author: Steere, J.

text:
    HOOVER v. DETROIT, GRAND HAVEN & MILWAUKEE RAILWAY CO.
    1. New Trial — Appeal and Error — Railroads—Newly Discovered Evidence.
    Where plaintiff’s motion for a new trial, in an action for the negligent killing of a child who wandered onto a railroad track at or about the crossing of an alley, and within the limits of defendant’s yard, presented the newly found testimony of a person living near the scene of the accident who saw decedent and another infant slowly approaching the tracks and last observed them when they were several feet south of the same, and a minute or less afterwards heard the sound of the train stopping, as bearing on the time within which the engineer might have seen the infants if he had been on the lookout, and where her testimony was merely cumulative, with other proofs offered at the trial on the same point, the court did not err in refusing to grant the application, as the evidence might have been obtained, with the exercise of reasonable diligence, for the first trial; also because the testimony was cumulative and not likely to change the result, which was a judgment and verdict for defendant by direction of the court.
    2. Railroads — Negligence— Right oe Way — Yards — Pences — Trespassers.
    In this State the rule is well settled that railroads are not required to fence their yard limits, nor is failure so to do evidence of negligence.
    3. Same — Alleys—Crossings—Presumptions.
    It will not be presumed, from an implied license to cross a railroad track at an alley, that helpless infants, too young to understand danger, will be suffered by those that are responsible for them to wander along or upon the railroad right of way upon which numerous trains are accustomed to pass.
    4. Infants — Contributory Negligence — Trespass.
    Infants, too young to be conscious of the nature of their acts, or danger therefrom,' are not chargeable with contributory negligence or with intentional trespass such as to bar recovery for negligent or reckless conduct of others.
    5. Railroads — Infants—Negligence—Due Care.
    Where there is reason to anticipate that persons or children may be met with on the tracks, especially in cities or towns, trains cannot be operated on the assumption that the track will be clear, and need not be watched, but a proper lookout must be maintained with that degree of care which a person of ordinary caution, having in mind both the safety of the train with its passengers and persons ahead likely to be injured by it, would commonly exercise under like circumstances, according to the probability of danger at the portion of the track being traversed.
    6. Same.
    Those who have no relations with infants, such as parent and child, teacher and pupil, or master and apprentice, from which special duties or obligations arise, are not liable for acts done in carrying on the business in which they may be engaged beyond the liability that would attach to negligence towards other classes of persons, not guilty of contributory negligence.
    7. Same — Evidence.
    ' Where two infants were struck by defendant’s passenger train, in a city where an alley crossed the right of way, and the evidence showed that no person was in sight when the engine turned the nearest curve to the place of the accident, and the engineer testified that he was watching ahead, and that he made every effort to stop when he did discover them, about 150 or 200 feet ahead of the train, ■winch was running 18 or 20 miles an hour, and it appeared that it could not be checked by using the emergency brake in less than 300 feet or upwards, that the defendant had often warned trespassers off its right of way at this point, had at one time fenced it, being within the yards, and had not acquiesced in the use of the tracks by the public, the trial court did not err in directing a verdict for the defendant railroad.
    8. Same.
    And upon proofs tending to show that the infants went upon the track not over 200 feet in advance of the train, too near for it to be stopped without hitting them, that the engineer could not have stopped his train in time even if he had seen them sooner, evidence of actionable or culpable negligence was insufficient to charge defendant with liability for the death of one of the children.
    Error to Rent; McDonald, J.
    Submitted April 8, 1915.
    (Docket No. 25.)
    Decided September 29, 1915.
    Case, by Harry H. Hoover, as administrator of the estate of George L. Hoover, deceased, against the Detroit, Grand Haven & Milwaukee Railway Company for the unlawful killing of plaintiff’s intestate. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      Lombard, Hext & Washburn, for appellant.

      Harrison Geer (W. K. Williams, of counsel), for appellee.
   Steere, J.

Plaintiff brought this action as administrator of his infant son, George L. Hoover, who, on June 18, 1912, wandered from his home upon defendant’s track and was struck by a passing train, receiving injuries of which he died the following day. He was then 25 months of age.

The accident occurred about a mile east of the Plain-field Avenue station, in the city of. Grand Rapids, near the east line of an alley which runs north and south just west of and parallel with. Benson street, upon which his parents resided, in the sixth house south of the track, on the west side. On leaving the station the railroad track bears southeasterly, curving nearly to the east, where it passes under what is known as College avenue bridge, and from there runs straight to and beyond the place of the accident, which is 936 feet east from the bridge. On the north side of this portion of the track lies Highland Park, a public park of the city. Grand avenue crosses the railroad upwards of 1,400 feet east of College avenue. No streets cross the track between the two. Benson street extends south from the railroad right of way 508 feet west of Grand avenue. Two other north and south streets, Union and Brainard, also extend south from the right of way between Benson and the bridge. The open park extends along the north side of the railroad westerly from Grand avenue to beyond the north end of the alley mentioned, nearly opposite the end of which deceased was struck by the regular east-bound passenger train of defendant which had left the station at 4:52 p. m. At that point the track passes through a cut with banks about 25 feet high on each side; the roadbed being raised by grading so that the rails and ties are about a foot above the general level.

