author: Fellows, J.

text:
    McMORRAN MILLING CO. v. C. H. LITTLE CO.
    1. Riparian Rights — Navigable Streams.
    Tie title of a riparian owner on the St. Clair river extends to tie thread of tie stream, subject to tie paramount right of the United States to use tie land in aid of navigation.
    2. Navigable Streams — Right oe Individual.
    Tie term “easfement of navigation” properly describes tie right of an individual member of tie public to tie navigable streams.
    3. Same — Riparian Rights — Commerce—Improvements by United ' States.
    Under section 8, art. 1, of tie Constitution of tie United' States, tie Federal government has tie paramount, dominant rigit, superior to tiat of tie riparian owner, and in tie enforcement of tiat rigit it may take, control, and regulate, in tie interest of navigation, tie navigable waters of tie nation, and tie submerged lands over which they flow.
    4. Riparian Rights — Eviction—Contracts—Liability.
    Where defendant, while under contract with plaintiff to pay a stipulated amount quarterly for tie privilege of taking sand and gravel from plaintiff’s submerged land in tie St. Clair river, was stopped in said work by order of tie Federal authorities, it was evicted by a rigit paramount to tiat of plaintiff, and from tiat time liability for tie quarterly payments ceased.
    5. Same — Estoppel.
    Tiat defendant paid tie quarterly payments pending tie negotiations with tie Federal authorities does not furnish any ground for tie application of tie doctrine of estoppel; plaintiff being in no way harmed by tie payments, nor was its position changed by reason thereof.
    6. Same — Navigable Streams- — Sand and Gravel — Private Parties.
    As between private parties, in Michigan, tie sand and gravel in a navigable stream belongs to tie riparian owner, and he is entitled to he compensated for it by the private individual who takes it.

      See note in 34 L. R. A. (N. S.) 1084.

      7. Same — State’s Rights.
    Where the State holds such title it may recover for sand and gravel taken.
    8. Riparian Rights — Eviction—Breach of Contract — Liability —Directed Verdict.
    The court below was in error in directing a verdict for plaintiff, it being entitled to recover the contract price only up to the date' of eviction, which date was in dispute and was a question fbr the jury.
    Error to Wayne; Collingwood, J., presiding.
    Submitted January 22, 1918.
    (Docket No. 17.)
    Decided June 3, 1918.
    Assumpsit by the McMorran Milling Company against the C. H. Little Company for breach of a contract to purchase gravel. Judgment for plaintiff on a directed verdict. Defendant brings error.
    Reversed.

      Stevenson, Carpenter, Butzel & Backus (Thomas G. Long, of counsel), for appellant.

      'Miller, Smith, Canfield, Paddock & Perry, for appellee.
    This record discloses that prior to the year 1909 individuals and companies located at Detroit dealing in building sand and gravel, had, without protest from either the riparian owners or the Federal government, obtained a considerable of their supply from the St. Clair river. Plaintiff is a riparian owner on St. Clair river, defendant a dealer in such sand and gravel. Defendant had been taking sand and gravel from the subaqueous lands appurtenant to plaintiff’s property, and plaintiff claimed compensation. Negotiations were had resulting in the execution of the following contract:

      "This agreement and indenture made in duplicate and entered into this 30th day of November, A. D. 1909, by and between the McMorran Milling Company, of Port Huron, Michigan, a body corporate organized and existing under the laws of Michigan, party of the first part, and
    “The C. H. Little Company, of Detroit, Michigan, a body corporate organized and existing under the laws of Michigan, party of the second part, witnesseth
    “Whereas, the said party of the first part is the owner of certain premises in the city of Port Huron, Michigan, known as lot ‘A.’ and easterly portion of lots thirty-nine and forty (39 and 40) also the north one-half of lot ‘B’ according to Harrington’s plat of the city of Port Huron, extending southerly from the Black river, so-called, along St. Clair river to the center line of Court street slip so-called, together with the accumulations and accretions of sand, gravel and other deposits upon the bed of St. Clair river and the Black river in front of said premises and along the side thereof respectively from the shore lines of said rivers to the threads of the streams of the said rivers;
    “And, whereas, the C. H. Little Company, the said party of the second part, being desirous of securing and obtaining from the said party of the first part the sole privilege and exclusive right to take, and have the sand, gravel and other deposits, and the whole thereof, or any or either of the same, upon and within the beds of the said St. Clair river, and the Black river within the limits above mentioned, and specified, for the full period of ten (10) years from and after the date hereof, has submitted an offer and proposition therefor to the proper officers and representatives of the said first party, which said offer and proposition .has been duly accepted and in corroboration of which this agreement is executed for the sole right, license and privilege of having and taking such sand, gravel and other deposits or any or either thereof therefrom for the said period of ten years.
    “Now, therefore, the McMorran Milling Company of Port Huron, Michigan,, a body corporate as aforesaid, by its proper officers arid representatives, party of the first part, for and in consideration of the payment of the sum of fourteen hundred ($1,400.00) dollars per annum, payable in the sum of three hundred and fifty ($350.00) dollars on the execution and delivery. hereof and a like sum of three hundred and fifty ($350.00) dollars in advance on the beginning of each three months’ period hereafter, during the said ten years, hereby grants, conveys, lets and licenses unto the C„ JEL Little Company, a body corporate, as aforesaid, and to its successors and assigns, party of the second part, for the full period of ten years, from and. after the date hereof, the sole privilege and exclusive right to pump> excavate, dig or otherwise unearth and carry away and have for its own, all the sand, gravel and other deposits, or any or either thereof, and the accumulations and accretions thereof, in front of and along the premises above described, and the said first party hereby waives all claims and demands against the said second party for any such sand, gravel or other deposits which may have been taken by the said second party, or its agents from said premises prior to the date hereof:
    “Provided, however, that1 no- excavations shall be • made by said second party in any such manner or as to impair or damage the docks, if any, upon the said premises.
    “For the consideration specified the party of the second part shall have the right during .the term of this lease to use the docks as. now constituted or as may be hereafter constructed along the river front of said described property for the purpose of making fast its boats and vessels and laying them alongside a reasonable time.
    “And the C. H. Little Company, in consideration of the letting or the licensing of the privileges above mentioned hereby agrees to pay to the said McMorran Milling Company the sum of fourteen hundred ($1,-400.00) dollars per annum, payable three hundred and fifty ($350.00) dollars on the execution and delivery hereof, and a like sum in advance on the beginning of each three months’ period hereafter, during the full period of ten years from and after the date hereof.
    “This, agreement shall be binding upon the successors and assigns of the respective parties hereto.
    “In witness whereof, the parties hereto have caused these presents to be duly executed by their proper and respective oificers thereunto duly authorized, as of the day and year first above written.
    “McMorran Milling Company, [L. S.]
    “By H. McMorran, Pres.
    “The C. H. Little Company, [L. S.]
    “By C. N. Ray, General Manager.”
    In the spring of 1910 defendant was informed by the war department that dredging for sand and gravel on the premises in question would not be permitted, as it worked an interference with navigation. Negotiations were then taken up by both plaintiff and defendant with the war department with a view of permitting the dredging to be done. These negotiations continued for some time but both plaintiff and defendant were unable to persuade the Federal authorities that there should be a change in their attitude and on August 7, 1912, the Government engineer in charge, in the course of a report, brought the consideration of the question to a finality with the following recommendation:
    “It is recommended that the C. H. Little Company be told again in no uncertain terms that no dredging for sand and gravel will be permitted in the St. Clair river above the International tunnel between Port Huron and Sarnia.”
    Pending these negotiations, defendant made its quarterly payments to plaintiff but thereafter declined so to do and this suit was instituted upon the contract resulting in a directed verdict for plaintiff for the amount claimed. Defendant brings the case here and by proper assignments of error submits to this court the two questions of whether the court properly directed a verdict for plaintiff and whether he should have directed a verdict for defendant.
   Fellows, J.

