text:
    PEOPLE v. DETROIT UNITED RAILWAY.
    1. Street Railroads — Regulation—Ordinances—Violation.
    Under section 19, chapter 165, of the ordinances of Detroit (1904), requiring regular passenger cars to be run through to the ends of their respective routes, except that in cases of blockades and delays due to causes beyond control cars may be turned for the purpose of restoring service in the opposite direction, provided, that cars having passengers on board may not be turned unless a oar following and going through to the end of the route is in the same block, and passengers are given transfers entitling them to transportation to their destination, the right to turn a car within the excepted class is not affected by the fact that the company has idle cars in its barn at the point where the turn is made, and men to operate them.
    2. Carriers — Street Railroads — Passengers — Transfers — Right to Request.
    It is the duty of passengers to secure evidence of payment of fares, and a conductor of one car is under no obligation to accept their statement that they paid their fares upon another car from which they have transferred.
    3. Street Railroads — Regulation— Ordinances — Violation— Denial of Transfers.
    Under section 19, chapter 165, of the ordinances of Detroit (1904), a street car cannot lawfully be turned before reaching its destination unless the passengers thereon are given transfers entitling them to transportation to their destination, though the other conditions entitling the company to turn the car are present.
    Certiorari to recorder’s court of Detroit; Connolly, J.
    Submitted October 12, 1908.
    (Docket No. 25.)
    Decided November 2, 1908.
    The Detroit United Railway was convicted of violating an ordinance, and sentenced to pay a fine of $50.
    Affirmed.

      Brennan, Donnelly & Van De Mark (John J. Speed, of counsel), for appellant.

      Bernard F. Weadock (P. J. M. Hally, of counsel), for the people.
   Blair, J.

Defendant was convicted in the recorder’s court of the city of Detroit of violating the provisions of section 19 of chapter 165 of the compiled ordinances of 1904. The complaint and the section of the ordinance in question are as follows:

‘c Harry J. Lowther, being first duly sworn, makes complaint, and says that at the city of Detroit, aforesaid, on the 5th day of February, A. D. 1908, within the corporate lines of said city, to wit, on the Sherman street car line, east bound, at the hour of 6:40 p. m., one Detroit United Railway, a Michigan corporation, operating street cars on said line, did then and there unlawfully and wilfully fail and neglect to operate a regular passenger car, to wit, car No. 1298, through to the end of the route, there being at the time aforesaid no blockade or delay due to causes beyond control, said car having passengers on board, and did then and there unlawfully and wilfully turn said car in the opposite direction at the corner of Concord and Kercheval, the same not being the end of said route, and there being no car following going through to the end of the route in the same block, and the same being done without giving transfers to all passengers therein, entitling them to transportation to their destination, to the evil example of all others in the like case offending, and contrary to the ordinances of said city, in such case made and provided. Sections 10, 19, chapter 165, pages 283-288 of the compiled ordinances of the city of Detroit for the year 1904.”
. “ Seo. 19. All regular passenger cars operated upon any of the routes named herein shall be run through to the ends of the respective routes, provided that in cases of blockades and delays due to causes beyond the. control, cars may be turned for the purpose of restoring service in the opposite direction, provided, however, that cars having passengers on board may not be turned unless a car following and going through to the end of the route is in the same block, and provided transfers shall be given to all passengers thereon entitling them to transportation to their destination;”
The complaining witness testified that on the day in question he boarded a Sherman street car marked “ Limits. ”
“ It was 6:40 when we got to the barn. I paid my fare by ticket. The car ran through all right, nothing wrong with it, and, reaching the barn at the corner of Concord and Kercheval avenue, the car was pretty well crowded. Every seat was taken, and people standing along the aisle, and we were simply commanded to change cars. The conductor shouted out, ‘Change cars.’ No transfers were given.
“Q. Did they want you to take the car ahead ?
“A. I could not say. I didn’t hear anything said about it. I was simply ordered to change cars. I did not notice whether there was a ‘ Limits ’ car behind us. I have been thrown out there so often and found none that I simply declined to get off. After that, they turned the car into the barn, and told us we would have to get out. They boarded a lot of street car employés — I counted three on the back of the car — and sent us down town again. I went up to the corner, almost the corner of Mt. Elliott and the street that turns down going west, and then I was put off forcibly. There were three of us forcibly ejected. It was raining at the time I was put off the car. There were 13, I think, that went back down town and refused to get off.
“Q. Those are the ones you invited to stay to make a . lawsuit ?
_ “A. Yes; to test this business of throwing us off every night. The car went into the barn. I did not get off. Possibly they took air in the barn that night. This car then started back down town. I do not know what became of the passengers that got off the car there. I did not attempt to ascertain whether there was another car there waiting for us or not. I had no transfer to get on another car.
“Q. There was a car waiting ?
“A. I know; but I couldn’t tell whether I would be thrown off there, if I had nothing to show that I paid my fare.
“Q. Anyway you didn’t get off the car to see?
“A. No, sir.
“Q. You didn’t get off because you intended to make this a test ease ?
“A. Because I had been thrown off so many times.”

It appears from the testimony that the car in question had been sent out to take the place of a crippled car.

“We were going west in the first place, and we had a car 121, and one of the machines gave out. We had to turn the car in west bound, which held us and made us very late, made us 12 minutes late at the west end and we had to make it up. The rails' were bad. It was hard to stop the cars, and we got down town four minutes late. I got awful late when I got to the barns. Eight minutes late at the barn, and the carhouse foreman told us to turn, which we had to do to get on time. It takes to run from there to the end of the line, to the limits, nine minutes, and unload the load. The next ‘ Limits ’ cars were right back of us. When the foreman told us to turn, I told the passengers to take the car right back of it. The ear was standing right there. It followed us all the way up to the barn, pretty near together. * * *

“Q. Did you ever offer transfers when you asked them to get out ?
“A. Yes; if there is no car back of us, but the car was right back of us, and I told the conductor on the car that I had not given them transfers. It wasn’t necessary, to transfer them. Only took up time to give them transfers. * * * After we had turned at the barn, we were pretty near on time. It takes to run from Kercheval barn out to the end of the line nine minutes. Nine minutes to run one way and nine minutes to go back. That is the running time. * * * It had been snowing and raining. The track was covered with ice and snow. Rigs passing along the street piled the snow on the track, made it heavy for the cars to run. It was difficult to make them anywhere near on time. It had been all day.”

It further appeared from the testimony that 18 or 14 day run cars were in the barn, and that several conductors and motormen who had finished their day’s work were still at the barn, and that they were entitled to pay for all the time they worked.

It is contended by counsel for appellant that—

“The practice in such cases of informing the conductor of the car to which the change is made that no transfer tickets have been issued and for him not to collect fares is in fact a transfer under the ordinance. After the order by the foreman to return the car is given, to punch and go through the car distributing the transfer tickets would take up some time. This distribution would necessarily have to be made before the announcement to ‘change cars5 is made to passengers who immediately thereupon would commence to leave the car, and the issuing of these transfers would serve no useful purpose whatever.”

