text:
    RICHARD v. BOYD.
    Jurisdiction — Real Property — Foreclosure op Lien — Local Actions.
    Where defendant’s interest in certain lands in New York, owned by several persons in common, was evidenced by a receipt for moneys paid by him on the purchase price, which receipt he assigned to complainant as security, a suit to enforce the security is, in effect, an attempt to foreclose a lien on the lands, which, under the laws of New York and Michigan, is local in its nature, and can only be maintained where the lands are situated.
    Appeal from Jackson; Peck, J.
    Submitted April 5, 1900.
    Decided June 5, 1900.
    Bill by William A. Richard against James A. Boyd to foreclose a lien. From an order overruling a demurrer to the bill, defendant appeals.
    Reversed.

      Parkinson & Campbell, for complainant.

      Fred B. Wood and Thomas E. Barkworth, for defendant.
   Long, J.

This is an appeal from an order of the court below overruling a demurrer. It appears by the bill that complainant’s father entered into an agreement with defendant for the purchase of a tract of land in Lewis county, State of New York, towards which purchase defendant furnished $5,000 in money; receiving as the evidence of the transaction a receipt from the father of complainant, as follows:

“Received of James A. Boyd five thousand dollars ($5,000) in full for the purchase of 1,000 acres of timber land located in Lewis county, State of New York. If I fail to get the land, the money to be returned to the said James A. Boyd. ■

“Jackson, Mich., June 9th, 1890.

“Hugh Richard.”

The purchase of land as contemplated was made by Mr. Richard in connection with complainant and another person; Mr. Richard, Sr., taking a one-fourth interest in the 20,000 acres of land in said Lewis county. After the purchase, defendant was informed thereof, and a mutual understanding existed between the parties that he owned or was entitled to an undivided one-twentieth interest in these lands. Mr. Richard, Sr'., died August 3, 1893, and his interest was devised to complainant and his two sisters. No change has been made with respect to the interest of defendant, and his claim to an undivided one-twentieth interest in said lands is distinctively affirmed by the bill, and the conveyance thereof in accordance with the understanding is tendered by the bill. October 14, 1896, complainant loaned defendant $500, taking an ordinary promissory note therefor, payable in six months, with interest. October 17th defendant obtained the signature of complainant as accommodation maker upon a note of $2,000, payable six months after date, with interest at 7 per cent., which note was subsequently purchased by complainant, and is still held by him, unpaid. The amount due thereon, together with the amount due upon the first promissory note before mentioned, was, at the date of filing the bill, $2,926.11. October 18th the receipt given by Hugh Richard, before set forth, was delivered to complainant, being indorsed by defendant as follows:

“For value received, I, James A. Boyd, of Tecumseh, Michigan, hereby sell, assign, set over, grant, and convey unto Wm. A. Richard, of Jackson, Michigan, all my right, title, and interest in and to the within receipt of Hugh Richard to me for five thousand dollars, together with all benefit and advantage to be derived therefrom in my favor.

“In witness whereof, I hereunto set my hand and seal this 18th day of October, 1896.

“James A. Boyd. [L. S.]”

As a part of the same transaction, the following paper was given by complainant to defendant:

“I, Wm. A. Richard, of Jackson, Michigan, hereby acknowledge that I have received from J. A. Boyd, of Tecumseh, Michigan, this day, an assignment from him to me of his right, title, and interest in and to the receipt of which the following is a copy:

“‘Received of J. A. Boyd five thousand dollars in full for the purchase of 1,000 acres of timber land located in Lewis county, N. Y. If I fail to get the land, the money to be returned to J. A. Boyd.

“ ‘Jackson, Michigan, June 9, 1890.

“ ‘Hugh*Riohard.’

—“And that said assignment, although absolute and unconditional in form, is in truth and in fact delivered by him and received by me as a security for the purposes following:

“First. To secure the repayment by him to me of his note to me for $500 and interest on the terms stated in said note.

Second. To secure the payment at the maturity thereof of one note for $2,000 made by said J. A. Boyd and myself to the Tecumseh State Savings Bank, of Tecumseh, which note is the proper debt of said J. A. Boyd, of Tecumseh, Michigan, — the said Wm. A. Richard signing such note as security in fact, — and that, upon payment of said two notes in full by said J. A. Boyd as aforesaid, I hereby covenant, promise, and agree to and with said J. A. Boyd to assign said receipt, promptly and without delay, to said J. A. Boyd.

“Witness my hand and seal this 18th day of October, 1896.

“Wm. A. Richard.”

The bill further avers that it was the understanding of the parties that the defendant should pay and discharge one-twentieth of all the taxes assessed upon the aforesaid real estate described in said bill, but that defendant has defaulted in this agreement, and complainant has been compelled to advance certain sums for such purposes, which he asks to have added to his lien upon said receipt and agreement; and he therefore asks, because of the nonpayment of the amounts mentioned, for foreclosure of such lien.

Defendant demurred to the bill of complainant upon the ground that want of jurisdiction was apparent upon the hill, that its real purpose was for the foreclosure of an equitable mortgage upon land situated wholly outside the State of Michigan, and that jurisdiction thereof was in the courts of New York. The court overruled the demurrer, from which appeal is taken.

It is the claim of counsel for defendant that this bill is filed for the foreclosure of a lien or an equitable mortgage on an interest in lands lying outside the State; that it is a proceeding in rem, and local, and that this court cannot grant relief without determining the amount of complainant’s lien upon the land, and ordering a sale of the land for its satisfaction; that the laws of New York, as well as Michigan, make the action local, and forbid its trial save in the county where the land lies. On the other hand, it is the contention of counsel for complainant that all the parties live in Michigan; that personal service was had upon the defendant in this State, and, all the parties being within the jurisdiction of the court, their rights can be directly acted upon; that no lands are specifically described in the receipt, and no lands would he directly affected by a sale of the paper; that complainant’s security is a lien upon this receipt or contract, which is the only subject of sale or transfer sought; and that the court is not required to deal directly with land, or with any interest in land, but with the right and title of defendant in and to this receipt or contract. ■

The prayer of the bill is that—

“The interest of the said defendant to said lands, and all his rights and interests by virtue of said receipt and agreement and the subsequent understandings of the parties, and their dealings in reference thereto, and their action in reliance thereon, including the payment of taxes with reference to such proportions, be adjudicated and decreed to be the right to have conveyance of an undivided one-twentieth part and parcel of the sum total of the said described tracts of land. ”

It is also prayed that, in default of the payment of the sums due the complainant, that the —

“Defendant, and all persons claiming or to claim from or under him, may be foreclosed and barred of and from all equity of redemption or claim of, in, or to said agreement and contract made and delivered to him by the said Hugh Richard.”

It is then prayed that the receipt or contract be sold, and the proceeds applied to the payment of complainant’s claim; that the decree may be in such form as shall be necessary to enable him to enforce his security for such indebtedness; and that he may become the purchaser of the agreement, and be fully subrogated to and vested with all the rights of defendant.

It is clear that the relief asked by the bill is the foreclosure of a lien or an equitable mortgage on an interest in lands lying outside the State. It sets up the ownership by the defendant of an equitable estate in common in these lands, the transfer thereof by defendant to complainant as security for moneys advanced, and asks that defendant be foreclosed by the decree in this cause from his interest .therein. This proceeding is one in rem, and local. This court cannot grant relief without determining the amount of complainant’s lien upon the land, and ordering a sale of it for the satisfaction of the lien. This, under the laws of New York as well as of this State, makes the action local, and forbids its trial except in the county where the lands lie. The Code of Civil Procedure of the State of New York, by section 982, provides that “an action must be tried in the county in which the subject of the action, or some part thereof, is situated.” Our statute provides, “Actions for the recovery of any real estate, or for the recovery of the possession of real estate, * * * shall be tried in the county where the subject of the action shall be situated.” 3 Comp. Laws 1897, § 10216, subd. 1. Under a similar statute to that of New York, the supreme court of Indiana determined that a suit for the specific performance of a land contract must’ be commenced in the county where the land was situated. Parker v. McAllister, 14 Ind. 12. In New York the court, in Roche v. Marvin, 92 N. Y. 398, defined the distinction between the relief under a contract which was transitory and the relief which under this statute was local in character, and held that those were local actions which were brought to enforce a lien against real estate. The same rule is laid down in Chapin v. Montcalm Circuit Judge, 104 Mich. 232 (62 N. W. 351).

The claim made by counsel for complainant cannot prevail. The claim made by the bill contradicts the theory of counsel. The case made by the bill is an attempted foreclosure of this lien, and it will not do for counsel to say now that the court is not required to deal directly with the land, or any interest in the land. If the theory of the bill is correct, the complainant has already a lien upon the land, and the attempt is to foreclose it. It is not like a case where the complainant seeks to compel the defendant to turn over to him a security, so he may foreclose it, or to reform a deed. Here the complainant is in possession of the security, and he is seeking to foreclose it. He must be remitted to the county where the land lies. He cannot enforce it in the courts of this State.