(after stating the facts). Plaintiff is the riparian owner of lands on the St. Clair river. As such owner its title extends to the thread of the stream. Webber v. Boom Co., 62 Mich. 626; Lorman v. Benson, 8 Mich. 18; Butler v. Railroad Co., 85 Mich. 246; Fletcher v. Boom Co., 51 Mich. 277. The character of such title to the subaqueous lands is the important question in this case; and it becomes necessary to determine such character, both as against the sovereign, when the question of navigation is involved, and against private parties when the governmental interests are not at stake.

By section 8, art. 1, of the Constitution of the United' States, there was delegated to congress the power:

“3. To regulate commerce with foreign nations, and among the several States, and with the Indian tribes.”

In the case of Gibbons v. Ogden, 9 Wheat. (U. S.) 1, the court had before it acts of the legislature of the State of New York, enacted for the purpose of securing to Robert R. Livingston and Robert Fulton the exclusive rights of navigation in the navigable waters of that State, with boats propelled by fire or steam. In that case Chief Justice Marshall, speaking for the court and construing this section, laid broad and deep the foundation for Federal control over navigation and the navigable waters of the Nation. He said:

“Commerce, undoubtedly, is traffic, but it is something more — it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse. * * *
“The power .of congress, then, comprehends navigation, within the limits of every State in the Union; so far as that navigation may be, in any manner, connected with ‘commerce with foreign nations, or among the several States, or with the Indian tribes.’ It may, of consequence, pass the jurisdictional line of New York, and act upon the very waters to which the prohibition now under consideration applies.”

In Gilman v. Philadelphia, 3 Wall. (U. S.) 713, 724, the court said:

“Commerce includes navigation. The power to regulate commerce comprehends the control for that purpose, and to the extent necessary, of all the navigable waters of the United States which are accessible from a State other than those in which they lie. For this purpose they are the public property of the Nation, and subject to all the requisite legislation by congress.”

In South Carolina v. Georgia, 93 U. S. 4, it was held that the right to regulate commerce includes the right to regulate navigation, and hence to regulate and improve navigable rivers and ports on such rivers, and that congress had the power to close up one of several channels in a navigable stream if in its judgment navigation would thus be improved. A somewhat similar question arose in Commissioners of Homochitto River v. Withers, 29 Miss. 21. In this case Withers owned a valuable plantation alleged to be worth $200,000. By an improvement contemplated by the commissioners in aid of navigation the flow of the stream was diverted from plaintiff’s plantation, depriving him of its benefit for agricultural and transportation purposes. His rights were those of a riparian owner, but were held to be subordinate to the rights and power of the State acting in the promotion of navigation and his bill for injunction was dismissed.

The dominant power of congress over the waterways of the country is aptly illustrated by the case of State of Pennsylvania v. Bridge Co., which appeared in court on four occasions (9 How. 647; 11 How. 528; 13 How. 518, and 18 How. 421). Without detailing at length the various steps taken in it, it will suffice to say that the court found as a fact that the bridge in question was an obstruction to navigation. Subsequently congress by an act declared it to be a lawful structure, not an obstruction to navigation. Its last appearance in court — 18 How. 421 — where it was sought to put the decree of the court into force, brought to the attention of the court the action of congress. The court declined to put its decree into force, recognized that congress had acted within the field committed to its care, and held that while the bridge was, as matter of fact, an obstruction to navigation, after the passage of the act it was not so in the contemplation of law, and the hand of the judiciary was stayed because of the power delegated to congress under the commerce clause of the Constitution above quoted.

In United States v. Irrigation Co., 174 U. S. 690, the court had under consideration the prior appropriation of waters of a nonnavigable stream; such waters ultimately going to keep up the navigability of a navigable stream. The right of the State to change the common law rule as to streams within its dominion was recognized; but that right was subject to two limitations, the second being:

“Second, that it is limited by the superior power of the general Government to secure the uninterrupted navigability of all navigable streams within the limits of the United States. In other words, the jurisdiction of the general Government over interstate commerce and its natural highways vests in that Government the right to, take, all needed measures to preserve the navigability’ of the navigable water courses of the country even-against any State action.”

The Federal cases to which we have referred had to deal generally with the power of congress under the commerce clause of the' Constitution to regulate navigation, navigable waters and obstructions to them. They did not have to deal directly with the question we have here under consideration, viz: The dominion of the Federal Government acting through congress over the subaqueous lands of navigable streams. They were, however, but the forerunners of the cases having to deal directly with that subject. One of the early Federal cases having that question under consideration is Hawkins Point Light-House Case, 39 Fed. 77. The action was ejectment. Plaintiff claimed title to the submerged soil of the Patapsco river by grant from the State of Maryland; defendant was the keeper of the light-house and was defended by the Government, the basis of defense being that the right of the United States to the subaqueous land and its usé to erect a light-house upon in aid of navigation was paramount to the right of plaintiff under his grant. The defense was sustained. A very able brief by the district attorney will be found in the réport of the case.

In Scranton v. Wheeler, 113 Mich. 565, this court had before it the character of the title to submerged lands in the St. Mary’s river, as between the riparian owner and the Federal Government. Plaintiff was a riparian owner and as such took title to the thread of the stream. Defendant was then superintendent of the St. Mary’s Falls canal and was defended by the Government. The Government had taken possession of the submerged lands and built a pier. The case had before that been removed to and heard in- the Federal court, and the opinion there was written by Judge Lurton. It is reported in 57 Fed. 8Ó3. Judge Lurton denied the plaintiff’s right of recovery and sustained the paramount right of the Federal Government, saying:

“But while the plaintiff, under the law of Michigan, is seised of the legal title to the soil under the water, yet, in the very nature' of the property, such seisure is of the bare technical title.”

