author: Moore, J.

text:
    FORD v. BAILEY.
    Pleading — Amendment in Affirmance of Judgment,
    In ejectment for a strip of land, where the case was tried upon the merits and no objection raised to the insufficiency of the description in the declaration until after judgment was entered for plaintiffs, the court properly allowed an amendment under 3 Comp. Laws 1915, §§ 12478, 12480, to correct the imperfection in affirmance of the judgment.
    Error to Wayne; Mandell, J.
    Submitted June 6, 1919.
    (Docket No. 77.)
    Decided July 17, 1919.
    Ejectment by Arthur W. Ford and others against Alfred Bailey. Judgment for plaintiffs. Defendant brings error.
    Affirmed.

      Leon D. Barlow (Walter Barlow, of counsel), for appellant.

      William H. Wetherhee and Francis A. Hilton, for appellees.
   Moore, J.

This is an ejectment suit to recover possession of a strip of land 16 feet one way and 85 and a fraction feet the other, which is 10 feet in the rear of the Masonic temple in the village of Trenton. It is claimed by the plaintiffs that this land was included in the deed given to the plaintiffs in 1863. The declaration set out the receipt of this deed and the description contained therein of the land conveyed, and also contained the following:

“2. That the plaintiffs, by and through themselves and their predecessors in office, as such trustees of Trenton Lodge, No. 8, of Free and Accepted Masons, have continued in possession of, and claim the fee in said premises, since the said third day of April, A. D. 1863.
“3. That while the plaintiffs were so possessed the defendant on or about the 22d day of November, A. D. 1904, entered into said premises, or part thereof.
“4. That the defendant voluntarily withholds from the plaintiffs the possession thereof, or part thereof.”

After the verdict and judgment a motion was made for a new trial for several reasons. The important ones are as follows:

“Second: Because said plaintiffs allege in their said declaration ‘That the defendant voluntarily withholds from the plaintiffs the possession thereof or a part thereof/ which said description of said lands so alleged by said plaintiffs to be withheld from them by ' the defendant is so indefinite and uncertain as to render said declaration fatally defective under the provisions of the statute requiring the premises claimed in ejectment to be withheld from the plaintiffs by the defendant to be described in their said declaration" with such sufficient certainty that possession of the premises claimed may be delivered.
“Third: Because said declaration does not accurately, particularly and specifically describe the lands claimed by the plaintiffs to be withheld from them by the defendant as required by the statute in such cases made and provided.”

The judge made the following order:

“1. It is ordered that the said motion be and the same is hereby denied.
“2. And it appearing that there may be defect or imperfection in form in the description of the land in the plaintiffs’ amended declaration filed and in the judgment entered herein, in that such description includes and embraces more than the land herein described upon which, the jury found at the trial, the defendant had actually entered, and claimed title to; and that the land herein described is part of and included in the land described in the declaration and it appearing to my satisfaction that the plaintiffs should be allowed to amend accordingly, so that the said judgment shall not be reversed or annulled on technical grounds.
“It is further ordered that the first paragraph of the plaintiff’s amended declaration filed and the judgment entered herein, be and each of'them is hereby amended, by striking out the description of land following the words ‘described as follows’ and ending with the words ‘on the 27th day of February, 1869,’ and substituting therefor the following description:
“Commencing on the southerly boundary line of said lot number 101, at a point sixty feet and eighty-three one hundredths of a foot from the southwest corner of said lot, thence northerly parallel with the western boundary line of said lot, in a straight line,' thirty-five feet and seven hundredths of a foot, thence easterly parallel with southerly boundary line of said lot, in a straight line sixteen feet, thence southerly 'parallel with the westerly boundary line of said lot to the southerly boundary line thereof and thence westerly along the southerly boundary line of said lot to the place of beginning. The said described premises being part of the premises intended to be sold and conveyed, and in fact sold and conveyed by one Augustus Button and Sarah Button, his wife, to Harry Saunders, trustee, on the 3d day of April, A. D. 1863, and conveyed by the said Harry Saunders, trustee, to the late William Parks, Nathaniel C. Alvord and Elliott T. Slocum, deceased, and their successors in office as trustees of Trenton Lodge, No. 8, of Free and Accepted Masons, the plaintiffs’ immediate predecessors in office as such trustees, on the 27th day of February, 1869.”

Counsel in this court say in overruling their motion there is reversible error in that the declaration was not sufficiently definite under 3 Comp. Laws 1915, §§ 13174, 13175, 13176, 13190, 13193, and 13194. The defendants cite in support of their contention White v. Hapeman, 43 Mich. 267, and Bringhurst v. Railroad Co., 78 Mich. 570. We think it will be seen later that the cases cited are not controlling of the instant case.

No objection was made upon the trial to the reception of testimony on the part of the plaintiffs upon the ground that the description in the declaration was not sufficiently certain and definite. There was a full trial upon the merits as to the ownership of, and the occupancy of, the strip of land for which the parties were contending. Had objection been made upon the trial, if the description in the declaration had been defective and upon that point we express no opinion, the declaration could have been easily amended. As it was, nobody was misled. The several contentions of the parties were sustained by such evidence as they were able to offer. The issues were fairly submitted to the jury, and it was not until the motion for a new trial was made that the question was raised.