This is the only point presented by the brief of counsel for appellant. Counsel for the people contend that the practice followed by the conductor was not a compliance with the provision for transfers, and further'insist— '

“ That, under this ordinance, cars may not be turned except in the cases enumerated, and then only when necessary ‘to restore service in the opposite direction.’ When the car in question reached the Concord barn, it was peremptorily ordered turned with its 40 passengers when 13 or 14 cars and street car men to operate them were available for use in the car barn. * * * We contend under these conditions that it was not necessary to turn car 1298 in order to restore service in the opposite direction. It would have taken the car 18 minutes to have run from the barn to the end of the route and return, and the men operating it would have been paid for ‘ every minute they worked.’ The cost to the company would have been trivial; the convenience and comfort of the passengers great. These 40 passengers were entitled to ride to their destination without a change of cars. It was the duty of the company to send them on this car to their destination. A car from the barn could have been sent west with the crew of 1298, and the company would not have been incommoded in the least. The service would have remained unimpaired, and the convenience and comfort of the passengers undisturbed.”

The undisputed testimony shows that car No. 1298 was delayed from “causes beyond control,” viz., the breaking down of car No. 121 and the action of the elements, and that the car was turned “for the purpose of restoring service in the opposite direction.” It further appears that, when the car was turned, there was a car in the same block “following and going through to the end of the route. ” So far, therefore, as these conditions precedent to the right to turn the car were concerned, they were literally fulfilled. We do not think that the fact that the company had idle cars in the barn and men to operate them affected the company’s duty under the ordinance. The provisions of the ordinance obviously contemplate that the passengers on the belated car shall continue their journey on the following car in the same block. It is evident, however, that the respondent did not comply with the letter of the law as to transfers, compliance with which was also a condition precedent to the right to turn the car, and in our opinion it did not comply with the spirit of the law. This is not a civil proceeding on behalf of a passenger, but a prosecution in the name of the people. It has been repeatedly held by this court that it is the duty of passengers to secure evidence of payment of fares, and that a conductor is under no legal obligation to accept their statements that they have paid such fares. Mahoney v. Railway Co., 93 Mich. 613 (18 L. R. A. 335); Brown v. Railway Co., 130 Mich. 483, 134 Mich. 591; Vining v. Railway, 133 Mich. 348. The ordinance manifestly intended that the usual paper transfers should be delivered to the passengers, as conclusive evidence of their rights, before the company should have the right to turn the car. If the consent of the passengers that the company might violate the provisions of the ordinance would furnish a complete protection to it for such violation, certainly such consent must be shown or facts from which it would be necessarily implied. While the passengers did not demand transfers and perhaps did not remain on the car for that reason, still they were entitled to them, and, before the conductor could legally insist upon their leaving the car and taking the following car, it was his duty to comply with the provision for transfers. The passengers were insisting upon their right to remain upon this car and go through to their destination and they waived none of their rights. There is no evidence that they knew of the conversation between the two conductors as to transfers, or that all of them knew of the practice of the company to only give transfers when there was no car following, in which case the ordinance expressly prohibited the turning of the car. The complaining witness testified :

“I couldn’t tell whether I would be thrown off there, if I had nothing to show I had paid my fare.”

The company could not compel the passengers to accept its practice in place of the ordinance method. They were entitled to the printed evidence of their right which the ordinance required.

Judgment affirmed.

Grant, C. J., and Hooker, Moore, and M'cAlvay, JJ., concurred.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    LA BARRE v. BENT.
    1. Justices of the Peace — Summons—Declaration—Variance —Waiver.
    The variance between a justice’s summons in assumpsit and a declaration not based upon a contract or promise is waived by pleading the general issue without demurring or otherwise objecting to the declaration.
    2. Same — Jurisdiction—Action for Penalty — Obstruction of Highway.
    An action for the penalty prescribed by the statute (section 4157, 2 Oomp. Laws) for obstructing a highway is not a real action or an action for disturbance of a right of way or other easement as to which justices of the peace have not jurisdiction (section 704, 1 Comp. Laws), but justices are expressly-given jurisdiction of such actions by section 9799, 3 Comp, Laws.

      3. Same —Jurisdiction —Title to Real Property —Removal op Cause — Waiver op Objection to Jurisdiction.
    Where the defendant, in an action for the penalty prescribed by section 4157, 3 Comp. Laws, for obstructing a highway, pleaded the general issue and'caused the case to be certified to the circuit court upon a plea of title, he waived the point whether the justice had jurisdiction of such a case.
    4. Same — Declaration—Suppiciency.
    A declaration showing with reasonable definiteness that the highway commissioner is proceeding under section 4157, 2 Comp. Laws, to collect a penalty for obstructing a highway, is good against the objection that the action was brought by the commissioner individually; no one having been misled, and the statute conferring no personal right of action.
    5. Highways — Obstruction—Action—Employment op Counsel —Prosecuting Attorney.
    The action for a penalty given by section 4157, 2 Comp. Laws, for obstructing a highway, is not a criminal prosecution in which the prosecuting attorney is required to appear, and there is no objection to the employment of private counsel by the plaintiff.
    6. Appeal and Error — Review—Prejudicial Error.
    Where, in an action for a penalty for obstructing a highway,
    the defendant claimed that no highway existed, and the
    . court cannot say that a highway by user was conclusively established, the error in submitting the question of proper establishment of a highway to the jury, on record proofs which show that the proceedings were void, requires reversal of a judgment for plaintiff.
    7. Highways — Establishment — Proceedings — Record — Validity.
    Evidence consisting of records in the. township clerk’s officé, offered to show the legal establishment of a highway, examined, and held, to show that the proceedings were void.
    8. Same — Validity—Estoppel.
    Proceedings to establish a highway, which are void as to everyone else, are not valid as to defendant sued for obstructing it, on the ground that, by signing the petition for its establishment and working upon the road and receiving his pay from public funds, he is estopped to question the validity of its establishment.

      9. Same — Obstruction—Action—Instructions—Propriety.
    In an action for a penalty for obstructing a highway, a requested instruction upon the necessity that defendant’s obstruction must have been “wilful” to authorize a verdict of guilty, examined, and held, that the subject thereof was sufficiently covered by an instruction given.
    10. Same — Adverse Possession.
    Under some circumstances a private person may acquire title to a highway by adverse possession.
    Error to Cass; Des Voignes, J.
    Submitted October 13, 1908.
    (Docket No. 65.)
    Decided November 2, 1908.
    Case by Warren La Barre, highway commissioner, against Fred M. Bent for obstructing a highway. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Walter C. Jones (John E. Carr, of counsel), for appellant.

      Otis Huff, for appellee.
   Hooker, J.