The case was taken to the United States Supreme Court, but that court declined to consider it on jurisdictional grounds and it went back to the Chippewa circuit for trial and came to this court upon writ of error to that court. This court, speaking through Mr. Justice Gkant, there said:

“It is conceded that under the law of Michigan the title to submerged land is in the adjoining owner to the thread of the stream. It is insisted in behalf of the plaintiff that the Government possesses no right to so use his land, although submerged, and although necessary to so use it in aid of navigation, as to cut off his access to the open water. It is contended on the other hand that this title to submerged lands along navigable waters, and the right of access thereto, are subject to the paramount right of the United States to use this land in such manner as it shall determine to be necessary in aid of navigation. The court of appeals was unanimous in its opinion against the plaintiff’s claim. In a very able opinion delivered by Judge Lurton the facts are clearly stated, the authorities cited, and we think the conclusion there reached is the correct one.”

The case was reviewed in the Supreme Court of the United States (179 U. S. 141), and the judgment of this court affirmed. It was there said by Mr. Justice Harlan, speaking for the court:

“So that whether the title to the submerged lands of navigable waters is in the State or in the riparian owners, it was acquired subject to the rights which the public have in the navigation of such waters. The primary use of the waters and the lands under them is for purposes of navigation, and the erection of piers in them to improve navigation for the public is entirely consistent with such use, and infringes no right of the riparian owner. Whatever the nature of the interest of a riparian owner in the submerged lands in front of his upland bordering on a public navigable water, his title is not as full and complete as his title to fast land which has no direct connection with the navigation of such water. It is a qualified title, a bare technical title, not at his absolute disposal, as is his upland, but to be held at all times subordinate to such use of the submerged lands and of the waters flowing over them as may be consistent with or demanded by the public right of navigation.”

But it remained for the case of United States v. Power Co., 229 U. S. 53, to finally put at rest the rights of riparian owners on navigable streams as against the sovereign. This case arose in this State and was condemnation proceedings instituted by the United States Government against the Chandler-Dunbar Water Power Co. and others in the district court for the western district. The company was the owner of lands bordering on the St. Mary’s river. Appurtenant to such lands was a valuable water power, which had been but partially developed by the defendant. Congress, by section 11, of the act of March 3, 1909 (35 U. S. Stat. pp. 815, 820, chap. 264), had declared that all the lands between the ship canal and the International boundary line were necessary for the purposes of navigation. The company insisting upon its rights as riparian owner to the subaqueous lands and the flow of the stream, insisted upon compensation in the sum of $3,450,000 for the taking of such rights which it claimed were its private property and could not be taken without just compensation. The government insisted upon its paramount title, upon its right as sovereign to take without compensation all the sub-aqueous lands, together with the flow of the stream for purposes of navigation. It conceded its obligation to pay for fast lands taken, but denied its liability for taking the submerged lands and the flow of the stream appurtenant thereto, and insisted that congress was the sole judge of the necessity and that such necessity was not for judicial inquiry. The trial court awarded $550,000 for the undeveloped water power taken and both parties appealed. The award was set aside and the court set at rest for all time the claim of riparian owners that as against the Government’s needs of navigation their rights in the navigable waters of the nation and the submerged lands over which they flow were not subservient. Mr. Justice Lurton, speaking for the court, said:

“This title of the owner of fast land upon the shore of a navigable river to the bed of the river, is at best a qualified one. It is a title which inheres in the ownership of the shore and, unless reserved or excluded by implication, passed with it as a shadow follows a substance, although capable of distinct ownership. It is subordinate to the public right of navigation, and however helpful in protecting the owner against the acts of third parties, is of no avail against the exercise of the great and absolute power of congress over the-improvement of navigable rivers. That power of use and control comes from the power to regulate commerce betwéen the States and with foreign nations. It includes navigation and subjects every navigable river to the control of congress. All means having some positive relation to the end in view which are not forbidden by some other provision of the Constitution, are admissible. If, in the judgment of congress, the use of the bottom of the river is proper for the purpose of placing therein structures in aid of navigation, it is not thereby taking private property for a public use, for the owner’s title was in its very nature subject to that use in the interest of public navigation. If its judgment be that structures placed in the river and upon" such, submerged land, are an obstruction or hindrance to the proper use of the river for purposes of navigation, it may require their removal and forbid the use of the bed of the river by the owner in any way which in its judgment is injurious to the dominant right of navigation.”.

The case was followed in Lewis Blue Point Oyster Co. v. Briggs, 229 U. S. 82. In this case the plaintiff held title to shallow submerged lands in Great South Bay in the State of New York. The foundation of its title was a royal grant when New York was a dependency of Great Britain. The Government in aid of navigation arranged to cut a channel across, this shallow land, thus destroying plaintiff’s oyster beds. The State court sustained such right of the Government, and this judgment was. affirmed. The opinion of the State court is an able one and worthy of careful consideration — 198 N. Y. 287.

The following cases will be found to be of interest on this subject: Gibson v. United States, 166 U. S. 269; Wisconsin v. Duluth, 96 U. S. 379; United States v. Mining Co., 81 Fed. 243 (on appeal see 88 Fed. 664); Warner v. Manufacturing Co., 123 Ky. 103; Union Bridge Co. v. United States, 204 U. S. 364; Chicago, etc., R. Co. v. Drainage Com’rs, 200 U. S. 561; Commonwealth v. Alger, 7 Cush. (Mass.) 53; Green Bay, etc., Canal Co. v. Paper Co., 172 U. S. 58; Shively v. Bowlby, 152 U. S. 1; Sage v. Mayor, etc., of New York, 154 N. Y. 61; Illinois Cent. R. Co. v. Illinois, 146 U. S. 387; Lorman v. Benson, supra; Rice v. Ruddiman, 10 Mich. 125.