The amendment was made under sections 12478 and 12480, 3 Comp. Laws 1915, which read:

“(12478) Sec. 1. The court in which any action or proceeding shall be pending shall have power to amend any process, pleading or proceeding in such action or proceeding, either in form or substance for the furtherance of justice, on such terms as shall be just, at any time before judgment or decree rendered therein. The court at every stage of the action or proceeding shall disregard any error or defect in the proceedings, which do not affect the substantial rights of the parties.
“(12480) Sec. 3. After judgment rendered in any cause, any defect or imperfections in matter of form, contained in the record, pleadings, process, entry, returns or other proceeding, may be rectified and amended by the court, in affirmance of the judgment, so that such judgment shall not be reversed or annulled.” * * *

We think the amendment was in furtherance of justice and is authorized by the statute. See Portsmouth Savings Bank v. Gratiot Circuit Judge, 83 Mich. 651; St. Clair Tunnel Co. v. St. Clair Circuit Judge, 114 Mich. 417; Hoban v. Cable, 102 Mich. 206; Brown v. Brown, 163 Mich. 337; Miller v. Tanners’ Supply Co., 150 Mich. 299.

The judgment is affirmed, with costs to the plaintiffs.

Bird, C. J., and Ostrander, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


source: Caselaw Access Project

author: Kuhn, J.

license: Public Domain

text:
    LEXINGTON STATE BANK v. ROSE CITY CREAMERY CO.
    1. Bills and Notes — Principal and Agent — Evidence — Parol Evidence — Intent.
    Between the immediate parties to a bill or note, parol evidence is admissible to show that the instrument was, to the knowledge of the parties, intended to be the obligation of the principal, and not of the agent, and that it was given and accepted as such.
    2. Same — Mortgages—Foreclosure—Deficiency Decree — Principal and Agent.
    Where the evidence shows that in the making of a mortgage by a corporation, certain of its directors indorsed the note given therewith in their official capacity, intendiug thereby to give validity to the instrument executed, the mortgagee, on foreclosure proceedings, is not entitled to a decree for deficiency against said directors personally.

      On the question of admissibility of parol evidence to show intention of the parties to indorsement as controlling liability, see note in 18 L. R. A. 35.

      Appeal from Ogemaw; Sharpe, J.
    Submitted June 10, 1919.
    (Docket No. 85.)
    Decided July 17, 1919.
    Bill by the Lexington State Bank against the Rose City Creamery Company and others for the foreclosure of a mortgage. From a decree dismissing the bill as to all but defendant company, plaintiff appeals.
    Affirmed.

      B. J. Henderson (Harris & Chapin, of counsel), for plaintiff.

      William T. Yeo, for defendants.
    This is an appeal by the plaintiff from a decree of foreclosure of a certain mortgage given to plaintiff by the defendant Rose City Creamery Company. The circuit judge refused to grant a decree for deficiency against certain individual defendants whom plaintiff sought to hold liable for the deficiency as indorsers of the promissory note to which the mortgage was collateral. The bill was dismissed as to these defendants.
    On March 25, 1910, at a meeting of the stockholders of the Rose City Creamery Company, the following resolution was adopted:
    “Whereas, there is considerable indebtedness outstanding from the Rose City Creamery Company, a corporation, to the bank of Bell, Niggeman & Company, for moneys had and received for the use of said creamery company to pay a deficit in operating the creamery plant for the past two years, amounting to the sum of eight hundred dollars.
    “And whereas, there are no funds in the treasury of the Rose City Creamery Company to pay said indebtedness,
    “Resolved, that the president and secretary be, and they are hereby authorized and empowered to execute real estate and chattel mortgages in the name of the Rose City Creamery Company in amount not to exceed eight hundred dollars, payable in two years, at the rate of seven per cent, per annum, to the order of the bank of Bell, Niggeman & Company, or to the Lexington State Bank, or to whoever said bank of Bell, Niggeman & Company may suggest, to secure the aforesaid indebtedness. Said president and secretary being authorized and empowered to sign in the name of the Rose City Creamery Company a promissory note as evidence of said indebtedness, which will be secured by said mortgage.”
    It does not appear that all of the stockholders attended this meeting, nor even that all of the members of the board of directors were there present. The minutes simply state:
    “Resolution adopted by the following votes: Ayes, unanimous. A majority of the stockholders being present.”
    No meeting of the board of directors was held to authorize the execution of the note and mortgages, but on the following day the president and secretary of the company signed a promissory note, of which the following is a copy:
    “$800.00 Rose City, Mich., March 26, 1910.
    “Two years after date, for value received, I prom- • ise to pay to the order of Lexington State Bank, eight hundred dollars, at the Rose City Bank, Rose City, Michigan, with interest at the rate of seven per cent, per annum until paid. All indorsers, sureties and assignors severally waive presentment for payment, protest and notice of protest for nonpayment of this note, and all defense on the ground of any extension of time of its payment, that may be given the maker or makers thereof.
    . “Rose City Creamery Co.,
    “H. S. Karcher,
    “Secretary and Treasurer.
    “F. B. Arthur,
    “President.
    “Secured by real estate and chattel mortgages.”

