author: Moore, J.

text:
    PAGE v. HUCKINS.
    Waters and Watercourses — Surface Waters — Adjoining Proprietors — -Drainage.
    A landowner may be enjoined from conducting water from a sag hole on his land by means of tile drains, open ditches, and furrows and precipitating such water upon the land of an adjoining proprietor in a body more rapidly than it would flow if the artificial courses were not made.
    Appeal from Eaton; Smith, J.
    Submitted October 16, 1907.
    (Docket No. 79.)
    Decided November 5, 1907.
    Bill by Frances Page against Lucy Huckins and Henry Wiseman to enjoin the casting of water upon complainant’s land. From a decree for complainant, defendants appeal.
    Affirmed.

      Elmer N. Peters, for complainant.

      Joseph B. Hendee, for defendants.
   Moore, J.

The complainant and Lucy Huckins are owners of adjoining farms. The defendant Wiseman is the tenant of Lucy Huckins. The bill of complaint is filed to enjoin defendants from conducting water by means of a tile drain and open ditches or furrows from the farm occupied by them to the farm of complainant. The case was tried in open court. A decree was entered in favor of the complainant. The case is brought here by appeal.

The testimony is very conflicting. Some of the conflict can doubtless be explained by the fact that the witnesses did not all view the premises at the same time. We think it clear however that by means of dead furrows, at least one of which had been deepened by using shovels, and the tile drain, a sag hole was drained and water was pre-' cipitated upon the land of complainant in a body, and more rapidly than it would have come if these artificial courses had not been made. The case is within Gregory v. Bush, 64 Mich. 37; Leidlein v. Meyer, 95 Mich. 586.

The decree is affirmed, with costs.

McAlvay, C. J., and Carpenter, Ostrander, and Hooker, JJ., concurred.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    HENDERSON v. GRAND RAPIDS ACCIDENT & HEALTH INSURANCE CO.
    -Life Insurance — Premiums — Default of Payment — Forfeiture. »
    Failure of Insured to make a monthly payment on a life-insurance policy does not work a forfeiture, where, at the issuing •of the policy, the agent stated that the company would send a collector to the insured’s house each month, to whom the monthly payment should he made, and the -insured had the money ready for the collector, who failed to come, and no notification was received that payments should or might be made elsewhere. Baker v. Protective Ass’n, 118 Mich. 481, followed.
    Error to Kent; Wolcott, J.
    Submitted October 22, 1907.
    (Docket No. 114.)
    Decided November 5, 1907.
    Assumpsit by Mary E. Henderson against the Grand Rapids Accident & Health Insurance Company on a policy of insurance. There was judgment for plaintiff, and .defendant brings error.
    Affirmed.

      McKnight & McAllister, for appellant.

      John J. McKenna, for appellee.
   Grant, J.

The facts in Baker v. Protective Ass’n, 118 Mich. 431, are so similar to those in this case as to render a statement unnecessary. This case is ruled by that against the contention of the defendant, and the judgment is affirmed.

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


author: Hooker, J. Montgomery, J.

text:
    HACKLEY v. LITTELL.

    1. Judgment — Conolusiveness—Persons Concluded — Assignees.
    A decree establishing the validity of a spendthrift trust andidetermining that the principal andincome thereof are beyond the control and anticipation of the beneficiary is binding upon subsequent assignees of the beneficiary.
    2. Same — Matters Concluded — Spendthrift Trusts — Construction — Anticipation of Income.
    A decree adjudging that a trust deed was made for the purpose- ' of protecting the donor and beneficiary from her own acts-of incompetency and extravagance, and of putting her property beyond her own control and securing to herself a support and maintenance from the income of said property, and that the beneficiary has no control over the fund and is-entitled to the income only, is a direct determination of the validity of the trust conveyance; and the conveyance forbidding anticipation of the income, the decree is an adjudication against such power. Hooker, J., dissenting.
    Appeal from Muskegon; Russell, J.
    Submitted May ■ %, 1906.
    (Docket No. 161.)
    Reargued October 8, 1907.
    (Docket No. 1.)
    Decided November 5, 1907.
    Petition by R. Andrew Fleming, trustee, against Helen H. Littell, Eva L. Littell, W. J. Ensminger, and Morse-Ives to set aside an assignment of the income of a spendthrift trust. From a decree for petitioner, defendants. Ensminger and Ives appeal.
    Affirmed.

      Nims, Hoyt,'Erwin, Sessions & Vanderwerp, for petitioner.

      Walter Sehaffner, for defendant Helen H. Littell.

      William Carpenter and William J. Lacey, for ap^pellants.

       Rehearing denied December 10, 1907.

   Hooker, J.

In the year 1887, one Mrs. Helen A.. Davies, living at the time in Muskegon, Michigan, being possessed of $50,000, conveyed it to Charles H. Hackley, in trust, to collect the income and pay it to her semi-annually ; the instrument making provision for the disposition of the principal fund after her death. A more detailed statement of the terms of the trust, further than-to say that it was expressly provided that Mrs. Davies could not anticipate, transfer, or assign any part of either principal or income, is unnecessary for the purposes of' this case, especially as the assignees, Ensminger and Ives, claim only the income. The trust was accepted by Mr. Hackley, and Andrew Fleming, his successor as trustee, the petitioner in this proceeding, now has possession of the fund.

In .1901, Fleming as trustee filed a bill alleging the pendency of a suit commenced by Hackley in Muskegon circuit, the extravagance of Mrs. Littell, the fact that certain attorneys were claiming to be her creditors, the pendency of garnishee proceedings in the circuit court for another county through which an attempt was being made to reach and apply to the payment of their claims the trust fund, and efforts on the part of all of the defendants therein to procure a cancellation of the trust, and praying that the defendants be restrained from further prosecuting said suits therein mentioned, or any other affecting the trust estate, or attempting to obtain said fund, or any part thereof, and that it be adjudicated whether or not said Helen Littell might revoke or annul said trust deed, and whether or not her creditors might reach any of said principal of said trust estate for the satisfaction of their debts, and for general relief. Upon a. hearing the following decree was made:

‘ ‘ State oe Michigan, — The Circuit Court for the County-
of Muskegon, in Chancery.
„ “At a session of said court, held at the court-house in the city of Muskegon, in said county, on the 20th day of. November, A. D. 1902.
“Present: Hon. Fred J. Russell, circuit judge.
‘ ‘ R. Andrew Fleming, Trustee,
“Complainant,
v.
“Helen H. Littell and Eva Louise Littell,
“ Defendants.
‘ ‘ This cause having been brought on to be heard upon the pleadings filed therein and proofs taken in open court, and after hearing the arguments of counsel, C. W. Sessions appearing on behalf of the complainant, Stephen H. Clink appearing on behalf of the defendant Helen H. Lit-tell, and John B. Barlow, guardian ad litem of the defendant Eva Louise Littell, appearing in person and by Dan T. Chamberlain, his solicitor, and the court having duly considered the matter,
“It appearing to the court from the pleadings and proofs taken in said cause, that the trust deed referred to in the bill of complaint herein, and bearing date the 19th day of January, 1887, executed by the defendant Helen H. Littell, and delivered to Charles H. Hackley, trustee, a copy of which trust deed is attached to said bill and marked Exhibit “A,” was made for the purpose of protecting the said defendant Helen H. Littell against her own acts of incompetency and extravagance, and of putting her property, included in said trust deed, beyond her own control, and of securing to herself a support and maintenance from the income of such property and funds; that at the time of the execution of said trust deed, said defendant Helen H. Littell fully understood its nature and condition, and freely and voluntarily executed the same for the purposes and intents therein and above set forth; that it appears from the composition of said trust deed, and by the pleadings filed in this cause, that the trust created by said trust deed was intended to be, and is, in fact, a spendthrift trust and that the said defendant Helen H. Littell, has no authority to dissolve or withdraw the same; that said defendant Helen H, Littell has no control over the funds involved in said trust, and that said defendant Eva Louise Littell has at the present time no interest in said trust except a contingent interest, and has no control over the trust estate at the present time.
“And it appearing to the court that said defendant Helen H. Littell has heretofore commenced numerous suits and proceedings to reach or obtain, the principal of said trust fund, which proceedings have diminished the income from said trust fund, and have not been for the-best interests of said defendant Helen H. Littell, the said trustee, or said trust estate.
“It is therefore ordered, adjudged and decreed, and this court by virtue of the authority therein invested, does order, adjudge and decree:
‘' 1. That said trust deed was made for the purpose of protecting said defendant Helen H. Littell against her own acts of incompetency and extravagancá, and of putting her property, included in said trust deed, beyond her own control, and securing to herself a support and maintenance from the income of said property and funds; that the trust created thereby was and is á spendthrift trust, and that said defendant Helen H. Littell has no control whatever over the same, nor any authority to dissolve or withdraw it; that said defendant Helen H. Littell is entitled to the income only from said trust estate.
“2. That said defendant Eva Louise Littell has at the present time only a contingent interest in the trust created by said trust deed, and has no control over the said trust.
“3. That the said trustee has full power and authority under said trust deed and under the supervision of this court, to keep the said trust estate invested in good and interest-bearing securities, or other good and sufficient interest-bearing or dividend-paying investments, and to change and shift investments from time to time to other of like nature, without interference by said defendant Helen H. Littell or any other person.
“4. That this court has exclusive jurisdiction over the said trustee and said trust estate.
“5. That said defendant Helen H. Littell be and she is hereby perpetually enjoined from instituting or commencing any suit or proceedings, either directly or indirectly, in any court, except this court, to obtain any portion or part of the principal of said trust fund.
“6. That no costs be allowed to or against any of the parties to this suit.
“Fred J. Russell,
“Countersigned, “ Circuit Judge.
“John B. Barlow,
“ Register.”