It is true that originally the title to the submerged lands of the navigable waters of the country was in the United States, but it is also true that such title was burdened with a trust for the use and benefit of the people for commerce and navigation. It is true that upon the admission of a State to the union of States, it took such title, but it took it burdened with such trust. It is true that the State might either by legislative enactment or judicial decision as has been done in this State, retain such title to the bed of the Great Lakes and surrender such title to the riparian owner upon streams; but such title in the hands of either the State or riparian owner was still burdened with the trust. It was said by Judge Lurton in Scranton v. Wheeler, 57 Fed. 803, 813:

“It must, from these constitutional principles, follow that the State of Michigan held the soil beneath her navigable rivers under a high public trust, to forever preserve them free as public highways, subject only to the power of congress to regulate commerce among the States. The legal title which, under the law, becomes vested in such proprietors, must be subject to the same public trusts, and therefore subordinate to the rights of navigation, and subordinate to the power of congress to control and use the soil under such streams whenever the necessities of navigation and commerce should demand it. The right of congress to regulate commerce, and, as an incident, navigation, remains unaffected by the question as to whether the title to the soil submerged is in the State, or is in the owner of the shores. A distinction must be recognized between that which is jus privitum, and that which is jus 'publicum. This private right is subordinate to the public right. The plaintiff holds the naked legal title, and with it he takes, such proprietary rights as are consistent with the public right of navigation, and the control of congress over that right.”

See, also, State v. Land Co., 160 Mich. 680; Illinois Steel Co. v. Bilot, 109 Wis. 418; State v. Gerbing, 56 Fla. 603; Stockton v. Railroad Co., 32 Fed. 9. In the last cited case it is said:

“It is significantly asked, Can the United' States take the State-house at Trenton, and the surrounding grounds belonging to the State, and appropriate them to the purposes of a railroad depot, or to any other use of the general Government, without compensation? We do not apprehend that the decision of the present case involves or requires a serious answer to this question. The cases are clearly not parallel. The character of the title or ownership by which the State holds the State-house is quite different from that by which it holds the land under the navigable waters in and around its territory.”

It will be noted in cases involving this question that the expression “easement of navigation” is frequently used. This term should not be confused. When applied to the unorganized public, the individual member of the public, it unquestionably correctly describes his right. He has the right of passage, an easement. But when considering the organized public as represented by the government it does not measure or correctly describe its rights. The Government has something more than an easement, a right of passage. It has the paramount, dominant right, superior to that of the riparian owner, and in the enforcement of that right it may take, control, and regulate, in the interest of navigation, the navigable waters of the Nation and the submerged lands over which they flow. This record discloses the necessity of regulating the flow of the connecting waters of the Great Lake system in order to maintain the water levels of the lakes. We will take judicial notice, because the various acts of congress have made the necessary appropriations, of the millions of dollars that have been expended in the improvements of harbors and channels of the .Great Lakes and the enormous expenditures upon the locks at Sault Ste. Marie. To obtain the full benefit of these improvements the levels of the lakes must be maintained. The premises in question are at the outlet of Lake Huron. It is self-evident that indiscriminate dredging of this outlet would affect navigation, would affect the levels of the lakes. When the Federal authorities proceeding under an act of congress, Act March 3,1899, chap. 425, § 10 (30 U. S. Stat. p. 1151), undertook to stop this indiscriminate dredging they were but asserting this paramount right of the Government, they were but protecting that which in the language of the Supreme Court of the United States in Gilman v. Philadelphia, supra, is “the public property of the Nation.”

When defendant stopped in the work of taking sand and gravel from plaintiff’s submerged lands pursuant to the orders made by the Federal authorities he was evicted by a paramount right to that of the plaintiff, and from then on his liability for the quarterly payments ceased. Marsh v. Butterworth, 4 Mich. 575; Stott Realty Co. v. Amusement Co., 195 Mich. 684; Harrington v. Sheldon, 196 Mich. 388.

The numerous cases of the character of Hyatt v. Brewing Co., 168 Mich. 360, cited by plaintiff, are not in point. The cases have not under consideration the question of eviction. In each of these cases the defense was made that the enactment of prohibition legislation, either local or State wide, terminated the lease, and in each of the cases such defense was overruled. But they are not analogous in any way to those cases where the tenant has been evicted by one holding a paramount right. The business they are conducting is put an end to under the police power of the State, their occupation is gone, but, as said by Mr. Justice Brooke in the Hyatt Case, “The premises demised could have been used for other than the specified purpose.” Not so here. The premises in the instant case had but one use, that of obtaining sand and gravel. The Federal Government in the exercise of its dominant right had put an end to the only use for which the premises were adapted. This was an eviction.

The real consideration, the moving consideration, for the payment of $14,000 in quarterly payments covering a period of 10 years, was the “exclusive right to pump, excavate, dig or otherwise unearth and carry away and have for its own, all the sand, gravel and other deposits.” The right of dockage was an incident to this right and in the furtherance of its enjoyment. There were no deposits of any value in Black river as the testimony shows. This exclusive right has failed by the establishment of a paramount right and an eviction thereunder. Hence the consideration has failed.

But it is urged by plaintiff’s counsel that the settlement for sand and gravel taken before the contract was entered into furnished the consideration. In this regard the case is not unlike that of Louisville, etc., R. Co. v. Mottley, 219 U. S. 467. In that case Mottley and wife were seriously injured in a collision on the road of the plaintiff in error and in 1871 settled their claim for damages by an agreement with the railroad company to accept free passes for the balance of their lives respectively. The contract was kept until congress, acting under the commerce clause above quoted, and considered in this case, prohibited common carriers from issuing free passes. When the company declined to further carry out the contract suit was brought to enforce it. The legislation was upheld as within the power of congress and the enforcement of the contract was denied. We might say in the instant case, as was there said:

“Whether, without enforcing the contract in suit, the defendants in error may, by some form of proceeding against the railroad company, recover or restore the rights they had when the railroad collision occurred, is a question not before us, and we express no opinion on it.”

Nor does the fact that defendant paid the quarterly payments pending the negotiations with the Federal authorities furnish any grounds for the application of the doctrine of estoppel. Plaintiff was in no way harmed by the making of these payments to it, nor did it in any way change its position by reason thereof. The learned trial judge was in error in directing a verdict for the plaintiff.

We have already stated that when defendant ceased its operations of procuring sand and gravel from plaintiff’s subaqueous lands pursuant to the orders of the Federal authorities, it was evicted by a paramount right and was no longer obligated to make the quarterly payments set forth in the agreement. The .testimony of the parties is not in accord as to when this time was. Plaintiff’s testimony tended to fix a later date than that fixed by defendant’s proof. It is unquestionably the law that as between private parties the sand and gravel in a navigable stream belongs to the riparian owner in those States,' where, as in ours, the riparian owner owns to the thread of the stream, and he is entitled to be compensated for it by the private individual who takes it. Archer v. Gravel Co., 233 U. S. 60. Where the State holds such title it may recover for sand and gravel taken. Wear v. Kansas, 245 U. S. 154 (38 Sup. Ct. 55). In the instant case the plaintiff would be entitled to recover the contract price up to the date of eviction. What that date was is in dispute and was a question for the jury. The trial court did not err in refusing to direct a verdict for the defendant.