      At the date of the hearing of this cause the note bore the following indorsements:
    “O. N. Barber
    “Dexter Sammons
    “Wesley Chase
    “Alex. Freeman
    Directors.
    “Pay to order of Lexington State Bank, Lexington, Michigan, without recourse,
    “Rose City State Bank, Rose City, Michigan,
    “Bell, Niggeman & Co.”
    The testimony indicates that the signatures of at least three of these four directors were obtained before delivery of the note. It also appears from the evidence that there were three other directors of the corporation who did not sign the note in any capacity. The president and secretary also executed, on behalf of the corporation, and under its seal, a mortgage collateral to the above note and bearing even date therewith, covering the creamery company’s land in Rose City. This mortgage recites that it was executed,—
    “by officers duly authorized by resolution of stockholders at a meeting held March 5th, 1910.”
    It is conditioned upon the payment of $800 two years' from date, with interest at seven per cent, per annum, payable annually:
    “According to a certain promissory note of this date executed by Rose City Creamery Co., et al., to the second party.”
    Nothing was ever paid on either the principal or the interest of this note and mortgage, and on March 9, 1918, plaintiff filed its bill to foreclose the mortgage, praying, among other things, for a decree for deficiency against the defendants Oliver N. Barber, Dexter Sammons, Wesley Chase, and Alex. Freeman as indorsers of said note. The bill was taken as confessed by the creamery company, but the individual defendants filed an answer, denying liability, it being their claim that they signed merely as directors in order to make the note valid as against the corporation, and that they did not sign as indorsers. As a further defense, they claim that the note is invalid because its execution was never legally authorized by the creamery company.
    Over objection, the court allowed evidence to be introduced in explanation of the signatures of the de- ■ fendants appearing on the back of the note. Among other things, it was claimed that the note in question was given to take up a prior note of the company, of which the following is a copy:
    “West Branch, Michigan, February 15th, 1909.
    “Three months after date, for value received, I promise to pay to the Rose City Bank of Bell, Niggeman & Company, Rose City, Michigan, or order, six hundred dollars ($600), with interest at the rate of seven per cent, per annum after date. This note is given for the Rose City Creamery Company, by its officers and is binding upon both the individuals and the company.
    “The Rose City Creamery Co.,
    “Per F. B. Arthur, President.
    “B. J. Corwin, Vice-President,
    “H. S. Karcher, Sec’y & Treas.,
    “William Crozier, Director,
    “Chas. E. Kinyon, Director,
    “L. M. McLees, Director,
    “Henry Campbell, Director,
    “Oliver N. Barber, Director,
    “Joseph Schneider, Director.”
    There was some testimony to the effect that it was the original intention to secure the signatures of all the directors on the back of the note of March 26,1910, in order to signify their assent to and authorization thereof, no formal meeting having been held; that the signatures were placed in a bracket followed by the .word “directors” under the advice of their attorney, Mr. Earl R. Chapin, who stated to Mr. Karcher that by signing in this way they would incur no personal liability. This, however, was denied by Mr. Chapin. After hearing the case, the trial judge filed an opinion, in part as follows:
    “A corporation can only act through its officers and agents and the statute provides the agencies through which such action must be had. The legal entity, the corporation, owns the property and it can only be divested of title by action on the part of its board of directors, who are made its managers by the statute. While it would be eminently proper for the directors to call a stockholders’ meeting and be governed by their advice and action, yet to bind the corporation, the directors must themselves act. The record fails to show any such legal action on the part of the corporation. It does not even show that the meeting of the_ stockholders was legally called nor that a majority of the stock was represented at the meeting. There seems to be no way in which the action had can be treated as that of the corporation.
    “The individual defendants are proceeded against under a statute which makes them liable only for deficiency. They are clearly entitled to raise the defense of a want of liability on the part of the company; While not strictly guarantors, the relation is so nearly akin to it as to permit them to raise any defense which their principal might make.
    “This disposes of the case, but in view of an appeal, I feel constrained to consider the other defense raised. It presents an interesting legal question as well as one of fact. Counsel for the plaintiff insist that the word ‘directors,’ written after the signatures of the indorsers,_ is merely surplusage and in no way affects their liability. There is apparently much conflict in the authorities as to the effect of such a word of limitation following a signature. The signature of the proper officers to bind the corporation are appended. It was not necessary for the directors to sign to create a corporate liability.
    “But where suit is brought by the payee, I think the great weight of authority holds that parol evidence is admissible to establish the fact as to whether or not it was the intention of the parties that the directors should be individually liable. Mr. Mechem in his work on Agency, § 448, quoted in Keidan v. Winegar, 95 Mich., at page 432 (20 L. R. A. 705), says that while it is true, as a general rule, that parol evidence is not admissible to exonerate an agent from a contract, where the paper bears on its face some reference to a principal, the preponderance of authority warrants the statement of the rule that:
    “ ‘Between the immediate parties to a hill or note, parol evidence is admissible to show: * * * that the instrument was, to the knowledge of the parties, intended to be the obligation of the principal and not of the agent, and that it was given and accepted as such.’
    “Let us now examine the proofs bearing on this question. All of the defendants swear that they did not intend to render themselves individually liable. Mr. Karcher says he told them they must sign in order to make the company liable and that he did this on the advice of their attorney. Mr. Bell says there was nothing said to. him about it. It must be borne in mind that this transaction occurred more than eight years ago and the recollection of the witnesses as to what was said may well be hazy. There are, however, certain undisputed facts which stand out as landmarks, which, in my opinion, control in determining this question.
    “1. The former note given to Bell, Niggeman & Co. was signed by certain of the directors as ‘directors’ and it expressly provided that they, as well as the president and secretary, should be liable individually as well as officers of the corporation. At that time it was evidently the understanding of the parties that such provision was necessary to create individual liability. It may also be noticed that neither the president, Mr. Arthur, nor the secretary, Mr. Karcher, indorsed the note in question, though liable on the other note.
    “2. These defendants all have lived in the immediate vicinity of Rose City since this note was executed. Mr. Bell has also lived there all of that time. He had this mortgage in his possession as an officer of the bank since its delivery. No demand has ever been made on any of the defendants for the payment of either principal or interest and the first intimation, the defendants had of claimed liability on their part was when this suit was begun.
    “3. The lack of action on the part of the board of directors can only be accounted for by the understanding of the parties that if all of the directors signed, as it was understood they would, this would amount to action authorizing the loan on the part of the board.
    “These facts satisfy me that there was no intention to hold the defendants individually liable when they signed.”
    Pursuant to this opinion, a decree was entered dismissing the bill as to the individual defendants, but granting foreclosure of the mortgage and a decree for deficiency against the Rose City Creamery Company.
   Kuhn, J.

