ ‘ extending ” in the statute. It does not mean straightened, or widened, or deepened, because these words are all of them employed in connection with the word “ extending,” or the word “extension.” “Wide” and “deep” are both terms of dimension, and the other term, as applied to a ditch or a canal, is “length.” Generally the act provides for laying out, establishing, constructing, and maintaining drains, and for cleaning out, etc., established drains. We need not determine whether a drain with spurs and laterals may be established. Undoubtedly the scientific and economical drainage of a large body of wet land may demand drains, or a drain, with more than two terminals, with forks and spurs. We do not question either the desirability of the spurs and laterals which are the subject of discussion here. But we are confronted with the statute. We find that to move the drain commissioner a different petition is required for the establishment of a drain than for the lengthening of an established drain. This confirms the opinion that the legislature, in providing for the extension of an established drain, meant the lengthening of the established drain, and did not mean the extension of a single drain into a system of drains by laterals and branches. If it were otherwise, then, in theory at least, a very small drain, lawfully established, might be used to build up a large system of drainage, upon a petition which would be insufficient to establish any branch or lateral as a separate drain. Examining the subject from every point of view, and impressed, as we are, with the merit and economy of the system of drainage actually established, we nevertheless feel obliged to hold that, for the purpose of constructing the six lateral, or spur, drains, the.petition was. wholly ineffective. The petition was sufficient for the purpose of improving the existing drain. . ,

We have examined the other objections hereinbefore stated, and are of opinion that the second, third, and fourth are without merit. The delay of the commissioner is explained. Ranney Refrigerator Co. v. Smith, 157 Mich. 302 (122 N. W. 91); Chase v. Porter, 166 Mich. 21 (131 N. W. 106); Davison v. Otis, 24 Mich. 23. Assuming, as we do, that the petition was sufficient to support some action of the commissioner, jurisdiction was not lost by the amendment to the law affecting the petition.

We are not disposed to hold the statute unconstitutional. The proceeding is special, in the nature of a proceeding in rem, and no good reason is perceived for saying that nonresident landowners may not be generally notified of the pendency of the proceeding. The complainant is in a court of equity, and we have no doubt of the jurisdiction to render such a decree as is now indicated.

Our conclusion requires the reversal and setting aside of the decree of the court below and the entry of a decree saving the proceeding, so far as the improvement of the established drain is concerned, and making complainant liable for a proper proportion of the cost of such improvement, but discharging said lands from any cost or expense or tax for the laying out and constructing of the said lateral drains. No portion of complainant’s lands have been condemned, and there is no occasion for further proceedings to condemn them. We apprehend that counsel will be able to agree upon the details of a decree which will determine finally the rights of interested parties.

Moore, C. J., and Steeee, McAlvay, Brooke, and Stone, JJ., concurred. Bird, J., did not sit.


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    McCAIN v. SMITH.
    1. Contracts — Implied Contracts — Work, Labor and Services.
    When work has been performed by one at the request and with the knowledge of another, or an employment has been authorized, the performance of the work on the one hand, and the acceptance of benefits thereof on the other, establish a contractual relation, and, unless there is something in the relation to repel the idea of payment, create a right to compensation for such work.
    S. Same.
    But in the absence of evidence that services were performed at the request of defendant, plaintiff was not entitled to a verdict as a matter of law. ,
    3. Same.
    Plaintiff’s decedent was employed as bookkeeper by defendant’s father, a stockholder of the Walton Salt Company, a partnership association, of which defendant was secretary, and in which defendant also had a small amount of stock. During a period of about five years decedent kept the books of the partnership in conjunction with . his work in the office of defendant’s father, and, as plaintiff claimed, at defendant’s request. In response to a bill for services rendered by decedent to defendant, the latter wrote that he would be pleased to give the account his early attention the first time he saw decedent, and in the meantime returned it for correction, as decedent had left off charges for drawing his breath and other active services, which should receive remuneration; to kindly correct and return, etc. Held, that a verdict for defendant was supported by the evidence.

      4. Same — Express Contract.
    Neither an express nor an implied contract can be created unless the parties sustain contractual relations, — that mutuality of will and interaction of parties generally defined as “privity.”
    5. Same.
    If a service is spontaneous or an act of kindness, not upon request, or if another ground more probable than the promise of some recompense exists, no contract relation is established. Woods v. Ayres, 39 Mich. 351 (33 Am. Rep. 396).
    6. Same — Executors and Administrators.
    Conflicting evidence examined, and held, to warrant a verdict that plaintiff’s decedent did not perform services for defendant or at his request.
    7. Same — Charge—Conduct oe Court.
    And it is held that the charge of the court fairly submitted the question to the jury.
    8. Appeal and Error — Remarks of Judge — Saving Questions for Review.
    Without exceptions taken on the trial, the court will not review remarks made by the trial court.
    9. Same.
    Nor was an incorrect statement of the trial court, made in his charge relative to a fact which was not controlling in the ease, sufficiently prejudicial to warrant a reversal.
    10. Witnesses — Estates of Decedents.
    In order that testimony of an agent may be rendered incompetent under 3 Comp. Laws, § 10212, as amended by Act No. 30, Pub. Acts 1903, because equally within the knowledge of deceased, such agency must have had reference to the contract in question in the case.
    11. Same — Stockholders—Corporations.
    Testimony of stockholders and officers in the same corporation in which defendant held stock, but which was not a party to the case, was not barred under the statute.
    Error to Wayne; Hosmer, J.
    Submitted April 10, 1912.
    (Docket No. 98.)
    Decided October 1, 1912.
    Assumpsit by Frederick E. McCain as executor of the estate of Edmund S. McCain against Angus Smith for services rendered. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      Frederick E. McCain, in pro. per.

      Robson & Murfin, for appellee.
   Stone, J.

This case is here for the second time. When first here, it was reported in 164 Mich. 683 (130 N. W. 342). The action is to recover against the defendant for the services of plaintiff’s testator in keeping certain books of a partnership association, limited, of which the defendant was secretary and treasurer, from February 1, 1901, to February 1, 1906. Upon the first trial no testimony was offered by the defendant, and the trial court directed a verdict for the defendant; and the important question before this court, when the case was here before, was whether the plaintiff had made a prima facie case.