On October 24, 1905, Fleming filed the petition which is now before us. It sets up the foregoing facts, states his incumbency as trustee, and that he has been served with an alleged assignment by Helen Brachvogel (formerly Littell) to W. J. Ensminger of all of her interest in and to the trust agreement, given to secure the payment of an alleged indebtedness due from her to him. Also two other alleged assignments of her said interest, given by her to Morse Ives, both dated September 12, 1905, to take effect March 12, 1906. It denied the validity of said assignments and prayed an order authorizing payment of the net income to Mrs. Brachvogel, and that said persons be required to show cause why this should not be done. Answers and cross-petitions were filed by both Ensminger and Ives, in which they claim to be creditors and assignees of Mrs. Littell. Mrs. Brachvogel (formerly Littell) answered denying that she was indebted to them, admitting the execution of certain notes which were given without consideration to her and merely as surety for her husband, Brachvogel. She denied the validity of the notes and assignments and alleged that Ives took his obligations and assignments with full knowledge of the decree hereinbefore mentioned. Upon a hearing the following order was made:

‘ ‘ State oe Michigan, — The Circuit Court for the County
of Muskegon, in Chancery.
“Ata session of said court held at the .court-house in the city of Muskegon, in said county, on the 21st day of December, A. D. 1905.
“Present: Hon. Fred J. Russell, circuit judge.
“Charles H. Hackley, Trustee,
“Complainant,
v.
“ Helen H. Littell and Eva L. Littell,
“ Defendants.
“The petition of R. Andrew Fleming, trustee, praying for an order authorizing and directing him to pay the net income of the trust estate involved in this suit and fully set forth in said petition to Helen H. Brachvogel (formerly Helen A. Davies and afterwards Helen H. Littell), notwithstanding certain purported assignments executed by said Helen H. Brachvogel, one to W. J. Ensminger and two to Morse Ives, copies of which purported assignments are attached to said petition and marked Exhibits £A,’ £B,’ and £C,’ having heretofore been duly brought on for hearing, and the said Helen H. Brachvogel having filed her answer to said petition, and said W. J. Ensminger having filed his answer and cross-petition praying for an order authorizing and directing said trustee to pay said trust estate and the income therefrom to said Ensminger until his judgment against Helen H. Brachvogel, amounting to $11,639.57 is fully paid and discharged, and said' Morse Ives having filed his answer to said petition, the parties produced proofs of the matters and things set forth in said petitions and answers in accordance with the order of this court made on November 20, 1905, after which this court heard the arguments of counsel, Nims, Hoyt, Erwin, Sessions & Vanderwerp appearing on behalf of said petitioner, Walter Schaffner appearing on behalf of Helen H. Brachvogel, William Carpenter and William J. Lacey appearing on behalf of W. J. Ensminger, and Morse Ives appearing on his own behalf, the court finds that the said assignments of said trust fund made and executed by said Helen H. Brachvogel to said W. J. Ensminger and Morse Ives are void and of no effect, and that the said petition of said trustee ought to be granted, and the said cross-petition denied.
££ It is therefore ordered by the court that said petition of R. Andrew Fleming, trustee, be and the same is hereby granted, and the cross-petition thereto of said W. J. Ensminger denied; that said trustee be and he is hereby authorized and directed to pay the net income of said trust estate to said Helen H. Brachvogel, notwithstanding the said assignments to W. J. Ensminger and Morse Ives, in .accordance with the terms of the trust instrument re.ferred to in said petition as bearing date January 19,1887, executed by and between Helen A. Davies, as party of the first part, and Charles H. Hackley, trustee, as party of the second part.
11 It is further ordered, that said R. Andrew Fleming, trustee, recover of and from the said W. J. Ensminger his costs of this proceeding to be taxed, including a solicitor fee of twenty dollars, and that he have execution therefor.
££ It is further ordered that the said R. Andrew Fleming, trustee, recove? of and from said Morse Ives his cost of this proceeding to be taxed, including a solicitor fee of.' twenty dollars, and that he have execution therefor.
“ Fred J. Russell,
“Countersigned, “Circuit Judge..
“John B. Barlow,
Register.”

It is apparently conceded that the decree of the circuit', court for the county of Muskegon of November 20, 1902, is binding upon all of the parties to the extent of precluding an assignment of anything more than the income of the fund. Counsels’ brief asserts that only a right to the income is claimed. Petitioner’s counsel urge insistently-that the income is also within the protection of that decree, and that to hold otherwise would be to thwart the object', of the trust as it would permit the cestui que trust to deprive herself of all future income as effectively as though, she should be able to part with the principal, and therefore, by necessary implication, this decree should preclude an assignment of the future income as well as the principal. We are of the opinion that the decree does not go so far. It purports to deal merely with the principal and the question of Mrs. Brachvogel’s power to alienate a, right to expectant installments of income was not involved, and has not been adjudicated. The question is before us, however.

In this case the donor and this cestui que trust, Mrs. Brachvogel, are one and the-same person. There are other cestuis que trust who have an interest in the principal of this fund, but the donor has clearly reserved to herself an absolute right to demand and receive the income from the fund at regular intervals. She has never parted with that right, although the primary fund has been conveyed to a trustee for the ultimate benefit of others. As already intimated, we need not discuss the question of the validity of this transfer of the fund as against subsequent creditors, or the effect of the adjudication upon it, for it is not before us. Spendthrift trusts are usually created by some person other thah the beneficiary- and the provision that “income cannot be alienated in anticipation” has been sustained, when expressly prohibited, in some cases, upon the theory that the beneficiary has no vested estate until it is due and demandable. Such a case is Perkins v. Hays, 3 Gray (Mass.), 405, under a will which was construed to provide against the creation of an estate which the beneficiary might dispose of and thereby thwart the express design of the testator, who had a right to place such conditions and limitations as he chose upon his bequests. A similar case is Degraw v. Clason, 11 Paige (N. Y.), 139, where the court said:

“Itis apparent that he [the testator] did not design to vest in her [the beneficiary] an absolute or beneficial interest, such as would be the subject of a grant or sale. If it could be sold, it might be conveyed in anticipation, and the very provision intended to guard against improvidence and prodigality be made the means of supply to both. Her right to receive the next quarter-yearly payment does not accrue until the time elapses.”

See, also, Brown v. Williamson’s Ex’rs, 36 Pa. 338, and Broadway Nat. Bank v. Adams, 133 Mass. 170.

But the present case differs from those cited in the particular mentioned. This beneficiary conveyed her property in trust, reserving a right to the income. In the case of Pacific Nat. Bank v. Windram, 133 Mass. 175, Mrs. W. after her marriage conveyed property held in her own right to trustees, in trust, to pay the net income to her semi-annually during her life, “upon her sole and separate order or receipt, the same not to be by way of anticipation,” and to pay the principal, after her death, to her children, except $25,000 over which she retained a power of appointment by will. Subsequently she, jointly with her husband, borrowed a large sum of money, assigning, as security therefor, all her interest in and to the income of the fund. The court held that the assignment was valid, drawing a distinction between cases where the donor and beneficiary was one and the same and cases where they were different persons. In Jack son v. Von Zedlitz, 136 Mass. 342, the rule was applied to a feme sole, who, in contemplation of marriage, settled her property in trust to pay the income to herself, during coverture, with a provision that it should not be alienated by anticipation, the court saying:

“A man could not, under the form of a marriage contract, make a settlement of his property in trust to pay him the income for his life, and by a restraint of his power of alienation, put the income beyond the reach of his creditors. There is no more reason why a feme sole about to marry should have the power to make a settlement, by virtue of which'she retains the beneficial use of her property, and yet makes it inalienable by her, and exempt from liability for her debts, than there is why a woman after marriage should have such power, ” citing Pacific Nat. Bank v. Windram, supra.

See, also, Taylor v. Buttrick, 165 Mass. 551, where the court said:

“ It is well settled in this Commonwealth that a person cannot settle his property in trust to pay the income to himself for life, with a provision that it shall not be alienated by anticipation, so as to prevent his creditors from reaching the income.”

In Woodruff v. Johnson, 4 Hal. Ch. (N. J. Eq.) 729, it was held that one could not lawfully create a trust fund for the benefit of himself during his own life to the prejudice of his (subsequent) creditors. Hardenburgh v. Blair, 30 N. J. Eq. 645, contains an elaborate discussion of this question. See, also, Lippincott v. Evens, 35 N. J. Eq. 553, and McIlvaine v. Smith, 42 Mo. 45.

In Schenck v. Barnes, 156 N. Y. 316, the court of-appeals followed this rule. Among other cases cited by counsel are the following: Mackason’s Appeal, 42 Pa. 337; Ghormley v. Smith, 139 Pa. 584 (11 L. R. A. 565); Menken v. Brinkley, 94 Tenn. 721; Warner v. Rice, 66 Md. 436; 26 Am. & Eng. Enc. Law (2d Ed.), p. 147.

In this connection we call attention to our statute, 1 Comp. Laws,- § 436, which has similar provisions to the statutes of New Jersey and other States, and which discriminates against trusts declared in the donor’s own favor. We are of the opinion that the income was subject to assignment by Mrs. Brachvogel.

The assignments are attacked upon several grounds. It is contended:

(1) That the Ensminger assignment is limited to the trust fund and does not purport to cover the income.

(2) That the alleged debts which they were given to secure were not the debts of Mrs. Brachvogel, but of her husband, and that she received no consideration for the ■assignments.

(3) That they were given in Illinois to affect a trust fund in Michigan, and to secure debts which the policy of our laws declares void and unenforceable, and therefore ■they will not be enforced here.

The assignment to Ensminger covers all of Mrs. Brachvogel’s “right, title and interest in and to the trust agreement.” This is broad enough to include principal and income, and should be construed to include the latter, although it be conceded to be ineffective to transfer the former, and it should be held to include income not yet due, in which she has a vested right.

Conceding that both claims originated in contracts with, and obligations, of,the husband, which Mrs. Brachvogel personally guaranteed: This guaranty, if made in Michigan, would be void; but it is unnecessary to inquire regarding the validity of her personal guaranty, for in both Michigan and Illinois it is within the power of a married woman to mortgage or pledge her property for the payment of her husband’s debts, and that is what this woman did by her assignments. We must therefore hold that these are valid claims upon the income of this fund, and that the trustee apply said income as it becomes due upon them, until they are paid.