The court should have sustained the demurrer to complainant’s bill. . The decree must be reversed, and a decree entered here dismissing complainant’s bill, with costs of both courts.

The other Justices concurred.


source: Caselaw Access Project

author: Moore, J. Hooker, J.

license: Public Domain

text:
    IVES v. EDISON.

    Equity — Protection oe Easement — Injunction—Appeal.
    Where defendant in a suit to enjoin him from changing the location of- a certain stairway in which complainant has an easement created by deed, pending complainant’s appeal from a decree dismissing the bill, proceeds to tear out the stairway and substitute one in another place, the fact that the restoration of the easement as it previously existed will involve defendant in expenditure and inconvenience disproportionate to the injury, if any, occasioned by the change, will not induce the court to deny the equitable remedy and leave complainant to his action at law. Hooker and Long, JJ., dissenting.
    Appeal from Kent; Adsit, J.
    Submitted April 10, 1900.
    Decided June 5, 1900.
    Bill by Marietta Ives against George M. Edison and Abraham May to enjoin the removal of a-certain stairway. From a decree dismissing the bill, complainant appeals.
    Reversed.

      Charles E. Ward, for complainant.

      Knappen & Kleinhans, for defendants.

       Rehearing denied June 26, 1900.

   Moore, J.

Prior to May, 1886, there was a four-story brick block, known as the “ McReynolds Block,” at the corner of Lyon and Canal streets, in- the city of Grand Rapids. The block had a frontage of about 80 feet on Canal street and 90 feet on Lyon street. The north half of the block is now owned by the Richmond estate. The south half was then owned by Edison and Tolford. In the center of the block, leading from Canal street, there was a stairway about 5£ feet wide, reaching to the second story of the block. This stairway was one-half on the south half, and one-half on the north half, of the block. The only access to the upper three stories of the block from Canal street was up this stairway. On the second story of the block was a rotunda reaching across the entire width of the two center stores. Immediately in front of the stairway from Canal street, but at the farther side of the rotunda, was a stairway leading to the third story of the building. A gallery running all around the rotunda enabled one to reach the rooms surrounding the rotunda in the third story. A flight of stairs on each side of the second stairway reached from the third to the fourth floor of the building, where there was a similar gallery to the one in the story below. The rotunda was lighted from the roof. In May, 1886, Calvin L. Ives bought the south store in this block, subject to a mortgage of $6,000, for the sum of $16,000, and a deed was executed and delivered to him on the 10th day of that month. The deed, in addition to conveying the south 19 feet and 9 inches of the block, contained the following provisions:

“Granting and conveying, also, for the consideration aforesaid, unto the party of the second part, his heirs, executors, administrators, and assigns, the further right and privilege, in case said block shall ever be destroyed by fire, of building, on the premises immediately north of the premises hereby conveyed, a stairway, both in front and rear, suitable for the building or buildings to be erected or rebuilt on the premises hereby conveyed and next immediately north .thereof, the center line of which said front and rear stairway (or cases) shall be exactly over and upon the north line of the premises hereby conveyed, which front and rear stairways shall be built and perpetually maintained at the mutual and proportional expense of the party of the second part hereto and George M. Edison, his heirs, executors, administrators, and assigns; hereby conveying an easement to the said party of the second part hereto in the premises north of the premises hereby conveyed, for the purpose above stated, and reserving to the said George M. Edison, his heirs, executors, administrators, and assigns, a like easement and privilege in the premises- hereby conveyed, upon á like contingency. ' Also, hereby quitclaiming to the party of the second part hereto, for all laudable and legitimate purposes, the free, perpetual, and uninterrupted use, for himself, family, friends, customers, and lessees, of the stairs and stairways now leading into the block of buildings known as the ‘McReynolds Block,’ in the said city of Grand Rapids, both front and rear, and all other stairs and stairways accessible from what is called the ‘rotunda’ in said building or block, with a like perpetual use for a passageway and for light of said so-called ‘rotunda’ aforesaid, and the passageways thereto and therefrom, except such passageways as lead to the private apartments in said building or block as belong to the parties owning the premises north of the premises conveyed in this deed. Also, hereby conveying the privilege and 'right to'hang, place, and suspend signs, pictures, etc., at the foot of said two flights of stairs hereinbefore mentioned, — said right to hang and place pictures, signs, etc., to be used in such a manner as not to interfere with or obstruct the travel up and down said stairs,— with a like right and privilege to suspend signs and pictures in the south half of said rotunda aforesaid in said building or block. Reserving to George M. Edison, his heirs, executors, administrators, and assigns, the right of use in common of the front entrance to the basement of said block, so that he, his lessees, his heirs, executors, and administrators, shall and may have a right of access to pass to and from the basement of the store next north of the premises hereby conveyed, and known as ‘No. 20 Canal Street.’”

After this deed was delivered, Mr. Ives took possession of the property; renting the first story as a store, and the upper rooms for offices and for other purposes. When this bill was filed, August 30, 1899, the oneTourth of the block next north of Mr. Ives was owned by the defendant Edison. The defendant May was a tenant of the Richmond estate, and occupied the north half of the first story as a double store. He also rented the store owned by Mr. Edison. He desired to take out the partition wall between this store and the double store then occupied by him, making one large room of the three stores, and to take out the center stairway, so that he would have but one entrance and a continuous front. He got the consent of Mr. Edison to remove the stairway from the center of the block, Mr. May proposing to put one somewhat narrower just adjoining the party wall between Mr. Ives and Mr. Edison; the whole of it to be upon the property owned by Mr. Edison. He sought the consent of Mr. Ives, but the latter refused to give it. Mr. Ives learned that Mr. May proposed to remove the stairway after he had refused his consent to its removal, and filed this bill on the 30th of August, 1899, to prevent his tearing out the center stairway. After it was filed, Mr. Ives died, and Mrs. Ives is now his representative in the proceeding. December 30, 1899, after a hearing, the bill was dismissed, with costs against complainant. An appeal was promptly taken by complainant.

After the decree was entered in the court below, the defendant treated the case as though it was finally adjudicated in his favor, and, as appears from affidavits filed with the briefs, has torn out the center stairway entirely, and has put in the stairway as already indicated. The proof taken before the circuit judge was contradictory as to whether the proposed change would seriously injure the complainant or not. It is urged here that, while defendant may not have had the legal right to do what he has done, the change is a beneficial one to the complainant, and, in any event, has not done her such an irreparable injury as to entitle her to the aid of a court of chancery, and her relief, if any, is in a court at law; citing Woods v. Early, 95 Va. 307 (28 S. E. 374); Johnston v. Hyde, 32 N. J. Eq. 453; McBryde v. Sayre, 86 Ala. 458 (5 South. 791, 3 L. R. A. 861); Trustees of Columbia College v. Thacher, 87 N. Y. 311 (41 Am. Rep. 365); Starkie v. Richmond, 155 Mass. 188 (29 N. E. 770).

We do not place the same interpretation as do the solicitors for the defendants upon the case of Woods v. Early, 95 Va. 307 (28 S. E. 374). In that case an injunction was granted by the court. In the opinion the following language was used:

“Mr. Justice Story says: ‘Where easements or servitudes are annexed by grant or covenant, or otherwise, to private estates, * * * the due enjoyment of them Will be protected against encroachments, by injunction.’ 2 Story, Eq. Jur. § 927.

“It was said by Judge Burks in Sanderlin v. Baxter, 76 Va. 305: ‘Damages in repeated suits would not compensate in such a case. The injury is irreparable, and calls for a preventive remedy, such as a court of equity only can furnish. That court constantly interposes by injunction where the injury is of that character. By the term “irreparable injury ” it is not meant that there must be no physical possibility of repairing the injury. All that is meant is that the injury would be a grievous one, or at least a material one, and not adequately reparable in damages.’ See, also, Kerr, Inj. 199; Manchester Cotton Mills v. Town of Manchester, 25 Grat. 825, 828; Switzer v. McCulloch, 76 Va. 777; Anderson v. Harvey's Heirs, 10 Grat. 386, 398; Rakes v. Manufacturing Co., (Va.) 22 S. E. 498, 499.”

In Johnston v. Hyde, 32 N. J. Eq. 446, cited by the counsel, the court granted an injunction, and stated:

“Mr. Johnston declares himself willing to put down through his grounds a culvert of such dimensions as the court shall direct. But without the consent of Mr. Hyde, and in the absence of any estoppel by acquiescence, the court cannot compel him to accept the substitution of a covered aqueduct for an open raceway.”

In the notes to this case is a collection of authorities holding that the easement cannot be changed without the consent of both the parties interested, even though the ■change would be beneficial, and in nearly all of the cases relief by injunction was granted. Merritt v. Parker, 1 N. J. Law, 460; Tillotson v. Smith, 32 N. H. 90 (64 Am. Dec. 355); Hulme v. Shreve, 4 N. J. Eq. 116; Dewey v. Bellows, 9 N. H. 282; Dickenson v. Canal Co., 15 Beav. 260.