In view of the letter of defendant to plaintiff’s testator, bearing date January 8, 1906, in answer to a letter of the latter, of January 5, 1906, inclosing an account for the claimed services (which letter will appear hereafter in the charge of the court), we were of the opinion that the case should have been submitted to the jury, and it was reversed and sent back for a new trial. The case has been again tried at the circuit; and, upon the material questions presented, the case, as made by plaintiff upon the second trial, is not essentially different from the case made upon the first trial. Upon the second trial, evidence on behalf of the defendant was introduced, and the case was submitted to the jury upon a charge of which the following is the substance:

“The testimony shows that for a considerable period of time Edmund S. McCain, who is now dead, was in the employ and in the office of S. L. Smith in this city, in the Hammond Block; that while he was there he performed services for Mr. Smith, for which he was paid. It shows also that he claimed to have performed considerable services for a certain slate company, in which Samuel L. Smith was a large stockholder, and that an adjustment was made in his lifetime of that matter. It shows also that he kept the books, in so far as it was essential, of the Walton Salt Corporation, I believe is the name, which is a limited partnership, or partnership association, limited, under the laws of this State, and that he continued to keep the books, as I say, in so far as bookkeeping was required in that regard, for a period of several years. The testimony shows that a bill was rendered by Mr. McCain, not to the Salt Company, but to the defendant in this case, who was secretary and treasurer, I think, of the company,. and that in response to such a bill a letter was written by the defendant, Angus Smith, as follows:
“ ‘January 8, 1906.
“‘Mr. E. S. McCain,
“ ‘719 Hammond Bldg.,
“ ‘ Detroit, Michigan,
‘Dear Sir:
“ ‘I have your esteemed favor under date of January 5th. I will he pleased to give this account my “ early attention ” the first time I see you, and in the meantime return the same to you for correction, as I note you have left off charges for drawing your breath and other active services, which should, of course, receive remuneration. Kindly correct the bill and return to, me at your convenience.
“ ‘Yours very truly,
“ ‘Angus Smith.’
“Now, it is contended on behalf of the plaintiff in this case that, inasmuch as the secretary and treasurer, as a single officer of the Salt Co., is not authorized to contract a debt for more than $500, and inasmuch as larger services were rendered, as he claims, to the corporation than the sum of $500, that therefore this is necessarily an obligation of the defendant, and not of the Walton Salt Co., and he contends that the letter which I have just read to you shows contractual relations existing between himself and the defendant, Angus Smith — between the deceased and the defendant, Angus Smith.
“ I cannot follow the reasoning of the plaintiff’s counsel in this case, in so far as he claims that the evidence shows that the obligation to keep the books — the hiring, if there was any hiring, to keep the books — of the Walton Salt Co. was beyond the power of Angus Smith, because, gentlemen of the jury, it does not follow that because he kept the books for six years that he was hired for that purpose, and, in the absence of any evidence which would tend to show that there was any hiring for that length of time, I do not think it can be implied from the evidence in this case; and so, as I say, I cannot follow the argument of counsel in that regard.
Now, I am asked to charge you that the evidence shows that there were contractual relations between the plaintiff’s intestate, Edmund S. McCain, in his lifetime, and Angus Smith. I cannot say that is so. The only evidence there is in this case of any hiring whatsoever must be implied, if implied at all, from the letter which has been read.
“Now, if there is a contract to be implied at all between the plaintiff’s intestate, Edmund S. McCain, and the defendant, it must come, I think, gentlemen of the jury, from the letter and from the last sentence of the same, because there is no implication of a contract drawn between the plaintiff’s intestate, Edmund S. McCain, and Angus Smith merely from the rendition of the services to the company in which he was an officer, because services were rendered to the Walton Salt & Lumber Co. — because the Walton Salt & Lumber Co. was bankrupt, and because he has not received it, will not in itself, gentlemen of the jury, support an inference that the defendant is liable. If liability come, it must come from the inference which would arise from that letter; and that is the only evidence in the case from which inference can be drawn. It is for you to say whether that letter does or does not support that inference; whether Mr. Smith intended to place the entire of the services upon the same basis as of the drawing of the breath, or whether by that last clause of the letter is to be inferred that services were rendered to him.
_ “ Now, I think, gentlemen of the jury, that is substantially all I need say on that branch of the case, except as I pass over so many of the charges which have been given me — the requests to charge which have been given me to give you.
“ There is one feature of this case to which I must call your attention as the counsel has. Mr. McCain is, of course, dead, and he cannot testify, and, of course, under those circumstances, as has been stated by counsel, where an action or proceeding has been prosecuted or defended by the heirs, assigns, or personal representatives of the deceased party, the opposite party, if examined as a witness in his own behalf, is not permitted to testify as to those things which were equally within the knowledge of the deceased; and so the statute of this State bars Mr. Smith from being a witness in his own behalf as to those matters which were equally within the knowledge of the deceased. That, perhaps, it is well for me to say to you that you may understand, or that your recollection may be refreshed as to the reason why Mr. Smith has not testified upon the principal matters in this case.
151 am asked to charge you, and I think I have already charged you, that whatever may have been the effect of the letters in correspondence, there is no direct testimony in this case that Angus Smith ever hired Mr. E. S. McCain to keep the books of the Walton Salt Association; and the mere fact that the books were kept by Mr. McCain would not establish any liability on the part of the defendant to pay for this work. It cannot be shown— defendant cannot be shown to be liable — unless there was a contractual relation shown to have existed between himself and E. S. McCain for the keeping of the books, or the payment by Angus Smith therefor. I think that is so.
“I am asked to charge you, and do charge you, that the mere fact that Mr. McCain did the work on these books does not create any liability on the part of Angus Smith, unless you find that the latter promised to pay for the work.
“ I charge you that there is no evidence in this case that the defendant ever promised to pay Mr. McCain for services on these books, unless said promise to pay is found in letter of January 8, 1906, which has been read to you, and in which the defendant returns the statement for services, with the suggestion that no charge has been made for drawing breath, etc. It is your duty to determine whether the defendant meant by this letter to acknowledge any indebtedness to Mr. McCain, or whether he meant to infer that the sending of the bill to him was absurd, and was not worthy of any serious consideration.
“In this connection you must consider the fact that this letter has been carefully preserved by the plaintiff, but that he does not produce the statement which was inclosed with it, and which might have had upon it some notation or writing which, perhaps, showed the intent, beyond question, of the defendant to deny his liability.
“You may consider, as having a bearing on this question, that this statement has not been produced by the plaintiff in connection with the letter, although it must have been last in his possession — the possession of the plaintiff’s intestate, that is. That is undoubtedly so; but you have heard his explanation in that regard, gentlemen of the jury, and that you should take into consideration as well.
“I am asked to charge you that you must consider in connection with this letter, as having a bearing upon its meaning, the fact that there is no proof that after the receipt of this letter any further demand was made upon Angus Smith, upon this account, until the letter of the plaintiff under date of August 26, 1908. You must take this fact into account in deciding how Mr. McCain himself understood this letter; and if you find that Mr. McCain understood this letter to be a denial of liability you are justified . in adopting the same view as to its meaning.
“You may take into consideration, gentlemen of the jury, as well the fact that no suit was brought in the lifetime of the deceased, Edmund S. McCain. You have also, in that connection, the explanation of the plaintiff in the case, that he wished, I think, only one controversy pending at a time.
“ I am asked to charge you that these letters are not in themselves evidence tending to prove any contract by the defendant to pay Mr. McCain for the work upon these books — only some evidence that at the time Mr. McCain claimed some compensation. I think that is true as to the letter of the plaintiff in this case; but, of course, gentlemen of the jury, what significance is to be attached to the letter in which the account was presented is a question for you, and not a question for me.
“I am asked to charge you that if you find the work on these books was a part of the work which Mr. McCain was hired .to do for Mr. S. L. Smith your verdict must be for the defendant. Of course, gentlemen, that is so.
“I am asked to charge you if you believe Mr. McCain was fully compensated for keeping these books by the $50 a month which he received from Mr. S. L. Smith, and it is within the purview of his contract.with Mr. Smith to keep these books, your verdict must be for the defendant. _ That unquestionably, gentlemen of the jury, is so.
“Now, if you find that there is a contract relation existing, or there was a contract existing, between the father of the plaintiff in this case, of whom he is the administrator, and the defendant, then the question for you is, What was the value of the services ? ”

The second trial resulted in a verdict and judgment for the defendant, and the plaintiff has brought the case here upon writ of error, and the record contains 68 assignments of error. These assignments of error are considered by the appellant under the four following heads, which will be considered in the order in which they are presented:

(1) When the work or services have been performed at the request of and with the knowledge of a party, or an employment has been made or authorized by the said party, the authorized performance of the work on the one part, and the acceptance of the work or benefits on the other, establish a contractual relation, and also, there being nothing in the relation that would repel the idea of payment, establish the right to payment for the said services or work. Again, it was at least a question for the jury, and not the court, as to whether a contractual relation had been established or not.