The amounts of the respective claims are understood to be as follows: Ensminger, $11,639.57 with interest from the 6th day of October, 1905. Ives, $2,000 with interest according to the terms of his notes from September 12, 1905, but these amounts are subject to change on the settlement of decree, if they are inaccurate. Ensminger’s. assignment being first secured has precedence over that, of Ives. The defendants are entitled to costs of both courts payable from said income. The reasonable expenses of the petitioner should be allowed by the circuit court of Muskegon county, as a part of the expenses of the administration of the trust, having precedence over the claims of any other persons.

The decree of the circuit court should be reversed, and a decree entered in this court in conformity to the above opinion.

Montgomery, J.

The case is fully stated in the opinion of Mr. Justice Hooker. The authorities cited in his. opinion fully justify the conclusion that where statutes corresponding to 1- Comp. Laws, § 436, exist, one may not declare a trust in his own property, reserving a beneficial interest in himself, which interest shall not be subject to proceedings by a judgment creditor. There is also the authority of the case of Pacific Nat. Bank v. Windram, 133 Mass. 175, to the point that the donor of a trust who is also the beneficiary may by subsequent conveyance annul the trust. I deem it unnecessary to commit ourselves to this doctrine, and were the question necessary to a determination of the case should feel some hesitancy about following that decision.

Whatever may be said of this doctrine, the defendants in this case, not being judgment creditors in this State, but occupying a position of assignee of Mrs. Helen H. Brachvogel, formerly Littell, under an assignment made after the decree of the circuit court in chancery of Muskegon county, made on the 20th day of November, 1902, take only such interest, if any, as she was entitled to convey under that decree.

It seems to be conceded that the decree was binding on all the parties to this litigation to the extent of precluding an assignment of anything more than the income of the fund. In my judgment the decree is just as controlling of the income of the fund as of the principal. The decree recites that the conveyance to Hackley was made for the purpose of protecting Helen H. Littell against her own acts of incompetency and extravagance, and of putting her property included in said trust deed beyond her control, and of securing to herself asupport and maintenance from the income of such property and funds; that the trust created by said trust deed was intended to be and is in fact a spendthrift trust and that the said Helen H. Lit-tell has no authority to dissolve >or withdraw the same; that the said Helen H. Littell has no control over the funds involved in said trust; it was therefore ordered, adjudged and decreed that the trust deed was made for the purpose of protecting said Helen H. Littell from her acts of incompetency and extravagance, and of putting her property included in said trust deed beyond her own control and securing to herself a support and maintenance from the income of said property and funds; that the trust created thereby was and is a spendthrift trust, and that said Helen H. Littell has no control whatever over the same, nor any authority to dissolve or withdraw it, and that said Helen H. Littell is entitled to the income only from said trust fund.

This is a direct determination of the validity of the trust conveyance which among other provisions forbade anticipation of the income by Helen H. Littell, and in the statement that she is entitled to the income only from said trust estate it was undoubtedly intended that she was entitled to the income in the terms of said trust to be paid to her at stated intervals and without anticipation on her part. Any other construction of her rights under the decree would divest the trust wholly of its character as a spendthrift trust, and would leave her at entire liberty to subvert the chief purpose of the trust as created and as declared by the decree of the court, viz., the preservation of the income for her which should not be subject to dissipation by her. It is hard to conceive of a spendthrift trust which confers upon the cesti que trust the entire right of disposition of all the income of the property with the remainder over to third parties. Clearly such was not the purpose of the instrument interpreted by the court, and when the court declared the trust to be valid as a spendthrift trust, and denied the right and authority of Helen H. Littell to control or dissolve it, the trust became one having the full sanction of the court, and enforceable by its mandate.

I think the decree of the court below, which was in harmony with this conclusion, should be affirmed.

McAlvay, C. J., and Carpenter, Grant, Blair, and Ostrander, JJ., concurred with Montgomery, J. Moore, J., did not sit.


text:
    BUICK MOTOR CO. v. REID MANUFACTURING CO.

    1. Sales — Warranty—Implied Warranty.
    In the absence of an express warranty on the sale of machinery, there is an implied warranty that the machinery is of merchantable quality and reasonably fit for the use for which it is intended.

    3. Same — Inspection—Discoverable Defects — Estoppel.
    It is the duty of the buyer of machinery under an implied warranty to inspect it within a reasonable time after its receipt and if defects are found constituting a breach of the implied warranty to refuse to accept it; and failure to inspect, or acceptance of the machinery after inspection, waives such defects as were discovered or were discoverable by reasonable inspection, though it does not waive latent defects.

      3. Same — Breach óe Warranty — Damages — Harmless Error.
    Where, in an action for the price of certain machinery, defendant gives notice of recoupment and introduces testimony in support of his notice, a verdict for plaintiff for the full amount claimed shows that the jury did not reach the question of the defendant’s damages and renders the alleged errors as to the measure of his damages immaterial.
    Error to Wayne; Murphy, J.
    Submitted October 10, 1907.
    (Docket No. 29.)
    Decided November 5, 1907.
    Assumpsit by the Buick Motor Company against the Reid Manufacturing Company for goods sold and delivered. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      George W. Radford, for appellant.

      Bowen, Douglas, Whiting & Murfin, for appellee.
    In 1903 plaintiff was engaged in the manufacture of automobiles, stationary and marine engines, with one factory at Flint and another at Jackson. The defendant company was engaged in the business of assembling automobiles. Mr. Buick, the manager of plaintiff, had an interview with Mr. Hunt, the manager of the defendant, in which he explained to him a new automobile engihe and gear which he was designing. The negotiations resulted in an order given by the defendant to plaintiff December 14, 1903, as follows:
    “Above 1 — Sample motor — 32" over all — this motor to be guaranteed to develop 12 H. P. at 900 Rev. Sundries— 2 plugs and carburetter. If this motor is satisfactory and as guaranteed, order will be placed for quantities and of same general specification. Price, 1st motor $150. Contract for $135 each. Delvy. -1st motor to be within two weeks above date or sooner.
    “ Our requirements will be between 200 and 300 motors.”
    The engine was delivered February 13, 1904; was examined and tested by the defendant, and on February 15th it gave another order for ten motors, transmissions, and gears, which order reads as follows:
    “You will please enter our order for motors and transmissions as follows: Two motors to be delivered March 1st, two motors to be delivered March 15th. Thereafter you will deliver to us two motors per week until ten have been delivered. Price of motor and transmission complete, carburetter complete and connected transmission to be equipped with self-controlled clutch, transmission brake and one universal joint, price of complete outfit to be two hundred fifteen dollars f. o. b. cars, Flint, Mich.
    “ It is also understood that these motors will be in detail same as the one now delivered and that same are guaranteed to be satisfactory under the specifications of the order which has been already given and on which you have delivered us the first motor.
    “ It is also understood that if these motors are delivered and are satisfactory that in the next 30 days we will give you specifications for a number of motors, specifications on delivery to be furnished later. ”
    This order was accepted. Eight of the motors were furnished but not within the time specified. On March 21, 1904, defendant gave an order for 25 additional motors in the following language:
    ‘‘ If you can meet our demand on motors, delivering us the one you have already shipped, also one motor on the 28th of March and one on the 4th of April, and three or four weeks following you may enter our order for 25 additional motors.”
    This order was accepted. Motors, transmissions and a few other pieces were furnished, the price of which was $1,953.30. Defendant paid upon this on May 6th $550, and on June 10th, $200, leaving a balance of $1,203.30, for which this suit was brought.
    Owing to difficulties unnecessary to mention, there was a considerable delay in shipping the goods at the times agreed upon, and on July 27, 1904, defendant wrote plaintiff canceling the balance of the order of February 15th, and also the order of March 21st, on the ground of delay in shipping the goods as agreed. There was also a delay in payments for the goods which had been shipped and delivered and which the defendant had received and used. Many letters passed between the parties, the plaintiff excusing its delay and urging payment, and the defendant urgently insisting upon the delivery of the goods. Plaintiff’s manager testified that he refused to deliver more motors and transmissions because defendant had not paid for the goods already shipped.
    With its plea of the general issue defendant gave notice that the motors and transmissions were not made according to the specifications and representations of plaintiff; that there was delay in delivery, and claimed to recoup ' damages resulting from the defective machines, and the delay. The case was submitted to the jury, who rendered a verdict for the plaintiff for the full amount claimed, and interest. Counsel for defendant assigns 1.40 errors, stating that he insists upon all, but that he will discuss •only the principal ones.

       Rehearing denied December 10, 1907.

       As to implied warranty of fitness of property bought for special purpose, see note to McQuaid v. Ross (Wis.), 33 L. R. A. 187.

   Grant, J.

(after stating the facts). Counsel for ■defendant insists that the order of December 14th and the oral representations and conversations had prior to and •at the time it was given, constitute an express warranty; that the court should so have instructed the jury, or left it a question for the jury whether there were express warranties. The court did instruct the jury that the plaintiff expressly warranted to give the defendant an engine of 12-horse power. There was no claim that the engine did not develop 12-horse power, and the court so instructed the jury, to which instruction no objection is made. The court further instructed the jury that that accepted order was an incomplete contract, and permitted the defendant to fully disclose to the jury all the conversations between the agents of the respective parties in regard thereto. These conversations were had with defendant’s agent Hunt. Nowhere in his testimony do I find any statement which can be construed into a guaranty, except this: ■“He (Buick) told me he would make the bore five inches,, would guarantee 12-horse power.” This was the only" guaranty contained in the first order, and the second order' was the same in this respect.

At the. request of defendant, plaintiff sent to it a description of the motor and the transmission. This description is quite lengthy, but I find nothing in it which can be construed into a warranty. These oral statements the judge instructed the jury were conditions precedent, and. that while there was no express warranty, there was in implied one that the engines and transmissions should be. merchantable in quality and reasonably fit for the use for-which they were intended. The court explained this, principle at great length to the jury, and left it to them as a question of fact to determine whether the motors and, transmissions furnished were in accordance with the contract as contained in the order and the oral representations. The charge of the court upon this branch of the. case was clear and explicit, and was all to which the defendant was entitled.