(after stating the facts). The learned trial judge came to the conclusion that the question as to whether the defendants who signed the obligation as directors, signed for the purpose of binding themselves individually, or simply to legalize the action of the stockholders’ meeting, became, under the circumstances of this case, a question of fact. We are of the opinion that, under the authorities relied upon by the trial judge in his opinion above set forth, he arrived at a correct conclusion with reference thereto, and after a careful reading of the record we are also satisfied that he correctly determined the question of fact therein presented, for the reasons set forth in his opinion, which, we hereby adopt as our own.

The creamery company not being a party to this appeal, and having been defaulted, and because of the conclusion that there is no individual liability on the part of the other defendants, it becomes unnecessary for us to determine the other interesting question passed upon by the trial judge, as to whether or not the defendant corporation was legally bound by the action of its stockholders as shown by the corporate records produced on the trial.

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

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


text:
      In re VANDEN BOSCH’S ESTATE. VANDEN BERG v. VOS VERCADE.
    1. Wills — Heies—Assignee oe Interest — Right to Contest.
    Assignees, grantees, and donees of an heir have no such interest in the will of the testator as will enable them to contest its validity, nor is the right of action itself assignable or the subject of conveyance.
    2. Same — Power of Attorney to Contest — Revocabiuty.
    A power of attorney to contest a will, accompanying an assignment by an heir of his right in testator’s property, which conveyed no interest, Cannot be said to be coupled with an interest rendering it irrevocable.
    The question as to who may contest will, is discussed in a note in L. R. A. 1918A, 447.
    Error to Ottawa; Cross, J.
    Submitted June 3, 1919.
    (Docket No. 24.)
    Decided July 17, 1919.
    Albert Vanden Berg presented for probate the last will of Maartje Vanden Bosch, deceased. On petition of Maggie Vos Vercade, as assignee and attorney of William Thiel, said will was certified to the circuit court. Proponent then filed a motion to dismiss the petition. Judgment for proponent. Contestant brings error.
    Affirmed.

      Lillie, Lillie & Lillie, for appellant.

      Diekema, Kollen & Ten Cate and Louis H. Osterhous, for appellee.
   Kuhn, J.

On February 21, 1918, a petition was filed in the probate court for Ottawa county for the probate of the will of Maartje Vanden Bosch, deceased. William Thiel was described therein as one of the heirs at law of the said Maartje Vanden Bosch. On April 8, 1918, William Thiel, as such heir at law, made and executed and delivered an assignment of all his right, title, and interest in and to all the property of Maartje Vanden Bosch to Mrs. Maggie Vos Vercade. On the same day William Thiel also executed a power of attorney to said Maggie Vos Vercade, both the assignment, and the power of attorney being duly signed and acknowledged, and witnessed by two witnesses. On April 9, 1918, Maggie Vos Vercade, as assignee, and with power of attorney from William Thiel, filed objections to the probate of the will in writing, and on April 80, 1918, as such assignee and attorney-in-fact, she filed a petition asking the probate court to certify the matter to the circuit court, and, having filed a proper bond, the same was so certified. On the 5th of July, 1918, William Thiel attempted to revoke the said power of attorney by an instrument in writing which was duly acknowledged. Thereafter a motion was made in the circuit court to dismiss the cause and the objections to the probate of the will and to certify the same back to the probate court. Attached to the motion was the affidavit of Louis H. Osterhous, and in opposition thereto there were filed affidavits of Walter I. Lillie and Cornelius Roosenraad. After hearing the motion, the trial judge filed his finding in the matter and determined that Maggie Vos Vercade was not a person entitled to contest the will of Maartje Vanden Bosch, granted the motion, and certified the proceedings to the probate court for further proceedings in the estate in accordance with the statute.