(2) The secretary and treasurer of either a corporation or partnership association, limited, has no inherent or implied authority, as such, to hire a bookkeeper or an account- ' ant, and thereby render or cause the corporation or partnership association to be liable for the value of the services rendered by the said bookkeeper or accountant. But the person creating such a debt, as secretary and treasurer, is himself, at least presumptively, personally liable therefor. Not only is this so, but the said secretary and treasurer, being also one of the managers of the partnership association, limited, and having created a debt or liability for $500 or over, without a writing to the effect, signed by at least two of its managers duly elected, is himself personally made expressly liable by the statute governing partnership associations, limited, in this State.

(3) The court may instruct the jury as to the law applicable to the case; but he must not indicate his opinion as to the facts, either by emphasizing certain testimony, or by calling attention to the lack of it, nor by giving opinion as to its interpretation, nor as to the weight to be given specific testimony of witnesses, or their absence. Again, he should not outline a mode or course of defense for the benefit of either party to the cause. Nor should the charge of the judge be, in effect, a direction to the jury to find for the defendant, when the evidence is plainly controverted.

(4) The testimony in this case by the defendant, Angus Smith, his father, S. L. Smith, and his attorney and agent, Frank E. Robson, of matters which were equally within the knowledge of the deceased, Edmund S. McCain, is barred by the statutes of this State. Act No. 30, Pub. Acts 1903.

It is argued by appellant that when work or services have been performed at the request of and with the knowledge of a party, or an employment has been authorized by the said party, the authorized performance of the work on the one part, and the acceptance of the work and the benefits thereof on the other, establishes a contractual relation, and also, there being nothing in the relation that would repel the idea of payment, establishes the right to payment for the said work or services. This proposition is probably substantially correct. The difficulty with its application here is that thére was no direct evidence that the services were performed at the request of the defendant. The vital question in the case was whether such contractual relations were shown by the evidence. We hardly understand counsel when he says, “ It was at least a question for the jury, and not for the court,, as to whether a contractual' relation had been established or not,” for, as we understand the record, that very question was left to the jury by the trial court; and, as we understand the argument of appellant, it is to the effect that a question was presented to the jury as to whether or not a contractual relation had been established.

There is no question that plaintiff’s testator did some work on the hooks of the Walton Salt Association, Limited. It appears undisputed that S. L. Smith had invested the money in this association, and had given to the defendant one-half of the stock which he (S. L. Smith) had purchased. There was evidence that this association had become insolvent finally, or at least did not have the means to employ a bookkeeper. It was a fair question for the jury, under the evidence, whether plaintiff’s testator was not to do all the work of this nature in the office of S. L. Smith, including the very work in question, like other matters in which the elder Smith was interested. It is to be noted that there is an entire absence of any evidence of a hiring of plaintiff’s testator by the defendant; and there is much force in the claim of the defendant that the relations of the deceased were entirely with S. L. Smith. We think the important question in the case was whether there was an implied contract on the part of the defendant to pay plaintiff’s testator for the work done upon the books in the office, or whether such services were not all embraced in his employment by S. L. Smith as the latter’s private secretary.

It is a familiar doctrine that neither an express contract, nor one by implication, can come into existence, unless the parties sustain contract relations; that, to constitute either the one or the other, the parties must occupy towards each other a contract status — mutuality of will and interaction of parties, generally expressed, though not very clearly, by the term “privity.” Without this a contract by implication is quite impossible.

As was said by Justice Graves, in Woods v. Ayres, 39 Mich., at page 351 (33 Am. Rep. 396):

“Where there is a spontaneous service as an act of kindness and no request, or where the circumstances account for the transaction on some ground more probable than that of a promise of recompense, no promise will be implied. The contract connection is not established. (Citing authorities.)
“ The parties must be consenting bargainers personally or by delegation, and their coming together in contract relation must be manifested by some intelligible conduct, act, or sign. If not, no contract is shown. (Citing authorities.) The privity essential to a contract must proceed from the will of the parties.”

See, also, Michigan College of Medicine v. Charlesworth, 54 Mich. 522 (20 N. W. 566); Covel v. Turner, 74 Mich. 408 (41 N. W. 1091); Whittemore v. Scientific Institute, 128 Mich. 518 (87 N. W. 623); Franck v. McGilvray, 144 Mich. 318 (107 N. W. 886).

The jury might fairly infer from the evidence that the services were rendered without any expectation at the time that the defendant would compensate the plaintiff. The conceded impecunious circumstances of the plaintiff’s testator rendered it improbable that he would have worked five years for the defendant without asking for compensation during the progress of the work, had such compensation been within the contemplation of the parties. We think the evidence was sufficient to warrant the jury in reaching the conclusion that it was not contemplated by the parties that the services were being performed for the defendant. By the undisputed evidence, the relation which plaintiff’s testator and the defendant had sustained, during all this time, to S. L. Smith furnishes a reasonable explanation for all that was done by the former. The conduct of the parties should be examined with scrutiny in such a case. We think the jury was warranted in reaching the conclusion, which they probably did reach, that the defendant, by his letter of January 8, 1906, intended to treat the claim of plaintiff’s testator as an unreasonable one. Over 2£ years elapsed after the writing of this letter before any further claim was made; and this suit was not brought until after the death of testator.

It is next urged that the secretary of this association had no authority to hire a bookkeeper; that, as the partnership association could not be held liable, the secretary himself is liable, because the work was done upon the books of the association. We think this involves the same question as that which we have already referred to. To say that, because the association was not liable the defendant must be, is to beg the entire question. The question still remains: Was there a contractual relation between the parties ?

We have examined both the evidence and the charge of the court with care, and we think that the question was fairly submitted to the jury; and they having found that no contractual relation, either express or implied, ever existed between the parties to this litigation, therefore the plaintiff has no cause to complain of the result.

It is next urged that the case should be reversed because of the improper conduct of the trial judge, as well in the charge of the court as upon the trial of the case. We do not think there is any merit in this position. The substance of the charge is here set forth, and we think it fairly and fully submitted the case to the jury, and was warranted by the evidence.

And as to certain remarks which were made by the trial judge during the progress of the case, but not excepted to by appellant, they are not entitled to discussion.