The plaintiff, a commissioner of highways, prosecuted the defendant in an action of trespass on the case, commenced in justice’s court by summons, to recover a penalty prescribed by statute (2 Comp. Laws, § 4157) for an obstruction of a highway. A written declaration was filed, followed by a plea of the general issue, with notice denying the existence of the highway, and a claim that the land was owned in fee simple by defendant. Defendant also filed with the justice the statutory bond required where title to land comes in question, who thereupon certified the cause to the circuit court, where a trial resulted in defendant’s conviction, and he has appealed.

The first question raised against this proceeding was after the jury was sworn, and was an objection to the admission of any evidence. It was predicated upon several reasons, viz.:

(1) The action was not brought by the commissioner of highways, but by Warren La Barre “individually.”

(2) A justice of the peace has no jurisdiction of an action of this nature.

(3) A variance between the summons and declaration.

(4) The action was brought by an attorney not authorized by law.

(5) The declaration fails to state a cause of action.

Jurisdiction. The summonswas in the ordinary form in trespass on the case upon promises; the plaintiff named being “ Warren La Barre, highway commissioner of Marcellus township, Cass county, Michigan.” On its face it was a good summons, which the justice might lawfully issue. Upon the return day the parties appeared, and a written declaration was filed. This declaration was not based upon a contract or promise, departing in that respect from the summons, but no objection to it or demurrer was filed, and by a plea of the general issue, the alleged variance was waived. It is claimed that the justice’s want of jurisdiction appeared on the face of the declaration, by reason of the statute (1 Comp. Laws, § 704), which provides:

“No justice of the peace shall have cognizance of real actions, actions for a disturbance of a right of way or other easement.”

A sufficient answer is that this is not a real action, nor an action for the disturbance of a right of way, under the statute quoted. See 19 Am. & Eng. Enc. Law (1st Ed.), p. 971, for definition of real action. An action brought by a private person, to recover damages for disturbing a private right of way, is within the prohibition of this statute. See Fowler v. Highland, 48 Mich. 179. But the statute expressly gives a justice jurisdiction to try actions for damages resulting to private persons from obstructions to highways. See Knorr v. Macomb Circuit Judge, 78 Mich. 170. Whether this would be construed to authorize this action becomes unimportant, for while this statute does not expressly authorize or prohibit the bringing of actions for penalties before justices of the peace, section 9799, 3 Comp. Laws, does expressly confer such jurisdiction. People v. Hart, 1 Mich. 468; Pardee v. Smith, 27 Mich. 43. But if it could be said that the justice had no jurisdiction, the case of Ramsby v. Bigler, 139 Mich. 570, is a complete answer to defendant’s contention, By pleading the general issue, and causing the case to be certified to the circuit court, which has such jurisdiction, the defendant has waived the point.

Declaration. This declaration is in writing. It shows with reasonable definiteness that the highway commissioner was proceeding, under section 4157, 3 Comp. Laws, to collect a penalty for obstructing a highway. No one could have misunderstood it; and, as no personal right of action is conferred by that section, an inference that this was such was not warranted. The defendant was content to plead issuably and remove the case to the circuit, and we may reasonably treat the presence of the commissioner’s name as surplusage, if necessary to sustain the declaration. We think it sufficiently states a cause of action.

Prosecuting Attorney. The defendant was equally dilatory in objecting to the appearance of an attorney. We are not cited to any authority requiring the intervention of the prosecuting attorney in this class of cases, nor to any prohibiting the employment of other counsel, to which we see no objection. This is not a criminal proceeding, and we see no occasion to apply the rule obtaining in such cases to a civil action to recover a forfeiture. Counsel seems to have found no authority for his position, and we know of none.

The record clearly discloses that the defendant erected, and at various times reconstructed, gates across the road in question, and that latterly, if not at all times, he has claimed that this was not a public highway. He now asserts that he supposes that it was a private road. There is a conflict upon the subject, plaintiff having attempted to show the laying out of the road as a public highway, its reputation as such, and its recognition by the defendant, who is said to have petitioned for it, and admitted it to be such, and performed work upon it, receiving payment therefor from public funds, while defendant claims that what he has done was consistent with the theory that it was a private highway, and that his obstruction was made in the bona fide belief that he had the right to do so. The learned circuit judge left it to the jury to decide whether this was a public highway, either through lawful proceedings to lay it out or by user, and whether the defendant wilfully obstructed it.

There are many assignments of error relating to the admission of testimony and refusal of requests to charge. We can hardly be expected to take them up seriatim, and deal with or discuss each one separately, but we will endeavor to decide the important questions raised.

We have already said that the case was properly in court upon sufficient pleadings; and, the obstruction being undisputed, it follows that there are but two general questions to be considered, viz.:

(1) Was there a public highway ?

(2) Was the obstruction wilful ?

It was competent to prove the existence of the highway, by proof either of legal proceedings to establish it or user, and we understand that both were attempted. The plaintiff, after proving by the township clerk the absence from his files of any original papers in the matter of laying out the highway, introduced in evidence, over defendant’s objection, Exhibits A, B, C, and D. These were contained in a book, marked “ Highway Commissioner,” found in his office, and Exhibit A purported to be a petition, or record of such, for the laying out of said highway, to which was apparently attached the following:

“Also discontinue the angling road running south across section 80 to the town line.”

Apparently both bore the signatures of the same persons, including defendant. Exhibit B, a copy of a notice, followed. It was dated November 27, 1876. This was not

addressed to anyone, and no proof of service on anyone was made. Exhibit C followed. It was dated December 7, 1876. It recited that, after due notice given by law, the commissioner did proceed to view the premises and ascertain and determine the necessity of discontinuing the highway, and ordered it discontinued. Exhibit D, being the same date, was a similar order, establishing the highway in dispute; both views and orders being shown to have been made on the same day. This being substantially all of the proof of the proceedings, we are constrained to hold that the defendant’s requests numbered 2 and 8 should have been given, and it was error to permit the question to go to the jury. It is possible that the testimony may have been admissible as facts characterizing the user of the road, if such user was proved, as it had some tendency to prove that it may have been a public and not a private road. As we cannot say that a highway by user was conclusively proved, or that the jury did not find the proceedings to have established a lawful highway, we cannot sustain the verdict. That the proceedings were void is settled by the following cases, cited by counsel for the defendant: Shue v. Highway Com’rs, 41 Mich. 638; Cox v. Highway Com’rs, 83 Mich. 193; People v. Highway Com’rs, 14 Mich. 528; Van Auken v. Highway Com’rs, 27 Mich. 415; Dupont v. Highway Com’rs, 28 Mich. 363; Detroit Sharpshooters’ Ass’n v. Highway Com’rs, 34 Mich. 38; Pegler v. Highway Com’rs, 34 Mich. 359; Names v. Highway Com’rs, 30 Mich. 491; Purdy v. Martin, 31 Mich. 455; Nielsen v. Wakefield, 43 Mich. 434; Truax v. Sterling, 74 Mich. 160; Brazee v. Raymond, 59 Mich. 548; Goss v. Highway Com’rs, 63 Mich. 608; People, ex rel. Gray, v. Highway Com’rs, 40 Mich. 165; Prescott v. Patterson, 44 Mich. 525; Blodgett v. Highway Com’rs, 47 Mich. 469; Wilson v. Burr Oak Township Board, 87 Mich. 240; Sherman v. Peterson, 91 Mich. 480; Welch v. Hodge, 94 Mich. 493; Hatt v. Napoleon Township Board, 144 Mich. 266; Schroeder v. Village of Onekama, 95 Mich. 25-27.