The judgment is reversed and a new trial granted. Defendant will recover costs of this court.

Bird, Moore, Brooke, Stone, and Kuhn, JJ., concurred with Fellows, J. Ostrander, C. J., and Steere, J., concurred in the result.


source: Caselaw Access Project

author: Fellows, J. Brooke, J.

license: Public Domain

text:
    SORENSON v. KALAMAZOO AUTO SALES CO.
    1. Landlord and Tenant — Defective Premises — Elevators — Statutory Duty of Landlord.
    Where the owner of a garage building leased it with an automatic gate on the elevator properly installed, and later agreed to pay for the material and labor required to widen the doors of the elevator, the work to be done by an expert engaged by the tenant from time to time, who was making some repairs at the time the doors were widened, he did not thereby reassume control of the elevator and reassume the duty cast upon him by the statute (section 12, Act No. 285, Pub. Acts 1909, 2 Comp. Laws 1915, § 5333).
    2. Same.
    But if it be conceded that he would be liable during the progress of the work he assumed to pay for, his liability ceased on the completion of the work.

      3. Same.
    Where plaintiff was injured by driving into an unguarded elevator pit in a garage, and he brought suit against the tenant by whose invitation he was upon the premises, and the owner of the building, as joint defendants, and the tenant, through its employee, knew, or should have known, of a defect in the working of the automatic gate, it, and not the owner of the building, whose work upon the elevator was finished, was liable for the accident.
    4. Same — Independent Contractor.
    As between the owner of the building and the repairman, the latter was an independent contractor; the evidence showing that the owner neither exercised, nor retained the right to exercise, any control over the repairman in his method of producing the result agreed upon.

    Moore and Fellows, JJ., dissenting.
    Error to Kalamazoo; Weimer, J.
    Submitted February 1,1918.
    (Docket No. 179.)
    Decided June 3, 1918.
    Case by Carl Sorenson against the Kalamazoo Auto Sales Company and William D. Watkins for personal injuries. Judgment for plaintiff. Defendants bring error.
    Affirmed as to defendant sales company, and reversed as to defendant Watkins.

      Alfred J. Mills, for appellant sales company.

      Harry C. Howard, for appellant Watkins.

      Mason & Sharpe, for appellee.

       See notes in 65 L. R. A. 855; 66 L. R. A. 154.

   Fellows, J.

(dissenting). Plaintiff is éngaged in business at Shelby in Oceana County. Defendant Kalamazoo Auto Sales Company operates a garage at Kalamazoo in a building owned by defendant Watkins and wife. This building was erected for the sales company and turned over to it under a lease executed in 1914. It consisted of two stories and a basement. The ground floor was taken up by the office, oil room, wash rack, stock and accessories, and storage room for regular customers. The second floor was used as a workshop' where several workmen, were employed in repair work, and, it is fairly inferable, was used for the storage of transient cars. There was an elevator in the building large enough to accommodate in automobile, and no question is raised but that it was in proper working order and properly equipped with an automatic gate when the building was turned over to the sales company. There was no agreement in the lease requiring the owhers to make repairs. The sales company employed a Mr. McNally to inspect the elevator from twice to three times a month, and on at least one occasion he did some repair work on it. Shortly before the happening of the accident the automatic gate was out of repair.; it had to be raised and lowered by hand; one witness stated that it had been broken. The State factory inspector recommended, we do not understand he ordered, that the opening be made wider. He called attention of the sales company to it. The company expressed a willingness to pay for ordinary repairs, but were unwilling to pay for the widening of the opening, for making it nine inches wider as recommended by Mr. McNally. Mr. McNally then called up defendant Watkins and Mr. Watkins came down to the garage and met him. He explained to him that the gate was not working, the willingness of the sales company to pay for repairs to the gate, but its unwillingness to pay for the widening of the opening, told him his recommendation and Mr. Watkins told him to go ahead with the work and that he would pay the extra. McNally did go ahead with the work and defendant Watkins paid the bill rendered him, a portion of which was for material and the balance for the work by the hour. A job price was not fixed or paid. McNally was engaged in this work the 26th of June, 1916, the daté of-the accident, and he gives testimony tending to show that he had the gate in working order and went out of the garage to get some screws, and a weight and rope to be put on to relieve the strain on the cams and post. From other parts of his testimony the jury would be justified in inferring that the gate was not in working order when he left it. The accident occurred during McNally’s absence.

On the day in question, plaintiff, his wife, daughter, and a friend of the family, a Mr. Kenfield, drove from Shelby to Kalamazoo in plaintiff’s automobile, arriving there in the afternoon. He had not owned the car very long and was not an experienced driver; Mr. Ken-field was, and upon reaching Kalamazoo or shortly before, he took charge of the machine and did the driving from there on. Before reaching the garage the ladies had left the automobile and plaintiff and Ken-field drove into the garage, occupying the front seat. They claim they drove inside the door and stopped and an attendant came out of .the office and they inquired if they could get storage and were told they could, and were directed to drive onto the elevator as soon as a car ahead of them got out of the way; that the gate of the elevator was up and the entrance open, indicating that the floor of the elevator was there; that when the car ahead got out of the way the attendant stood by the elevator as though expecting them to drive on; that it was quite dark inside the garage, it having rained shortly before they reached it, and but one light was burning; that the car ahead drove on to the wash rack, and they carefully and slowly drove ahead as directed into the elevator opening. That the shaft of the elevator was not in any way guarded; that the elevator was, as they afterward learned, somewhere between the first and second floor and that they were precipitated into the elevator pit and plaintiff seriously injured. That the elevator was up and the entrance to the elevator shaft unguarded is not disputed; but it is denied that they were invited to drive on the elevator, or that the attendant by any act, word, or appearance indicated that they should do so; on the contrary, he claims to have attempted to stop them without success. The amount of light in the garage was also a matter of dispute. There are two counts in the declaration, one a count for common law negligence, and one for statutory liability, under section 12, Act No. 285, Public Acts 1909 (2 Comp. Laws 1915, § 5333). Plaintiff had verdict and judgment against both defendants.

Each defendant moved for a directed verdict upon the ground of contributory negligence of the plaintiff and his driver as. to each of them, and the further ground, that no actionable negligence of either of them, within the declaration, had been established. They also, by separate requests, asked for a directed verdict. The court having reserved the questions under the “Empson” act (Act No. 217, Pub. Acts 1915, 3 Comp. Laws 1915, § 14568 et seq.), defendants each moved for judgment non obstante veredicto; they also each filed a motion for a new trial. All these motions were refused. We shall first consider those questions common to both defendants.