In McBryde v. Sayre, 86 Ala. 458 (5 South. 791, 3 L. R. A. 861), it was made to appear that complainants had changed the use of the easement very materially from what it was when granted, and that the change was harmful to the servient estate. The court, under the circum. stances, declined to grant the writ of injunction, and left the parties to their remedy at law.

In the case of Starkie v. Richmond, 155 Mass. 188 (29 N. E. 770), the complainant did not move, after learning of the proposed trespass upon the passageway, until it was consummated by the erection of an expensive building. The court, under such circumstances, declined to interfere, but intimated pretty clearly that, if complainant had applied seasonably, the court would have compelled the moving of the building.

Counsel say the proposition is universally recognized that an injunction will be issued, in the discretion of the court, only when there is threatened an irreparable injury, or a continuing trespass or injury which cannot be compensated by damages in a suit at law, “and, in the exercise of this discretion, the court will examine into all the circumstances of the case, and if it is apparent that the relief sought is disproportionate to the nature and extent of the injury sustained, or likely to be,” or “if the injunction will cost the defendant many times more loss than the complainant will suffer, the court will not interfere; ” citing Hall v. Rood, 40 Mich. 46 (29 Am. Rep. 528); Pottery. Street Railway, 83 Mich. 297 (47 N. W. 217, 10 L. R. A. 176); Bentley v. Root, 19 R. I. 205 (32 Atl. 918); Wood v. Sutcliffe, 2 Sim. (N. S.) 163; Chapin v. Brown, 15 R. I. 579 (10 Atl. 639); Varney v. Pope, 60 Me. 192; Welton v. Martin, 7 Mo. 307; McElroy v. Goble, 6 Ohio St. 187; 2 Beach, Mod. Eq. Jur. § 713; and other cases.

An examination of these cases will show that each of them differs in some essential particular from the case at bar. In some of them the easement was not a private one created by deed. In others the injured party, after knowledge of the proposed trespass, remained inactive, and allowed a large expenditure of money to be made before invoking the aid of the court. In each of them it was made to appear that it would be inequitable for the equity court to interfere. But what are the facts in this case? Mr. Ives bought a valuable piece of property, and, as a' part of the purchase, he obtained an easement that he and his grantor regarded as essential for him to possess. In the same deed which conveyed to him the title in fee to the store, there was granted to him the easement. The deed was promptly recorded, thus giving notice to the world of what his rights were. He entered upon the use of the easement, and continued to use it for nearly 13 years. The defendant Edison joined in the deed to Mr. Ives, and received part of the consideration paid therefor. The defendant May knew what the rights of Mr. Ives were. He sought to obtain his consent to a relinquishment of his easement. Failing to obtain this, with the consent of Mr. Edison he determined to take away the easement of Mr. Ives, and substitute another in the place of it. Learning of his disposition to do this, the complainant invoked the aid of the court. While the case was awaiting a final determination, the defendant saw fit to ignore the rights of the complainant, and to ignore the legal proceedings, and proceeded to remove the stairway, and to substitute another in the place of it. To accomplish this wrong has cost the defendant a large sum of money; to restore the easement thus arbitrarily taken will cost another large sum of money; the aggregate of which sums is so large that it is now said it will be entirely disproportionate to the injury done the complainant, and for that reason the court should not grant relief. If such a contention • is to prevail, then indeed is the chancery-court shorn of its power to protect persons in their right of property. If this doctrine is to be sanctioned, the person engaged in large enterprises may seize, upon rights of less magnitude than his own, and, if an appeal is made to the law for protection, he may ignore the right of the injured and the pendency of the legal proceeding, and if he will put money enough into the new enterprise, before a final decree is entered, so that it will cost him much more to restore the right he has wrongfully taken than a jury may regard the right as worth, he may prevent the entering of any decree whatever against himself, and may mulct the person who has appealed to the courts to protect his rights, in costs. This does not appeal to our sense of justice.

The easement possessed by the complainant was created by deed. It imposed a servitude upon Mr. Edison’s land for the benefit of the estate of complainant, which, under the statute of frauds, could not be assigned, granted, or surrendered, unless by a writing or by operation of law. Washb. Easem. (4th Ed.) p. 300. It was taken for granted by defendant May that he could not move this stairway without the permission of Mr. Edison, who was the owner in fee of one-half of it; but the title in fee was no more sacred than the easement held by the complainant, created by a deed for which payment had been made. It is difficult to avoid the conclusion that if the easement to which complainant is entitled can be taken without her consent simply because defendant May will be benefited more than she will be damaged, for a like reason the title owned by Mr. Edison may be ignored. It is doubtless true that the parties ought to have been able to arrive at an amicable agreement; but, in the absence of such an agreement, the defendant had no more right to remove this stairway than he would have had to trespass upon any other portion of complainant’s estate in such a way as to deprive her of its use, and then say to her that he had provided for her another estate just as valuable, and with which she should be satisfied. I know of no law which will justify such an invasion of the rights of property belonging to one person, to serve the convenience or necessities of another. It is the duty of the courts to protect persons in their right of property, even though the holdings may be small, instead of justifying a trespass, or compelling the owner of the property to accept something else in the place of it. Gregory v. Nelson, 41 Cal. 278; Ritchey v. Welsh, 149 Ind. 214 (48 N. E. 1031, 40 L. R. A. 105). In this case a definite agreement was made between the complainant and her grantors for the use of this easement in the place it was then located. It is for her to say whether the agreement shall be preserved in its .integrity, and, before it can be changed, her consent must be obtained. Dickenson v. Canal Co., 15 Beav. 271; Hills v. Miller, 3 Paige, 254 (24 Am. Dec. 218).

In the case of Stock v. Township of Jefferson, 114 Mich. 357 (72 N. W. 132, 38 L. R. A. 355), the same argument was used that is urged by the solicitors for the defendants in this case. The court said:

“ It is the claim of the defendants that the loss to the complainant caused by the diversion of the water is trivial, while the damage the defendants would sustain if a permanent injunction is granted would be very great, and that therefore the injunction ought not to be allowed; citing Potter v. Street Railway, 83 Mich. 298 (47 N. W. 217, 10 L. R. A. 176), and cases there cited; Torrey v. Railroad Co., 18 N. J. Eq. 293; 10 Am. & Eng. Enc. Law, 799, and note; City of Logansport v. Uhl, 99 Ind. 539 (50 Am. Rep. 112). None of these authorities establish the doctrine that, where one trespassed against acts promptly after notice of the trespass, equity will not interfere, where the trespass is of a continuing nature and is irreparable in its character. An examination of these cases will show either that it was doubtful if any damage would be done, or the complainant had not acted promptly in appealing to equity. It does not appeal to one’s sense of justice to say that the exercise of a right possessed is not of as much benefit to the possessor as the taking of that right from the owner would be to the trespasser, and therefore the trespasser should be allowed to continue his trespass. * * * The defendants knew the complainant was opposed to what they did. He forbade their acts, and, when they continued them, he caused a copy of a decree made more than 40 years ago in favor of his grantors to be served upon them, and, when they paid no attention to all this, without unreasonable delay he appealed to the court. If they have expended considerable sums of money in committing this trespass, it is their own fault, and they must lose it. It is urged very earnestly by counsel that Mr. Stock’s right to maintain his dam, and to use the water that would naturally come to his mill, must give way to the right of the public to improve the highways, to drain lands, and to generally improve the country. It is sufficient reply to this argument to say that it has long been the fundamental law of the land that a man is not to be deprived of his property without due process of law and without compensation.”

Hall v. City of Ionia, 38 Mich. 493; Koopman v. Blodgett, 70 Mich. 610 (38 N. W. 649, 14 Am. St. Rep. 527); Haslett v. Shepherd, 85 Mich. 165 (48 N. W. 533); Lathrop v. Eisner, 93 Mich. 599 (53 N. W. 791); Walz v. Walz, 101 Mich. 167 (59 N. W. 431); Kent Furniture Manfg. Co. v. Long, 111 Mich. 383 (69 N. W. 657); Hall v. Nester, 122 Mich. 141 (80 N. W. 982); 1 High, Inj. § 804; Corning v. Nail Factory, 40 N. Y. 191; Jones, Easem. § 218; Gregory v. Nelson, 41 Cal. 278; Jaqui v. Johnson, 27 N. J. Eq. 526; Johnson v. Jaqui, Id. 552; Manning v. Railroad Co., 54 N. J. Eq. 46 (33 Atl. 802); Ritchey v. Welsh, 149 Ind. 214 (48 N. E. 1031, 40 L. R. A. 105); Washb. Easem. (4th Ed.) p. 300; 10 Am. & Eng. Enc. Law (2d Ed.), 429.