It is conclusively shown, and undisputed, that when the train reached the College avenue bridge, and until it had proceeded a considerable distance east of there, the track was clear. Deceased was struck by the train just as, or after, he came upon the track from the side, accompanied by another small child of about the same age. The fireman was down on the deck of the engine at. his fires as the train approached this point. The engineer was in his seat on the right side of the cab, watching the track ahead through the front window provided for that purpose. His view along the line of the track from the bridge beyond the place of the accident was clear. He testified that he was on time, that just before he went under the bridge he sounded a signal, that the .engine bell was ringing, and he was in his seat maintaining a lookout from the bridge to the place of the accident, that, if he was not looking straight ahead all the time, “I would not be an instant, it would not be but a second or two, to glance over my cab to see what was going on.” Of the accident he testifies that the first thing which attracted his attention was when he “saw the children coming on the track and when they were crossing the track, from 150 to 200 feet in front of the engine.” He also said:

“One was on the outside of the rail and one inside the rail. * * * The very moment I first saw them they were right on the middle of the track. * * * The second I saw them I slapped the brakes in emergency and throwed my engine off. * * * I could not have done anything more than I did to stop the train.”

The train consisted of the engine, a baggage car, a mail and express car combined, and two passenger coaches. It was 220 feet long, running at 18 or 20 miles an hour, and could be stopped by using the emergency in from 300 to 400 feet. It ran a distance of from 40 to 100 feet after striking the children. The pilot threw them from the track, not seriously hurting the other child, but fatally injuring deceased. That the engineer acted promptly after seeing the children, did everything possible to meet the emergency, and made a good stop, is not seriously questioned. The complaint is that he should have seen them sooner.

At the close of the testimony a motion for a directed verdict in favor of defendant was granted, for the reason that no prima facie case of actionable negligence on the part of defendant was shown; that plaintiff’s contention that the engineer could and should have seen the children’s perilous condition sooner was only based upon and supported by certain claimed inferences from measurements, against positive testimony of eyewitnesses to the accident, and a verdict of negligence on the part of the engineer, if returned, would be so against the weight of evidence that it would be the duty of the court to set it aside; and for the further reason that it was not the duty of defendant to watch for trespassers within its yard limits. It was shown that defendant’s yard limits, as established and used, extended beyond the place of accident, and the right of way was not then fenced at that point.

A motion by plaintiff for a new trial was denied. Aside from alleged errors in rulings during the trial and in directing a verdict, the ground of newly discovered evidence was also urged, based upon an affidavit of a woman living near by to the effect that from her window she saw the children upon the alley slowly approaching the track, and last noticed them when they were several feet south of a cinder path south of the track; that between a half minute and one minute later she heard the sound of brakes stopping the train, and, looking again, saw the two children had been thrown to the south side of the track, lying on the ground on or near the cinder path, and the engine stopped some distance beyond. Her house was situated 25 feet above the level of the track, and she also testified as to both her opportunities of observation and those of the engineer on a train approaching from the west. On denying this motion the court said:

“The newly discovered evidence as shown by the affidavit of Mrs. Davis would not change the result or add anything to plaintiff’s case.”

This witness was a near neighbor of plaintiff, and continued to live there until the time of the trial. With reasonable diligence her evidence could have been discovered and then produced. ■ She did not see the accident or the children upon the track. Her testimony was in its nature cumulative upon plaintiff’s contention that the engineer should have seen them sooner, and, as bearing upon whether a verdict should have been directed, not such as to call for a different ruling. The showing upon the claim of newly discovered evidence was not such as to demand a new trial.. Raymond v. Day, 111 Mich. 443 (69 N. W. 832); Canfield v. City of Jackson, 112 Mich. 120 (70 N. W. 444).

Plaintiff’s counsel group their assignments .of error, for argument, into the following propositions, interrogatively stated:

“(1) Was tljere any obligation of care on the part of defendant in keeping a lookout for children on the track at the place deceased was injured?
“(2) Was there error in excluding evidence that the maintaining of fences along the line of the right of way at this point would not interfere with railroad operations?
“(3) Was there on the trial or in the affidavit supporting the motion for a new trial evidence of negligence of the engineer in failing to keep a proper lookout in approaching the place where the injury occurred ?”

The first and third queries blend in argument and together involve the important and controlling question of whether a verdict for defendant was rightly directed.