In the thirty-second assignment of error, it is claimed that the circuit judge erred and was mistaken, as matter of fact, when he said that Mr. S. L. Smith was the larger stockholder in the Walton Salt Association, Limited— larger than his 'son, the defendant — and used other language in that connection. It does appear that until the report of 1906 was made the amount of stock held by Samuel L. Smith and the defendant was equal; but in 1906 Samuel L. Smith held more than the defendant. As has already been said, the evidence is undisputed that S. L. Smith had made the investment in this stock, and had given the defendant the shares which the latter held. It is also true that the defendant had been elected the secretary and treasurer of the association. It is equally true that the books were kept in the office occupied jointly by the two Smiths. We do not think that this statement made by the trial judge, under the circumstances in which it was made, should be held to be reversible error.

The only remaining question which we think worthy any consideration is that, because of the death of plaintiff’s testator, the testimony of the defendant, of S. L. Smith, and of Frank E. Robson was improperly admitted under the statute. Act No. 30, Pub. Acts 1903.

As to the testimony of the defendant himself, we do not think that it appears that anything to which he testified can be said to have been equally within the knowledge of the deceased. He was permitted to testify as to his own relations to his father, S. L. Smith, after 1898. He was also permitted to testify that he was in his father’s employ in 1901, and the salary which he received. Certainly this cannot* be said to have been matter equally within the knowledge of the deceased by anything that appears in this record.

As to the testimony of Frank E. Robson, there was no evidence that in any way indicated that he was an agent in the making or continuing of any contract with the deceased, and we therefore think that the authorities cited by the appellant are inapplicable. A reference to those cases will show that the agency must be with reference to the contract. Blodgett v. Vogel, 130 Mich. 479 (90 N. W. 277); Gustafson v. Eger, 132 Mich. 387 (93 N. W. 893); Detroit United Railway v. Smith, 144 Mich. 235 (107 N. W. 922); Locklund v. Burman’s Estate, 146 Mich. 233 (109 N. W. 255).

It is further claimed that because S. L. Smith and the defendant were each stockholders, managers, and officers of the Walton Salt Association, Limited, their testimony was also barred. It is only necessary to say that the association is not a party to this suit, and that there is no corporation involved in this litigation as a party. Therefore this testimony does not come within the class excluded by the statute. We do not understand that the agents of individuals would be excluded from testifying, unless they were agents in the making or continuing of the contract. See De Mary v. Burtenshaw’s Estate, 131 Mich. 326 (91 N. W. 647).

We discover no reversible error in the record. We think that the case was fairly submitted to the jury by the trial court; and the judgment of the circuit court is affirmed.

Moore, C. J., and Steers, McAlvay, Brooke, and Ostrander, JJ., concurred. Bird, J., did not sit.


text:
    MURPHY CHAIR CO. v. AMERICAN RADIATOR CO.
    1. Judgments — Conolusiveness—Equity—Res Judicata.
    A judgment is not res judicata in a subsequent cause, unless tbe identical matter in issue in the second proceeding was determined by the former adjudication.
    2. Same.
    The decree in the case of Stansell v. American Radiator Co., 163 Mich. 528 (128 N. W. 789), determining the rights of complainant under a tax lease purchased in the name of a trustee for the purpose of cutting off any rights of easement held by the defendant radiator company in the 30-foot strip of land involved in this proceeding, is not res judicata of complainant’s suit brought in its own name to determine the respective rights of the parties to the same parcel under separate grants of easement. But what the court said in the first case as to the effect of a certain deed from complainant to defendant, wherein the easement of defendant was recognized, and determining its effect, is conclusive in the second proceeding.
    3. Easements — Conelioting Rights.
    Where complainant held the original easement by mesne conveyances from the first grantee, and defendant having secured by purchase an easement from the grantor, constructed on the parcel side tracks to an adjacent railroad, its use was subject to the paramount right of way over the same premises claimed by complainant, who had openly used the strip in question as a roadway for 14 years or more.

      4. Same — Notice.
    The purchaser of an estate which is charged with an easement that may. be discovered upon examination, such as an open and visible roadway, takes his title subject to such easement, to the extent his grantor is bound thereby.

    5. Same — Grants of Conflicting Rights — Construction.
    A subsequent grant of an easement, which tends to affect or impair a right of way previously granted oyer the same parcel, must be subordinate to the senior grant; so that the second grantee cannot so use the premises as to interfere with the existing easement, and cannot obstruct at any time the free passage of the holder of the senior grant.
    6. Same — Nonuser.
    Defendant’s claim, obtained by grant, was not lost by nonuser.

    7. Same — Merger.
    Purchase by a trustee for the benefit of complainant of the fee, subject to existing easements, did not merge the legal title of the distinct estates, so as to destroy complainant’s easement.
    8. Same — Equity—Decree.
    A decree should be so framed as to permit the reasonable exercise of the rights of complainant and defendant, the former to be given the superior and permanent right of way over the 30-foot strip; neither party to be permitted to harass or annoy the other, the defendant by storing cars on the track built across the parcel, or complainant by blocking the way of defendant over its tracks.
    Appeal from Wayne; Mandell, J.
    Submitted June 13, 1912.
    (Docket No. 35.)
    Decided October 1, 1912.
    Bill by the Murphy Chair Company and James F. Murphy, trustee, against the American Radiator Company and the Wabash Railroad Company for an injunction and a construction of certain conflicting grants of easement. From the decree complainants appeal.
    Modified and affirmed.

      Orla B. Taylor and Charles F. Delbridge, for complainants.

      Bernard B. Selling, Charles H. Ripley, and George H. Simpson, for defendant.

       For physical conditions which will charge purchaser of servient estate with notice of easement, see note in 8 L. R. A. (N. S.) 418.

      As to abandonment or loss of private way by nonuser, see note in 22 L. R. A. (N. S.) 880.

   Stone, J.

This case involves the nature and extent of certain easements and their relation to one another. The facts in the case are somewhat extended and involved, but not intricate,-when fully understood. By their bill of complaint, the complainants seek to have declared null and void a certain right of way for railroad track, or easement, claimed by the defendant American Radiator Company to exist from its certain tract of land shown on Exhibit A, being a plat attached opposite page 32 of the record, west to the right of way of the Wabash Railroad Company. We shall refer to Exhibit A, and incorporate the same in this opinion.

The bill avers that it is unjust and inequitable to permit a construction and maintenance of such track; that if it should be found that the American Radiator Company has the legal right to lay and maintain such track, that the court should construe such grant or right of way, and decree the nature, extent, and limits of the defendants’ right to the use of the same, and the rights of the complainants with reference thereto. It prays that the defendants be enjoined from laying, maintaining, and operating a side track upon and across the property of complainants; or, if found that they have a right to lay, maintain, and operate the same, that the said defendants be perpetually enjoined from laying, maintaining, and operating such side track except within the limits defined by the court.'

In 1882 George Y. N. Lothrop was the owner of the entire parcel of land embraced in this plat, designated thereon as W, A, M, N, Y. Prior to conveying away said land, no easements existed as to any of the property. It had a frontage on Russell street, Trombley avenue (then known as Campau road), the Detroit, Grand Haven & Milwaukee Railroad on the east, and the Wabash Railroad on the southwest.