The court instructed the jury that it was the duty of the defendant to inspect and test the motors and transmissions within a reasonable time after receipt; that if-the defendant did make such inspection and test and. found defects which were a breach of the implied warranty, it was then its duty to refuse to accept them; that if it did not make such a reasonable inspection and test, it was estopped from setting up defects which would have been discovered had such reasonable inspection and test been made.

The court at great length also instructed the jury upon, this question. He also instructed them as follows:

“ If you believe from the evidence in this case that the-defendant was compelled to replace all of the eight motors and transmissions furnished to it by the plaintiff by reason of poor workmanship, defective material or defects entering into the construction of the same, and if you believe that the defendant had not had the opportunity for inspection, or, having made a reasonable inspection, did not discover such defects, then and in that event, if you. further believe that the same were wholly lost to the defendant and useless to it in its business, the plaintiff could not recover against the defendant. * * *
“If the Reid Manufacturing Co. inspected motors and transmissions as they were received, and gave them a proper test, and such test did not disclose some of the defects complained of, and the same were not discovered until after the motors and transmissions were installed in automobiles and sold to customers, it was not the duty of the Reid Manufacturing Co. to return such motors and transmissions, and by so using them defendant did not waive or lose its right to recoup damages against the plaintiff for such defects.”

The court further instructed the jury that the machines-were not delivered within the time provided for in the contracts, and that the plaintiff was liable in damages for such delay, unless the delay had been waived by the defendant, and added:

“ The mere acceptance of the motors and transmissions, after the time specified, would not of itself, waive the claim for damages for delay by the defendant.
“The Reid Company had the right to require the Buick Co. to deliver the motors and transmissions ordered after the time had passed, and by exercising its rights and insisting on the delivery of motors and transmissions after such time, the Reid Co. did not waive its rights to whatever damages it suffered by the delay.”

These instructions, while mainly clothed in the language of the circuit judge, were in effect the same as those preferred in the requests of counsel. Part of them were in the exact language.

It was the clear duty of the defendant, under the repeated decisions of this court, to examine and test the-machines as they were delivered. It waived any defects discoverable by reasonable inspection and those which it-did discover but accepted the goods after such discovery. It did not waive latent defects. Talbot Paving Co. v. Gorman, 103 Mich. 403 (27 L. R. A. 96); Williams v. Robb, 104 Mich. 247; Day Leather Co. v. Michigan-Leather Co., 141 Mich. 533; Industrial Works v. Mitchell, 114 Mich. 29.

Counsel for defendant cite a very large number of cases from other jurisdictions, but it is unnecessary to cite them. . The instruction was in accord with the rules established by those decisions. There was evidence from which the jury might easily find that the defects and delays were waived, and these questions were properly submitted to the jury.

3. The verdict of the jury is conclusive that they did not reach or consider the question . of damages. Their verdict was for the full amount claimed. They must therefore have found either that the machines were such as the contracts called for, or that defects and delays were waived. It therefore becomes • unnecessary to discuss and determine the questions raised as to the measure of damages.

Judgment affirmed.

McAlvay, C. J., Carpenter, Blair, and Montgomery, JJ., concurred.


author: Hooker, J.

text:
    TOWNSHIP OF CLINTON v. TEACHOUT.

    1. Drains — Establishment—Proceedings—Setting Aside — Bill —Township as Complainant.
    Townships which have no interest in drain proceedings other than to escape assessment for benefits, the drain not being within their territory and it being conclusively shown that the drain would be no injury to them in any other way, cannot maintain a bill to set aside the proceedings and restrain the collection of assessments.

      2. Same — Establishment—Proceedings—Setting Aside — Jurisdiction op Equity.
    Complainants who received notice of drain proceedings, and the final order and assessment therein, in time to review them upon certiorari as provided by section 4346, 2 Comp. Laws, but instead of doing so joined in proceedings to review them before a board of review, cannot question the validity of the orders by bill in equity.
    3. Same — Assessment op Benefits — Question op Fact —Chancery Jurisdiction.
    The question of the benefits arising from the construction of a drain is, upon a conflict of testimony, a question of fact to be decided by the drain commissioner, from whose decision and that of appellate tribunals provided by statute there is no appeal to the court of chancery, by original bill or otherwise.
    Appeal from Lenawee; Chester, J.
    Submitted April 16, 1907.
    (Docket No. 21.)
    Decided May 18, 1907.
    Rehearing denied November 12, 1907.
    Bill by the townships of Clinton, Macon, Tecumseh, and Raisin against Franklin D. Teachout, drain commissioner of Lenawee county, to set aside certain drain proceedings, and to restrain the collection of assessments. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      John JE. Bird, John L. O’Mealey, and William B. Hatch, for complainants.

      Theodore M. Joslin and John Riley, for defendant.

       The opinion filed on the original hearing in this' case was withheld from publication pending the rehearing.

   Hooker, J.

The bill in this cause was filed to set aside drain proceedings, and restrain the collection of assessments against certain lands, and the townships at large, of the townships of Clinton, Tecumseh, Raisin, and Macon, in Lenawee county. The grounds relied upon are (1) that the proceedings are void upon their face; (2) that the assessment was a “legal fraud;” (3) that complainants did not have a fair and impartial hearing before the board of review. The defense denies that the proceedings were void, and urges that certiorari is the only method recognized for attacking the regularity of drain proceedings, that the assessment was not fraudulent, and that the hearing before the board of review was fair and impartial.

The Little Raisin is a tributary of the Raisin river, which it empties into, in the county of Monroe, entering Monroe county from the township of Ridgeway, in Lena-wee county, through which township it flows. Much, if not all, of the way through Ridgeway its banks are low, and have been subject to overflow in time of freshets. Above the township of Ridgeway the ground is high, and a large territory is drained by the stream through natural and artificial drains. Many years ago a drain was laid out in Ridgeway along the course of this stream, which is now said to be both wider and deeper there than immediately below in Monroe county. In January, 1900, eight freeholders of Ridgeway filed with the drain commissioner of Lenawee county an application for the cleaning out, widening, deepening, and straightening of this old drain, called the “Little Raisin drain.” We have experienced considerable difficulty in ascertaining just what orders were made; but it appears that the commissioner examined the premises and made a survey and a first order of determination. From his survey he saw that an extension of the old drain was needed, and a petition was filed asking it. This was late in March. He made a survey for this, and his final order of determination covered both applications and surveys, and contained an assessment for benefits of both. Bids were advertised for, and contracts were let. This order was followed by an application for a review, and the complainants were represented by counsel, and some were personally present during the proceedings, which lasted several days and resulted in the confirmation of the commissioner’s assessment. No attempt was made by any one to review the acts of the commissioner by certiorari.

Complainants assert that the assessment was made public on the day of the letting, but it appears that they were notified about May 20th that benefits were to be assessed against them, and that under a misunderstanding of the time provided for taking a certiorari they neglected to apply seasonably. Inasmuch as counsel say in their brief:

‘ ‘ It may still further be insisted that, if we did not learn of it within 10 days after the final order was filed, - common-law certiorari proceedings were open to us. This course would doubtless have been adopted had it not been for the fact that there were questions of fraud we werfe desirous of raising, one of which is considered in this brief, ‘whether the complainants had a fair and impartial review of the assessment.’ If we desired to take advantage of this question, the only course open to us was to file a bill, and, if we were going to file a bill to have this question determined and other questions of fraud claimed in the bill, then, in order to avoid multiplicity of suits, we not only had the right, but it was proper, to include the .jurisdictional questions in the one suit. There is no way that a return in a certiorari proceeding would have enabled us to contest the question as to whether the complainants had a fair and impartial review of the assessment,”

—we need give this question no further consideration as a justification for filing this bill which was done soon after.

Benefits were assessed on the townships of Clinton, Tecumseh, Raisin, and Macon at large, and upon lands of private persons in said townships. If will be remembered that no part of the old drain or extension was in either of said townships, and these complainants have no other relation to the proceeding than that of being interested in the assessment. The meritorious theory upon which they seek to avoid it is that the improvement is not necessary to drain the land above Ridgeway, while the defendant seeks to justify the assessment upon the ground that an increased flow has resulted from the drains in the complainant towns and lands, which requires increased outlet facilities to relieve the inhabitants of Ridgeway from such increased floods. These complainants have no interest in these drain- proceedings further than to escape assessment' for benefits. The testimony conclusively shows that the drain would be no injury to any of the complainants in any other way. Township of Swan Creek v. Brown, 130 Mich. 385.

The complainants received notice of the proceedings, final order, and assessment as early as May 30th, and, as-their brief admits, in time to have reviewed them upon certiorari as provided in 3 Comp. Laws, § 4346. Instead, of doing so, they joined in proceedings to review the proceedings before a board of review. By neglecting to take, a writ of certiorari and participating in the review, they cut. off any right that they might otherwise have had to question by bill in equity the validity of the orders, under 3 Comp. Laws, § 4346. See Crandall v. McElheny, 146 Mich. 191; Auditor General v. Bolt, 147 Mich. 283; Strack v. Miller, 134 Mich. 311; Horn v. Board of Sup’rs of Livingston Co., 135 Mich. 553.

The remaining question relates to the question of fraud. We are satisfied that there was no willful fraud or wrong,, but counsel contend that in view of the fact that no land, in any of the complainant townships would be benefited by this improvement, being already satisfactorily drained,, it was a legal fraud to assess benefits upon some, omitting-other lands in the same situation. Without determining-that chancery will not give relief in a suit of this kind,, where the facts justify it, we must dismiss this bill, upon the ground that the testimony was such as to raise a question of fact regarding benefits to these complainants, to be-decided by the drain commissioner, from whose decision, and that of appellate tribunals provided by statute there is no appeal to the court of chancery, by original bill or otherwise. Nelson v. City of Saginaw, 106 Mich. 659; Smith v. Carlow, 114 Mich. 72.

The decree is affirmed, with costs.

McAlvay, C. J., and Montgomery, Ostrander, and Moore, JJ., concurred.


text:
    JONES v. HOFFMAN.