The plaintiff was bound to establish that both he and his driver were free from negligence contributing to the accident. There was a direct conflict between the testimony introduced by the plaintiff and the defendants, with reference to the invitation to drive onto the elevator; there was also a marked conflict as to the amount of light in the room. The language of Mr. Justice Carpenter, speaking for the court in Burgess v. Stowe, 134 Mich. 204, is quite applicable here. He said:

“Defendant has called our attention to a number of cases in which it has been held that a person injured by falling down an elevator shaft or into an open excavation cannot recover. We shall not attempt to discuss these cases. All of them are, in our opinion, inapplicable. In those cases the injured party was not, as in this he was, acting under what he had a right to believe was the invitation of the defendant. This important circumstance not only created a duty on the part of the defendant, but had a very important bearing in limiting the obligation of the plaintiff to care for himself. Plaintiff certainly was not under the same obligation to guard against dangers that he would have been had no invitation been extended.”

The driver, Mr. Kenfield, testified that he gave the elevator shaft a careful glance before he started the car; that he looked the situation over and the gate was high and stationary, and that he went ahead slowly. While his testimony bears the construction that he was paying more attention to the posts or sides of the elevator between which he had to drive, than he was to the floor we are not impressed that we should say, as-matter of law, under all the facts of the case, that this was contributory negligence. Much is made of some testimony given by the plaintiff to the effect that he was watching the driver’s feet, so as to learn how to handle the clutch. But this was when they first drove into the garage; the plaintiff testified:

“I was not watching his feet in the garage floor, but just in the driveway when the car was standing still, I was watching his feet. When he started up I looked ahead.”

We do not think the case is so clear as to have justified the court in directing a verdict for the defendants on this ground. Hommel v. Investment Co., 166 Wis. 235 (165 N. W. 20); Snyder v. King, 199 Mich. 345.

We next come to the statutory duty to maintain automatic gates. The section involved (2 Comp. Laws 1915, § 5333), reads as follows:

“It shall be the duty of the owner, agent or lessee of any manufacturing establishment where hoisting shafts or well-holes are used, to cause the same to be properly enclosed and secured. It shall be the duty of the owner, agent or lessee, to provide or cause to be provided at all elevator openings in any manufacturing establishment, work-shop, hotel or store, proper trap' or automatic doors or automatic gates so constructed as to open and close by the action of elevators either ascending or descending. The deputy factory inspector shall inspect the cables, gearing or other apparatus of elevators in manufacturing establishments, workshops, hotels and stores at least once in each year, and more frequently if necessary, and require that the same be kept in a safe condition, and shall have power to condemn any elevator if in his opinion the same be unsafe, and stop the operation of such elevator until the same be put in a safe condition.”

We are met at the threshold of this inquiry with the question common to both defendants, of whether this statute is available to the instant plaintiff. It cannot be denied that a plaintiff seeking the benefit of a statute of this character must belong to the class for whose protection the law was passed; that the statute was designed to prevent such injuries as were suffered by the individual claiming the damages is essential. We have recently had occasion to consider this question in the case of Johnston v. Cornelius, 200 Mich. 209, and there held that Act No. 33, Pub. Acts 1909 (3 Comp. Laws 1915, § 15431), which is an act making it a felony to take or use the automobile of another without his authority, and without intent to steal the same, was not passed for the protection of pedestrians on the street, and that a pedestrian upon the street could not claim the benefit of it. This was upon the theory that the act was passed for the protection of the owners of automobiles, not the traveler upon the highway. If the act in question was passed solely for the benefit of employees it is not available to plaintiff. If it was passed for the protection, not only of employees, but also for the protection of those lawfully on the premises as- invitees, and who were expected to make use of the elevator in the transaction of the business which took them to the premises, then the plaintiff may have the benefit of it, and a statutory duty to him arises for the breach of which he may recover. In the consideration of this question we must assume the validity of the act, as its constitutionality was not questioned, so far as the record discloses, in the court below. The administration of this law falls upon the labor department of the State; this may explain its presence in the act in question which was a revision, re-enactment, consolidation, and amplification of former legislation. An examination of the former legislation will demonstrate that the claim of defendants now under consideration, that this legislation had for its sole object the protection of employees, could have been urged with greater force under the former legislation than since the amplification found in the act of 1909, and which originally appeared in Act No. 113, Pub. Acts 1901. The case of Roberts v. Food Co., 142 Mich. 589, was an action brought by an employee, and the amendment of 1901 was unimportant as applied to that case, and was not referred to, the court disposing of the case under the provisions of sections 5346, 5388, 2 Comp. Laws (2 Comp. Laws 1915, §§ 5333, 5595). Section 5368, there referred to, is section 4 of Act No. 265, of the Public Acts of 1889; by its terms it applies to “any factory, manufactory, or mercantile establishment,” and requires the precautions to be taken “to protect the life and limbs of those employed.” Section 5346, 2 Comp. Laws, also referred to in the Roberts Case, appears as section 5 in Act No. 184, Pub. Acts 1895, and applies to “manufacturing establishments,” This section was amended by Act No. 92, Pub. Acts 1897, by requiring inspection by the factory inspector. The section was further amended and its scope amplified by Act No. 113, Pub. Acts 1901, and it was made to apply to “any manufacturing .establishment, workshop, hotel, or store.” As stated, the case of Roberts v. Food Co., supra, grew out of an injury received by an employee in a manufacturing establishment, and the court, without considering the amendment of 1901, disposed of the case under sections 5346, 5368, 2 Comp. Laws. Mr. Justice Grant, speaking for the court and considering these two sections, said:

“The object of these statutes is to prevent employees and others rightfully upon the premises from falling into the shaft or well of the elevator.”

In the case of Murphy v. Veneer Works, 142 Mich. 677, this court had before it the act of 1901, although the case involved the question of an employee, and it was said by this court, speaking through Mr. Justice McAlvay:

“But whether a shaft is built within or without a manufactory, our construction of the statute is that it required such shaft to be properly inclosed and secured to protect all who had occasion to use it, and that in this case that statutory duty had not been performed by defendant.”

In Barfoot v. White Star Line, 170 Mich. 349, this court sustained a judgment in favor of one not an employee, but lawfully on the premises, for the failure of the owner to comply with the provisions of the act of 1909. But in that case it was not disputed that plaintiff belonged to the class for whose benefit the act was passed.

It is urged that in the construction of the act we must take into consideration its title; true, but, as already stated, the administration of the act is placed in the hands of the labor department which may explain its appearance in the labor department act, and the validity of the act as against the charge of defective title is not before us.