The circuit judge should have granted the injunction as prayed. It is doubtless true it will cost the defendant a good deal to restore to the complainant the easement as it existed when the suit was brought, but the defendant' alone is to blame for the situation. All the work done in the removal of this stairway has been done since this proceeding was begun. The defendant preferred to act without waiting for the court to determine the controversy. In doing so he acted at his peril, and is justly chargeable with the consequences. He should be required to restore the easement as it existed when this bill was filed. A decree will be entered in accordance with this opinion, with costs of both courts.

Montgomery, C. J., and Grant, J., concurred with Moore, J.

Hooker, J.

(dissenting). The complainant owns a building in Grand Rapids, to the second story of which access has heretofore been had through a stairway located in the middle of the front of an adjoining block of stores owned by the defendants. Complainant had an easement over said stairway. In remodeling their building, defendants proposed to change the location of the stairway to a point adjoining the complainant’s building, thereby obtaining one large store front, unbroken by the stairs; but the complainant refused assent, and filed the bill in this cause to enjoin such action. The cause was heard, and the bill was dismissed. Thereafter the change was made. While it was being done, the complainant appealed, and now insists that the court shall compel the defendants to restore the premises to their former condition. To do so would be to entail a great loss upon the defendants, while to deny the relief sought would result in comparatively small loss to the complainant. Undoubtedly she has a legal right to have the stairs maintained until the end of time, unless the building should be burned, in which case, under the terms of her contract, they could only be rebuilt at the place where defendants have put them. No matter how great the inconvenience to the defendants, and how little she would be injured by the change, she may insist upon her “pound of flesh.” To obtain it, however, she must go to a court of law; for it is not the province Of a court of equity to grant injunctions to enforce strict legal rights of this character, when full compensation can be given in an action at law, and where the remedy by injunction would be a much greater hardship upon the defendants than the change would be to her. A number of cases sustain the propositions that an injunction is a matter of grace, not of right; that it issues only when irreparable injury is threatened, and never when there is a plain and adequate remedy at law.

Again, a court of equity may deny such relief in any. case where the injunction will bear with especial severity upon a defendant, while the complainant will be a comparatively light sufferer if it be denied, as the rules applicable to specific performance, to which this case is analogous, show. McBryde v. Sayre, 86 Ala. 458 (5 South. 791, 3 L. R. A. 861); Trustees of Columbia College v. Thacher, 87 N. Y. 311 (41 Am. Rep. 365); Starkie v. Richmond, 155 Mass. 188 (29 N. E. 770); Clarke v. Clark, 1 Ch. App. Cas. 16; Durell v. Pritchard, Id. 251; Edwards v. Mining Co., 38 Mich. 46 (31 Am. Rep. 301); Hall v. Rood, 40 Mich. 46 (29 Am. Rep. 528); Potter v. Street Railway, 83 Mich. 297 (47 N. W. 217, 10 L. R. A. 176); 3 Pom. Eq. Jur. § 1295, note. In the light of these cases, we cannot say that all invasions of easements are remedial by injunction. It is not the character of the act or motive, but the nature of the injury, that determines the right to injunctive relief. When we find that there is a plain and adequate remedy at law, the injunction should be denied, especially if to grant it would be to impose a disproportionate burden upon the defendant.

It is said that the cases cited may be distinguished from the present case. That is true, in this, viz., that the wrong was committed with full knowledge of complainant’s rights and objections, and, though after her bill ha d been dismissed, it was commenced while the right to appeal existed. But the fact that one case is distinguishable from another is only negative authority, at best, and the danger in concluding, from the possibility of a distinction, that an opposite rule applies to all other cases, cannot be kept too steadily in view. The principles of the cases cited govern this case, unless the distinction should take it out from the class of cases to which they apply. To do that, we think that the principles already mentioned must be subverted. We do not say that the defendants had a legal right to change this stairway, but that equity is under no obligation to be lavish with its extraordinary remedies in cases where the defendant is more likely to suffer irreparable injury if the injunction is granted than the complainant will be if it is withheld.

The circuit judge, who saw the witnesses, and doubtless was familiar with the premises, found that the change in the location of the easement would be no substantial injury to the complainant, and we are of the same opinion. We should not, therefore, require defendant to restore the premises to their'former condition, but should leave the complainant to her remedy at law. The decree of the learned circuit judge should be affirmed.

Long, J., concurred with Hooker, J.


author: Montgomery, C. J.

text:
    ROBERTS v. ROBERTS.
    Jurisdiction — Local Actions — Production of Deed.
    The subject-matter of a suit to compel the production of a title deed, in order that it may be recorded at complainant’s expense, does not bring it within 1 Comp. Laws 1897, § 434, providing that suits in chancery, where the subject-matter is local, must be brought in the county where the property in dispute is situated.
    Appeal from Clinton; Stone, - J.
    Submitted April 10, 1900.
    Decided June 5, 1900.
    Bill by Lettie Roberts against George A. Roberts and Hannah Roberts, impleaded with George W. Roberts, to enforce the redélivery of a deed., From a decree dismissing the bill, complainant appeals.
    Reversed.

      Edwin H. Lyon, for complainant.

      Smedley & Corwin, for defendants.
   Montgomery, C. J.

Complainant, being a resident of Clinton county, filed her bill against the defendants, two of whom reside in Kent county, and the third of whom has departed from the State, to enforce a redelivery of a deed of conveyance to lands in Ottawa county. She alleges that the defendants George A. Roberts and Hannah Roberts, husband and wife, and the parents of George W. Roberts, her husband, were the owners of 230 acres of land in Ottawa county, and executed and delivered a deed of an undivided one-half of the premises to their said son, her husband, George W. Roberts, and that he entered into the possession of the premises, and remained in possession thereof until about December 1, 1899. • She further, shows that in 1897 she was married to said George W. Roberts, and lived with him as his wife until December 1, 1899. She further shows that about December 1, 1899, her husband fraudulently procured her signature to a deed of conveyance of a large amount of' valuable real estate in the State of Washington, and sold a large amount of his personal property, and made a pretended conveyance of the remainder thereof to his father and brother, obtaining upwards of $4,000 in cash or its equivalent, and shortly afterwards departed from the State, leaving and intending to leave her without any means of support, and deserting her, without cause. She further shows that, because of such desertion, she filed her petition in the Clinton circuit court, in chancery, to obtain alimony and support under the statute. She further alleges that, after the departure of her husband, she discovered that the deed conveying the undivided one-half of the 230 acres above mentioned as situated in Ottawa county was not recorded, but found its way back into the possession of George A. Roberts; that she requested that the deed be placed on record, and offered to pay the expense thereof, and also asked Roberts and his wife to execute a new deed to be placed upon record, so that her dower interest therein may appear of record and be protected, and also so that she may enforce her rights under the statute to maintenance and support out of her husband’s real estate,' all of which reasonable requests defendants George A. Roberts and wife refused. She prays for a decree declaring the existence of the deed from George A. Roberts and wife to her husband; directing the defendants to place it upon record at her expense; that, in default thereof, a decree of the court, when made, shall operate the same as the record of the original deed, — and also adds a prayer for general relief. The defendants George A. Roberts and Hannah Roberts appear and'file their plea, and the defendant George W. Roberts does not appear. The plea sets up, in substance, that because the pleading defendants reside in Kent county, and the land is in Ottawa county, the Clinton circuit court, in chancery, has no jurisdiction of the subject-matter of the suit. Upon argument the plea was allowed, and complainant’s bill dismissed, with costs. From this decree she appeals to this court.

Section 434, 1 Comp. Laws 1897, provides that every suit in chancery shall be commenced in the circuit court for the county in which the property in dispute is situated, if the subject-matter. is local. Is the subject-matter of this suit local ? It is evident that no direct interest in this land can be established in this proceeding. What is sought is that the court compel the production of a paper (a title deed) in which complainant has an interest. It is not averred that the defendants George A. and Hannah Roberts have any legal title or equitable title in the property, or that any conveyance from them is necessary. The complainant is content with the title as it exists. The cause of action is no more local than would be replevin for title deeds. The proceeding is, in either case, to enforce personal liability. See Davis v. Parker, 14 Allen, 94; Johnson v. Gibson, 116 Ill. 294, 302 (6 N. E. 205, 209); Mitchell v. Bunch, 2 Paige, 606 (22 Am. Dec. 669); Brown v. Desmond, 100 Mass. 267. The case is unlike tbe cases cited by defendants’ counsel. In each of the cases cited, the title was directly involved, and the attempt was to reach the interest of defendant. It is also unlike Richard v. Boyd, ante, 396 (83 N. W. 106), as in that case the purpose of the proceeding was to foreclose a lien on land situated in another State.

The decree dismissing the bill is reversed, and the plea overruled, with costs of this court and of the hearing below to complainant. The case will be remanded for further proceedings.

The other Justices concurred.