    Set-Off and Recoupment — Damages Recoverable
    In an action for the contract price of excavating a sewer, defendant is entitled to recoup for the loss of tools occasioned by the caving in of the sewer while defendant was completing it after plaintiff’s abandonment, if the loss was without fault or negligence.
    Error to Wayne; Frazer, J.
    Submitted June 18,1907.
    (Docket No. 118.)
    Decided October 4, 1907.
    Assumpsit by Elmer B. Jones against Charles A. Hoffman and Charles R. Lau for work and labor. There was judgment for plaintiff, and defendants bring error.
    Affirmed on condition.

      Charles Engelhard, for appellants.

      J. Walter Drake, for appellee.

       December 10, 1907. On rehearing. A motion for a rehearing and modification of the opinion and judgment in this cause having been made, ordered that the judgment of the trial court be reversed, with costs, unless within 15 days the plaintiff shall remit from his judgment the sum of $8.25, in whioh event the judgment will be affirmed, the defendants to recover costs of this court.

   Hooker, J.

The plaintiff sued defendants in assumpsit before a justice of the peace. His claim as stated in his bill of particulars aggregated $66, and he recovered a verdict for $57. Upon a dilatory appeal by the defendants, allowed by the circuit court, the defendant was allowed to file a bill of particulars and notice of recoupment and set-off. A trial resulted in a verdict for the plaintiff of $56.78 and judgment followed, and the defendant has again appealed.

The defendants were allowed to introduce evidence of all their claims in set-off and recoupment, hence the discussions and rulings relating thereto are unimportant. The gist of the claim is that the defendants employed the plaintiff to excavate a cellar, and sewer, and that he did not fully perform his contracts, and that defendants were put to expense in relation thereto. The only item that they were not allowed- to take the verdict of the jury upon was a claim for the loss of a pickaxe and one or two other tools occasioned by' the caving in of the sewer which they were excavating. The court excluded this evidence upon the ground that these items were not proper either as set-off or recoupment. We are of the opinion that the court erred in this exclusion of testimony. This loss contributed to the cost of doing the work, and if the loss was without fault or negligence, the jury would have been justified in including it in damages arising from plaintiff’s nonperformance.

It is unnecessary to refer to other questions. The judgment is reversed, and a new trial ordered.

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


author: Carpenter, J.

text:
    INTERNATIONAL TEXTBOOK CO. v. OHL.

    1. Sunday — Contracts—Legality—Conflict of Laws.
    A contract executed and delivered to plaintiff’s agent in this State on Sunday cannot be enforced here because defendant’s undertaking is illegal; and the contention that the contract was not made until it was accepted by plaintiff in Pennsylvania, and is therefore a Pennsylvania contract, and its legality to be tested by the law of Pennsylvania, is untenable, because the Sunday law is not merely directed against the making of contracts as such, but prohibits and makes illegal the doing of all work except works of necessity and charity.

    2. Contracts — Legality—Conflict of Laws.
    The principle that the legality of contracts is to be determined • by the law of the place where they are entered into is subordinate to the principle that each State may, within constitutional limits, determine the legality of undertakings within its own borders.
    3. Estoppel — Illegality of Contract — Prejudice.
    A person executing an undertaking on Sunday is not estopped to assert that fact by the fact that it bore date as of the preceding day, where the facts were known to plaintiff’s agent so that it could not have been-misled.
    Error to Kent; Perkins, J.
    Submitted February 20, 1907.
    (Docket No. 83.)
    Decided April 30, 1907.
    Rehearing denied December 10, 1907.
    Assumpsit by the International Textbook Company against Dilvin Ohl on a contract of guaranty. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.
    Reversed, and no new trial ordered.

      Rodgers & Rodgers, for appellant.

      Claude R. Buchanan (Francis A. Stace and David C. Harrington, of counsel), for appellee.

       The opinion filed on the original hearing in this case was withheld from publication pending the rehearing.

       As to validity of- contract partially made on Sunday, see note to Jacobson v. Bentzler (Wis.), 4 L. R. A. (N. S.) 1151.

   Carpenter, J.

Plaintiff, a corporation organized under the laws of the State of Pennsylvania, brings this suit to enforce defendant’s guaranty upon an alleged written contract entered into between plaintiff and defendant’s son, a boy 15 years of age. By the terms of this written contract, plaintiff agreed to furnish said son “a course of correspondence instruction for $48.80.” Defendant guaranteed said payment. The suit was instituted in a justice’s court against both defendant and his son. A judgment was there rendered in defendant’s favor. Plaintiff appealed the case to the circuit court, discontinued against the son, and obtained judgment, upon a verdict directed by the court, against the father, the remaining defendant.

We are asked to reverse that judgment for several reasons. In my view of the case, we need to consider but one of those reasons, viz., that the contract cannot be enforced, because defendant’s undertaking was entered into upon Sunday, and is therefore illegal. The undisputed testimony proves that defendant’s son signed said contract, and defendant himself attached his guaranty thereto and delivered the same to plaintiff’s agent upon Sunday. That this was the performance of an act prohibited by our law, and was therefore illegal, is clear and is settled by many decisions of this court. Adams v. Hamell, 2 Doug. (Mich.) 73; Tucker v. Mowrey, 12 Mich. 378; Winfield v. Dodge, 45 Mich. 355; Brazee v. Bryant, 50 Mich. 136; Saginaw, etc., R. Co. v. Chappell, 56 Mich. 190; Costello v. Ten Eyck, 86 Mich. 348; Arbuckle v. Reaume, 96 Mich. 243; Aspellv. Hosbein, 98 Mich. 117; Havey v. Petrie, 100 Mich. 190; Wheeler v. Jenison, 120 Mich. 422; Pillen v. Erickson, 125 Mich. 68; Acme Electrical Illustrating & Advertising Co. v. Van Derbeck, 127 Mich. 341.

Plaintiff contends that these decisions and their underlying principle are inapplicable, because the contract was not made until it was accepted by plaintiff in Pennsylvania, and the contract was therefore not a Michigan contract, but a Pennsylvania contract. I think it may be conceded that the great weight of authority holds that a contract is, as a rule, considered as entered into at the place where the acceptance is made (9 Cyc. p. 670), and that the law of that place determines its legality. John A. Tolman Co. v. Reed, 115 Mich. 71. Those decisions have no application. The Sunday law in question in this case is one not merely directed against the making of contracts as such. It prohibits and makes illegal the doing of all work except works of necessity and charity, and it makes the doing of such prohibited work punishable by a fine. The mere fact that that work finally results in a contract made outside the State does not exempt it from the operation of the law.

The principle relied upon by plaintiff, viz., that the legality of contracts is to be determined by the law of the place where they are entered into, has its limitations. It cannot make valid an act which is illegal by the laws of the State where it took place. It is subordinate to the principle that each State may, within constitutional limits —which are certainly not exceeded by passing laws against Sunday work — determine the legality of undertakings within its own borders. Plaintiff insists that defendant is estopped from asserting that its undertaking was entered into on Sunday, because it bore date as of the preceding Saturday. It is sufficient to say that this did not mislead the plaintiff, for the precise facts were known to its agent, and his knowledge was its knowledge.

Defendant’s undertaking was, therefore, illegal, and a verdict should have been directed in his favor.

The judgment should be reversed, and no new trial ordered.

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


author: Moore, J. Montgomery, J. Hooker, J.

text:
    OLDS v. COMMISSIONER OF STATE LAND OFFICE. MICHIGAN LAND & LUMBER CO. v. SAME.
    1. Estoppel — Judgment — Matter of Record — Persons Entitled to Allege Estoppel.
    The action of the State in prosecuting to a successful conclusion an action of ejectment against persons occupying without title certain lands which the State claimed to be State swamp lands does not estop the State from claiming that other lands similarly situated are not swamp lands and are therefore not subject to location with swamp land scrip, the holders of the scrip not having been parties tó the ejectment suit nor induced to purchase the scrip in the belief that it could be used to locate such lands.
    2. Judgment — Estoppel—Matters Concluded.
    The affirmance of a judgment in ejectment founded on a finding of fact that the land in controversy was swamp or overflowed land is not conclusive as to the character of the land in a proceeding in which the facts are before this court for decision, since this court is bound by the facts found by the court below in an action at law if supported by the evidence.
    3. Estoppel — State Officers —Character of Lands — Survey.
    The action of the commissioner of the State land office in 1887 in having a survey made of certain lands and attempting unsuccessfully to induce the United States authorities to adopt said survey and issue patents for the lands under the swamp land act of 1850 (9 U. S. Stat. 519) does not estop the State from subsequently denying that the lands were swamp lands in 1850 if they were not in fact swamp lands in 1850
    4. Public Lands — Swamp Lands — Character — Legislative Declaration.
    The survey and sale act of 1899 (Act No. 175) relative to “the swamp and overflowed lands within the delta of the St. Clair River ” is not such a legislative declaration of the character of the lands as to prevent the court and the land commissioner from asserting that such lands are a part of the bed of the lake and not swamp lands.

      5. Same — Submerged Lands — Title.
    Lands which were in 1837 a part of the bed of one of the Great Lakes passed to the State in fee by virtue of the State’s admission into the Union in that year, and the swamp land act of 1850 (9 U. S. Stat. 519) had no effect upon the title to such lands.
    6. Same — Character of Lands — Evidence—Effect.
    On the issue as to the character of the lands lying at the delta of the St. Clair River, evidence examined, and held, that at the time of the admission of this State into the Union said lands were a part of the bed of Lake St. Clair, the fee of which passed to the State with other submerged lands, and were not swamp or overflowed lands within the meaning of the swamp-land act of 1850 (9 U. S. Stat. 519).
    Mandamus by Schuyler S. Olds to compel William A. French, commissioner of the State land office, to permit the location of certain alleged swamp land. The Michigan Land & Lumber Company, Limited, intervened. The writ issued as to a portion of the land claimed, and issues were ordered to be framed and referred to Wilbur J. Beach, special commissioner: On the report of said commissioner.
    Submitted May 25, 1906.
    (Docket No. 164.)
    Writ denied July 15, 1907.
    Rehearing denied December 10, 1907.

      H. E. Spalding, for relator.

      Frank E. Bobson, for intervener.

      John E. Bird, Attorney General (Lincoln Avery and Chauncey H. Gage, of counsel), for respondent.