Whether or not William Thiel could legally assign his right as heir at law of the deceased, Maartje Van-den Bosch, to contest her will, is the first meritorious question before us for consideration. Under the common law, the buying of a bare litigious interest was severely frowned upon, and while the rule has been somewhat relaxed from time to time, still the cdurts have always been loth by their decisions, on the ground of sound public policy, to give encouragement to this practice. The following is found in 5 Corpus Juris, p. 858:

“The practice of purchasing from prospective heirs, devisees, or legatees interests in property which have no present existence, either actual or potential, but which such persons expect to acquire by descent or by will, is known as 'Catching bargains with heirs,’ and has given rise to a great diversity of judicial decisions as to the validity of such transactions.
“Under the general rule of the common law against the validity of the assignment of a mere possibility or right which has no present existence either actual or potential, the assignment by a prospective heir or devisee of his expectancy of acquiring an estate by descent or by will, is void at law.”

Also the following in 40 Cyc. p. 1243:

“Assignees, grantees, and donees of an heir have elo such interest in the will of the testator as will enable them to contest its validity. Nor is the right of action itself assignable or the subject of conveyance.”

Thompson on Wills, § 518, p. 453, states the following:

“But persons without any interest cannot maintain an action to contest a will. Thus it has been held that a creditor of the testator has no such interest as will authorize him to maintain the action, nor has the donee of an heir at law such an interest as will entitle him to contest the will.”

See, also, In re Evans’ Will, 72 N. Y. Supp. 495, 65 App. Div. 100, affirmed in 171 N. Y. 645 (63 N. E. 1116); Ransome v. Bearden, 50 Tex. 119. We are of the opinion that the weight of authority is that a donee of an heir at law cannot acquire such an interest as to enable such donee to contest a will, and therefore conclude that the learned trial judge was correct in holding that Maggie Vos Vercade had no authority to prosecute the contest of the will.

It is next urged that in the instant case the power of attorney was coupled with an interest in the subject-matter thereof and therefore irrevocable without the consent of the person to whom the power was given, and a number of cases are reviewed and argued in the brief of counsel upon this question. However, this question need not concern us for the reason that, having determined that Mrs. Vos Vercade did not receive any interest by the assignment in the property, it cannot be said that there was any interest coupled with the power of attorney which brought it within the rule, or rather the exception to the rule, that such a power of attorney is irrevocable.

Some question is raised as to whether or not the will is properly executed, but that question is not before us at this time and will probably be disposed of by the proper court on the petition for the probate of the will, when finally heard.

We are of the opinion that the trial judge reached a proper conclusion, and his order is therefore hereby affirmed.

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


text:
    BEACH v. HAYNER.
    Waters and Watercourses — Inland Lake — Riparian Owners— Right to Use Whole of Surface.
    Where there are several riparian owners to an inland lake, such proprietors and their lessees and licensees may use the surface of the whole lake for boating and fishing, so far as they do not interfere with the reasonable use of the waters by the other riparian owners.
    Appeal from Livingston; Collins, J.
    Submitted June 6, 1919.
    (Docket No. 75.)
    Decided July 17, 1919.
    Bill by Hiram G. Beach against James Hayner and others to enjoin a trespass.. Fronra decree dismissing the bill, plaintiff appeals.
    Affirmed.

      Louis E. Howlettj for plaintiff.

      Francis J. Shields, for defendants.
   Kuhn, J.

This bill was filed to enjoin the defendants from entering upon waters covering lands claimed to be owned by plaintiff, located in the township of Hamburg, Livingston county, Michigan, and trespassing thereon contrary to his orders and request.

Silver Lake is an inland lake without visible outlet or inlet, covering about 100 acres of land. It is surrounded by hard banks on all shores except at the southwest. It is the claim of the plaintiff that he owns all of the land covered by the waters of the lake, except two small parcels at the northwesterly corner thereof and three or four small parcels at the southerly and southwesterly corner of the lake. Being located in the center of the section, the lines of the various subdivisions of land at these points extend into the water, so that at the northwesterly corner of the lake four or five acres of the land of the Root estate is covered by water. Mr. M. R. Bennett, who owns the adjoining farm, has three or four acres covered by water. In the southwest part of the lake the Napier farm covers three or four acres, and the Featherly farm, now owned by Rosier, covers about six acres; on the south end the Hankins farm about half an acre, and the‘Rice farm about two and a half acres, making a total of approximately 20 acres. In the center of the lake the plaintiff owns all the land between'the two shores. During the last ten or twelve years cottages have been built upon the lands above referred to and have been rented to various occupants. At the time of the filing of the bill of complaint the defendants were tenants of the owners of these cottages and were occupying the-same and spending the summer, or a portion of the same, at these cottages. When the defendants were not occupying the cottages, they sublet them to various people. The defendants, together with their families, guests, subtenants and patrons, to whom they rented their boats, were claiming the right to travel at will over the lake, wherever they desired. The circuit judge dismissed the bill, alleging his reasons as follows:

“The court, however, is of the opinion that where there are several riparian proprietors of an inland lake, that all such proprietors and their lessees may use the surface of the whole lake for boating, fishing, and fowling purposes, if access is gained to the lake from their own or leased land; and that no one riparian proprietor can exclude another riparian proprietor from the exercise of these rights; and that neither can one riparian proprietor exclude the lessees of another riparian proprietor from the exercise of these rights.”

Some claim is made with reference to the plaintiff’s title to a 25-acre parcel, the controversy with reference to which was before this court before, and is reported in the case of Beach v. Rice, 186 Mich. 95. We there held that the title to this 25 acres should be determined in an action of ejectment and that the question of plaintiff’s title to the land should not be determined in the chancery suit. The trial judge, relying upon this decision, again held in this case, and we think correctly, that the plaintiff cannot maintain this action in the chancery side of the court, as he has not by ejectment proceedings established his ownership and possession of said lands, and properly dismissed the bill as to the 25 acres.