The legislation under consideration was enacted pursuant to the police power of the State. Its purpose was the protection of life and limb; it is based upon sound public policy and should not receive so narrow a construction as to impair its useful operation. Tvedt v. Wheeler, 70 Minn. 161.

In the case of Parker v. Barnard, 135 Mass. 116, the plaintiff was a police officer of the city of Boston; it was his duty to examine doors and windows of dwellings and stores in the nighttime to see if they were properly fastened. In the discharge of such duty he fell into an elevator shaft of defendant’s building, which was unguarded as required by statute, and was injured. It was held that defendants were liable, the court saying:

“When, therefore, in the construction or management of a building, the legislature sees fit to direct by statute that certain precautions shall be taken, or certain guards against danger provided, his unrestricted use of his property is rightfully controlled, and those who enter in the performance of a lawful duty, and are injured.by the neglect of the party responsible, have just ground of action against him.”'

Racine v. Morris, 201 N. Y. 240, was a case where the accident occurred substantially as in the Massachusetts Case. Plaintiff’s decedent was a patrolman of the city of New York and came to his death in substantially the same manner as Parker received his injury in the preceding case. The building code of the city of New York, containing provisions requiring the guarding of elevator shafts, was invoked and like defense that decedent was not of the class protected, was made. The right of action was sustained and it was said:

“The conclusion that these requirements are not for the security of the employees whose duties within and whose presence at the buildings have terminated is reasonable, and reasonable, too, is the conclusion that it was imposed for the protection of all those who under their duties and for lawful purposes are within the buildings. The language of the section suggests and justifies our conclusion that its purpose was to guard, to the extent of its provisions, from danger or personal injury, all persons who at any time are lawfully and in the regular course of their calling or business within the buildings.”

In the case of Baker v. Ellis, 248 Pa. 64, plaintiff was a teamster employed to deliver goods to a subtenant of defendant. While on his mission he fell into an unguarded elevator shaft and was injured. Defendant was lessee of the entire building and sublet to different persons. He was obligated to maintain the elevator. It was said by the court:

“As lessee of the entire building Ellis must be regarded as a tenant in possession for. the purpose of providing and maintaining the elevator under the facts of the present case, and as such liable for an injury sustained by a third person lawfully upon the premises, when such injury resulted from a defective guard to the elevator shaft of which he had notice. * * *
“That the owner, or occupant of a building, in a proper case, may be answerable in damages to a third person lawfully upon the premises, has been decided many times in this and other jurisdictions.”

In McRickard v. Flint, 114 N. Y. 222, plaintiff was injured by falling into an unguarded elevator shaft. A statute applicable to the city of New York, where such accident occurred, required a railing or good and sufficient trap doors, which had not been provided in that case. The court said:

“The evidence was such as to justify the conclusion that the defendants were chargeable with negligence. And they owed to any person who should lawfully go into the building the duty, which the statute imposed upon them, to do him no injury by their negligence in that respect. That duty they owed to the plaintiff who went to the premises for a legitimate business purpose.”

When we treat the section under consideration as a police regulation, enacted pursuant to the police power of the State, designed to protect human life and to prevent accidents, when we note that it applies not only to manufacturing establishments and workshops, but also to hotels and stores, when we contemplate the fact that while in manufacturing establishments and workshops the use of the elevator by employees predominates, but that their use by invitees in hotels and stores is much greater than by employees, we feel compelled to hold that the statute in question was enacted to protect not only employees, but also invitees lawfully on the premises upon business with the owner or lessee. Any other construction would impute to the legislature an intent to protect but a portion of those exposed to like dangers, to protect a class and a'class only, an imputation in which we cannot indulge.

The duty created under this statute in the first instance rests upon both owner and lessee. Barfoot v. White Star Line, supra. As to the lessee it is a continuing duty. Noack v. Hinchman Sons, 175 Mich. 15. It follows from what we have said that the plaintiff, an invitee, lawfully on the premises on business with the lessee, belonged to the class for whose protection this statute was passed. There can be no question .but that the building in which the elevator was installed was used as a repair shop or workshop, and that automobile accessories were ’‘here sold, so that while it is called'a garage it was also a store for the sale of accessories. It follows that there was no error in refusing to direct a verdict for defendant sales company, the lessee.

The difficult question in the case is the liability of defendant Watkins. He turned over to his lessee the premises in which was installed an elevator equipped as required by this statute. His duty between him and his lessees had been performed. • Where the landlord turns over the operation of an elevator to his tenant and one is injured by the negligence of the tenant in its operation, the landlord is nob liable. Sikora v. Fellowcraft Club, 189 Mich. 235. The trial court recognized this rule, held that the duty of the owner was not a continuing one, but refused defendant’s request for a directed verdict and submitted the case to the jury, so far as defendant Watkins was concerned, upon the question of whether defendant Watkins had re-assumed control of the elevator for the purpose of making, the repairs and held that if McNally was his agent and employee, and was negligent as charged, defendant Watkins wa'S liable. There was no covenant in the lease requiring- defendant Watkins to make any repairs; in the absence of such covenant he was not bound so to do. The obligation to make repairs rested on defendant sales company by the terms of the lease. But there was testimony in the case tending to show that defendant assumed the obligation to make such repairs; indeed, We are not prepared to say that it did not go further and tend to show that he assumed the obligation of rebuilding in part the elevator structure, by expanding the opening by nine inches, something which might be said to be of a permanent character, and beyond the ordinary repair necessitated by its use.

This court has held that where the landlord assumed to make repairs, though not required so to do by his lease, he was responsible to his tenant for his negligence in making them. Peerless Manfg. Co. v. Bagley, 126 Mich. 225. To the same effect see Michael & Bro. v. Printing Co., 150 Ky. 253; Horton v. Early, 39 Okla. 99; Gill v. Middleton, 105 Mass. 477; Tarnogurski v. Rzepski, 252 Pa. 507; Flam v. Greenberg, 158 N. Y. Supp. 670; Marston v. Frisbie, 154 N. Y. Supp. 367; Sparks v. Murray, 120 Ark. 17. Each of these cases was brought by the tenant against the landlord. In many of them the language is not circumscribed, and the opinions proceed on the theory that while the landlord is under no obligation to make repairs, and his promise so to do after the execution of the lease and its consummation by turning over possession is without consideration and void, still if he undertakes to make the repairs he is liable for his negligence in making them. But these cases must be limited to their proper application and the doctrine must not be too broadly stated. This is made clear by the case of Thomas v. Lane, 221 Mass. 447, where the case of Gill v. Middleton, supra, is discussed. In this case the invitee of the tenant brought suit to recover for injuries received from a defectively repaired hand rail, defectively repaired by the landlord who voluntarily undertook the work. It was held that there was no liability, the court saying:

“For these reasons we are of opinion that the plaintiff, being an invitee of the tenant, had no right of action against the "defendant (the landlord) by reason of the fact that the repairs which she, through her general agent, had undertaken to make in the railing were made negligently; and that this is so because the landlord under the circumstances of the case at bar owed no duty in the matter to the tenant’s invitee.”