       The opinions filed on the original hearing in this case were withheld from publication pending the rehearing.

   Moore, J.

Some phases of the litigation involved in these proceedings were discussed and decided in Olds v. Commissioner of State Land Office, 134 Mich. 442. A reference to the opinions then filed will aid in understanding the issues here involved. In the original hearing but three justices took part. Justice Hooker was of the opinion that the lands involved were submerged lands.and were not within the swamp-land act of 1850 (9 U. S. Stat. 519). In the opinion written by Justice Montgomery, concurred in by Justice Moore, it was said:

“ This opinion is based upon the record as made. It is not intended to pass upon the question whether these lands are a part of the bed of St. Clair Lake in a manner to conclude the parties.”

Upon the rehearing, in an opinion by Justice Carpenter, it was said there are in the controversy—

“Two distinct issues, viz.: (a) Is the land in controversy swamp land ? This issue does not, however, relate to so much of the land as was involved in the suit of State v. Lake St. Clair Fishing & Shooting Club, 127 Mich. 580); that having been determined in that case to be swamp land. (6) Is relator’s scrip valid to take the land in question if it is in fact swamp land ? ”

The opinion then disposes of issue “ b ” and concludes with the statement:

‘ ‘ Whether he is entitled to a deed of the remaining land in controversy depends upon the determination of the other issue involved in this suit, which, as heretofore stated, will be subsequently determined in this suit,” referring to issue “a.”

Subsequently, an order permitting it having first been obtained, amended answers were filed which were substantially alike. In the answer to Mr. Sparrow’s petition, in the fifth clause, the respondent states that he refuses to issue certificates for patents for the following reasons:

‘ ‘ (a) That they are not swamp and overflowed lands within the meaning of the swamp-land grant of September 28, 1850, and petitioner is not entitled to select the same as and for swamp lands.
, “(b) That they are submerged lands and a part of the bottom of Lake St. Clair, and became the property of the State in its admission into the Union.
“(c) That the lands have never been identified by the Federal or State government as swamp lands, within the meaning of the act of Congress granting swamp lands to the State of Michigan.
“(d) Act No. 130 of the Public Acts of Michigan of the year 1883, does not authorize the petitioner to select swamp lands the character of which was determined and identified as swamp lands subsequent to the approval of the act.
(e) Act No. 130 of the Public Acts of Michigan of the year 1883, appropriated to the county of Livingston only such swamp lands as were at the date of approval of said act patented to the State or were at that date identified as such by competent authority, State or Federal; the approval being dated May 31, 1883.
“(/) That no application has ever been made by the State to the Federal government for a survey or identification as swamp lands of that portion of the lands described in the relator’s petition, not included in Harsen’s or Stromness’ Islands, and there has been no refusal on the part of the Federal government to survey or identify such lands as swamp lands under the act of 1850.”

We then thought the important question in the case to be whether the land in controversy is swamp land and within the provisions of the swamp-land act of 1850. Before proceeding with this important inquiry, it is necessary to dispose of some preliminary questions raised by counsel for the relators. The following extract from the brief of counsel will cover these questions:

“We claim:
* ‘ (a) That the respondent land commissioner, by the act of his predecessor approving the Bartholomew survey, and by the State’s continued assertion in litigation of their character as swamp up to the time of the relator’s application, is estopped from asserting that they are of different character.
“ (b) That thesurvey andsaleactof 1899 (ActNo. 175, Pub. Acts 1899), under which the Davis survey was made, is a legislative declaration that these lands are swamp and overflowed in character, binding upon the respondent and upon all departments of the State government.
“ The first proposition only is one of estoppel; the second rests upon the broader principle that a determination by the State legislature of the character of State lands is binding upon the courts and upon the land commissioner like all other departments of the State government. He cannot assert that to be bed of the lake which the legislature has declared to be swamp.
“ It appears by the facts already recited that from 1885 down to the original decision of this case in 1901, the land department of the State continually claimed that the St. Clair Flats, including the lands in question, were swamp lands passing to the State under the act of 1850, and dealt with them on that footing. In this course of dealing, the Bartholomew survey, showing the lands to be swamp lands, was made and was formally approved by the commissioner of the State land office in December, 1890.
“After the survey was approved, the land office continued for three years its attempt to obtain the adoption of this survey as a government survey. After this attempt failed, four test suits in ejectment — the Old Club Case among them — were begun by the State based upon the Bartholomew survey and upon the claim that the Flats are swamp lands. In the Old Club case the State succeeded in this contention, establishing that the premises occupied by the club were swamp lands; the evidence of that character being such as to apply with even greater force to the other lands here in controversy. The findings of the court in that case, included the statement that the Old Club premises, were the termination of a strip of land which was a prolongation of Harsen’s Island, all of which was swamp land.
“The approval of the Bartholomew survey has never been revoked or canceled. No resurvey to redetermine the character of the lands has ever been ordered, either before relator’s application or since. Under these circumstances, the relator had a right to locate in reliance upon the approved survey, and the-respondent cannot in this suit attack the determination of the character of the lands so made.”

In relation to the ejectment suits, it must be remembered that neither of the relators was a party therein. In the suit commenced by the State against Don M. Dickinson, the defendant won out. In the case against the Lake St. Clair Fishing & Shooting Club, it appears that but four justices took part; Justice Hooker maintaining that the State obtained title to the lands by virtue of its admission to the Union. In the court below the case was tried before the circuit judge, who found as a fact that the lands involved in that case were a continuation of Harsen’s Island. Justice Montgomery in his opinion applied the familiar rule that, if there was evidence to sustain the verdict of a jury or a finding of the circuit judge as to a question of fact, the verdict or finding would not be disturbed. He was of the opinion that there was evidence to sustain the finding. The writer of this opinion agreed with Justice Montgomery, and the judgment of the lower court was affirmed. The opinion was based upon this finding of fact and was not based upon the theory that the land was sufficiently shown to be swamp land simply because it was so designated by the Bartholomew survey. Had the question of fact in that case been for this court, instead of for the trial court, to decide, it is not at all certain the case would have been affirmed.

As to the effect of the Bartholomew survey, and what was done in relation thereto by the State land office, it must be remembered that this survey was made 37 years, after the swamp-land act of 1850. A further examination of the situation satisfies us still more than before that Justice Hooker rightly characterized this survey, when he said in his opinion in the Fishing & Shooting Club Case: “ It does not indicate with any accuracy the limits of submerged land.” An attempt was made to get the Federal authorities to approve of it. This attempt failed. Whatever value it may have as showing the situation in 1887, it is very clear that it does not accurately show the situation in 1850, before any person had located upon the lands in controversy, and we think there has been nothing done in relation to said survey which should preclude the State from asserting that these lands were submerged lands in 1850, if they were then in fact submerged lands.

As to the survey and sale act of 1899, if any inferences are to be drawn, they must be drawn, not from an isolated sentence or two, but from the entire act. It is true it is entitled. “An act to provide for the sale, disposition and control of the unpatented swamp and overflowed lands in the township of Clay.” The act provides for the survey of certain lands. It provides that persons then in possession. may buy the lands then occupied or improved by them, upon very favorable terms. It then provides that certain other lands are forever reserved as a public hunting and fishing resort. A reading of the act makes it very clear that the legislature had no thought that by passing the bill it was so characterizing these lands that they would be subject to entry under the general law of the State applicable to swamp or overflowed lands, or would be subject to location by State swamp-land scrip. Upon the contrary, the legislation was for an entirely different purpose. The record discloses that when the swamp-land scrip which forms the basis of relators’ claims was earned, and when it was given new life by the legislature, neither the legislature nor the owners of the scrip had the remotest idea that it could be used to secure title to the low lands at the delta of the St. Clair river.

As before stated, the relators in this case were not parties to the previous litigation. They were not induced to purchase this scrip relying upon the claim that the State had held out to them the hope it could be used for the purpose for which it is now attempted to be used. The elements of estoppel are lacking in this case. It is proper to add to what has already been said that substantially the same claims were made by Mr. Spalding upon page % of, his brief, filed in opposition to the motion for a rehearing. Notwithstanding this claim, we have shown, by quoting from the opinion of Justice Cabpenteb, that we were then of the opinion that the issue of whether these were swamp lands should be decided upon the merits after a full hearing. Upon the issue so framed, a mass of testimony has been taken requiring a printed record of 900 pages. A large number of maps were introduced in evidence, and a still larger number of photographs. The case is ably and carefully briefed, and at great length, in which are discussed all the issues raised by the amended answers.

Counsel are all agreed that, if the question is open for discussion, the inquiry should be : Were these swamp or overflowed lands in 1850, or were they submerged lands ? In addition to the documentary evidence in the case, which included tables showing the height of the water level for a long series of years, the relator introduced the oral testimony of several witnesses, whose testimony strongly tended to show that since the witnesses have known the lands they were marsh lands. The personal knowledge of three of these witnesses did not go further back than 1874. One witness was first upon the ground for a short time in 1856 with a party of government engineers. Upon the part of the State, the oral testimony of five captains of lake vessels was taken, and of at least a half dozen old residents of the vicinity. These men claimed to have knowledge of the situation prior to 1860, and some of them prior to 1850. Their testimony tends to show that, at the early dates about which they testified, the lands in controversy were submerged lake bottom, and not marsh land. Mr. Morley gave testimony explaining the surveys prior to and the making of the Davis map. Mr. Molitor gave testimony explaining the map of 1867 and the significance of the symbols and marks thereon. Both of them also gave testimony in reference to the character of the land, reference to which will be made later. Mr. Havens gave testimony as to what was, and was not, done in relation to these lands in the State land department. The State geologist testified in relation to how the delta was formed, in his opinion. Other witnesses also testified upon the part of the State.