The real question in controversy seems to be, as stated by counsel for plaintiff and appellant in his brief, as follows:

“The important legal question involved in the case is whether or not, where more than one person owns the bed of an inland pond with neither outlet nor inlet, can one owner exclusively use and control his property against the trespass of the public who claim to have a license from the other owners of land in the lake, to go thereon?”

This exact situation has not been before this court. The case of Giddings v. Rogalewski, 192 Mich. 319, involved a small, unmeandered, shallow, and disconnected sheet of water wholly upon the premises of a private owner, and which could only be reached by invading private premises. It was held that such a lake is not navigable, and that every unauthorized intrusion upon the private premises of another is a trespass, and the owner was protected in his exclusive rights to the use of this water. But it was distinctly said in that opinion:

“The right of the people to fish in navigable or meandered waters where fish are propagated, planted, or spread, and to which they have lawful access by land or water, even though such waters may superimpose the subaqueous lands of a private owner, is not decided nor involved here.”

In the recent case of Winans v. Willetts, 197 Mich. 512, which is relied upon by the appellant as sustaining the principle of his contentions, Mr. Justice Ostrander, in writing the majority opinion, said:

“As I understand the record, however, plaintiff has not shown himself to be the owner, or lessee in possession, of all the land covered by the waters of the lake. In such case, of course, defendants might prove a license to fish in the lake, and it would then be a question for decision whether, possessing such a license, the licensee could fish in any part of the lake. No such question is presented upon this record.”

We do not understand that it is the claim of counsel for the plaintiff that they have any property rights in the fish in the lake, which are ferx natwrx, and so far as any right of property in them can exist, it is in the public or in common to all until they are taken and reduced to actual possession, but it is his contention that licensees of riparian owners have no right to enter upon the waters covering the lands of the plaintiff for the purpose of fishing or boating. In the case of Inhabitants of West Roxbury v. Stoddard, 7 Allen (Mass.), 158, the following general rule was announced by the court:

“Fishing, fowling, boating, bathing, skating or riding upon the ice, taking water for domestic or agricultural purposes or for 'use in the arts, and the cutting and taking of ice, are lawful and free upon these ponds, to all persons who own lands adjoining them, or can obtain access to them without trespass, so far as they do not interfere with the reasonable use of the ponds by others, or with the public right, unless in cases where the legislature have otherwise directed.”

In this State, in the case of Sterling v. Jackson, 69 Mich. 488, it was held that a man had the exclusive right of fowling upon his own land, whether it is upland or land covered by water, but a distinction seems to be made in the majority opinion of the court between fowling and fishing. In the dissenting opinion of Mr. Justice Campbell the following was said:

“It is the law of this State that the riparian owner of any kind of water has presumptively the right to such uses in the shores and bed of the stream as are compatible with the public rights, if any exist, or with private rights, connected with the same waters. In rivers the theoretical line of ownership is in the middle thread or line of the stream, unless changed by islands or some other cause of deflection. If the stream is crooked, the curves must be adjusted so as to save all the rights of the different owners. But lakes have no thread, and, while there is usually no difficulty in fixing, equitable bounds near the shore, it cannot be done, by any mathematical process, over any considerable extent of the lake; and if — which does not often ' happen — there is any occasion for making partition of the surface, it can only be reached by some measure of proportion requiring judicial or similar ascertainment and not by running lines from the shore. Small and entirely private lakes are sometimes divided up for such purposes as require separate use; but for uses like boating, and similar surface privileges, the enjoyment is almost universally held to be in common. This was held by the house of lords in Menzies v. Macdonald, 36 Eng. Law & Eq. 20. It was there held that for all purposes of boating and fishing, the whole lake was open to every riparian owner; while for such fishing as required the use of the shore, each was confined to his own land for drawing seines ashore, and the like uses.”

This reasoning seems to be appealing. To hold with the plaintiff and appellant in this case would cause the establishment of a rule very difficult in its application. All riparian owners and their licensees would have a clear right to enter upon certain portions of the surface of the lake, and it certainly would be very difficult to establish definite lines of demarcation along the property lines of the various owners. As the question of fowling upon the waters is not presented by the bill and is not in issue here, it will be unnecessary to determine that question, but we are of the opinion that the judge was right in holding that where there are several riparian owners to an inland lake, such proprietors and their lessees and licensees may use the surface of the whole lake for boating and fishing, so far as they do not interfere with the reasonable use of the waters by the other riparian owners.

Some contention is made that the defendants Meyers and Dupper did not occupy land adjoining the lake and therefore cannot claim to be riparian owners and for that reason entitled to privileges upon the lake. The record discloses that they both testified that they had received permission from riparian owners and therefore were licensees of such owners, and under the ruling of the trial court, with which we agree, they therefore could not be said to be trespassers.

We conclude, therefore, that the decree of the court below dismissing the plaintiffs bill should be affirmed, with costs.