As to the second, we do not discover from the record that defendant contends fencing, along the right of way would seriously interfere with railroad operations. On the contrary, it was shown that some years before the accident defendant had built fences along both sides of the right of way past the park and erected warning notices to prevent persons from trespassing upon the tracks in crossing to and from the park, but that these were repeatedly broken down and ignored by those who persisted in crossing there, until they had virtually disappeared, and the section foreman gave up trying to maintain them, though he continued to warn away trespassers and drive away children whenever he saw them upon the right of way. It was shown, and not disputed, that nevertheless both adults and children did frequently cross the tracks in that locality as a convenient way to the park, and in doing so had made paths. There is no proof of affirmative permission or invitation, but it is shown that those found crossing were frequently warned away, and defendant contends it was unable to prevent this trespassing unless it constantly stationed guards there, which it was under no obligation to do.

It is well settled that railroads are not required to fence their yard limits, and a failure to do so is not evidence of negligence. Rabidon v. Railway Co., 115 Mich. 390 (73 N. W. 386, 39 L. R. A. 405) ; Burtram v. Railroad Co., 148 Mich. 166 (111 N. W. 749). The circumstances of this case show no express or implied invitation from defendant to cross its tracks at that point. The most that can be claimed is lack of constant vigilance to prevent, and that it suffered or tolerated such use.

“The status of a trespasser in going upon railroad tracks at a place other than a public crossing, without express or implied permission, will not ordinarily be affected by the fact that he or others of the public have been accustomed to walk upon or cross the tracks at that place, especially where repeated protests and warning against such use have been given. Nor, as a general rule, is the mere fact that the railroad company does not object or passively acquiesces in such custom sufficient to constitute such a person more than a trespasser, or at most a mere licensee.” 33 Cyc. p. 758.

The question of whether persons of accountability crossing the track at that point were in law trespassers or mere licensees by implication is, however, of little importance here, for it would be strangely incongruous to give significance as the acts of a licensee to the conduct of a child non sui juris, possessing no more understanding of boundary lines and property rights than a stray animal and less able to understand and protect itself from danger.

There can be no presumption from an implied license to the public to cross private property that helpless infants, too young to understand danger, will be permitted by those responsible for them to wander, when regular trains are passing, unattended along or upon a railroad track; and, on the other hand, the law recognizes that such infants are unaccountable, because unconscious of the nature of their acts, with no appreciation of attending danger to themselves or others, and therefore cannot be charged with contributory negligence nor held as wilful trespassers to an extent which precludes redress for injury resulting from the reckless or negligent acts of others. Battishill v. Humphreys, 64 Mich. 494 (31 N. W. 894) ; Huggett v. Erb, 182 Mich. 524 (148 N. W. 805). The latter case lays down no new doctrine and changes no previous rule, but, as applied to the case then under consideration, reiterates and points out the distinction, relating to trespass, involving danger of injury, between infants non sui juris and adults or those of sufficient age to realize the nature of their conduct, care for themselves, and be accountable for their acts. In that case two small children in the city of. Alma were playing along and walking down the track ahead of an approaching train, which struck and seriously injured one of them, unnoticed by the engineer or fireman, who first learned of the accident when they arrived at the next station. These children, not simply crossing the track, but walking along it, were not seen by the engineer at all. Although plaintiff’s evidence tended to show that the children, seen by others who sought from some distance to signal the train and reach them ahead of it, were upon the track in plain sight of those upon the engine long enough to have been seen by them in abundant time to easily stop and avoid the accident had any lookout been maintained. It was there urged that, irrespective of such evidence, a verdict should be directed for defendant because the children were, in fact, not seen by the engineer or fireman and were trespassers upon the right of way, to whom defendant owed no duty but to avoid injuring them if and when seen, apparently in disregard of the duty to keep a reasonably vigilant lookout according to environments and of the distinction there discussed under which the law does not necessarily bar such infants as accountable trespassers from redress for personal injuries resulting through the negligence of others. The gist of the distinction is that such infant must be recognized as legally unaccountable and itself free from blame.

Back of that lies the rule that at places where there is reason to anticipate that persons, including children, may be upon the track, as in cities and towns, the train cannot be operated upon the presumption that the track is clear and need not be watched, but a proper lookout must be maintained with that degree of care which a person of ordinary prudence and caution, having in mind both the safety of the train with its passengers and persons ahead likely to be injured by it, would commonly exercise under like circumstances, according to the probability of danger at the portion of the track being traversed.

The duty of strangers to children was early discussed, and the' rule clearly stated, in Hargreaves v. Deacon, 25 Mich. 1, where it is said:

“We feel, usually, more indignation at wrongs done to children than at wrongs done to others. But the law has not usually given them civil remedies on any such basis. Nor does it usually, if ever, impose any duties on strangers towards them, resting entirely on the fact that they are children. Those who have any special dealings with them, as parents, teachers, and employers, incur obligations appropriate to their relations, and differing from those incurred towards others in proportion to-the necessity of care and protection and the risk of injury. But those who have no such relations with them are not liable for negligence in carrying on their own business, beyond what would be their liability to others, as well as children, who are equally free from blame.”