Counsel for relators have made an analysis of all the testimony, laying special stress upon the value as evidence of the maps, the photographs, the tables of water levels, and the early correspondence. They argue therefrom, and we quote from the brief:

“ There is necessarily and naturally some discrepancy in the testimony of the different witnesses in matters of detail. That is to be expected, and it is unimportant. The testimony, however, of most witnesses, and of all whose testimony is entitled to any considerable weight, is on all matérial points substantially in accord and supports the proposition for which we contend; that is, that there has been no substantial change either in the character or extent of the land at the Flats since the earliest times of which we have any evidence. Practically all the land covered by relator’s application is under present conditions above low-water mark, and those parts of it which have been filled or raised would be so in their natural condition. This is not seriously disputed. Practically without exception the witnesses support it, and ample corroboration is found in Davis’ survey.
“ The question, then, is whether the present condition existed in and prior to 1850, or whether it results from recbssion or the wafer below a normal low-water level existing before 1850, or is due to an elevation and growth of the land either by a deposit of silt or an accumulation of decayed vegetation.”

They insist there has been no substantial change since 1850, and that then, as well as now, the land was marsh and overflowed, and not lake bottom; counsel citing in that connection Lincoln v. Davis, 53 Mich. 375.

Counsel for the State also analyze the testimony bearing upon this issue, and draw from it conclusions entirely different from those of the counsel for the relators. We quote:

First. The condition as it is today in all respects substantiates and corroborates the testimony of the sailors, who say that during all the early years, up to about 1870, at least, in the spring, when the ice had carried away the rushes, there was nothing to mark the channels.
11 Second. It also appears from this survey and level that the major part of these so-called lands are today under water, and under water that is not stagnant, dead water, not'what is known as swamp water, but the clear blue waters of the Great Lakes.
“If the lines were actually run to embrace simply those portions of land which are today above water, there would be no such looking map as Bartholomew produced by running the lines out in water six feet deep.
“It is the contention of respondent that the soil or sand bars that appear above the surface of the water are simply such as would naturally occur from the action of the winds and waves upon any bottom of shallow water, and particularly that the movement of ice in the winter would shove one portion of sand covered with decayed rushes out of the water one year, and a different wind shoving vast ice fields another way across these shallow waters would remove the bar or place to somewhere else. We submit that there is nothing on any of these narrow necks of what appears as land on the Bartholomew map which could be relied upon to remain on the map from year to year; that there is no reasonable certainty that a bar. which is .2 of a foot out of water last year will remain'; that the utmost dignity any of this land attains t,o is simply that of a very few (the highest ground was .8 of a foot in 1904) inches of sand and decayed rushes; that this is at the mercy of the winds, waves, and ice. For wnat other reason has every house builder on the Flats carefully fastened his land down ? Why has every one built dykes and out piles around his so-called land ? For two reasons: First, because the land was under water, and it was necessary to fill in to raise it above; second, because without protecting piles and fills his land would not stay on the map.”

Again, we quote:

‘ ‘ The land has gained upon the water of this area since 1850, and its present appearance does not indicate the appearance of 1850. Five different methods are alleged in Prof. Lane’s geological report by which the land surface of the delta gains on the water: First, deposit of material brought down in times of roily water; second, the growth of rushes which tends to strain and filter out the drift wood from the debris; third, rapid growth of rushes and their decay, receiving as they do in that locality a large share of air and sunshine; fourth, the tilting of the land area of the Great Lakes’ basins in the direction north 27 degrees east; fifth, the cutting down of the outlet of the Detroit river and consequent lowering of Lake St. Clair.” ‘

They argue that not only does the testimony show most of the land desired by the relators is now lake bottom, but that it is shown quite conclusively that all of it was submerged land in 1850.

We cannot and shall not attempt to quote any considerable part of the testimony. Charles Stewart, a witness produced on behalf of the defendant, testified, in part, as follows:

Q. Where do you reside ?
“A. Algonac. .
Q. How long have you lived at Algonac ?
“A. Seventy years ?
Q. What is your age now ?
“A. Seventy-four in June.
Q. You were a child then when you came to Algonac?
“A. I was only three years old, between three and four.
Q. Have you resided continuously there?
“A. Within two miles of the village; I never was farther awa3 to live than that.
“Q. What has been your business, generally, during your life; just in a general way what has been your occupation ?
“A. Well, I farmed a little and hunted a little and worked out by the day and month and year, and for the last part of my life I have been keeping store.
Q. A merchant?
“A. Yes, sir.
‘ ‘ Q. Do you know the territory known as the St'. Clair Flats?’
“A. Yes, sir.
‘' Q. How long have you known and been familiar with the St. Clair Flats and the river and lake of the same náme ?
“A. Ever since I was about 15 years old; big enough to hunt.
“ Q. You remember the commencement of the building of the United States ship canal at the Flats ?
“A. Yes, sir; I don’t know as I could tell you just the year.
Q. No, but you remember the circumstance ?
“A. Yes, sir.
Q. Do you remember the commencement of the building of what is known as the ‘ Old Club property ? ’
“A. Yes, sir.
Q. Which was first, the canal or the building of the club house?
“A. Well, sir, I don’t know as I could tell you which was first; there wasn’t a great difference between them.
Q. Do you remember the time when the main ship channel was what is known as the north channel, on the Flats ?
“A. Yes, sir.
Q. State whether the south channel was used after-wards, instead of the north channel, as the main ship channel ?
“A. After they got that dredge cut put through, our larger sized boats had to come through the north channel until they did cut that dredge through.
Q. How extensively was the south channel dredged ?
“A. Well, I don’t know that I could tell you exactly.
Q- Was it dredged before the building of the canal?
“A. Oh, yes.
Q. Do you know where they threw the earth that they dredged ?
“A. When they dredged the canal ?
“ Q. When they dredged the south channel ?
“A. They took it off towards Chatham. They were supposed to take it off about a mile or three-quarters of a mile.
Q. On the Canadian side ?
“A. On the Canadian side. I have seen the dredges dumping there.
“ Q. You remember then the St. Clair Flats as early as the year 1850; that would be 54 years ago ?
“A. Oh, yes.
Q. And prior to that time?
“A. And even back of that time.
Q. Well, in the early days, say along about the fifties, I wish to call your attention to the condition of affairs on the Flats at that time, or about that time.
“A. In 1850, they ran the old channel; on the north side there.
Q. But I want you to think back to about that period of time, 1850. Are you familiar with the locality on the south channel known as ‘Joe Bedore’s Hotel ? ’
“A. Yes, and a long while before it was ever built there too.
Q. You remember the location a long while before it was built?
“A. Yes, sir.
Q. State whether in 1850, or about that time, there was any channel near the vicinity of Joe Bedore’s Hotel that ran from what we now call the south channel to Muscamoot Bay ?
“A. I should think about — well, I don’t know, of course, I didn’t measure it, but quite a little channel ran from Muscamoot Bay, and the current ran out *of the south channel over into the bay.
Q. Do you recollect how deep that channel was ?
“A. No, I don’t know that I do. I don’t know but there was some places in it there was eight to ten feet of water. It looked kind of blue I know coming by there on boats, and I have been down there hunting across there, but I never measured it.
Q. Have you an idea about how wide it was ?
“A. Well, it wasn’t very wide.
Is that channel there now, the old channel?
“A. I think it is; there is a watercourse through there now; I am sure there is.
Q. Through that same channel ?
“A. Yes,' sir.
“Q. From Joe Bedore’s, running down the south channel towards where the Old Club now is, what was the general appearance of the westward side of the south channel as to land and water ?
“A. Well, I have never seen any land below Joe Bedore’s to amount to anything. There may be sometimes a little place sticking up; but it was all of those black rushes, and that signifies water, and lots of it, and I never saw any dry land, never in my life saw any dry land, where the Old Club is, always there was the sea sweeping right across there.
“Q. But I am speaking of from Joe Bedore’s down to the Club, that condition ?
“A. Well, there is no difference down from Joe Bedore’s to the Old Club; it is almost a lake; they call that Muscamoot Bay over in there; at the same time the sea came across from the westward to the south channel, and it was hard for us to find the south channel when it was blowing hard or anything like that. Sometimes I used to run to Detroit with a sail boat in the spring of the year when the grass was all down, and the water came right across there, and it was hard work to find any channel, only I went by the blue water, it would show us where the main channel was.
“ Q. How many years did it continue in that condition, from the time you first knew it ?
“A. Well, I seen four high waters in my lifetime since I lived in Algonac, and, of course, the high water comes up, but the last six or seven or eight years it would be down on the level where it ought to be again.
“Q. From the time you first knew that country there, how long did that condition of things continue that you mention; that is, from Joe Bedore’s down to where the Old Club is now was practically all water? For how many years was it practically all water ?
“A. Well, there would be spaces you know of real low water in the river. I couldn’t tell just exactly how long them spaces would be apart, but it has always looked to me like a lake. I have passed up and down on the boats for the last 50 years, and it always looked to me like just merely a lake and a streak of rushes growing through there because it was a little shallow there by Muscamoot Bay.
Q. Was it in that condition until they commenced dredging and building artificially in that vicinity ?
“A. I don’t think there was a house built there, but what they had to make all the land they built it on.
Q. How many natural channels can you recall of water that are there now from Joe Bedore’s down to the Old Club ?
“A. I don’t know that I know just exactly how many there is. I know there are several.
“ Q. Do you recall one about three-quarters of a mile above the Old Club ? Do you recall one near the Star Island House ?
“A. Yes, sir.
Q. How wide a channel was that ?
“A. Probably 50 or 60 feet, maybe more.
“ Q. Is that channel there now ?
‘A. I think it is, yes.
Q. I am speaking of natural channels, not artificial.
“A. Yes, I know.
Q. Do you recall a natural channel also below the Star Island House, nearer to the Old Club, somewhere near what they call the Sampson place, I think ?
“A. Well, that would be above the Sampson place.
“Q. Well, where do you recall any other natural channels aside from the one at Joe Bedore’s and near the Star Island House ? Where was there any other one ?
“A. Well, there is that wide one in there. I don’t know as I could nearly locate it so as to explain it to you where it is. There is one a great deal wider than the rest.
“Q. How wide is that ?
“A. I should think it is 150 feet.”