Counsel alleges something in the nature of an estoppel, growing out of defendant’s admission that he signed the petition for the highway, but we should not say that proceedings, clearly void as to everyone else, are valid as to him, merely because he petitioned, with others, for the establishment of the highway, or worked upon it, and received compensation from public funds.

The plaintiff attempted to prove that this was a public highway by general reputation, relying upon the case of Village of Grandville v. Jenison, 84 Mich. 54. To this may be added the case of Wicks v. Ross, 37 Mich. 466, which seems to justify such practice.

Error is assigned upon the refusal of defendant’s ninth request:

“(9) The statute under which this action is claimed to be brought is for the wilful obstruction of a highway, and the word ‘ wilful ’ in the law is for the protection of persons who might erect supposed obstructions which were not wilful; as, for instance, if the defendant had always maintained that he owned the land where the claimed highway is, when in fact there is no highway there, or if in fact there was a highway at the place of the obstruction, and he was informed by the commissioner, at different times before Mr. La Barre' came into office, that he might erect a gate at the place where it is claimed that he did, and did this under the advice and consent of the former highway commissioner, there is no wilful obstruction of the claimed highway, and defendant cannot be found guilty as complained of in this suit, and your verdict must be for the defendant.’4

We are of the opinion that this was covered by the following instructions:

“ The unlawful obstruction of a highway is a penal offense, and it is the duty of the highway commissioner to keep highways free from obstruction. Of course, if you should find under the evidence in this case that defendant erected a gate and fence across the highway, as complained of, under the advice and consent of the highway commissioner, then defendant would not be liable for a wilful obstruction of this highway, if you found it to be a highway, and defendant could not be found guilty as complained of in this action.”

It is clearly the law that, under some circumstances, a private person may acquire title to a highway by adverse possession.

The judgment is reversed, and a new trial ordered.

Grant, C. J., and Blair, Moore, and McAlvay, JJ., concurred.


text:
    KARPPINEN v. TAMARACK MINING CO.

    Master and Servant — Injuries to Servant — Mines — Safe Place to Work.
    This case, involving the liability of the owner of a mine for injuries to a trammer caused by a fall of rock from the hanging wall of the mine, is ruled by Petaja v. Mining Go., 106 Mich. 463, involving similar facts.
    Error to Houghton; Streeter, J.
    Submitted October 14,1908.
    (Docket No. 71.)
    Decided November 2, 1908.
    Case by Henry Karppinen against the Tamarack Mining Company for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.
    P. H. O’Brien, for appellant.

      Ball & Stone, for appellee.

       Rehearing pending.

   Hooker, J.

The plaintiff has appealed from an adverse verdict directed by the trial judge. The plaintiff was injured by the fall of rock from the hanging wall of defendant’s mine after working therein as a trammer for thirty days. At the time of the injury he was loading rock which had been broken down, shoveling it upon the tram car,- which stood at the end of the track in close proximity. The case is substantially like that of Petaja v. Mining Co., 106 Mich. 463, and is clearly within the rule there stated, and does not require a lengthy discussion.

The judgment is affirmed.

Grant, C. J., and Blair, Moore, and McAlvay, JJ., concurred.


text:
    HOOPER v. HERALD.
    1. Trespass — Action—Evidence—Possession.
    In an action of trespass for the removal of a fence erected by-plaintiff along a claimed boundary, evidence examined, and held, to show that at no time prior to the erection by him of the fence was plaintiff in the lawful possession or occupancy of the disputed strip; that in building it plaintiff trespassed upon defendant’s possession; and that there was nothing in the record that warranted a finding that, by building the fence and the lapse of time, plaintiff acquired a lawful possession, or divested that of defendant.
    2. Boundaries — Establishment — Oral Agreement — Sufficiency.
    An oral agreement to establish a boundary between adjoining landowners is ineffectual where there has been no occupancy and acquiescence under it, both being essential.

      3. Trespass — Action—Title—Possession—Requisites.
    Plaintiff could not maintain trespass for the removal of a fence which he erected along a claimed boundary, where he never had possession of the disputed strip, and had no claim to it except an oral agreement establishing a boundary under which no occupancy or acquiescence was shown.
    Error to Livingston; Miner, J.
    Submitted October 15, 1908.
    (Docket No. 94.)
    Decided November 2, 1908.
    Trespass quare clausum fregit by William P. Hooper against Willard L. Herald. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Shields & Shields, for appellant.

      Louis E. Howlett, for appellee.
   Hooker, J.

The parties to this action, and their respective fathers before them, owned and occupied adjoining tracts of land on sections 13 and 24, in Green Oak township, Livingston county, Mich., beginning in 1864, the lands on section 13 adjoining those on section 24. There was an old fence between their premises at a very early date. Section 24 is said to have contained more than 640 acres, which gave rise to a dispute about the boundary, and led to a survey to establish it, at the instance of plaintiff’s father, in the year 1879. The plaintiff claims that on a prior occasion the fence had been divided on measurements made by Peter Hooper and Emmet Herald, who then agreed orally that Mr. Hooper should move the fence upon section 13 to the line then established and maintain it, and that he did so. He claims, further, that it was then and there agreed that the fence on section 24 should be left standing where it then was until a new fence should be needed, and then Mr. Herald should build a new fence on the line established by the survey, a distance claimed to be eight feet east of the old fence. The plaintiff admitted in his testimony that the old fence is the only fence that existed between the parties on section 24, and that Herald repaired it from time to time while it stood and replaced a part of it with bo&rd and afterwards with wire fence, placing these still farther to the west than where the old fence had stood.

The action is trespass, commenced in justice’s court, and certified to the circuit on a plea of title. It was admitted that plaintiff owns the northwest quarter and defendant the northeast quarter of the northwest quarter of section 24, but nothing shows that the strip of eight feet in dispute belonged to one or the other, as surveyed by the government surveyors, and apparently the plaintiff bases his claim to a recovery upon the oral contract which his counsel say established a boundary between those parcels. Defendant’s counsel say that there was no such establishment of a boundary, and, had there been, trespass would not lie, for plaintiff never was in possession, while the defendant always occupied it, and under such circumstances ejectment only is a proper remedy. There was testimony by a Mr. Kinney that in 1886 he heard a conversation about the fence, wherein Peter Hooper and Emmet Herald agreed to build it, Hooper to build the north half on section 13 and Herald the south half on section 24, and that Hooper pointed out a stake about 15 feet east of the line of the old fence, and they agreed to put it there when they should build it. In 1906 the parties being in dispute about the boundary, plaintiff proceeded to build 40 rods of wire fence upon what he claims to be the line, and then went to Oregon. On his return he found1 it gone. Apparently when defendant learned of it he removed it, and has it in his possession for the owner. There are, therefore, two questions in the case:

(1) Did plaintiff have possession at the time of the alleged trespass ?