In the Huggett Case and Green v. Railway Co., 110 Mich. 648 (68 N. W. 988), cited by plaintiff as analogous in facts and supporting his contentions, being cases in which children of near the same age as deceased wandered upon tracks and were struck by passing trains, the controlling reason for holding them cases for a jury was that the records contained testimony showing no lookout was maintained; that the children, plainly in sight upon the track, were not seen at all by any of the train crew before the accident, and no attempt was made to avoid injuring them, while here a watch along the track was kept by the engineer, who did see the children and made every effort to avoid injuring them as soon as they were seen. The only question here is whether there is any competent testimony in the case tending to show negligence in his not being more vigilant and prompt. The same distinction appears in Tutt v. Railway Co., 104 Fed. 741 (44 C. C. A. 320), resembling in certain particulars this case, and relied upon by plaintiff. It was there held under plaintiff’s testimony that the question of implied license was an issue for the jury; that “persons availing themselves of such implied license would not be trespassers, and the railroad company would come under a duty in respect to such licensees to exercise reasonable care in movement of its trains at points where it was bound to anticipate their presence”; and that it might properly be left to the jury to determine whether such management was negligent in a case where plaintiff’s testimony showed that the 14 approaching cars were being pushed along the track with no brakeman upon them, that no warnings were given, and that no means were taken to avoid collision with persons who might be expected to be found upon the track; in other words, it was a case for the jury, because there was evidence that no lookout was maintained and no warning was given of the approaching train. In the instant case it is conclusively shown that these things were done. This was. a regular passenger train, leaving the city on time, at a lawful rate of speed, properly equipped, the engineer in his seat where his duties assigned him, in charge of and running his engine, maintaining a lookout along the track ahead. A warning signal was sounded as the train came around the curve at the bridge, and the bell was ringing.

Conceding this was a place where the presence of persons on the track was to be anticipated, no one was there when the train came in sight around the curve at the bridge. No person saw these children upon the track until the train was close to them, and the evidence of those who saw them is that they were not. The engineer, whose duty it was to see, and who testifies he was watching, estimates the distance at which they came upon the track ahead of the train at 150 to 200 feet. Welch, the foreman of that section, who came in from the east with his hand-car and pulled it off the track at Grand avenue as he saw the train coming around the curve at the bridge, testifies:

“When I first saw the train up beyond the bridge 1 did not see any children. I looked on the track, and did not see a soul on the track. * * * I could see between me and the train. There was nobody on the track. Then I turned immediately to my car and put it off. I did not see where these children came from. When I first saw them the train was just hitting them.”

After putting his. car off his attention was directed to some sewer work passing under the track, and he did not look towards the train again until he heard some one shout, and turned just in time to see the accident.

The two other witnesses who saw the accident were a Mr. Boyes, a contractor who was putting in a sewer at Grand avenue which ran under the track, and his foreman, named Rens. When the train approached Boyes was some 60 feet away from the track, and from where he then stood some bushes obscured his view of the approaching train. His men were working at the sewer where it passed under the track, and he was watching for the train to notify them, if necessary. He testified in part:

“I had made several observations to the west to see about the train coming or hearing it. I had not at any time seen these children on the track, except immediately before the collision took place. When I first saw the children on the track I started to run and holler. I would not go over 8 or 10 feet until I could see College avenue, just to get through the evergreen trees. I saw the train just after I had made a few steps. It would be pretty hard for me to tell how close to the children the train was when I started to run, but it could not have been a great ways because it all happened in a few seconds. * * * Well, I don’t think the engine would be more than 200 feet from the children when I saw them.”

Rens stood on the track over the sewer and notified the men when he heard the train coming. He states he looked up to see the train, and saw no one on or near the track, heard the whistle and watched the train approach, then noticed some one go up the small embankment, and, as they got high enough so he could see, discovered it was two little children. He estimated the engine “would be probably 150 feet west of them when these little children stepped upon the track,” and that it ran about 60 feet after it struck them. He also states:

“The children were just about at the ties at the time I first discovered them. * * * I saw this train all of the time after it left the bridge approximately until it struck the children. I did not see the children until they were stepping on these ties.”

While it is contended that modifying statements of these witnesses as to means of observation, seconds of time, and distances in feet raise opportunity for inference that the engineer could have seen them sooner and could have stopped quicker, we conclude from a careful reading of this record that there is no testimony which tends to negative their testimony that these children suddenly appeared upon the track and in view when the engine was within not over 200 feet of them and too near for the train to be stopped before reaching them; that this accident resulted from a sudden and unanticipated act of the child itself, was not to be anticipated, could not be foreseen, and therefore in the reasonable conduct of defendant’s business could not be guarded against. In such case there is no liability. Coessens v. Rapid Railway, 136 Mich. 481 (99 N. W. 751).

The judgment is affirmed.