On October 3, 1882, Mr. Lothrop and wife conveyed the parcel in the northeast corner, marked “D, A, B, C,” to Robertson & Bergen, and by mesne conveyances this parcel became the property of the defendant American Radiator Company. The conveyances relating to this portion of the property contain no easements, either by grant or reservation. Upon this parcel of land, containing a trifle more than six acres, a manufacturing plant was established, and has been maintained ever since.

At the time of this sale to Robertson & Bergen, in 1882, the parcel lying immediately west, and described by the letters, W, D, C, P, S, on the plat, was occupied by Force & Dickinson under a lease from Mr. Lothrop.

On April 11, 1885, Mr. Lothrop and wife conveyed that parcel of the property in the southeast portion of the plat east of the Wabash Railroad, and described within the letters, P, B, M, N, 0, to Miles C. Huyett, who immediately conveyed it to M. J. Murphy & Co. The latter company conveyed it to Murphy, Wasey & Co. in 1889. The name of this company was changed, in 1901, to the Murphy Chair Company, one of the complainants in this case.

Ever since 1885 this portion of the property, which contains about eight acres, has been continuously used as a manufacturing plant. The said deed to Huyett was recorded June 4, 1885, in Liber 275 of Deeds, page 558, in the register of deeds office for Wayne county; the description being:

Land in the city of Detroit, Wayne county, Michigan, being part of outlots three (3) and four (4) of Theodore J. and Denis J. Campau’s subdivision of fractional section , twenty-nine (29) and thirty-two (32) in town one (1) south, range twelve (12) east, a plat of which is recorded in Book 2, page 2, of Plats, and described as follows: Beginning at the southeast corner of a piece of land heretofore sold and conveyed by said Lothrop to Robert A. Robertson and Zaccheus Bergen, and being 450 feet distant from the north line of said outlot 4; thence westerly on a line parallel to the southerly line of the Campau road 907.37 feet; thence southerly to the northerly line of the right of way of the Wabash, St. Louis & Pacific Railroad Company by a line at right angles to the northerly line of said right of way, and being a distance of about 30 feet; thence southeasterly along said northerly line of said railroad right of way until the same intersects the southerly line of said outlot 4; thence easterly along the southerly line of said outlot 4 until the same intersects the western line of land owned by the Detroit, Grand Haven & Milwaukee Railroad Company; and thence along the western line to the place of beginning, containing by estimate 8.07 acres; it being the intention to convey hereby all of out-lots 3 and 4 lying northerly of the right of way of the Wabash, St. Louis & Pacific Railroad Company, except the portions heretofore sold to said Robertson and Bergen and to the Detroit, Grand Haven & Milwaukee Railroad Company, the parcel now leased to Force & Dickinson, and the 30-foot strip of land lying Between the parcel occupied by Force & Dickinson and the right of way of said Wabash, St. Louis & Pacific Railroad Company; also granting hereby to said second party a right of way from the land hereby conveyed over and along said 30-foot strip of land to Russel street, until Harper avenue shall be opened and extended across the right of way occupied by the Lake Shore & Michigan Southern Railway Company and the Wabash, St. Louis & Pacific Railroad Company, when such right shall cease. * * * Said land is sold subject to the express condition that when Harper avenue is opened across said last-mentioned railway said Huyett shall, without charge, open and extend said avenue across the southerly 40 feet of said premises. Said Lothrop, however, expressly reserves to himself, his heirs and assigns the following easement, viz., the right to lay, maintain and operate upon and across said premises, as near the north line thereof as shall be convenient and practicable, a railroad track to connect the premises now occupied by Force & Dickinson with the Detroit, Grand Haven & Milwaukee Railway, and for the use of the owners and occupants of the said premises, the strip of. land to be used for said track not to exceed 15 feet in width, and if at any time said- Huyett, his heirs or assigns, shall desire to use said tracks for the use of the premises hereby sold, jointly with the occupants of said Force & Dickinson premises, they shall have the right to do so, first paying therefor a share of any expenditure which said Lothrop or Force & Dickinson may have made in the building of said track, such share to be mutually agreed upon, or, if they fail to agree, to be fixed by the acting engineer for the time being of said railroad • company. Said joint use shall be by each party without unreasonably obstructing the other.”

On or about July 1, 1886, said George Y. N. Lothrop entered into a certain land contract with Thomas W. D. Dickinson and Isaiah H. Force, by which said Lothrop agreed to convey to said Force & Dickinson the piece or parcel of land described in said plat within the letters W, D, O, P, S, together with the right to lay railroad tracks across or along the 30-foot strip between said premises and said railroad, and also that certain easement connecting said parcel with the railroad of the Detroit, Grand Haven & Milwaukee Railroad Company by a railroad track, which was reserved by said first party by deed from him to Miles 0. Huyett, dated April 11, 1885, and recorded in Liber 275 of Deeds, on page 558.

Some time prior to June, 1889, the Force & Dickinson land contract with Mr. Lothrop was assigned to Frederick W. Hayes, president of the Preston National Bank, to secure certain indorsements and guaranties made by him for them to obtain certain loans at the bank. Mr. Lothrop and Mr. Dickinson both died prior to 1899, and in the subsequent proceedings they were represented by their heirs and legal representatives. Mr. Hayes negotiated the sale of the east 100 feet of the Force & Dickinson property .(parcel C, D, E, F, referred to in the record as the 100-foot strip) to the Radiator Company. Mr. Dickinson having died, leaving minor heirs, proceedings were taken on June 21, 1899, in the Wayne circuit court, in chancery, for leave to sell their interest in the parcel. The petition sets up that by the contract of 1886 Mr. Lothrop agreed to convey the parcel W, D, C, P, S,—

“ Together with the right to lay a railroad track across or along the 30-foot strip between said land and said railroad [Wabash], and also that certain easement connecting said parcel with the railroad of the Detroit, Grand Haven & Milwaukee Railroad Company by a railroad track which was reserved by said first party by deed from him to Miles C. Huyett, dated April 11, 1885.”

In pursuance of this petition, which was granted by the court, a tripartite indenture was made on June 22, 1899, whereby the Lothrop estate, Isaac F. Force, and the heirs of Mr. Dickinson conveyed the 100-foot strip to the Radiator Company; the conveyance expressly stating that it was executed and delivered by the said party of the first first part (the Lothrop estate) in pursuance and in partial satisfaction and fulfillment of said contract or agreement of sale of 1886. In order to carry into effect the provisions of the contract with reference to easements, so that the parcel sold to the Radiator Company, as well as the Force & Dickinson parcel, might have the benefit thereof, the following provision was inserted in the deed:

‘ ‘ Together with the right to construct and maintain a railroad track across the southerly part of the remainder of said premises, and across or along the 30-foot strip mentioned in said contract or agreement of sale substantially upon the line of said track as at present constructed, and also the right to use and enjoy the said easement reserved in and by the deed and conveyance to said Huyett above mentioned; such rights of way and easements, however, to be used and enjoyed by the said party of the third part, its successors and assigns, in common with the owners and occupants of the remainder of the premises described and mentioned in said contract of sale. * * * It is expressly understood and agreed, however, by and between the parties hereto that the owners and occupants of the remainder of the lands and premises described and mentioned in said contract or agreement of sale shall have at all times the right to construct, use and maintain a railroad track across and upon the southerly end of the lands and premises hereby sold and conveyed, for the purpose of connecting the said remainder of said premises with the easement reserved in and by said conveyance to said Huyett as aforesaid; such railroad track to be substantially upon the line of the track now constructed and in use, and to be used and enjoyed in common with the said party of the third part, its successors and assigns.”