(2) If not, has plaintiff proved his title to the strip ?

Possession. We think the record conclusively shows that at no time prior to the erection by him of the wire fence was plaintiff in the lawful possession or occupancy of the strip, but defendant was so at all times prior thereto; this appearing from undisputed testimony. Plaintiff trespassed upon the defendant’s possession in erecting the fence, and there is nothing in this record that warranted the jury in finding that, by building it and the lapse of time, he acquired a lawful possession, or divested that of the defendant. Harrington v. Scott, 1 Mich. 17; Van Auken v. Monroe, 38 Mich. 729; Doe v. Dyball, 3 C. & P. 610; Asher v. Whitlock, L. R. 1 Q. B. 1; Christy v. Scott, 14 How. (U. S.) 282; Bigelow v. Sanford, 98 Mich. 661; Stetson v. Cook, 39 Mich. 750.

Title. There is no testimony tending to prove that the plaintiff has lawful title to the strip because the only proof that it is a part of the northwest quarter of the northwest quarter is the alleged oral agreement to treat it as such by establishing a boundary. This is insufficient, because there has been no occupancy and acquiescence under said alleged agreement such as the law requires, both of which are essential. White v. Peabody, 106 Mich. 148; Tritt v. Hoover, 116 Mich. 8; Jones v. Pashby, 67 Mich. 459; DeLong v. Baldwin, 111 Mich. 469; Olin v. Henderson, 120 Mich. 158; Turner v. Angus, 145 Mich. 681; Smith v. Hamilton, 20 Mich. 438; Cronin v. Gore, 38 Mich. 384. For a full citation of cases involving this question, see Tillis r. Folmar, 145 Ala. 176 (8 Am. & Eng. Ann. Cas. 78).

We are of the opinion that the learned circuit judge erred in not directing a verdict for defendant. Judgment reversed, and new trial ordered.

Grant, C. J., and Blair, Moore, and McAlvay, JJ., concurred.


text:
    ROSENTHAL v. ROSENTHAL.
    1. Appeal and Error — Beview—Scope—Waiver of Errors.
    Where appellant stated in her brief that the only question involved was whether there was sufficient evidence adduced by the plaintifE tending to show joint or concerted action on the part of defendant J. with the other defendants to warrant ' the submission of the issue to the jury, the court treated the other assignments of error as waived.
    2. Venue — Joint Defendants — Besidenoe —Propriety of Joinder.
    Evidence tending to show that defendant J., a resident of Wayne county, aided and abetted defendants B., residents of the Upper Peninsula, in their attempt to induce plaintifE to deed back certain property deeded to her in settlement of a suit for alienation, or accept a divorce, failing in which defendants B.' made it uncomfortable for plaintifE to live with her husband, show sufficient concert of action between the defendants to require submission to the jury of the issue raised by a plea in abatement objecting to the joinder of the defendants and the commencement of suit in Wayne county.
    Error to Wayne; Hosmer, J.
    Submitted October 15, 1908.
    (Docket No. 99.)
    Decided November 2, 1908.
    Case by Hattie Rosenthal against Gustave Rosenthal, Fannie Rosenthal, and Moses Jacobs for conspiracy to prevent plaintiff’s husband from living with her. There was judgment for defendants on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      Sloman & Sloman (A. J. Groesbeck, of counsel), for appellant.

      H. H. Hatch and Graves, Hatch & Wasey, for appellees Rosenthal.
   Hooker, J.

Plaintiff has brought this action in the Wayne circuit court. The defendants are her husband’s parents, residing at Newberry in the Upper Peninsula, and one Jacobs, a resident of Detroit. The action is case to recover damages for conspiring to force plaintiff to deed to defendants Rosenthal certain real estate in Detroit which they had previously deeded to her in settlement of a former suit that she had brought against them for alienation of her husband’s affections, and alienating her husband’s affections. The action was commenced by summons served first upon Jacobs at Detroit, proof of which was duly filed by the sheriff on July 16, 1906, together with a return that, after diligent search and inquiry, he [the sheriff of Wayne county] could not find the other defendants within his bailiwick, and that they resided at New-berry, Mich. A summons was thereupon sent to the sheriff of Luce county, who served it personally upon them at Newberry. Jacobs appeared and pleaded the general issue. The other defendants filed a plea in abatement, upon which an issue was made and tried. They also filed a plea of the general issue, accompanied by a notice of the same matters alleged in their plea in abatement, the substance of which was:

“That the defendant Moses Jacobs was not made a defendant jointly with the Rosenthals because he was jointly guilty of the wrongs charged against them, but for the sole purpose of enabling plaintiff to acquire jurisdiction of the Rosenthals in Wayne county under the provisions of Act No. 235 of the Public Acts of 1901, the defendant Jacobs residing and being served at Detroit and the defendants Rosenthals at Newberry, where they resided.”

Upon a trial of the issues raised by the plea in abatement, the learned circuit judge directed a verdict for the defendants Rosenthal, and subsequently caused the entry of a judgment quashing the summons and setting aside the service upon them, with costs to be taxed. The plaintiff has appealed.

The appellant states in her brief:

“ The only question involved is whether there was sufficient evidence adduced by the plaintiff tending to show joint or concerted action on the part of the defendant Jacobs with the other defendants to warrant the submission of the same to the jury.”

In view of this statement, we feel justified in treating other assignments of error as waived. We have examined the testimony, and are convinced that there was evidence tending to show that the defendant Jacobs aided and abetted the Rosenthals in their attempt to induce the plaintiff to deed the property back or accept a divorce. Failing in the effort to get the property, the Rosenthals made it uncomfortable for plaintiff to live with her husband, if she is to be believed. The testimony of Rabbi Farber and that of the plaintiff show a degree of officiousness consistent with the charge made by the plaintiff. The cause should have gone to the jury.

■The judgment is reversed, and a new trial ordered.

Grant, C. J., and Blair, Moore, and McAlvay, JJ., concurred.


author: Moore, J.

text:
    GRIFFIN v. GRIFFIN.
    Divorce — Custody of Children — Decree — Modification — Jurisdiction.
    Under section 8632, 3 Comp. Laws, the circuit court has jurisdiction, after granting a divorce and giving complainant the custody of the child until the further order of the court, to entertain a petition by defendant for a change in the decree as to the custody of the child, and, after hearing, grant it.
    Appeal from Shiawassee; Miner, J.
    Submitted October 15, 1908.
    (Docket No. 95.)
    Decided November 2, 1908.
    Bill by John A. Griffin against Phoebe E. Griffin for a divorce. There was a decree for complainant, and the custody of a minor child was temporarily given to him. Defendant afterwards petitioned for the custody of said child, and from an order granting the petition, complainant appeals.
    Affirmed.