Counsel say this witness is discredited, but there are several other witnesses who testify substantially along the same lines. Mr. Molitor in his testimony developed the fact that the map of 1867 showed a great many channels of open water of several feet in depth that are shown upon the Bartholomew map as land. We quote a little from his testimony:

“Q. At that time that part of Muscamoot Bay had direct and open connection with the south channel ?
“A. Yes, sir.
“Q. About how much ?
“A. 600 feet — no, it is more than 600 feet; there is 500, about 1,500 feet.
“Q. About how would the amount of rushes, marshy land, compare with the quantity of open channels where the water was setting in the current from Muscamoot Bay from this 1,500 feet of open water compare with it there clear down to the ship canal, whether there would be about as much of one as the other ?
“A. There is, as a general rule, all along it has a little .more land frontage, and the channel separating those islands are narrower; they are probably some of them 100 feet or 200 feet or 300 feet wide and some only 50 feet wide.
“Q. Those are all natural channels ?
“A. Yes, there was no dredging done at that time by private parties.
“Q. The water in Muscamoot Bay at that time, according to this map, extended clear up to near the timber land to Harsen’s Island, the private claims ?
“A. Yes, sir.”

It may properly be said, in this connection, that, prior to the Bartholomew map, none of the surveys were made for the purpose of determining with accuracy the area or character of the land. They were made in the interest of navigation; the primary purpose being to show where the navigable water was to be found and the depth thereof. In the testimony given by Mr. Morley, whose familiarity with the premises is of late date, the following occurred:

“Q. From your observation of the territory, along the south and middle and Sny Bora channels, could it be made agricultural land by means of levees or draining ?
“A. No, sir.
“Q. Why not?
“A. Too low.
(iQ. Well, if drains were dug, what would be the effect ?
“A. They would fill in with water.
“Q. Could levees be built along these shores ?
“A. Yes.
“Q. It is practicable ?
“A. No, sir.
“Q. In what way could you make any of these so-called lands, as designated on your map, valuable for agricultural purposes ?
“A. By raising it and elevating it above the water.
“Q. And what method could be pursued in doing that?
“A. Dredging and filling.
“Q. Well, state whether the land would have to be protected in any way from the movement of the water or winds, or from ice, or the washing of steamers, as they passed up and down these channels ?
“A. They would.
“Q. In what way could they be protected if raised ?
“A. The usual method is to sheet pile the raised ground.”

The record discloses beyond any reasonable question that the improvements now existing at the Flats were made in the manlier thus explained, except where the buildings were erected upon spiles driven into the soil. Some of the photographs show buildings thus erected completely surrounded by water.

Justice Hooker, in People v. Warner, 116 Mich. 228, among other things, said: the submerged land belongs to the State. People v. Silberwood, 110 Mich. 103 (32 L. R. A. 694).

“ The most comprehensive claim of title on the part of the defendant Warner is that his purchase of Maisou Island gave him title of all land and water to the center of the main channel between the Middle Ground and the east shore of the bay. This would include the Wet Marsh and all of the Middle Ground. We have already intimated that the rule by which such a result is reached does not apply to the Great Lakes. The title to the fee in
“ The depth of water upon submerged land is not important in determining the ownership. If the absence of tides upon the Lakes, or their trifling effect, if-they can be said to exist, practically makes high and low water mark identical for the purpose of determining boundaries (a point we do not pass upon), the limit of private ownership is thereby marked. The adjoining proprietor’s fee stops there, and there that of the State begins, whether the water be deep or shallow, and although it be grown up to aquatic plants, and although it be unfit for navigation. The right of navigation is not the only interest that the public, as contradistinguished from the State, has in these waters. It has also the right to pursue and take fish and wild fowl, which abound in such places; and the act cited has attempted to extend this right over the lands belonging to the State adjoining that portion of the water known to be adapted to their sustenance and increase.”

In the ease of Illinois Cent. R. Co. v. Illinois, 146 U. S. 387, Justice Field said:

“It is the settled law of this country that the ownership of and dominion and sovereignty over lands covered by tide waters, within the limits of the several States, belong to the respective States within which they are found, with the consequent right to use or dispose of any portion thereof, when that can be done without substantial impairment of the interest of the public in the waters, and subject always to the paramount right of Congress to control their navigation so far as may be necessary for the regulation of commerce with foreign nations and among the States. * * *
“ The same doctrine is in this country held to be applicable to lauds covered by fresh water in the Great Lakes, over which is conducted an extended commerce with different States and foreign nations. These lakes possess all the general characteristics of open seas, except in the freshness of their waters, and in the absence of the ebb and flow of the tide. In other respects they are inland seas, and there is no reason or principle for the assertion of dominion and sovereignty over and ownership by the State of lands covered by tide waters that is not equally applicable to its ownership of and dominion and sover. eignty over lands covered by the fresh water of these lakes. * * *
“The Great Lakes are not in any appreciable respect affected by the tide, and yet on their waters a large commerce is carried on, exceeding in many instances the entire commerce of the States on the borders of the sea. * * * By ijJjq common law, the doctrine of the dominion over and ownership by the crown of lands within the realm under tide waters is not founded upon the existence of the tide over the lands, but upon the fact that the waters are navigable; ‘tide waters’ and ‘navigable waters ’ being used as synonymous terms in England. The public being interested in the use of such waters, the possession of private individuals of lands under them could not be permitted except by license of the crown, which could alone exercise such dominion over these waters as would insure freedom in their use so far as consistent with the public interest. The doctrine is founded upon the necessity of preserving to the public the use of navigable waters from private interruption and encroachment, a reason as applicable to navigable fresh waters as to waters moved by the tide. We hold, therefore, that the same doctrine as to the dominion and sovereignty over and ownership of lands under the navigable waters of the Great Lakes applies, which obtains at the'common law as to the dominion and sovereignty over and ownership of lands under tide waters on the borders of the sea, and that the lands are held by the same right in the one case as in the other, and subject to the same trusts and limitations.”

Cited with approval in People v. Silberwood, 110 Mich. 107 (32 L. R. A. 694). See, also, the discussion and authorities cited in the opinion of Justice Hooker in State v. Lake St. Clair Fishing & Shooting Club, 127 Mich. 580.

Construing the evidence in this case in the light of these legal rules, can it be said the relators have clearly shown the land in controversy to have been swamp or overflowed lands in 1850 ? It is a familiar rule of law that the writ .of mandamus will not issue until the applicant for it has shown a clear legal right to it. County of Houghton v. Auditor General, 36 Mich. 271; People, ex rel. McCar thy, v. Monroe Circuit Judge, 36 Mich. 274. In People, ex rel. Pack, v. Supervisors of Presque Isle County, 36 Mich. 380, it was said: “ A mandamus will not issue to enforce any doubtful right.” See, also, Loomis v. Township Board of Rogers, 53 Mich. 135; Post v. Township Board of Sparta, 63 Mich. 323; McLaughlin v. Burroughs, 90 Mich. 311; Van Akin v. Dunn, 117 Mich. 421. While the testimony in this case is contradictory, we think the relators have not clearly made it to appear that in 1850 the land was swamp or overflowed land; but, on the contrary, we think the preponderance of the testimony is to the effect.that the land in 1850 was submerged lake bottom.

Having reached this conclusion, it is unnecessary to discuss the many other interesting questions raised by the learned counsel.

The writ is denied.

Montgomery, J.

(concurring). The history of these proceedings is correctly set forth in the opinion of Mr. Justice Moore. I agree with Mr. Justice Moore that the State is in no way estopped from asserting that the lands involved in these proceedings are not swamp and overflowed lands, within the meaning of the Federal grant of 1850, and that it is open to the State to assert that the so-called lands are in fact, and were at the time of the admission of the State into the Union, a part of the bed of the lake. If they were in fact a part of the bed of the lake, the title to the fee passed to the State by virtue of the admission of the State into the Union, and the Federal government had nothing to grant in 1850. People v. Silberwood, 110 Mich. 103 (32 L. R. A. 694).

In the case of State v. Lake St. Clair Fishing & Shooting Club, 127 Mich. 580, we were called upon to determine whether certain lands in the vicinity of those here claimed were swamp lands, or were a part of the bed of the lake. In that case, however, we were dealing with a finding of facts by the circuit judge, and-we held upon the finding made by the circuit judge that the lands in. question should be considered swamp and overflowed within the meaning of the swamp-land act. We were only permitted under the rules of law to look into the evidence for the single purpose of ascertaining whether there was any evidence tending to support the finding of the circuit judge. This we found; and, under well-recognized rules, were required to affirm that finding, and the result followed that those lands were adjudged to be swamp lands.

In the present case, the whole record is open for examination, and a careful examination of the testimony satisfies us that the preponderance of evidence is in favor of the respondent’s contention that these lands were at the time of the admission of the State into the Union submerged lands and a part of the bed of the lake. Any attempt to set out the testimony at length in this opinion would extend it beyond any reasonable limit. One point may be adverted to. The evidence discloses that the depth of water at the place in question and in the Great Lakes varies from year to year. In the brief of relator’s counsel, it is claimed that the evidence showed that the mean level in 1850 at the time of the passage of the swampland act was 574.842, which was somewhat lower than from 1853 on, the period to which the estimony of respondent’s witnesses is chiefly directed, and that for this reason the testimony of these witnesses showing that these so-called lands were a part of the bed of the lake should be discounted. But a sufficient answer to this contention is that the title to these lands as a part of the bed of the lake passed to the State, if at all, in 1837, and at this date, according to relator’s claim, the mean level was 576.375, and according to respondent’s claim was 576.84, or a depth of more than 1 foot greater than in 1893, and nearly 1 foot greater than in 1894, and 2 feet greater than in 1901. So that, if we assume that there was a short period during which the lands had more the appearance of swamp than either before or since that period, the title had vested in the State by virtue of the admission of the State into the Union in 1837.

I concur in the order denying the writ.

MoAlvay, C. J., and Ostrander, and Moore, JJ., concurred with Montgomery, J.

Hooker, J.

(concurring). I concur in the result reached by my associates. I am unwilling, however, to assent to the possible implication that the Federal swampland act applies to any lands within the meander lines of the Great Lakes, except as indicated in the writer’s opinions in the cases of Brown v. Parker, 127 Mich. 390, Olds v. Commissioner of State Land Office, 134 Mich. 449, and State v. Lake St. Clair Fishing & Shooting-Club, 127 Mich. 601.