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


text:
      In re GOLDINGER.
    Habeas Corpus — Custody of Minor — Fitness of Parent.
    On certiorari to review habeas corpus proceedings by the father against the grandmother for the custody of a minor son,’ where the respondent failed to show that the father is not a fit person to have the care and custody of his son, the order of the trial judge awarding custody to the grandmother will be vacated, and an order entered awarding permanent custody of the child to the father.
    Certiorari to Wayne; Mayne, J., presiding.
    Submitted June 26, 1919.
    (Docket No. 106.)
    Decided July 17, 1919.

      Habeas corpus proceedings by George C. Goldinger ' against Emma Gignac for the custody of an infant. From an order awarding the infant to defendant, plaintiff brings certiorari.
    Reversed, and judgment entered for plaintiff.

      Frank C. Sibley, tor appellant.

      Daniel P. Cassidy, for appellee.
   Kuhn, J.

In this proceeding a review is sought by writ of certiorari of an order made and entered on February 21, 1919, awarding the custody of Robert G. Goldinger, born March 18, 1916, the minor child of the petitioner, George C. Goldinger, to Emma Gignac, the respondent. It appears that petitioner married the daughter of respondent October 8, 1914, and that they made their home with the respondent from the date of the marriage until the death of petitioner’s wife, and thereafter petitioner with the child remained at the respondent’s home for an additional six months. He thereupon married his present wife and removed from the respondent’s home, leaving the child, however, with, the respondent. The child was nine days old at the time of his mother’s death, and from that time the respondent has taken care of the child and it is undisputed that she has bestowed upon it all the tender care and affection of a mother. After the remarriage of the petitioner it appears that he called once or twice a month to see the child and later took it to his home for the period of a week or ten days. In March, 1918, it was brought to the attention of the respondent that the petitioner intended to take permanent possession of the child, which she refused to permit him to do, which resulted in habeas corpus proceedings being brought. This matter was brought on before the Hon. Frederick W. Mayne, acting as circuit judge for Wayne county, and several days were consumed in taking testimony. The court thereupon delivered an opinion, in which he indicated that the custody of the child should be divided between the parties. No formal order was entered upon the said opinion, and the court intimated that he would leave the order, in some particulars, largely to counsel. On January 19, 1919, the petitioner obtained possession of the child, being then about three years of age, and claims to have discovered that the child was being neglected by the respondent and that she was not giving it that proper care and attention which, in his opinion, it ought to have, because of the limited facilities that the respondent had, living in a small house, which was illy provided with sanitary facilities. He thereupon, through his counsel, advised respondent that he intended to keep possession of his child. On February 21st a formal order was presented to the court by counsel, giving the entire custody, possession, education and control of said child to the respondent until the child shall attain the age of 14 years, upon condition that the father may visit his son only once in every two weeks. At that time the petitioner filed a written motion and petition to the court asking a denial of the proposed order, which motion was denied by the court, and the following order was thereupon duly made:

“This cause having come on to be heard upon petition for writ of habeas corpus, the writ issued thereon, and the return of the respondent; and the court having heard the testimony offered by the respective parties, and the argument of counsel thereon, and the said parties being again before the court on the 21st day of February, A. D. 1919, the petitioner being represented by his attorney, Frank C. Sibley, and the respondent being represented by her attorney, Daniel P. Cassidy, and it being admitted by the said counsel for said parties that the divided custody and possession of the child, Robert G. Goldinger, by the parties to this proceeding, as heretofore recommended by the court, has not proved satisfactory, and has not proved to be for the best interest and welfare of said child, Robert G. Goldinger, and it also being admitted by the said counsel for the said parties that the said petitioner recently obtained possession of said child, Robert G. Goldinger, and still has the possession of said child, Robert G. Goldinger, and that he refuses to deliver said child to the possession and custody of the respondent, therefore this court, by virtue of the authority in it vested, does order:
“First: That the custody, possession, education and control of said child, Robert G. Goldinger, is hereby placed in and awarded to Emma Gignac, the respondent, until said Robert G. Goldinger attains the age of fourteen (14) years, upon the condition only, that the said petitioner, George C. Goldinger, may visit the said child, Robert G. Goldinger, at the home of the respondent, every other Saturday and Sunday, or may on said days, take said child with him to his home, but not outside of the county of Wayne, and said petitioner shall return said child, Robert G. Goldinger, to the home of the respondent not later than 8:00 o’clock P. M. on the Sundays when said child shall be in his possession, pursuant to this order.
“Second: That said petitioner, George C. Goldinger, shall forthwith deliver to the respondent at her home in the city of Detroit, the said child, Robert G. Goldinger.
“Third: This order is entered without prejudice to the right of petitioner for a modification thereof as to matters that may have arisen since the original hearing of this case.”

Various reasons are alleged by counsel for petitioner and plaintiff in certiorari why the court was in error in overruling the motion made by petitioner’s counsel, the principal reason relied upon being:

“That the court having found that the petitioner is a competent and qualified person and suitable to have the care and custody of the child, under said finding it was error, as a matter of law and equity, to deprive the petitioner of the possession and custody of said child.”