      Frank L. Doty, for complainant.

      Jason E. Nichols, for defendant.
   Moore, J.

The complainant filed a bill of complaint • for the purpose of obtaining a decree of divorce. The defendant’s default was taken. Before the decree was granted a hearing was had in relation to who should have the custody of a minor child. The judge said at the close of the hearing:

‘ ‘ I think I will give the complainant a decree for divorce; but the question of the child is of more importance, and that is why I have taken in this last evidence in the case, or the court had it taken. I think I will give the complainant the custody of the child until the further order of the court.”

A decree was entered accordingly. Later the defendant petitioned for a change in the decree as to the custody of the child, and after a full hearing her petition was granted. From that order the case is brought here by appeal. ,

It is the claim of appellant that the court had no right to make this order. Section 8630, 3 Comp. Laws, confers upon the court the right to determine who shall have the custody of the minor children during the pendency of the divorce proceedings. The following section authorizes the court, upon the disposition of the divorce case, to make such further decree as to the custody of minor children as it shall deem just and proper. Section 8632 provides in terms that the court may, from time to time afterwards, revise and alter such decree.

The decree of the court below is affirmed, with costs.

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


author: Ostrander, J.

text:
    CLARK v. WELCH.
    1. Public Lands —Additional Homestead — Soldier’s Right — ' Assignability.
    Soldier’s rights of additional homestead entry were assignable before entry.
    2. Executors and Administrators — Assets—Ownership—Evidence.
    In an action against the distributees of the estate of the original owner of a certificate of additional homestead right to recover money paid to the administratrix for the assignment of such right, evidence examined, and held, to preponderate in favor of a finding that the certificate had been transferred prior to the original owner’s death, and that nothing passed to plaintiff by his purchase.
    3. Powers — Public Lands — Right to Locate — Power with Interest — Revocation.
    A power of attorney, given at the time of transferring for value a soldier’s additional homestead right, empowering the transferee or anyone whom he might name to locate the land in the soldier’s name, is a power coupled with an interest, and is not revoked by the soldier’s death.
    Case made from Bay; Collins, J.
    Submitted October 15, 1908.
    (Docket No. 90.)
    Decided November 2, 1908.
    Assumpsit by Daniel N. Clark against Henry Welch and Adelia Hurley for money had and received. There was judgment for defendants, and plaintiff brings error.
    Reversed, and judgment entered for plaintiff.

      Daniel N. Clark, in pro. per.

      Gilbert W. Hand, for appellees.
    On November 20, 1878, the commissioner of the general land office issued a certificate showing one Levi Welch to be entitled to make an additional homestead entry of 80 acres of land. The certificate, to which was attached such other papers before the department as pertained to the matter, was transmitted to William J. Johnston, the attorney for Welch, who lived in Washington, D. C., and who filed the application. The certificate has never been used to locate land, and, as appears from the records of the land office, is still outstanding. Levi Welch died March 16, 1904, and plaintiff, a resident of Washington, D. C., purchased from the administratrix of his estate, for the sum of $200, an assignment of the right evidenced by the said certificate. This assignment was made upon the order of the probate court, and recites that said Welch never exercised or had the benefit of his said right during his lifetime, and never sold, assigned, or transferred the same to any person, and that the title thereto remained in him at the time of his death unimpaired. What became of the certificate is not known. There is no testimony-tending to prove that it ever came into the hands of Welch. It was the usual practice, prior to the act of congress of August 18, 1894, of attorneys and dealers in such rights to acquire from the beneficiaries two powers of attorney, one to locate the land in the name of the beneficiary, the other to sell land so located; these powers being executed in blank as to all variable facts. These passed from hand to hand until they reached the person who actually located the land, who inserted his name as attorney in fact, and filled in the necessary blanks and description of the land located. In the agreed statement of facts upon which this case was submitted at the circuit is the following:
    “The parties hereto presume that said William J. Johnston obtained two powers, as above described, from said Levi Welch, although there is no record, either in the general land office or elsewhere, showing that said powers were actually given either to Johnston, or to any other person or persons. * * *
    “From March 3, 1873, the date of the passage of section 2306, U. S. Rev. Stat. (17 Stat. at Large, p. 605), until the date of the passage of the act of August 18, 1894 (28 Stat. at Large, p. 397), it was the rule and regulation of the department of the interior of the United States to require the filing of an affidavit by the soldier in all locations of the additional right, whether made in person or by attorney in fact, that the additional entry was made for his own exclusive use and benefit, and not directly or indirectly for the use or benefit of any other person or persons whomsoever. * * *
    “From and after the date of the act of March 3, 1873 (now section 2306, Revised Statutes of the United States), until August 5, 1874, all applications for soldiers’ additional homestead entries were required to be made in person at the local land offices, but by circular of that date (August 5, 1874; 1 Copp’s Landowner, p. 92) applicants were relieved from going to the local land offices to make entry, and it was provided that the affidavits might be made before the clerk of any court of record for the county in which applicant resided, and transmitted, with the application and fee, by mail or through an attorney to the proper land office. By departmental decision of May 17, 1876 (3 Copp’s Landowner, p. 22), the instructions contained in the above-mentioned circular were revoked, because it was found that said regulations led to many abuses. In accordance therewith the circular of May 22, 1876 (3 Copp’s Landowner, p. 52), was issued, requiring soldiers’ additional entries to be made in person at the local land offices. These regulations were made applicable to applications then pending, but on July 10, 1876 (3 Copp’s Landowner, p. 52), the department modified the before-mentioned decision so as to make the said regulations apply only to entries made subsequent to May 17, 1876. The department on March 10, 1877 (4 Copp’s Landowner, p. 37), further modified the circular of May 22, 1876, so as to permit entries to be made in the following cases, viz.:
    “(1) Those presented prior to March 20, 1876, which were rejected, but kept alive by appeal.
    “(2) Those in the hands of agents or attorneys at the date of promulgation of the circular of May 22, 1876, which, under said instructions, were not recognized.
    “(3 ) To allow entries to be made by the agents or attorneys of the party originally entitled to entry, after the right shall be certified to by the commissioner of the general land office. * * *
    “Under the act of Congress of August 18, 1894 (28 Stat. at Large, p. 397), and circular of the secretary of the interior of the United/ States of October 16, 1894 (19 Land Dec. Dept. Int. 302), issued in pursuance thereto, any person holding any certificate therefor issued of a soldier’s additional right of entry by virtue of any bona fide transfer or sale of such certificate such person, upon presentation of proof that he purchased such certificate, and evidence of the bona fide transfer, became entitled to the recertifications in his own name of said right.
    “ That by decision of the honorable secretary of the interior in the case of Williford Jenkins (29 Land Dec. Dept. Int. 510) any person furnishing evidence of the loss or the destruction of any certificate of additional homestead right is entitled to the reissuance of said certificate. * * *
    “Provided that no right, title, or interest in and to such additional homestead right existed in the estate of the said Levi Welch at the date of the said assignment, and that no such right, title, or interest, passed thereby to plaintiff under the foregoing agreed facts in said cause.”