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

The late Justice McAlvay took no part in this decision.


source: Caselaw Access Project

license: Public Domain

text:
    WEISSERT v. FULLER.
    1. Boundaries — Adequate Remedy at Law — Equity—Quieting Title.
    While it is recognized that courts of equity may pass upon or locate boundary lines as an incident of issues properly within chancery jurisdiction, the rule is well settled that they have no inherent and independent jurisdiction to determine the true location of disputed boundaries.
    2. Same — Bill of Complaint.
    In a suit to quiet title to a strip of land, 2% feet in width, lying between complainant’s lot and an adjoining parcel, the bill which asked for no distinctively equitable relief and claimed no land except that to which she was entitled under her conveyance, was open to the objection that complainant had an adequate remedy at law, and the averments of the bill as to possession in complainant having been denied, the trial court properly dismissed the proceeding.
    Appeal from Barry; Davis, J., presiding.
    Submitted April 22, 1915.
    (Docket No. 62.)
    Decided September 29, 1915.
    Bill by Della Weissert against Roy C. Fuller and Didama Fuller to quiet title to certain real property. From a decreé for defendants, complainant appeals.
    Affirmed.

      Thomas Sullivan, for complainant.

      Lee H. Pryor and Colgrove & Potter, for defendants.
   Steere, J.

Complainant is owner by record title of the north halves of two adjacent lots, numbered 965 and 966, of the original plat of the city of Hastings, Mich. Defendant Roy C. Fuller owns of record the south half of said lots; defendant Didama Fuller being his wife. This litigation is over the true location of the dividing line between their holdings. The two lots are, according to the plat, each 4 by 8 rods, being 66 feet wide east and west, and 132 feet long north and south; the north end of each fronting on the south side of Walnut street, which extends east and west. Lot 965 joins 966 on the west, and is a corner lot at the southeast corner of Walnut and Jefferson streets, extending its entire length of .132 feet along the east line of the latter street, which runs north and south.

Long before the parties to this suit acquired their titles, the two lots had been divided east and west; one party owning and occupying the two north halves and another the south halves. This gave each a frontage of 66 feet on Jefferson street, with a depth of 132 feet, the north halves constituting a corner lot extending 132 feet along the south line of Walnut street. By their record titles the present owners have lots of the same size and frontage on Jefferson street, and both testify that all they ask or claim is the 66 feet on Jefferson street which their deeds entitle them to; but each contends that the other is claiming 2½ feet more than he or she is entitled to, and each claims possession of the 2½ feet in dispute.

The lots thus rearranged long ago have since been, separately owned, and occupied by distinct owners, who so far as this record discloses dwelt in harmony prior to this contention. After the present owners purchased, complainant moved the old house, located upon her lot, composed of the north halves of the original lots 965 and 966, farther south and rebuilt it. Defendants made no objection at the time, but subsequently had the property surveyed, with the usual accompaniment of setting stakes. They resided upon their property. Complainant, who lived in another part of the city, rented hers and held vicarious possession by tenants. The debated 2½ feet is part of the yard, or yards, between the two houses, apparently in lawn, as it is indicated that the complacency with which certain of complainant’s tenants suffer defendants to run their lawn mower over this strip, and even beyond, may have some bearing upon the respective claims as to who is in possession. The present diversity of views as to the true location of the dividing line between the north and south halves of these lots appears to have first become acute when complainant learned that defendant had extended a new cement walk which he built along the east side of Jefferson street in front of his place feet farther north than she claimed the line between them ran. Following this, at a time defendant and his family were away assisting in celebration of the national holiday, she constructed a fence, called by witnesses “the Fourth of July fence,” on what she contends is the true line, as long ago agreed upon by former owners and where they had formerly built and maintained a line fence for many years. Beyond a temporary physical declaration'of ownership and possession the so-called Fourth of July fence is of scant materiality, as it soon appears to have become obscure, just how is not clearly shown, though Mrs. Fuller in her testimony suggests:

“The boys that were there Hallowe’en night might have loosened the posts, and some of it has been broken down since.”

On August 13, 1913, complainant filed this bill to quiet title to the 2½-foot strip in dispute, alleging ownership both by record title and long-continued peaceable possession from far beyond the statutory period up to and at the time of commencing suit, charging that—

“said Roy C. Fuller now claims and pretends that under and by virtue of his deed he is the owner of 2½ feet or thereabouts of the land lying north of the east and west boundary line dividing the north half of said lots from the south half thereof, and that the boundary line as established, agreed upon, and recognized by your oratrix and her predecessors in title, for a period of 50 years or thereabouts, is not the true or correct boundary line dividing the. north half of lots No. 965 and No. 966 from the south half thereof, but that said boundary line should be 2½ feet or thereabouts farther north than it now is, and now claims and pretends that your oratrix and her predecessors have never acquired title to said premises by deeds of conveyances in your oratrix’s chain of title or by adverse possession or otherwise.”

The relief asked for in said bill is that the court decree as follows:

“That the claim of the said Roy C. Fuller and Didama Fuller to the land, or any part thereof, where said east and west division fence has been located, and north therefrom is null and void as against your oratrix; and that the said Roy C. Fuller and Didama Fuller have no right, title, or interest in said lands or any part thereof; and that the said Roy C. Fuller and Didama Fuller may be decreed to have no right, title or interest whatever in and to said lands or any part thereof; and that your oratrix may have leave to cause such decree to be recorded in the office of the register of deeds for Barry county, Mich.”