       Viz.: Godfrey v. White, 43 Mich. 171 (5 N. W. 243); Krolik v. Bulkley, 58 Mich. 407 (29 N. W. 205); Rankin v. Rothschild, 78 Mich. 10 (43 N. W. 1077); Chapin v. Montcalm Circuit Judge, 104 Mich. 232 (62 N. W. 351).


text:
    HANNAN v. PRENTIS.
    1. Real-Estate Agents — Contract op Employment — Statute op Frauds.
    A contract of employment of a broker to sell real estate is not .within the statute of frauds.
    2. Same — Commissions—When Earned.
    A broker employed to effect an exchange of property earns his commission when he procures a customer ready to make an exchange on terms satisfactory to the employer.
    3. Same — Double Commissions.
    A broker employed to effect an exchange of property on the best terms he can secure forfeits his right to commissions if, without his employer’s knowledge, he accepts commissions from the other party.
    4. Same — Burden op Proop.
    The burden is on the broker to show that his employer knew of the double commissions.

      Error to Wayne; Frazer, J.
    Submitted April 11, 1900.
    Decided June 5, 1900.

      Assumpsit by William W. Hannan against John F. Prentis to recover a commission for procuring a purchaser of real estate. From a judgment 'for plaintiff, defendant brings error.
    Reversed.

      Walter Boss, for appellant.

      Alfred J. Murphy, for appellee.
   Montgomery, C. J.

This is an action to recover a commission for procuring a purchaser of a vacant lot in the city of Detroit. The plaintiff acted through employés of his office. Walter C. Wooley, a real-estate broker employed in plaintiff’s office, testified'that defendant’s brother, Browse T. Prentis, listed the property with him for sale at the price of $6,000, or for trade for improved property. He testified: “We had no further talk with reference to this property, except that I would try and secure' a customer for him.” Eugene Reynolds, another broker in plaintiff’s employ, testified:

“I saw that this property — the property on Lafayette avenue — was listed on our- book for exchange for improved store property. We had the houses of Mr. A. C. Peoples, on Lincoln avenue, just about completed at the time. We had it for sale or exchange, and I went in to see Mr. B. T. Prentis about it, and told him about it. After some appointments with him, he came out with me one evening, and I showed him through the Peoples property. He said he would make a proposition on it. I went to see him then, I think, the next day; and he said he would have to have his brother, John F. Prentis, go and see it, as his brother was interested. That was the first I knew that John F. Prentis was interested in it at all. Hp to that time I had not seen John F. Prentis. After I knew he was interested in it, of course, I called on John F., and had him go and see the property. He told me to see his brother, B. T. Prentis, and John F. told me B. T. would make me a proposition, and that anything B. T. did was satisfactory to him. I then called on B. T. Prentis, and worked on him until I got his written proposition on the exchange of his property for the Lincoln-avenue property.”

Browse T. Prentis testified that he had no knowledge that Reynolds was to get a commission from Peoples, and never knew that he was acting for Peoples. The testimony offered by the plaintiff tended to show that the trade fell through by reason of a defect in the title of defendant to the vacant lot. The defendant’s testimony tended to show that Browse T. Prentis had no authority from his brother to make the agreement either with plaintiff or Peoples. The jury found these issues for the plaintiff.

The defendant raises a number of questions which are based on the statute of frauds, hut as a contract of employment need not be in writing, and as the commission is earned when a customer is procured ready to purchase at the price agreed, or to make an exchange on terms satisfactory to the employer, it is not conceived that the statute of frauds is an obstacle. There is, however, an impediment to plaintiff’s recovery, arising out of his dual employment. The circuit judge appears to have been of the opinion that the employment of plaintiff was to bring the two parties together, and that therefore the fact that plaintiff was to receive a commission from Peoples furnished no obstacle to recovery. We do not so read the record. By the terms of the employment, the duty - of plaintiff appears to have been to secure the best trade for the defendant that he could. In case of an exchange, the value of the property received was necessarily uncertain, and clearly Mr. Prentis would not be expected to be “worked on” by one having an adverse interest. If the employment had been simply to find a customer at a stated price, the fact that the plaintiff expected a commission from the customer would not have barred recovery. Montross v. Eddy, 94 Mich. 100 (53 N. W. 916, 34 Am. St. Rep. 323). But the exchange of property involves, of necessity, negotiation. The price of property to be received in exchange was not fixed, and the duty to find a customer to make exchange involves an obligation to find the best customer obtainable. Under such an employment, the employer has a right to assume that the agent is acting solely in his interest, until apprised to the contrary; and the onus probcmch rests with the agent to show that he was so apprised. Scribner v. Collar, 40 Mich. 375 (29 Am. Rep. 541); Humphrey v. Transportation Co., 107 Mich. 163 (65 N. W. 13); McDonald v. Maltz, 94 Mich. 172 (53 N. W. 1058, 34 Am. St. Rep. 331). See, also, Friar v. Smith, 120 Mich. 411 (79 N. W. 633).

The j udgment will be reversed, and a new trial ordered.

The other Justices concurred.


author: Grant, J.

text:
    STOODY v. DETROIT, GRAND RAPIDS & WESTERN RAILWAY CO.
    Carriers — Injury to Passengers- — Negligence —Burden of Proof — Question for Jury.

       1. When a passenger, riding by invitation in the caboose of a mixed train, is injured by the falling of a bed frame fastened above him when the freight cars are backed against the caboose, the onus is upon the railroad company to show that the bed frame was properly secured.
    2. It is a fair inference that such a bed frame is a part of the equipment of the car, and the onus is upon the company to show that it was not responsible for its existence.
    3. Two grounds of negligence are alleged: (1) In backing the freight cars with unnecessary force; (2) in insecurely fastening the bed frame. Held, that plaintiff is entitled to go to the jury upon the first ground of negligence, without showing that the frame was insecurely fastened.

      Error to Gratiot; Daboll, J.
    Submitted April 11, 1900.
    Decided June 5, 1900.
    Case by Jacob W. Stoody against the Detroit, Grand Rapids & Western Railway Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.
    Plaintiff took passage at St. Louis, Mich., on one of the defendant’s trains, consisting of 20 or 25 cars and a caboose. It was what is called a “mixed train,” carrying both passengers and freight. When plaintiff entered the caboose it was detached, and stood about 15 rods from the depot, and the rest of the train was backing up to it. As plaintiff was about to board the train, he asked the conductor how soon the train would leave. He replied, “In a few minutes.” There was one other passenger in the caboose. Plaintiff entered, and took a seat. He saw the train coming “pretty fast,” and braced himself in the seat to avoid the jar. When the rest of the train struck the caboose, a double spring bed with wooden posts, which was situated above him, fell, one of the posts striking his head and another his foot, injuring him. The negligent acts charged are the backing of the cars against the caboose with unusual and unnecessary force, and the failure to secure the bed frame to the car in a safe and secure manner. The court, at the conclusion of the plaintiff’s- testimony, directed a verdict for the defendant, upon the ground that there was no evidence that the bed frame was insecurely fastened, and that the mere fact that it fell is not evidence of negligence in fastening it.

      Watson & Chapman, for appellant.

      R. A. Montgomery, for appellee.

       Head-notes by Grant, J.

   Grant, J.

(after stating the facts). Plaintiff was a passenger, invited to ride in the defendant’s car, and entering at the time and place with the knowledge and assent of the defendant. He was not guilty of contributory negligence in entering the car and taking a seat, although the rest of the train was then backing towards it. The law governing the rights of passengers riding upon freight trains, and the duties of railroads in carrying them, is stated in Moore v. Railroad Co., 115 Mich. 103 (72 N. W. 1112), and the authorities there cited. The contract of defendant was to carry plaintiff with the care and precaution incident to the usual and proper methods of running freight trains. Plaintiff gave evidence tending to show the backing of the train with unusual and unnecessary force. We think the record leaves a fair inference that this bed frame was a part of the equipment of the car. If the train was backed with the customary caution and speed, and any portion of the car overhead gave way and fell, the onus was then shifted to the defendant to show due care. If it was backed with such great force as to cause some part of the car to give way, and injure a passenger, then negligence is established, to which proof of a properly-constructed car would be no reply. If plaintiff had depended solely upon negligence in backing the cars, by reason of which some portion of the car fell upon him, he would not be required to show that the car was negligently constructed. If the seat on which plaintiff was sitting, or the back of the seat in front of him, to which he was holding, had given way, he would not have been required to allege and prove that the seats were improperly constructed. Mr. Cooley approves the rule stated in Sullivan v. Railroad Co., 30 Pa. St. 234 (72 Am. Dec. 698), that—

“When, in performing this contract, they hurt a passenger without fault of his, the law raises prima facie a presumption of negligence, and throws on the company the onus of showing it did not exist.” Cooley, Torts, 663.

The author adds:

“ This is the rule where the injury is caused by a defect in the road, cars, or machinery, or by a want of diligence or care in those employed, or by any other thing which the company can and ought to control as a part of its duty to carry the passengers safely. But this rule of evidence is not conclusive. The carrier may rebut the presumption, and relieve himself from responsibility, by showing that the injury arose from an accident which the utmost skill, foresight, and diligence could not prevent.”