But in the instant case, as we have already shown, the owner, defendant Watkins, did owe a duty to this plaintiff, a duty created by statute, that of providing the elevator with automatic gates. When defendant reassumed control of the elevator he reassumed the duty cast upon him by the statute. It would not be seriously contended that if a landlord saw fit to install an elevator in a building already erected and leased he would be required by this statute to install automatic gates, whether he was doing the work voluntarily or pursuant to the terms of a contract with his tenant. The duty provided in the statute is a duty to the public, or at least that portion of the public within its protection. If the landlord was rebuilding the elevator he would be required to discharge his statutory duty, and we are unable to differentiate between such a case and the instant one where the landlord re-assumed possession for the purpose of making repairs and in part rebuilding the elevator. There was testimony from which the jury might infer that this was the situation, and the court correctly declined to direct a verdict for defendant Watkins.

Nor are we able to say, as matter of law, that Mc-Nally was an independent contractor. The testimony as to the relations between him and defendant Watkins was drawn out on cross-examination of him and the defendants. It consisted of bits here and there which made up the whole of the testimony on the subject. Examining it all we are satisfied that it presented a question for the jury.

We are not persuaded that there was any such disparagement of, or prominence given, to witnesses or claims of either party as constituted reversible error. The charge was a lengthy one, but the size of the record indicates that the trial was protracted and 57 requests were preferred by the two defendants. The trial court could not be expected to ignore these requests but was in duty bound to give, either in language or substance, such of them as the defendants were entitled to.

Nor are we prepared to say that the verdict was so greatly against the weight of the evidence as to justify us in disturbing the order of the trial court overruling defendants’ motion for a new trial. There was a conflict and a sharp one in the testimony as to the circumstances leading up to the accident; beyond this there was little dispute. Upon this crucial question the testimony of plaintiff and Kenfield was opposed by the testimony of the attendant in charge, the testimony as to statements of Kenfield immediately following the accident, and circumstances appearing in the evidence. The jury believed plaintiff and the witness Kenfield and the trial court refused to disturb their verdict. We are not persuaded that the trial court was in error in so doing.

The jury awarded plaintiff $6,000, and it is claimed this is excessive. The plaintiff, in addition to running his store at Shelby, was engaged in selling sewing machines, devoting about half his time to that business and making about twenty to twenty-five, dollars per week out of that branch of his business. He has since been unable to continue that work due to his inability to do heavy lifting. The testimony tends to show that he is permanently disabled. Before the accident he was able to run his store with the help of his family. Now he is obliged to hire outside help. In the accident there were at least three fractures, the evidence is not definite but that there was a fourth. The pubic bone was broken, there was a fracture at the elbow, his bladder was severely ruptured, necessitating a serious operation. For weeks he suffered intense pain. Before the accident his hearing had been impaired in one ear, and in the accident he lost the entire use of his other ear. He paid $250 doctor’s bills and $200 to a nurse who had the constant care of him for several weeks. There cari be' no question upon this record as to the seriousness of his injury. The amount awarded is not excessive. The jury had the opportunity of observing him, and the record, we think, sustains' their verdict.

We have examined all the errors assigned and find no reversible error. The judgment should be affirmed.

Moore, J., concurred with Fellows, J.

Brooke, J.

I am unable to agree with the conclusion of my Brother Fellows as to the liability of defendant Watkins. It is unquestioned that when defendant Watkins, the owner of the building, turned the same over to the defendant Kalamazoo Auto Sales Co., he had complied with his statutory duty with reference to furnishing an automatic gate for the elevator. It is likewise undisputed that the expert, Mc-Nally, was employed by the defendant sales company to repair said gate from time to time and that upon the occasion in question he was called for that purpose by the defendant sales company. He then recommended that the posts upon either side of the elevator entrance supporting the slots in which the gate moved be placed nine inches further apart, thus making the opening the full width of the elevator entrance. Having reported this matter to his employer, the defendant sales company, they declined to stand the extra expense of putting new posts in. He testified:

“Mr. Parker and Mr. Flansburg had not declined to pay me for any repairs I made on that gate at that time and I did not tell Mr. Watkins they had that I know of. They had refused to fix the gate as I wanted it fixed. They refused to put in the new. parts but they had not refused to repair the gate. They refused to furnish those posts. I wanted it fixed in that way rather than the old way because to my notion it was a better idea. That would not prevent that being torn out, it may prevent part of it but they can still tear that out. It would lessen the number of times probably that those posts would be taken out by careless driving into the elevator.”

McNally thereupon took the matter up with defendant Watkins. Watkins agreed that he should make the repairs as suggested and that he, Watkins, would pay the extra expense. The - repairs were made as suggested and that part for which defendant Watkins had agreed to pay had been fully completed before the accident occurred. McNally testified:

“The gate I had made was hung and all completed. I remember it now. I saw plaintiff’s car before it went into the pit. I was coming in the door when I saw it. I had a package of screws and a weight and a subweight rope. The rope was to equalize the gate so there is not so much strain on the cams and post. It would work properly before that was on but there is a good deal more strain on your cams.”

Based upon the agreement of the defendant Watkins to pay for the furnishing of the new posts and setting them nine inches farther apart, my Brother asserts that he reassumed control of the elevator and thereby reassumed the duty cast upon him by the statute. This conclusion seems to me to be wholly unwarranted under the facts, but even assuming its correctness, that part of the work for which defendant Watkins had become liable had been fully performed before the accident occurred. McNally’s evidence was to the effect that when he left the building to get the screws, weight, and rope the gate was operating automatically though faster than it should. He said:

“After the accident I changed the speed of the bow. That affected the operation of the gate but did not in any way affect its safety.” ■

Assuming, however, that at the moment of the accident the gate was not properly operating that fact cannot be used to fix liability upon defendant Watkins, the owner (Brady v. Klein, 133 Mich. 422), because the sales company through their employee, Tucker, either knew or should have known of the defect.

I am likewise of opinion that, as between defendant Watkins and the repairman, McNally, McNally was an independent contractor. It is quite clear that Watkins neither exercised, nor retained the right to exercise, any control over McNally in his method of producing the result agreed upon.

The judgment as to defendant Watkins should be reversed, and affirmed as to defendant Kalamazoo Auto Sales Co.

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