Defendants filed an answer in the nature of a cross-bill, with a demurrer clause, denying all material allegations in complainant’s bill, alleging actual occupancy, control, and possession in themselves of the disputed strip, which was conveyed to them by their grantor, charging that complainant had intruded upon an alley or strip 8 feet 3 inches wide owned by them out of lot 967 running along the east side of her property, asking for relief in that particular and—

“that the boundary line of said premises be fixed and established upon the true line between the south half of lots 965 and 966 and the north half of said lots.”

Upon the hearing testimony was introduced, much of it sharply in conflict, upon the question of possession at time of filing the bill, location of the true line according to surveys and measurements, and adverse possession to a defined and agreed line for the statutory period. The record contains no opinion of the trial court, beyond that disclosed by the decree, which sustained defendants’ demurrer clause in their answer and dismissed the bill “without prejudice to complainant to begin an action at law.”

A careful examination of the pleadings, proofs, and other proceedings clearly discloses that the primary and controlling issue is the true location of the dividing line between these adj oining properties. Neither party makes any claim beyond that involved in a boundary dispute. When that question is finally determined, the respective rights of the parties are settled. The bill is not framed to ask injunctive relief, but only for'a quieted title to the disputed strip, based on an adjudication of where the dividing line is located. Complainant testifies:

“I just claim what the deed calls for, 66 feet from the monument, and I think that monument is at the northwest corner.”

Defendant Fuller, when asked if he claimed more than his deed called for, said:

“That is what I am after, is my 66 feet. * * * I do not claim more than 66 feet, and would be glad to have it.”

But complainant’s counsel urge that this is not a dispute over a boundary line and say in their brief:

“The line has been well established and acquiesced *in from 1883 until 1913, a period of 30 years. The complainant and her grantors have been in possession for a period of 50 years and upwards, and were in ¡possession up until the filing of the bill of complaint ,in this case. The defendants now claim title to 2½ feet of complainant’s land, of which she is and was in possession at the time the bill was filed. She had no right of action against defendants, except in a suit to quiet title.”

In such case she would have an action against them for trespass if they interfered with her possession, but the stated facts upon which the legal proposition is founded are denied by defendants, both in their pleadings and proofs. While it is recognized that courts of equity may pass upon a disputed boundary when incidental to and connected with other issues properly coming under some recognized head of equity jurisprudence, the rule is well settled that equity courts have no inherent and independent jurisdiction to determine the true location of disputed boundaries. Wykes v. Ringleberg, 49 Mich. 567 (14 N. W. 498) ; Kilgannon v. Jenkinson, 51 Mich. 240 (16 N. W. 390) ; Bresler v. Pitts, 58 Mich. 347 (25 N. W. 311) ; Andries v. Railway Co., 105 Mich. 557 (63 N. W. 526) ; Dolan v. Smith, 147 Mich. 276 (110 N. W. 932). Ejectment and trespass are the customary, and ordinarily adequate, remedies at law by which disputed boundaries are settled.

The merits of this controversy, by which the rights of these parties must finally be determined, are not properly before the court in this suit; but it may be stated in further substantiation of the trial court, in dismissing complainant’s bill, that she has not satisfactorily shown actual and exclusive possession in herself of the disputed strip at the time of filing her bill. It is indicated that the vicarious possession which she claimed through tenants was not of particular interest to them, while defendants by their pleadings and proofs have positively and unequivocally insisted that they were and are in full, open, and complete possession, which gives her an adequate remedy at law by ejectment. Her grievance implies legal remedies, and, as her bill is framed, is devoid of elements conferring jurisdiction upon a court of equity. •

The decree of the court below, dismissing complainant’s bill without prejudice to proceedings on the law side of the court, is sustained, with costs to defendants.

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

The late Justice McAlvay took no part in this decision.


text:
    CASTERTON v. PLOTKIN.
    1. Deeds — Restrictions—Covenants—Construction.
    A conveyance of a city lot with the restriction that it should be used for residence purposes only, limiting the height of buildings to two stories and fixing the cost, distance from street, etc., did not exclude the erection of an apartment house; and no further or different limitations to those expressed in the deed might be implied.
    2. Same — Interpretation—Building Restrictions.
    Such restrictions are construed strictly against the grantor and those claiming to enforce them, all doubts being resolved in favor of the free use of the property.
    3. Same — Residence Purposes — Building Restrictions.
    Where the owner of a parcel of land sold part of the property subject to building restrictions limiting its use to residence purposes only and not expressly providing that only single dwelling houses should be erected on each lot, and where no deed in defendant’s chain of title contained such restriction, although it appeared that other conveyances in the block had been interpreted by the owners of the property as excluding apartments and business structures, and where defendant was not shown to have had notice of complainants’ claim that all the property along the block was subject to such restriction, the court erred in restraining defendant from erecting an apartment house upon his land, since no acts of the grantor in the original conveyance, done subsequently to the purchase by complainant or his predecessors in title, could affect his rights under the conveyance.