The same rule is approved in Wilson v. Railroad Co., 130 N. Y. 675 (29 N. E. 1034, 9 N. Y. Supp. 277); Memphis, etc., Packet Co. v. McCool, 83 Ind. 392 (43 Am. Rep. 71); Railroad Co. v. Walrath, 38 Ohio St. 461 (43 Am. Rep. 433); White v. Railroad Co., 144 Mass. 404 (11 N. E. 552); Och v. Railway Co., 130 Mo. 27 (31 S. W. 962, 36 L. R. A. 442).

The learned counsel for defendant cites, in support of his contention, 4 Elliott, R. R. § 1644, which reads:

“It is, therefore, too broad a statement of the rule to say that in all cases a presumption of negligence on the part of the carrier arises from the mere happening of an accident or an injury to a passenger, regardless of the circumstances and nature of the accident. The true rule would seem to be that, when the injury and circumstances attending it are so unusual and of such a nature that it could not well have happened without the company being negligent, or when it is caused by something connected with the equipment or operation of the road, over which the company has entire control, without contributory negligence on the part of the passenger, a presumption of negligence on the part of the company usually arises from proof of such facts, in the absence of anything to the contrary, and the burden is then cast upon the company to show that its negligence did not cause the injury.”

Under this rule, we are of the opinion that the case was one for the jury. It would be so unusual that a hat-rack or other equipment of a car should give way by a jar, when trains are made up in the ordinary manner, that it may fairly be inferred it could not have happened without negligence in construction. But, -aside from the question whether the bed frame was properly secured, plaintiff was entitled to go to the jury upon the question whether there was negligence in backing the freight cars against the caboose, and whether that caused the accident; and, as already stated, the company could not defend by showing the proper construction of the bed frame.

Judgment reversed, and new trial ordered.

The other Justices concurred.


author: Moore, J.

text:
    HANCHETT v. AUDITOR GENERAL.
    Tax Deeds — Validity—Mandamus—Res Judicata.
    A decree for complainant in a suit brought to quiet title under a tax deed is a bar to a subsequent application by a devisee of a defendant in such suit for a writ of mandamus to compel the auditor general to cancel such deed.

      Mandamus by Bessie H. Hánchett to compel Roscoe D. Dix, auditor general, to cancel a tax deed.
    Submitted March 27, 1900.
    Writ denied June 5, 1900.

      Bundy & Travis, for relator.

      Horace M. Oren, Attorney General (Walter I. Lillie, of counsel), for respondent.
   Moore, J.

This is an application for a writ of mandamus to compel the respondent to cancel a certain tax deed for the taxes of 1893. The relator claims to be the. owner of an undivided one-half of lot 1, being a part of the northwest fractional quarter, of section 29, township 8 north, of range 16 west, by virtue of the provisions of a will made by Luman Jenison, who, she claims, was the owner of the original title. The return of the respondent denies that the relator is the owner of said interest, and claims that it is owned by Stephen L. Munroe. He denies that Mr. Jenison was ever the owner of the original title to said land. There being a question, then, about the title of the relator to the land, irrespective of the questions growing out of the tax deed, it is exceedingly doubtful whether the question of title can he tried in this proceeding.

There is another reason, however, why the writ ought not to issue. The pleadings show that Stephen L. Mun-roe obtained tax deeds to the lands for the taxes .of 1893 and other years. It is one of these deeds that relator desires to have canceled. After he pbtained these tax deeds, Mr. Munroe, claiming to be the owner of the land in controversy, filed a bill in the circuit court of Ottawa county, in chancery, against certain defendants (among others, the Luman Jenison who willed the property to the relator), for the purpose of removing the cloud to his title, and settling the title to the land. Mr. Jenison, as well as other defendants, answered to the bill of complaint, disputing the title of .complainant, and claiming to be owners of the land themselves. The cause was heard upon pleadings and proofs taken in open court. To make his case, the-complainant introduced in evidence all the proceedings leading up to the sale for the taxes of 1893, and the deed issued by the auditor general. The regularity of these proceedings -and the validity of the deed were directly involved in that proceeding. A decree was afterwards rendered by the circuit judge in favor of said complainant. The court had jurisdiction of the parties and of the subject-matter, and the questions involved in that proceeding were the same as those sought to be raised here. If Mr. Jenison, or the relator after his death, was not satisfied with that decree, they should have appealed therefrom. As was said in Sayers v. Auditor General, ante, 259, (82 N. W. 1045), there should be an end to litigation; and, when the disputed questions and the parties in interest are all properly before the court, the decree of the court must be regarded as conclusive, unless an appeal is taken therefrom.

The application for the writ will be denied.

The other Justices concurred.


author: Hooker, J.

text:
    COOK FARM CO. v. CITY OF DETROIT.

    Local Taxation — Municipal Boards — Constitutional Law
    A statute is unconstitutional which attempts to confer on a previously-appointed city water board the power, not theretofore possessed by it, of imposing on abutting property the cost of laying water mains in the streets, whether such power is to be exercised directly, or only indirectly, by requiring the common council to make the assessment in conformity with a report of the board.
    Appeal from Wayne; Waite, J.
    Submitted April 12, 1900.
    Decided June 5, 1900.
    Bill by the Cook Farm Company, Limited, and others, against the city of Detroit and Thomas M. Lucking, receiver of taxes, to restrain the collection of an assessment for the laying of a water main. From a decree for complainants, defendants appeal.
    Affirmed.

      Walker & Spalding, for complainants.

      C. D. Joslyn, for defendants.

       Rehearing denied October 16, 1900.

   Hooker, J.

In 1897 the legislature passed an act amendatory of the Detroit water-board act, designed to provide for defraying the expense of the extension of water mains, including street intersections, by assessment upon the private property (i. e., land) abutting the streets in which the mains should be laid,' upon.a basis of the frontage of the respective lots, irrespective of value. Acting under this amendment, the water board laid a main, and the cost was assessed upon property belonging to the complainants. The act provides that:

“Whenever, in the judgment of said commissioners, it shall be necessary to lay and construct water pipes and main a in and through streets and alleys in which no water pipes and mains now are laid, it shall be the duty of said commissioners to declare by resolution that, in their opinion, such necessity exists, specifying in such resolution the streets or alleys through which it is proposed to extend or lay such pipes, and the size, material, and estimated cost thereof. Such resolution shall fix a time and place when said commissioners will hear any persons desiring to object to such proposed’construction and extension of such water pipes and mains. Said commissioners shall cause notice to be published in one or more daily papers printed in the English language in said city, for at least five days prior to said time fixed for hearing said matter, that it is proposed to levy an assessment upon the land or lands abutting the street or alley through which it is proposed to lay and construct such pipes and mains, for the cost thereof. At the time fixed for such hearing, or at such time to which the same may be adjourned, such commissioners shall attend for the purpose of hearing and deciding upon objections thereto, and, if no sufficient cause to the contrary be shown, the said commissioners may cause the said water pipes and mains to be laid and constructed as set forth in said resolution, and an accurate account shall be kept of the cost thereof. When the work of laying and constructing such pipes and mains is fully completed and performed, the said commissioners shall report the completion thereof to the common council, and shall at the same time report the cost thereof. Upon receiving such report, it shall be the duty of the common council to cause the sum so reported to be assessed upon the lots abutting the street or alley through which said water pipes and mains have been laid, in proportion to the frontage of such lot or lots: Provided, that no lot shall be assessed on more than one front, and, where such pipes and mains are constructed across more than one front of a lot, only the shortest front shall be estimated in making the assessment: And provided further, that no lot or lots shall be assessed for a [larger] sum than its proportionate share for laying and constructing a pipe or main six inches in diameter, and that whenever it shall have been necessary, in the judgment of said commissioners, to lay and construct pipes and mains of a larger size than six inches in diameter through the Whole or any part of such proposed extension, then said commissioners shall determine the cost and expense of laying and constructing pipes and mains six inches in diameter, and such sum shall be reported to the common council for assessment in lieu of the actual cost of such larger pipes and mains. Property already supplied with water shall not be assessed' for water mains and pipes [hereafter] heretofore laid, nor shall property once assessed for water pipes and mains under this act be liable for any additional or further assessments therefor. The sums so reported as aforesaid shall be levied and collected by the same officers that levy and collect assessments for the construction and building of lateral sewers, and in such manner as the common council may by ordinance prescribe.” Act No. 477, Local Acts 1897, § 28.