      Plaintiff applied for a new certification — recertification —of the right of Welch, which, after examination, was denied. From the letter of the commissioner, the following is taken:
    “While this office is desirous of aiding and assisting a soldier or his assigns in establishing his right, it cannot, in view of the fact that such rights were assignable, and may have been assigned, and now held by an innocent purchaser for value, direct that a new certificate issue except upon due, positive, and conclusive proof that the certificate evidencing the right has been lost or destroyed, and that the party who now seeks issuance of a new certificate is the lawful owner of such right. * * * The burden is upon the party asserting the additional right to clearly establish, not only the validity thereof, but his title thereto, and, until this duty has been fully performed, the department would be unwarranted in recognizing a claim based thereon. * * * As you have failed to present such evidence in this case, your application for the reissuance of the certificate must be, and the same is hereby, denied, subject to your right of appeal.”
    It was also further agreed by the parties:
    “Said defendants were the active parties in procuring the purchase by plaintiff of said alleged right; that said Adelia Hurley and Henry Welch severally represented to plaintiff that such right existed in their father’s estate, and the same was a valuable asset thereof.”
    This suit is brought to recover from the distributees of the estate of Welch the money paid to the administratrix of said estate for said assignment, and it was agreed that they are liable to refund the money,—

      ‘1 Provided that no right, title, or interest in and to such additional homestead right existed in the estate of the said Levi Welch at the date of the said assignment, and that no such right, title, or interest passed thereby to plaintiff under the foregoing agreed facts in said cause.”
   Ostrander, J.

{after stating the facts). As we construe the stipulation of the parties, and this construction is agreeable with the arguments made by counsel, we are not called upon to determine whether plaintiff purchased an interest or title which the land department would recognize, but only whether, upon the evidence presented, it appears as matter of law that the estate of Welch was owner of the right to locate [80 acres of the public lands. That Levi Welch owned this right in 1878, and that a certificate to that effect was duly issued to him, which certificate has never been used for the purpose of locating lands, are facts established by the record of the department. That the right was assignable before entry is established by Webster v. Luther, 163 U. S. 331, the practice of the land department, based upon the idea that the right of entry given by the statute was personal and not assignable notwithstanding. Is there evidence of the assignment by Welch of this right ? The parties have in the statement of agreed facts presumed that Levi Welch executed in blank two written instruments, one of them conferring upon an attorney authority to locate the land in the name of the principal, the other, as we understand the record, similar in its terms to the instrument considered in Webster v. Luther, supra. We are led, by the arguments made and from the opinion filed by the learned trial judge, to believe that counsel have assumed the fact presumed in the statement of facts, and that this court is expected to proceed upon such assumption. There is some other evidence tending to support such finding of fact. It was the usual course in such matters. The certificate itself appears to have never come into the'possession of Welch. He lived for 26 years after the certification of his right, during which time he made no effort to locate the land or to dispose of the right to do so. The effect of the fact last stated as evidence opposed to his title is diminished by the other fact that no one else has used the certificate for the purpose of locating land. As we are of opinion that, if the instruments already referred to and described were executed, they amounted to an assignment of the right of Welch, we find a preponderance of evidence opposed to the idea that he died possessed of such right. The learned trial judge was of opinion that it was held in Midway Company v. Eaton, 183 U. S. 602, “ that similar powers could not be shown to constitute an assignment.” We do not so read the opinion of the court in that case. What was decided was that, although by the act of congress the Sioux half-breed certificates for scrip were made nonassignable, a valid location of land could be made by virtue of such certificates by an attorney in fact of the Indian, and that he could, either before or after the location was made, enter into an agreement to secure or convey the title. Id., 183 U. S. 618. In Webster v. Luther, supra, it was expressly found that the act of congress did not make the right to locate an additional homestead nonassignable.

With respect to the instrument supposed to have been executed by Levi Welch, the court below said:

“Presuming that the attorney in the powers during the time they were in force up to Welch’s death had them in his possession ready to be used, nevertheless he had no interest in the land to be entered and only had an interest in that which he (the attorney) was to derive from the use of the powers. It is a question, therefore, whether a power coupled with an interest means an interest in the thing itself, or in that which is to be derived by the use of the power. The case of Hunt v. Rousmanier’s Adm’r, 8 Wheat. (U. S.) 201, is conclusive in the defendant’s favor. The attorney had no interest, except as he might derive such from the use of the powers. He had no interest in the land to be conveved. Clearly death revoked the powers.”

The instrument contained the clauses:

“And my said attorney is hereby authorized to sell said lands, or my interest therein, and to make any contract in relation thereto which I might make if present, and to receive for his own use and benefit any moneys or other property the proceeds of the sale of said lands, or any interest therein, or arising from any contract in relation thereto, or received or recovered for any injury thereto, and I hereby release to my said attorney all claim to any of the proceeds of any such sale, lease, contract, or damages. And I further authorize my said attorney to appoint a substitute or substitutes to perform any of the foregoing powers, hereby ratifying and confirming all that my said attorney or his substitute may lawfully do or cause to be done by virtue of these presents ” — or similar ones.

It is true that the location would be made in the name of Levi Welch and that the patent for the land would issue in his name. It is also true that until the location of the land the bare right to locate it was transferable. Assuming this right to have been transferred for value, the giving to the transferee, or to any person whom he might name, a power to make such transfer effectual, is not a revocable act. What is imported is a present sale and transfer of the right and of all and every benefit which may be thereafter derived from said right.

We are of opinion that the judgment should be reversed, and upon the agreed facts one should be entered here for plaintiff, with costs of both courts.

Grant, C. J., and Hooker, Moore, and McAlvay, JJ., concurred.


author: GRANT, C. J.

text:
    MEISNER v. DETROIT, BELLE ISLE & WINDSOR FERRY CO.
    1. Carriers — Passengers—Right to Transportation.
    Anyone, no matter what his character is or has been, presenting himself for transportation to a common carrier, is, upon paying his fare, entitled to be transported, provided there is nothing in his condition or conduct when he presents himself to justify his exclusion.
    2. Theaters and Shows — Right to Admission — License—Revocation.
    Theaters, circuses, race tracks, private parks, and the like, are private enterprises, under the control of private parties, and, in the absence of a statute regulating the business, the proprietors of such enterprises may permit or refuse to permit anyone to enter them, or, having given permission, may revoke it.
    3. Carriers — Passengers—Private Parks — Right to Enter.
    A corporation organized under sections 6646-6659, 2 Comp. Laws, to own and operate ferries on the Detroit river, owning an island in the river which it operates as an amusement park and to which it runs steamers, is not, as to the enterprise named, a' common earner, and it may refuse to carry to such park anyone at its pleasure.