      4. Same — Notice.
    It is not a general rule recognized by the courts that the mere construction of single dwellings or adoption of any ■ particular style of architecture is notice to the owner of a lot within the block or neighborhood that the property is all restricted to residential or other purposes.
    5. Same — Evidence.
    Proof that the defendant necessarily observed that the street on which his lot faced was a residence street of single houses on each lot and that no business places or apartments fronted thereon, that other proprietors adjoining his property observed the rule of restriction, was not notice which would charge the defendant with information that a general plan of restrictions had been adopted for the street, which would be binding upon him, especially upon his express testimony that the agent who sold him the property told him it was not restricted and could be used for business purposes, and that the attorney who examined his abstract advised him that he might build an apartment upon the lot as he intended, when he made the purchase.
    6. Same.
    The rule that parol restrictions control all lots in a subdivision that has been platted under a general plan and consistently carried out as to all property and accepted by all persons in interest is not applicable to persons not participating in the acts or declarations of those platting it but acquiring the property prior to such parol declarations or limitations.
    7. Same — Equity.
    The mere fact that the conduct of defendant in relation to the property was open to criticism was not sufficient reason in equity for enjoining him from constructing an apartment house, in the absence of sufficient evidence that he had clearly violated restrictive conveyances in the chain of title: courts of equity will not aid complainant in restraining the use of another’s property unless the right to the restraining order is plain.
    Appeal from Wayne; Murphy, J.
    Submitted April 26, 1915.
    (Docket No. 103.)
    Decided September 29, 1915.
    Bill by Walter J. Casterton and others against Samuel Plotkin to enforce certain building restrictions. From a decree for complainants, defendant appeals.
    Reversed.

      Dohany & Hersch, for complainants.

      Earl I. Heenan and Jasper C. Gates, for defendant.
   Steere, J.

On July 23, 1906, Mary C. Gamble, the then owner, recorded in the office of the register of deeds of Wayne county her plat of “City Heights subdivision of the south 330.70 feet of the north ½ of ¼, section 24 — 10,000-acre tract,” being a strip of land, of the width stated, in the village of Highland Park, lying adjacent to the north boundary , of the city of Detroit, extending east and west between Woodward and Oakland avenues, which run north and south, Oakland being east of Woodward. Through the center of this strip, as platted, Tennyson (also called St, John) avenue runs east and west the entire length from Woodward to Oakland, crossing John R. street, which runs north and south between the two named avenues through the subdivision. The strip is subdivided into 124 lots, 6 of which are fronted on Woodward avenue. The remainder front along both sides of Tennyson avenue, the 2 farthest east lying against Oakland.

Defendant Plotkin now owns lot 66 of the subdivision, and this suit was brought to restrain him from erecting upon it a brick veneer, two-story, 14-family apartment building. This lot is at the extreme southeastern corner of the plat, a corner lot, fronting 44.30 feet on the south side of Tennyson avenue, its east side abutting 131.35 feet on Oakland avenue, which, at the time this suit was commenced, was a business street occupied by a double-track street railway line, with places of business of various kinds extending along it on both sides in the vicinity of and opposite where Tennyson avenue joins it. At the other end of the subdivision, where Tennyson avenue joins Woodward, the six lots fronting west on Woodward had upon them a number of stores and apartment houses, the corner stores having entrances from Tennyson as well as from Woodward avenue.

The recorded plat of this subdivision contains no restrictions. Lots 1 to 6, inclusive, fronting on Woodward avenue, were sold for business, purposes without restrictions. One hundred and twelve lots in the subdivision were sold and conveyed with restrictions limiting their use to residence purposes only, but a single house to be built upon the premises, not less than two stories in height, 22 feet from the front street line, and costing not less than a specified sum. The remaining six lots, including 66, were sold under limitations which did not contain the express restriction to a single house, merely prescribing that the use should be “for residence purposes only,” the restrictions in that particular being in all six substantially as in defendant’s deed, which is as follows:

“This lot is restricted for residence purposes only, and no building is to be erected on the same with a flat roof or more than two and one-half stories in height and to conform to the building line of the street, being not nearer than 22 feet to the street line, and costing not less than $2,500.”

It is shown, and cannot seriously be denied on this record, that the proposed building complies with the letter of all these requirements. The testimony discloses, however, that there are now 107 single dwelling houses upon Tennyson avenue, which is a strictly residence street, except the Woodward avenue end.

Complainants claim, with supporting testimony, that when Mary Gamble platted and offered this subdivision for sale, it was her purpose to limit the Tennyson avenue frontage not only to residential purposes, but to single dwelling houses, so instructing her agents to whom she intrusted its management and sale, and that this plan has been published, insisted upon, acquiesced in by purchasers who built, and consistently observed, until defendant sought to violate it.