It will be observed that this conveyance contains both a grant and reservation of easements, the manifest purpose of which was to secure to both parcels of the Force & Dickinson land the easements contracted for in the land contract of 1886.

It may be incidentally stated that Mr. Hayes next negotiated the sale of the west 190 feet of the Force & Dickinson tract, being parcel marked upon the plat W, T, R, S, to Briggs & Sill, who were succeeded by the American, Can Company.

Mr. Hayes negotiated the sale of the remaining 231.53 feet of the Force & Dickinson parcel, embraced in the plat between the letters T, E, F, P, R, to Henry Whiting, representing the complainant Murphy Chair Company, and the deed was made September 26, 1899, conveying the premises. ■ ■

By deed dated December 2, 1899, and recorded April 24, 1900, Henry Whiting and wife conveyed to Murphy, Wasey & Co., a Michigan corporation, the name of which corporation has been since changed to the Murphy Chair Company, one of the complainants, all of said last-described property, which contained the following:

> “Together with the mill buildings, machinery and all rights of way, easements and privileges belonging to said first party, including rails, etc., used in the construction of railways thereon and upon the rights of way appurtenant thereto; also all right to use tracks which have been or may be constructed over said premises, or the rights of way and easements hereinbefore mentioned.”

By deed dated December 9, 1899, and recorded April 24, 1900, the complainant James F. Murphy, trustee, became the owner by mesne conveyances from said George Y. N. Lothrop of the parcel of land known as the 80-foot strip, and designated on said plat by the letters P, S, Y, O.

“ This conveyance is made expressly subject to all easements thereon heretofore granted, and to the right of way granted to Miles C. Huyett, his heirs and assigns, by George Y. N. Lothrop, since deceased, by deed dated April 11, 1885, and recorded in Liber 275 of Deeds, at page 558, which said easement, by the terms thereof, is to cease when Harper avenue shall be opened and extended across the right of way occupied by the Lake Shore & Michigan Southern Railway Company and the Wabash, St. Louis & Pacific Railroad Company, and also to all easements heretofore granted to lay, maintain and operate railway tracks along or across the premises conveyed.”

It is the claim of the complainants that the legal title .to said parcel of land is now in said James F. Murphy, as trustee; the title having been so taken for the express purpose of indicating that it is intended not to in any way merge the right of way of the complainant the Murphy Chair Company in said property in the legal title of the same, or to in any manner change the relative rights, interests, and equities o£ said complainant the Murphy Chair Company in the said strip by virtue of the easement and right of way over it aforesaid, as against the holders or owners of any of the other easements existing over said strip of land.

On May 16, 1901, the American Radiator Company and the Murphy Chair Company delivered deeds inter sej each releasing the land of the other from certain easements relative to the Detroit, Grand Haven & Milwaukee Railway. The deed of the Radiator Company to the Murphy Chair Company contained the following recital, relating to the easement in the 30-foot strip, so-called:

“ The right of way or easement pertaining or belonging to the last-mentioned piece or parcel of land described in a certain deed made by Henry B. Lothrop, as executor of the last will and testament of George V. N. Lothrop, deceased, and others, to the American Radiator Company, dated June 22, 1899, and recorded in the office of the register of deeds in and for said county, in vol. 511 of Deeds, page 407, as the right to construct and maintain a railroad track across the southerly part of the remainder of said premises (being the same premises referred to in said conveyance as contracted to Force & Dickinson, a part of which, is owned by said Murphy, Wasey & Company), and across or along the thirty (30) foot strip mentioned in said contract, substantially upon the line of said track as at present constructed, is not released or conveyed, but is recognized or confirmed by the parties hereto.”

Among other defenses of the defendant American Radiator Company, it claims, in its answer, that by the suit of Stansell v. American Radiator Co., 163 Mich. 528 (128 N. W. 789), the matters involved in this suit were so far adjudicated that the subject has become res adjudicata, and that complainants are estopped by the decree in that case from maintaining this suit.

The bill of complaint in that cause was filed November 7, 1907, to remove the alleged cloud from the title to the 30-foot strip created by the easement of the American Radiator Company, upon the theory that it was wiped out by a sale, and a 99-year lease from the city of Detroit, to the complainant for certain unpaid taxes assessed thereon after James F. Murphy, trustee, became the owner of the 30-foot strip.

The defendant American Radiator Company there filed its answer, basing its defense substantially upon the proposition that complainant acquired no rights from the tax sale, certificate, and lease, and that in law he was acting for the legal holder of the title of said premises, James F. Murphy, trustee, or his cestui que trust, and that the acquiring of said tax certificate by the complainant in that cause was, in fact and in law, the payment of taxes by the person, or persons, legally bound to pay the same.

It is true that in that case this court held that it would treat and did treat that suit as the suit of the Murphy Chair Company, and the property as the property of the Murphy Chair Company, and, in affirming the court below, which had dismissed the bill of complaint, held that it was the duty of the Murphy Chair Company to pay the taxes upon that property which were properly assessable to it; that to legalize such proceedings for the benefit of the grantor, and in fraud of the rights of others, would be a violation of the statute against resulting trusts. Section 8835 et seq., 3 Comp. Laws.

It is also true that in that case this court used the following language:

“The deed of the defendant to the Murphy Chair Company, of May 16,1901, was as much a binding agreement as to its rights to enjoy the easement as though the chair company had executed a deed confirming or granting the right of way to the defendant.”

The answer of the defendant in that case denied that its rights, as to said easement, were subservient to the complainant’s alleged tax lease. That seems to have been the matter in litigation in that case. We think that the doctrine announced by this court in Le Roy v. Collins, 165 Mich. 380 (130 N. W. 635), states the correct rule upon this subject. It was there held that a judgment is not res adjudicata, unless the identical matter in issue in the subsequent proceeding was determined by the former adjudication.

What this court said of the force and effect of the deed of the American Radiator Company to the Murphy Chair Company, of May 16, 1901, wherein the Murphy Chair Company accepted the deed which contained the statement that the easement was not released or conveyed, but was recognized and confirmed by the parties thereto, may bé said to be res adjudicata of that question.

It appears by the undisputed evidence that when the American Radiator Company purchased the 100-foot strip it did so intending to enlarge its plant; and that between the time that it purchased the said strip.and the making of the deed of May 16, 1901, just referred to, it had extended its plant and buildings upon the 100-foot strip, and was using the entire of its premises as one plant.