It is admitted that the acts complained of in this case were done while a majority of the board consisted of members appointed by the council before the enactment of the amendment of 1897, and it appears to be conceded that, under the pre-existing statute, the board had not the power to impose any burden of construction upon citizens or property by assessment. Counsel for the complainants .contend that it was not within the power of the legislature to confer upon officers appointed before the passage of the act the power to lay pipe and impose an assessment upon abutting property, either directly or indirectly, by requiring the council to do so in conformity to the report of the water board. The case of Board of Park Com’rs v. Common Council of Detroit, 28 Mich. 228 (15 Am. Rep. 202), is alleged to be conclusive of the question. In that case a board had been provided for, with authority to make conditional contracts for lands suitable for a public park, subject to ratification by a meeting of the citizens. The law provided that, after ratification by the citizens, the council might issue bonds of the city to pay for the land. Conditional contracts were made, and two meetings of the citizens were held, without result. Subsequently an amendment was passed by which the then existing board was authorized to locate suitable lands, and report the same to the common council, with an estimate of the amount necessary to pay-for the same, and it was provided that thereupon the council should provide money for the purpose. It was said by the court:

“It will be seen from this that the board of park commissioners are to have discretionary and unrestricted power in the location of the park or boulevard, or both, and in determining the amount of debt the city shall incur for the purpose, within the limits prescribed by the act, and the only discretionary authority left with the council is that the act authorizes that body to determine the rate of interest on the bonds, not exceeding 7 per cent., the sums in which they shall be issued, and the time when they shall be payable, which shall be not less than 30 nor more than 50 years.”

The authority of the legislature in matters pertaining to the regulation of the duties which the people of a locality-owe to the Commonwealth at large was recognized, and the necessity of consulting them denied. Upon the other hand, it was said that the legislature had no authority to compel them to submit to taxation in matters which apply merely to those necessities or conveniences adapted to the local conditions, and in which the State has no concern, as illustrations of which the furnishing of light and of water to the citizens are mentioned. See Bailey v. Mayor, etc., of New York, 3 Hill, 531 (38 Am. Dec. 669). It is unnecessary to repeat the arguments used in support of the decision, which may as well be read. That case is decisive of this, unless we are to say that there should be a distinction drawn between a provision for waterworks and one for a public park, for which we see no sound reason. While it was doubtless competent for the legislature to prescribe the board through which action might be taken to lay water mains, if it could confide the matter to such a board to be thereafter appointed to the exclusion of the common council, — a question which we are not called upon to decide, — it could not confer such power upon a board consisting of members previously appointed, at a time when its powers were less, and who were not selected with a view to the exercise of such powers.

We are of the opinion that the act was void, and the decree is affirmed, with costs.

The other Justices concurred.


author: Long, J.

text:
    COOK v. AUDITOR GENERAL.
    1. Tax Deeds — Validity—Mandamus to Auditor General — Laches.

      Mandamus is a discretionary writ, and will not issue to compel the auditor general to cancel an invalid tax deed, where the relator has slept upon his rights for more than two years, in the meantime permitting third persons to acquire interests in the premises.
    2. Same — Collateral Attack.
    A tax deed cannot be attacked collaterally (e. g., by application to compel the auditor general to issue a certificate of error) on the ground that the land was held by the State under a former bid at the time of the filing of the auditor general’s petition, and was therefore improperly included therein, or on the ground that unauthorized charges were included in the amount decreed against the land.

      Mandamus by Chauncey F. Cook to compel Roscoe D. Dix, auditor general, to cancel certain tax deeds.
    Submitted April 3, 1900.
    Writ denied June 5, 1900.

      John A. McKay (Dan H. Ball and Thomas E. Bark-worth., of counsel), for relator.

      Bacon-& Yerkes, amici curiae.

      Horace M. Oren, Attorney General (George W. Davis, De Vere Hall, and Watts 8. Humphrey, of counsel), for respondent.
   Long, J.

The petition is filed in this cause for mandamus to compel the auditor general to issue certificates of error, and to cancel certain tax deeds theretofore issued by him. It appears that some' time about the 1st of August, 1899, the relator-filed a petition with the auditor general, stating thatjie (relator) was the owner of certain lands in the petition described; that these lands were included in the petition of the auditor general for the sale of lands delinquent for taxes assessed thereon for the year 1893; that a decree for the sale of the lands had been entered in the circuit court for Alger county, the county where the lands are situate, on November 8, 1895, with the exception of two certain descriptions therein set forth, and which were withheld from sale; that said lands, with the exception of the two descriptions as above, were sold in December following, and bid in by the State, for the delinquent taxes for the year 1893; that said lands were also returned delinquent for the taxes for the year 1894, and were included in the petition of the auditor general for the sale of lands for the taxes of that year, filed in the year 189G; that the said lands, when so included in the petition of the auditor general for the year 1894 (with the exception of the two descriptions as above), were held by the State on State bids for the taxes of 1893. Certain other objections were made to the validity of the tax proceedings. The petition also set forth that the lands were bid in or subsequently purchased from the State by S. S. Hall, William Leighton, and Benjamin W. Gubtil, each of the parties purchasing different descriptions; that the above-named parties, in making their respective purchases, did not pay all the taxes that were liens on the lands, yet that deeds were subsequently issued by the auditor general to them on such purchases; that a tender was made by the relator to the auditor general, which, it is claimed, was sufficient to cover the amount of the taxes and interest. The petitioner asked for a certificate of error as against the deeds issued to Hall, Leighton, and Gubtil. The auditor general refused to comply with the demands of the petitioner. An order to show cause was issued, and the auditor general returns that the deeds were issued to the parties who became purchasers of the lapds under the tax proceedings. Answers were also filed by Hall, Leighton, and others, who had become interested in the lands or in the products therefrom.

It is the contention of the relator:

1. That the decrees authorizing such sales were prematurely entered.

2. That all taxes which were a lien and a charge upon the lands were not paid by the purchasers at the time when the tax titles were acquired.

3. That the lands were included in the petition of the auditor general in the year 1896, for the taxes of 1894, while held by the State on State bids for the taxes of 1893, made at the sale in 1895.

4. That there was included in the amounts charged against the lands 70 cents on each description for expenses, which charge is alleged to be without authority of law and unconstitutional.

5. That a part of said charge of 70 cents against each description is a charge of 40 cents for advertising such description, which said charge of 40 cents is alleged to be without authority of law and unconstitutional.

In Cook v. Hall, 123 Mich. 378 (82 N. W. 59), the action of the circuit judge in dismissing the petitions of relator was affirmed.. That case involved all of the issues presented by the present petition, and was decided upon grounds which we think must be held conclusive here. The lands in the present case are the identical lands mentioned in that case, and the facts therein stated are identical with the facts here. The sales here attacked were there attacked; that is, the sales for the taxes of 1893 and 1894. The reasons for sustaining the decision of the lower court in dismissing those petitions are fully set out in the opinion in Cook v. Hall, and such reasons lead to the conclusion that the writ of mandamus should not be issued to compel the auditor general to issue the certificates of error asked for in the present case.

The third, fourth, and fifth reasons stated by relator as grounds for his prayer for mandamus all relate to matters that are foreclosed by the decree, and which could only be raised in a direct proceeding in the case. They are therefore not subject to review by the auditor general.

The first and second objections were disposed of by the opinion in Cook v. Hall, supra. The issuing of a writ of mandamus is a matter of discretion, and the same circumstances which led us to refuse to entertain the relator’s petitions in the original tax proceedings must prevail here.

The writ must be denied.

The other Justices concurred.


text:
    CASS FARM CO. v. CITY OF DETROIT.

    1. Public Improvements — Street Paving — Frontage. Assessment-Due Process op Law.
    A statute requiring the cost of paving streets to be assessed against abutting property according to the frontage does not violate the fourteenth amendment to the Constitution of the United States, prohibiting the taking of property without due process of law.

    2. Same — Board op Public Works — Right to Take Initiative— Estimate op Cost.
    A city charter providing that, when any public improvement is proposed, the common council shall refer the matter to the board of public works, who shall proceed to examine the same, and report thereon to the council, “giving detailed estimates of the costs” thereof, and making such recommendation as it may deem expedient, is sufficiently complied with where the board, taking the initiative, sends a recommendation to the council that a street be paved, with a lump-sum estimate of the cost, and the city engineer makes a detailed estimate of the cost, which is laid before the coun. oil before the contract is approved.
    3. Same — Advertisement—Opening Bids.
    Though a city ordinance provides that advertisements for bids for public improvements shall specify a time and place when and where such bids shall be opened, at which time and place such bids shall be opened by the board of public works in the presence of such persons as shall choose to attend, and though the advertisement for a certain improvement merely recited that sealed proposals would be received at the office of the board of public works till a certain hour, this will not invalidate the proceedings and the assessment for such improvement ; the bids having, in accordance with the custom of the board, been opened by them at their office at the hour specified for the closing of bids, and it having been in public, and in the presence of those who tendered bids.

      4. Same — Delay in Completion — Penalty—Failure to Impose —Effect on Assessment.
    One assessed for paving taxes cannot defeat the collection of the assessment by setting up a provision of the contract under which the paving was done, requiring the work to be completed by a specified date under a prescribed penalty for each day’s delay, and showing that, in the settlement with the contractor, no deduction was made for his delay in completing the work; since the penalty clause has no relation to the assessment, and is not intended for the benefit of persons assessed.
    Appeal from Wayne; Rohnert, J.
    Submitted April 12, 1900.
    Decided June 5, 1900.
    Bill by the Cass Farm Company, Limited, and others, against the city of Detroit and others, to restrain the collection of a paving tax. From a decree for complainants, defendants appeal.
    Reversed.