    Error to Wayne; Hosmer, J.
    Submitted October 15, 1908.
    (Docket No. 97.)
    Decided November 2, 1908.
    Case by Samuel Meisner against the Detroit, Belle Isle & Windsor Ferry Company for refusal to accept plaintiff as a passenger. There was judgment for plaintiff for the amount paid for a ticket, on a verdict directed by the court, and he brings error.
    Affirmed.

      Sloman & Sloman, for appellant.

      Gray & Gray {Elliott G. Stevenson, of counsel), for appellee.

      The defendant is organized under chapter 175, §§ 6646-6659, 2 Comp. Laws. Its articles of association declare its purpose to be “to own and operate ferries on the Detroit river, between the city of Detroit, and the towns of Walkerville, Windsor and Sandwich, Province of Ontario, and Belle Isle, and such other places on the Detroit river and St. Clair river as the business and interests of the public and said corporation may from time to time require.” Belle Isle is a public park, comprising an island in the river, and owned by the city. Between the places mentioned it runs ferries, and, as to traffic between those places, is a public common carrier of passengers. The defendant purchased Bois Blanc Island, situated in Canadian waters, near the mouth of the Detroit river, opposite to and about a quarter of a mile from Amherstburg, Canada. It owns the entire island, except a tract reserved for lighthouse purposes and three small cottage lots. Upon its property defendant has erected a café, dance hall, cottage for women, shelters and amusement buildings of various kinds, laid out walks, drives, bicycle paths, baseball and athletic grounds, bathing beaches, etc. Upon these it has expended about $200,000. It owns and runs a boat from Detroit to its park on Bois Blanc Island twice daily. This boat, the steamer Columbia, will carry from 3,000 to 3,500 passengers. A smaller boat, the Papoose, licensed to cary 150 passengers, runs between Amherst-burg and Bois Blanc. The island being located in Canadian territory, defendant’s boat, the Columbia, is required to stop at Amherstburg, going and coming, to take on a customs inspector. It caters largely to women and children. It owns its own docks used on this route. No liquor is allowed to be sold on the island or on the boats. It provides special policemen to patrol the island, to prevent all conduct and disturbances which would annoy its patrons. Its boat, the Columbia, carries excursions of various societies to the island, selling tickets at a reduced rate to such societies, which make a profit by reselling them at the regular rate. During the season of 1906, there were about 176 of such special excursions. Plaintiff was refused passage from the city of Detroit to Bois Blanc on two occasions. He had purchased tickets for these trips from societies which gave these excursions. The contracts between the defendant and these organizations contained the following provision:
    “ The party of the first part reserves the right to refuse to accept tickets sold or furnished to any person whom they believe to be -possible objectionable passengers. Tickets sold or furnished in violation of this contract will not be accepted.”
    The tickets also contained the following provision:
    “This ticket is sold subject to’the agreement between the Detroit, Belle Isle & Windsor Ferry Company and the above organization, and must be exchanged for the excursion ticket at wharf on date of the excursion.”
    On attempting to pass the gate onto the steamer, plaintiff was refused admission. The reason given on each occasion was that on a former occasion he had engaged in a disturbance upon the boat to the annoyance of passengers and crew. ■ He brought this suit to recover damages for refusal to carry him as a passenger. The action is in tort, alleging a breach of defendant’s duty as a common carrier of passengers. The court directed a verdict for the defendant, except as to the price of the ticket which plaintiff had purchased. He was permitted to recover for this amount, with interest.

       Ferryman as common carrier, see note to Rosen v. City of Boston (Mass.), 68 L. R. A. 153.

   GRANT, C. J.

(after stating the facts). Is the defendant, in its business between Detroit and its park on Bois Blanc Island, a public common carrier of passengers, obliged by law to accept any person who offers himself as a passenger ? This is the important question in this suit. If it be answered in the affirmative, it follows that no person or corporation can own a private park, private docks, its own means of transportation, and control its pleasure grounds, and means of transportation thereto, without becoming a common carrier, obliged to transport anyone who presents himself as a passenger. The sole business in which the defendant is engaged with these two boats is carrying passengers to and from its private pleasure grounds. It caters to a particular class of people. It desires to keep out those whom, for reasons of its own, it deems objectionable. Unless it did this, it would not secure the class of patrons it desires. If it secures the better class of people, which its managers probably believe would make the enterprise a success, beneficial financially to themselves and attractive to respectable people, it must exclude the rough, boisterous, and rowdyish element from its boats and grounds. It is not engaged in the general carriage of passengers for business and pleasure. It invites such persons and parties as it chooses, and upon such terms as it chooses to make, to visit its own grounds, provided, as above stated, with the means of entertainment, amusement, and sport. It is in all essentials as private an enterprise as that of a theater, a circus, or a race track.

Counsel do not disagree as to the law of common carriers of passengers. Anyone, no matter what his character is or has been, presenting himself for transportation to such carrier, is, upon paying his fare, entitled to be transported, provided there is nothing in his condition or conduct when he presents himself to justify his exclusion. This rule does not apply to the owners of theaters, circuses, race tracks, private parks, and the like, unless there be some statute regulating their business, and providing the terms and conditions under which that company’s business may be carried on. It appears to be settled by the authorities that these are private enterprises, under the control of private parties, and that they may license whomsoever they will to enter, and refuse admission to, whomsoever they will. Their own interests prompt fair and just treatment to those whom they invite to their places of pleasure. The right given to enter such places is a mere license, and after the right to enter is granted, it may be revoked. So, also, the right to enter may be refused to anyone. People v. Flynn, 189 N. Y. 180; Collister v. Hayman, 183 N. Y. 250 (1 L. R. A. [N. S.] 1188); Pearce v. Spalding, 12 Mo. App. 141; Purcell v. Daly, 19 Abb. N. C. (N. Y.) 301; Burton v. Scherpf, 1 Allen (Mass.), 133; McCrea v. Marsh, 12 Gray (Mass.), 211; Horney v. Nixon, 213 Pa. 20 (1 L. R. A. [N. S.] 1184); Wood v. Leadbitter, 13 M. & W. 838.

Wood v. Leadbitter, supra, is very similar in its facts to this case. It is cited with approval in several of the above-cited cases. Pleasure grounds of this character are not necessaries of life, any more than are theaters and race tracks; and, unless restrained by some provisions of their charters, their owners can impose any terms of admission they choose. No such restraints are imposed upon the defendant in this case. The defendant can exact an entrance fee at the park, or it can compensate itself by charging for transportation to it and admit its patrons otherwise free to the park. The ride upon the boat and the use of the grounds are part of the same scheme for pleasure furnished by the defendant to those whom it may choose to carry. It is perhaps due to the plaintiff to say that he denies the improper conduct charged against him, but his rights in no sense depend upon the reason given for his exclusion.

The judgment is affirmed.

Blair, Hooker, Moore, and McAlvay, JJ., concurred.