It appears that a track was laid from the Wabash to the Force & Dickinson parcel, but they used it very little; the great bulk of their business being with the Detroit, Grand Haven & Milwaukee. The Radiator Company never used this track, which did not touch its original parcel; nor did it have any business relations with Force & Dickinson. The track from the Wabash over to the 100-foot strip was removed immediately after the execution of the deeds between the American Radiator Company and the Murphy Chair Company in 1901. This is not denied by the defendants; counsel for the defense saying:

“That these tracks were actually removed after the deed of 1901 is probably true, but there is nothing to show ■ that the removal of these tracks was in pursuance of an express understanding; and, inasmuch as the rails themselves did not belong to the Radiator Company, there was nothing that the American Radiator Company could do to prevent their being taken up. The easement given by the 1899 deed, and confirmed by the 1901 deed [from the American Radiator Company to the Murphy Chair Company], expressly requires the American Radiator Company to lay its own track, at its own expense, with the right to others, upon contribution, to use the same, should they desire. In May, 1901, the American Radiator Company did not have need to exercise its easement to the Wabash, but out of ‘ an apparent abundance of precaution ’ had its right to such easement recognized and confirmed by the Chair Company. We say‘an apparent abundance of precaution,’because opposing counsel now claims that the Radiator Company did not exercise precaution enough in making the Chair Company recognize the intent in the creation of the easement of having it inure to the entire benefit of the Radiator Plant. * •* * Why counsel asserts that the Radiator Company should have objected or protested against the Murphy Chair Company removing the tracks to the Wabash by it, at the time the Chair Company accepted a deed recognizing and confirming the right of the Radiator Company to build its own track to the Wabash, we cannot understand.”

Counsel further proceed to argue, in answer to the claim of complainants’ counsel that no indication had ever been given by the Radiator Company of a desire to build a track until after the institution of thé present suit, that this is not true, and in support of his argument he quotes from a letter from the vice president of the Radiator Company, bearing date May 23, 1907, showing that it was deemed—

“Important for us to have a right of way to a second railroad, even though but one is used, and, as before stated, we always endeavor to have this arrangement at all of our plants.” Stansell R. p. 95.

This is urged as evidence of the fact that the Radiator Company considered the easement a valuable one, and therefore it declined to release the same to the complainant.

It should be borne in mind that the easement granted to Huyett, in April, 1885, and which has by mesne conveyances come to the Murphy Chair Company, was the first easement created over the 30-foot strip. It was then supposed that Harper avenue would be opened. The record shows that two attempts were made to open it, but both failed; and it has never been opened. Ever since 1885 this original Chair Company property has been continuously used as a manufacturing plant. It is claimed by the Murphy Chair Company that since 1885 the 30-foot strip has been continuously used as the only outlet to Russell street from its said plant. Its important value to the Murphy Chair Company is apparent. It appears that the easement has been used continuously by as many as 100 vehicles a day, and by hundreds of the employés and customers of said complainant, during all of the years that have intervened. It is urged that not only is it the senior easement, but that its untrammeled enjoyment by the Murphy Chair Company is of paramount importance. It is also urged that all subsequent easements were accepted with knowledge of its existence (the Huyett deed having been recorded on June 4, 1885), and that the use of the right of way for teams and persons was open, notorious, and continuous. These easements are appurtenant, and not in gross.

An examination of this record satisfies us that the easement of the Murphy Chair Company is both prior and paramount. Mr. Lothrop, owning the 30-foot strip in fee simple absolute, in 1885 granted a right of way over it to Huyett, his heirs and grantees, and the latter conveyed it to the predecessor of said complainant. As the result of this grant, Mr. Lothrop retained the right to use the 30-foot strip in any way he chose, except so as not to interfere with the user under the Huyett grant.

After the Murphy Chair Company had used this easement as a right of way in its business for over 14 years, the Radiator Company purchased an easement to construct and maintain a railroad track across or along said strip. Mr. Lothrop could not sell, nor could the Radiator Company buy, such an easement, except subject to the Huyett grant of 1885. We think that this view is sustained by the following authorities: Harvey v. Crane, 85 Mich. 316 (48 N. W. 582, 12 L. R. A. 601); Fankboner v. Corder, 127 Ind. 164 (26 N. E. 766); Walker v. Newhouse, 14 Mo. 373; Harris v. Curtis, 139 App. Div. (N. Y.) 393 (124 N. Y. Supp. 263); Schmidt v. Brown, 226 Ill. 590 (80 N. E. 1071, 11 L. R. A. [N. S.] 457, 117 Am. St. Rep. 261).

The purchaser of an estate which is charged with an easement which is discoverable upon examination, such as an open and visible roadway, takes his title subject to such easement, to the extent his grantor is bound thereby.

In so far as the use of the 30-foot strip by the defendants for railroad purposes interferes with the Murphy Chair Company’s user for right of way, under the Huyett grant, the last-named grant is paramount. This is so, not only because the grant to Huyett was the senior grant, but also because that grant gave the user for a right of way generally for vehicles and persons to pass to and fro; and any subsequent grant which impairs that right must be subordinate to the grant of such right of way. See, also, West Jersey, etc., R. Co. v. Traction Co., 65 N. J. Eq. 613 (56 Atl. 890); Mayor, etc., of Newark v. Railroad Co., 75 N. J. Eq. 20 (71 Atl. 620).

It is equally true that the owner of the easement cannot prevent another, even a trespasser, from using the land, if his use does not impede the free exercise of the right of passage. The right of the Murphy Chair Company, in the exercise of its easement over the 30-foot strip, confers only the right of passing over it, together with such rights as are necessarily incident to its reasonable enjoyment as a way, such as keeping in passable condition, etc. While we do not mean to hold that said complainant’s right of way is exclusive, we do hold that its right to a reasonable, free use as a passageway should not be interfered with by the defendants. It is elementary that an easement once granted is an estate which cannot be abridged or taken away, either by the grantor or his subsequent grantees. On the other hand, the grantor of the easement of a right of way may use the way in any manner he sees fit, provided he does not unreasonably interfere with the grantee’s reasonable use in passing to and fro. The owner of the right of way has the right to a reasonably unobstructed passage at all times, and also such rights as are incident or necessary to the enjoyment of such right of passage. 1 Boone on Real Property, § 143b.

We cannot agree with the complainants in the claim that the easement of the defendant the American Radiator Company has been lost by nonuser. It is an easement by grant; and a user so created cannot be lost by mere nonUBer. Day v. Walden, 46 Mich. 575 (10 N. W. 26); 14 Cyc. p. 1187.

We do not think that the purchase of the 30-foot strip by complainant James F. Murphy, trustee, operated as a merger of the Murphy Chair Company’s easement over said property. Had the title been taken in the name of the Chair Company, probably a merger and extinguishment would have taken place for one cannot have an easement in his own estate in fee. Morgan v. Meuth, 60 Mich. 238 (27 N. W. 509); 14 Cyc. p. 1188. We do hot think that this view is inconsistent with the holding in Stansell v. American Radiator Co., supra.

In April, 1901, the Murphy Chair Company applied to the board of assessors of the city of Detroit to have the easements over the 30-foot strip assessed separately, so that each party might pay taxes on its own easement. A hearing was had, but no change was made; and this court has since decided in the Stansell Case, supra, that it was the duty of the holder of the fee to pay the entire tax.

In that application the Murphy Chair Company recognized the right of the American Radiator Company to the easement to construct and maintain a railroad track across the 30-foot strip, as appurtenant to the 100-foot strip, to connect the latter with the Wabash, St. Louis & Pacific Railroad Company.