      Russel & Campbell, for complainants.

      C. D. Joslyn, for defendants.

       Rehearing denied October 16, 1900. Appealed to United States Supreme Court, and decision of this court affirmed. See 21 Sup. Ct. 644.

       As to the validity of frontage assessments, see note to Davis v. City of Litchfield, (Ill.) 21 L. R. A. 563.

   Long, J.

This bill was filed to enjoin the city of Detroit from paving a portion of Second avenue, and to have the proceedings taken with reference to said paving declared void, and the collection of assessments enjoined. The grounds of relief stated in the bill, in the amended bill, and in the supplemental bill are:

1. That the provisions of the charter and of the paving ordinances of the city, in so far as the same provide for an assessment of the cost of paving upon the abutting property in proportion to the frontage of such property, are in violation of the Constitution of the United States and the amendments thereof, and therefore null and void.

2. That no detailed estimate of the cost of the proposed improvement had been furnished to the common council by the board of public works, as required by section 12, chap. 15, of the charter of the city.

3. That the advertisement for bids did not specify a time and place when and where the bids were to be opened in the presence of such persons as might choose to attend, as required by chapter 32, § 5, of the revised ordinances of the city of Detroit.

4. That the board of public works and the common council failed to comply with the requirements of sections 5, 6, and 7 of chapter 32 of the revised ordinances of the city.

5. That the work could not be completed within the time provided in the contract, and required by section 33 of chapter 11 of the charter of the city.

6. That substantially all of the work was done after the time named in the contract, and after the time limited by the charter of the city of Detroit for doing the work, and that no extension of time had been procured, authorizing the continuance of the contract after November 1st.

7. That sections 8 and 9 of chapter 32 of said ordinances, directing the manner in which the assessment roll should be delivered to the board of assessors, had not been complied with; the assessment roll not having been delivered to- the board of assessors until after the completion of the work under the contract.

8. That the board of public works had accepted the work without deducting the penalty, provided by the contract, of $25 per day for delay, in case of a delay beyond the 1st of November.

It appears that the paving has been fully completed, and the work accepted by the city.

It is contended that an inflexible rule which requires the assessments in all cases to be according to the frontage, area, or otherwise, regardless of the circumstances of each particular case, is but an arbitrary exaction, and therefore unconstitutional. It is said that the rule laid down in Village of Norwood v. Baker, 172 U. S. 269 (19 Sup. Ct. 187), should be followed by this court. That was a street-opening case, and it was held that a law which provides for assessing against the abutting property, in proportion to the frontage, the entire cost of the opening,' rests upon a basis which excludes any consideration of benefits, and violates the fourteenth amendment of the Constitution of the United States. That doctrine was laid down by this coúrt in Thomas v. Gain, 35 Mich. 155 (24 Am. Rep. 535), but that was a sewer case. In paving cases the rule has been settled in this State by many decisions that it is competent for the legislature to authorize the cost of paving streets to be assessed upon the abutting property according to frontage. Williams v. Mayor, etc., of Detroit, 2 Mich. 560; Motz v. City of Detroit, 18 Mich. 495; Sheley v. City of Detroit, 45 Mich. 431 (8 N. W. 52); City of Kalamazoo v. Francoise, 115 Mich. 554 (73 N. W. 801). It was said by Mr. Justice Cooley in Sheley v. City of Detroit, supra:

“We might fill pages with the names of cases decided in other States which have sustained assessments for improving streets, though the apportionment of the cost was made on the same basis as the one before us. If anjdhing can be regarded as settled in municipal law in this country, the power of the legislature to permit such assessments, and to direct an apportionment of the cost by frontage, should by this time be considered as no longer open to controversy. Writers on constitutional law, on municipal law, and on the law of taxation have collected the cases, and have recognized the principle as settled; and, if the question were new in this State, we might think it important to refer to what they say. But'the question is not new; it was settled for us 30 years ago.”

We should feel inclined to follow the opinion of the Supreme Court of the United States in Village of Norwood v. Baker, supra, inasmuch as it was based upon the fourteenth amendment of the Constitution of the United States, if that were a paving case; but that was a street-opening case, and, until that court shall pass upon the question in the exact form in which it is here presented, we shall feel bound to follow our own decisions.

Section 12 of chapter 15 of the charter provides that, when any public improvement is proposed, the common council shall refer the matter to the board of public works, who shall proceed to examine the same, “and shall, as soon as practicable, report thereon to the common council, giving detailed estimates óf the costs of such works or improvements, if any costs there will be, and shall make such recommendation as said board of public works may deem expedient.” It appears that in the present case'no resolution was adopted by the common council referring the matter to the board of public works, but that said board assumed the initiative, and sent a recommendation to the common council that the street should be paved, furnishing an estimate of the cost as, “Estimated cost, $40,000.” It is claimed that this provision of the charter is mandatory, and that a failure to comply with its terms rendered any subsequent action void. Counsel cite, in support of this, Butler v. City of Detroit, 43 Mich. 552 (5 N. W. 1078); Mills v. City of Detroit, 95 Mich. 422 (54 N. W. 897).

It is evident that the course taken in the present instance by the board of public works and the common council obviates the difficulties presented in the above cases. The board reported that the cost of such improvement would be $40,000. The city engineer made a detailed estimate of the costs. These matters were laid before the common council before the contract was approved, and apparently were duly considered by it. In Goodwillie v. City of Detroit, 103 Mich. 287 (61 N. W. 527), it was said:

“The duty of furnishing the estimate is imposed upon the board of public works. The council called upon the board for such estimate; and an estimate having been furnished, and no further particulars having been called for, it must be assumed that the information was sufficiently specific to enable the council to act intelligently.”

In Butler v. City of Detroit, supra, the board of public works made no report as to the expediency of the proposed improvement, nor did it report any estimate of the costs. In Mills v. City of Detroit, supra, the board made no report whatever as to costs.

Section 5, chap. 32, of the revised ordinances of the city, provides that “the advertisement [for bids] shall specify a time and place when and where such bids shall be opened, at which time and place such bids shall be opened by the board of public works in the presence of such persons as shall choose to attend.” The advertisement which was actually published reads as follows: “Sealed proposals will be received at the office of the' board of public works, Detroit, Michigan, until Tuesday, September 6, 1898,’ at 10 o’clock a. m., local time, for furnishing all the labor and material,” etc. The advertisement contains no statement that the bids will be opened at any time, or that an opportunity will be afforded to any person interested to inspect them. It is contended that this requirement of the .ordinance is jurisdictional, and that the proceedings' based upon the advertisement which was actually published are null and void.

Under the statute creating the board of public works, the details relating to the matters of public improvements rest with the board. The advertisement is subject only to the control of the board. The board is required to advertise for proposals and enter into a contract, but the contract does not become valid or binding until approved by the council. The board must determine what the specifications must be. The council can approve or reject them, but has nothing to do with making them. Before a contract can be. entered into between the bidder and the board, it must be approved by the council. The proofs show that the bids or proposals for this paving were opened in the office of the board of public works at 10 o’clock a. m., local time, on September 6, 1898, in public, and in the presence of those who tendered'bids; that being the time mentioned as the hour up to which bids would be received. The proofs also show that it had always been the custom of the board Jo open bids at the hour named. We think from this showing that no one was deprived of any right, and it would be a most technical rule to hold that the whole proceeding must fail, and the complainants escape payment for a valuable public improvement by which they are benefited. Whether there was a compliance with the ordinance or not, no one being harmed, the proceedings will not be set aside for that reason.

Among the other specifications attached to the contract is the following:

“And, if the contractor shall fail to complete the work by the time specified in the contract, the sum of $25 per day for each and every day thereafter, until such completion, shall be paid to the city of Detroit, through the board of public works, before acceptance of the work. ”

It appears that the work under the contract was accepted by the board January 3, 1899, and no deduction was made on account of delay, which, it is claimed, amounted to over 30 days. It is claimed that, under these circumstances, the board had no right to accept the work at all, or, at least, that it had no right to charge against the property owners the entire cost of the work, without making any deduction for the penalty provided in the specifications, and that the board had no power to waive the penalty. "We think this claim cannot be sustained. The penalty clause in the contract has no relation whatever to the assessment. It is not provided for by law, and it was evidently not intended for the benefit of the abutting property owners, but for-the city at large. The proper authorities have passed upon the question, and have accepted the work as satisfactory. The acceptance must be held conclusive. Cooley, Tax’n (2d Ed.), p. 671.

The other questions raised have no force.

The court below was in error in setting the proceedings aside. That decree must be reversed, and a decree entered here dismissing complainants’ bill, with costs of both courts.

The other Justices concurred.