At the time that the court heard the testimony and filed his opinion, the learned trial judge found:

“On the part of the petitioner, he is a young man at present enjoying a fairly good salary, honest and of good reputation, he is healthy and able to work and possessed of no bad habits. He has, however, not been above criticism in the past in this, that he has to a large extent neglected the child; he has' not given it that affection one would expect of a parent; he has permitted the grandparents to do many things that he should have done. I attribute this more to the fact that he and the grandparents were on good terms, and he saw that the child was being attended to, the fact that it was free from danger and that he did not consider his own special duty in the matter. However, that should be charged against him at the present time.
“Now, the question presents itself, as I said, as to what the future of this child demands, and its future demands differ nothing from that of any other American child. I believe that every boy who has a father who is susceptible should be under the custody of their father, and should associate with him as much as possible. I have no sympathy with the idea that our boys should be under the direction and control of women. In this case, his grandmother’s home and his surroundings are ideal at present, there is no doubt about that, but there comes a time when he must go out and get in touch with the world and as time progresses, the ability of the grandparents to meet this situation decreases, and the ability of the father increases, so that in ten years from now the situation will be largely changed if this young man, the father, progresses as he is doing now. He has got beyond the age when his good habits are liable to change, and if he is industrious and regards the best interests of the child, his influence will be felt in the forming of the character of the child, assisting him to become to be a man, honest and upright.
“Under the circumstances, all the interests of this child demand that he have an opportunity to associate with his father in the future. It is necessary for the proper development of his character. As to the stepmother, — I am not much in sympathy in giving children to stepmothers. This woman has shown a good deal of common sense on the witness stand. She could not take care of the child at the present time as well as the grandmother, but she says he is my husband’s child, and if the custody is awarded to my husband, I shall do my best to take care of that child and love him. She makes no extreme profession.”

This court said, in the most recent case on this subject, Martin v. Benzie Circuit Judge, 200 Mich. 549, at page 552:

“The courts should, and have always had in mind, in the determination of the vexing questions arising concerning the custody of a child, the best interests of the child and also the natural and humane feelings and sentiments of the parents.”

In the case of In re Gould, 174 Mich. 663, at page 670, the following general rule was stated:

“The power of parental control, though recognized as a natural right and protected when properly exercised, is by no means an inalienable one. When the ‘right of custody’ is involved between respective claimants for a child, the courts, though in the first instance recognizing prima facie rights of relationship, in the final test are not strictly bound by demands founded upon purely technical claims or naked legal rights, but may and should, in making the award, be governed by the paramount consideration of what is really demanded by the best interests of the child. Corrie v. Corrie, 42 Mich. 509 (4 N. W. 213); In re Heather Children, 50 Mich. 261 (15 N. W. 487); Chapsky v. Wood, 26 Kan. 650 (40 Am. Rep. 321); Richards v. Collins, 45 N. J. Eq. 283 (17 Atl. 831, 14 Am. Dec. 726).”

We are unable to find, however, that this court has ever said, or interpreted the rule to mean, that a father would be deprived of the possession of his child where it clearly appears that he is a man of good habits, honest, and well able to provide for his child. The only charge that can be made against the petitioner in this case is that during the time immediately after the death of the mother of the child, he did not bestow upon it that affection that might be expected of a parent, but, as the learned trial judge found, this might be explained by the fact that he knew the grandparents would do many things for it that he should have done and that he saw that the child was being attended to. However, he never relinquished the right of the custody of his child, and it was only a short period after his second marriage that he requested its possession. It may be true that the respondent is as much attached to the child as the parent and that she is as suitable to have its custody and as able to provide and care for it, but nevertheless, unless it clearly appears that the parent is for some reason unfit to have its possession, the rule is well established in our law that the parent is entitled to the possession of his child against all others. The reason for this rule is very aptly stated by the court in Weir v. Marley, 99 Mo. 484 (12 S. W. 798), cited by counsel for petitioner in his brief, from which opinion the following is quoted:

“In all civilized countries, in which the family is regarded as the unit of social organization, its minor members must and ought to be subject to the custody and control of those who are immediately responsible for their being, for the reason that by nature there has been implanted in the human heart those seeds of parental and filial affection that will assure to the infant care and protection in the years of its helplessness, to be returned to the parents again when they in their turn may need protection, in their years of helplessness and of their child’s strength and maturity. The law, at the birth of an infant, imposes upon the parents the duty of such care and protection, to the performance of which the instincts of nature so readily prompts, and clothes him with the right of custody, that he may perform it effectually, upon the presumption that such custody, being in harmony with nature, is best for the interest, not only of the parent and child, but also of society; conceding, however, that the primary object is the interest of the child, the presumption of the law is that its interest is to be in the custody of its parent. The law has made provision, in two instances, whereby this presumption may be overcome; in the statutes providing for the adoption and apprenticing of children, when, for their interest, this right of custody is permitted to be transferred to another. In regard to all other contracts by parents, for the custody of their children, this presumption must obtain; and, while the parent may, by his inability or failure to discharge properly his duty towards his child, forfeit his right to its custody, because the interest of the child demands it, yet, upon the trial of an issue, involving such a forfeiture, he is entitled to the benefit of such presumption; and, unless the interest of the child does demand it, such forfeiture cannot take place. He cannot deprive himself of this right of custody, which is the concomitant of a personal trust imposed upon him by the law of nature, as well as by positive law, and essential to the discharge of the duties of that trust, by contract per se, otherwise he might deprive his child and society of the benefits which the law contemplates will inure to each by the personal discharge of his parental duties.”

The respondent having failed to show that the father, George C. Goldinger, is not a fit person to have the care and custody of his son, it follows that the order made by the learned trial judge must be vacated and an order entered awarding the permanent custody of his child to the petitioner. No costs.

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