It is urged by complainants that by no possibility can the easement contained in the deed of June 22,1899, from the Lothrop estate and others to the American Radiator Company inure to the benefit of the original Robertson & Bergen parcel. It is the claim that such would be an excessive use.

In view of the fact that when the deeds inter se were delivered, the Radiator Company had already extended its plant onto the 100-foot strip, and was occupying and using its property as a whole, to the knowledge of complainants, and in view of the language of this court, above quoted, relating to such deeds, in Stansell v. American Radiator Co., supra, there is force in the position of the defendants that, in construing such instruments, the court will look into the circumstances attending the transaction, the situation of the parties, and the state of the thing granted, to ascertain the intent of the parties.

We do not, however, find it either necessary or prudent at this time to pass upon the question of the claimed excessive use of the easement over or on the 30-foot strip, for the reason that complainants are not concerned with that matter, so long as they are not interfered with or disturbed in the reasonable use of such easement as a right of way; and upon that subject we have expressed our views.

We agree with the court below in its decree that any proceedings taken, or to be taken, by the common council of the city of Detroit to open a new street, or to change the grades of the railroad track, have no bearing upon the issues in this case.

When those questions do arise, the decree should provide that either party be authorized to apply to the circuit court for further orders and direction, not inconsistent with the views here expressed, as to the priority and permanent right of the Murphy Chair Company in the enjoyment of its easement of a right of way over the 3.0-foot strip of land; and that the right of the defendants to build and maintain a railroad track thereon shall be subordinate to such superior right of said complainant. It goes without saying that neither party shall have the right to unnecessarily harass or annoy the other. The defendants should not have the right to block the way of the Murphy Chair Company by leaving a car or cars standing on or across such wagonway, or by storing cars thereon; neither should the Murphy Chair Company block the American Radiator Company’s right of way by leaving a vehicle or vehicles standing across such railroad track. A reasonable exercise of each party’s rights, as herein indicated, is what is required. The decree of the circuit court should be modified in accordance with this opinion, and, as so modified, will stand affirmed, except as to the matter of costs.

An examination of the record shows that the complainants did not prevail upon all of the claims made by them in the court below. . No costs to either party should be allowed in the circuit court. The complainants will be allowed their costs in this court, to be taxed against both defendants.

Moore, C. J., and Steere, McAlvay, Brooke, Ostrander, and Bird, JJ., concurred.


author: McAlvay, J.

text:
    WHITEHEAD v. PURDY.
    Bills and Notes — Holder in Due Course — Breach op Warranty — Notice.
    Notice that a note was executed by the maker to secure the change in course of a proposed electric railway, which the company agreed should be completed and in operation within a year, was not, unless the agreement was broken before the transfer and the breach was known to the indorsee, sufficient to charge such indorsee with notice of failure to complete the railway within the specified period, before the expiration of which time the indorsee had purchased the note.

      Error to Oakland; Wiener,. J., presiding.
    Submitted April 12, 1912.
    (Dock No. 118.)
    Decided October 1, 1912.
    Assumpsit by Almeron Whitehead and George H. Mitchell, copartners, under the name of Exchange Bank, Birmingham, Mich., against William J. Purdy upon a promissory note. Judgment for plaintiffs upon a directed verdict; defendant brings error.
    Affirmed.

      Andrew L. Moore, for appellant.

      Perry & Lynch, for appellees.
   McAlvay, J.

Plaintiffs, copartners, doing business under the name of Exchange Bank, Birmingham, Mich., brought suit in this case in justice’s court in Oakland county upon a promissory note given by defendant to the Detroit & Bay City Traction Company for $100, one year after date, with interest at 6 per cent., payable at the Exchange Bank of plaintiffs, afterwards sold and indorsed by the payee for a valuable consideration, being the sum of $100, to the plaintiffs. After a trial and determination in justice’s court, the case was appealed to the circuit court of said county, where the trial resulted in an instructed verdict in favor of plaintiffs. The case is here for review upon a writ of error. ,

The note in question was given by the defendant to the payee, which at that time was proposing to build an electric* railway from Bay City to Detroit, the survey of which had been made, passing some distance from the village of Birmingham, Oakland county. Thinking it desirable that the road should go through Birmingham, some of the residents of that village and vicinity, among them the defendant, were willing to contribute certain sums to that end. At the time the note in suit was procured from him, there was an agreement read to him, by the terms of which the payee agreed within twelve months to build, or cause to be built, this electric railway, and to have the tracks laid and cars running regularly between Detroit and Bay City by way of Birmingham; and, on failure to fulfill its agreement, it was agreed to reimburse the makers of all such notes in full. This was called a trust arrangement, and a trustee was named, in whose hands a note of the company for $2,500 was placed, its payment guaranteed by five different individuals, from which note the trustee was to realize funds to satisfy those giving these notes. The note in suit and others were bought by plaintiffs, with knowledge of the agreement between the traction company and the makers. The record shows, without dispute, that the note in question was sold and transferred to the plaintiffs within a day or two after its date. Under the general issue, the defendant gave notice that the note upon which suit is brought is void for want of consideration; that the note was signed under the agreement above set forth, relying wholly upon such agreement; that plaintiffs bought the note with full knowledge of the said agreement. The court held that the plaintiffs were bona fide holders of the note. Defendant has assigned error upon this holding. This is the material question involved in this case, although other errors are assigned.

This transaction, briefly, amounted to this: That defendant and others were willing to give their promissory notes, each for $100, to secure the change in the course of this railway, so as to bring it to Birmingham. These notes were given by them relying upon the agreement of indemnity and reimbursement for any sums paid by them on their notes in case of the failure of the traction company to fulfill its agreement to construct and put the railway into operation within one year. At the time of the purchase of the notes in question by plaintiffs for value, it was impossible to determine whether or not the road would be built within the year, and at that time there was no forfeiture of the terms of the agreement between the traction company and the makers of these notes. The court in our opinion was not in error in holding, under the undisputed facts in this case, that plaintiffs were bona fide holders of the note, and in instructing a verdict in their favor for the full amount thereof, with interest. There is no question raised in this case that the transaction was against public policy. In a recent case where the purchasers of a note knew that the payee had warranted the property sold in consideration of the note, but did not know that the warranty was broken, this court said:

“A failure of the consideration, in whole or in part, after bona fide transfer, does not affect the character of the purchaser, although he had full knowledge of the original consideration for which the note was given. There is no evidence of notice, or knowledge of the breach of this contract, in so far as the failure of the horse to comply with the warranty is concerned, before the transfer of these notes.” Hakes v. Thayer, 165 Mich. 476, at page 487 (131 N. W. 174), and cases cited.

In the instant case, plaintiffs, at the time of purchasing the note, had full knowledge of the contract of indemnity given by the payee to the maker. They also knew that at that time no breach of said contract by the Traction Company had occurred. In this case, by the express terms of this indemnity agreement, there could be no default under it in favor of this defendant until he had paid this note. Full knowledge of this agreement, therefore, could not impair the bona fides of plaintiffs as purchasers of this note.' The case under consideration presents a much stronger case in favor of plaintiffs than the case of Hakes v. Thayer, supra.

Other questions do not require consideration. The judgment of the circuit court is affirmed.

Moore, C. J., and Steere, Brooke, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.