Defendant’s title to lot 66 originated from the owner of this subdivision June 3, 1907, in a contract of sale given by her to John and Loie Cramer, containing •the same restrictions, so far as material here, found in defendant’s deed. No restriction such as that sought to be enforced here — to a single dwelling house — is found in any of the conveyances in his ehain of title. The records further show that the title of each of the complainants in this suit originated • from the same owner of the subdivision subsequent to June 3, 1907.

Inasmuch as defendant’s deed does contain restrictions specifying just what use can, or cannot, be made of the property, and sets limitations' for the kind of building which may be built, nothing further or different is to be implied.

“Restrictions in deeds will be construed strictly against the grantors and those claiming to enforce them, and all doubts resolved in favor of the free use of the property.” James v. Irvine, 141 Mich. 376 (104 N. W. 631). See, also, Walker v. Renner, 60 N. J. Eq. 493 (46 Atl. 626).

In the James Case, McMurtry v. Investment Co., 103 Ky. 308 (45 S. W. 96, 40 L. R. A. 489), is cited, which is a suit brought to restrain the erection of an apartment house in violation, as was urged, of residence restrictions similar to those in defendant’s deed. In denying relief that court said:

“It is shown, indeed admitted, that these different apartments or flats are places for persons to reside in, but it is contended that the language- of the restriction conveys the idea of a single residence for a single family, or at any rate excludes the idea of a number of residences under the same roof or in the same house.
“We think, however, that to give the language used this meaning would be to extend its scope beyond the expressed intention of the parties. The purposes for which the house is to be erected on the court were ‘residence purposes only.’ * * * If the intention had been to permit the erection of only segregated private residences, the instrument would doubtless have so provided.”

At the time Mary Gamble sold this lot in 1907, parting with right of possession and control of the title, restricting its use “to residence purposes solely,” she yet owned this entire subdivision, so far as the records disclose, subject to no restrictions, with the exception of one lot, No. 8, near Woodward avenue, to the west of John R. street, in another block, and over a third of a mile distant from Oakland avenue. This had been sold with restrictions for a single house. If it were to any degree inferable that such conveyance of lot 8 indicated a general plan of restriction to single dwellings, extending as far as Oakland avenue at the extreme end of the subdivision and in another block, it was then impliedly negatived and abandoned by the sale of lot 66 limited to residence purposes solely, made by the same owner of the subdivision before any improvements were started in the subdivision. It is not shown that there was at that time anything else in the plat as recorded, conveyances given, or condition of the subdivision itself to impress the contract given for lot 66 with restrictions other than those embodied in it. Manifestly no subsequent conveyances or acts of Mary Gamble or others to which defendant or his predecessors in title were not parties and in privity could affect his title or change the restrictions imposed on lot 66. Defendant’s chain of title shows that his predecessors did not recognize in their conveyances any restriction to a single house, nor in that particular enlarge the conditions imposed when Mary Gamble sold this lot on June 3, 1907.

Clearly the restrictions which she imposed would not have been violated had the purchaser then proceeded to erect upon the lot an apartment house for residence purposes solely. He was under no obligation to improve the property. Allowing the lot to remain vacant imposed no duty upon the owner to watch and object to what others were doing with other lots in the subdivision, in order to protect this vested right. Other purchasers were, in fact, using their lots for residential purposes in harmony with the very use to which lot 66 was restricted. No court has gone so far as to intimate a rule that the mere building of single dwellings or the adoption of any particular style of architecture by others in a block is notice to the owner of a lot only restricted to residential purposes that he must do likewise or protest in order to protect his rights.

It is urged for complainants that not only was a uniform plan for single dwelling houses announced in the beginning, but that it has consistently been adhered to by all parties in interest since, recognized as binding and enforceable upon all who purchased in the subdivision, in reliance upon which many bought lots and established homes there. It is shown in that connection that this was advertised as a strictly residential subdivision when put upon the market; that a sign heralding that fact was placed at the entrance of the avenue; that an advertisement, with flaming headlines and a tracing of the plat, was published in a Detroit paper,, and dodgers were circulated stating, “Building restrictions for residences only; no flats or stores.” Copies of these dodgers and notice of sale in the public press produced in evidence indicate that these enticing restrictions apply to the entire plat delineated above them, including the Woodward avenue end, which was sold without restrictions and upon which there are “flats and stores.” Amongst the many inducements portrayed in these notices we find no mention of the use of each lot being limited to a single house or dwelling. The advertisement also prominently states:

“Building line restriction is 22 feet from street line on each side, making a distance of 104 feet between the fronts of the houses on the avenue.”

This restriction was embodied in the conveyances of all lots fronting on Tennyson avenue, and is shown to have been consistently violated, in the particular that the verandahs of most of the houses built encroach nearly eight feet beyond the specified line, and in numerous cases bay windows project a substantial distance beyond it. In Ogontz Land, etc., Co. v. Johnson, 168 Pa. 178 (31 Atl. 1008), a suit brought to enjoin construction of a porch beyond building line restrictions, the court said:

“While merely incidental' encroachments on this space by steps, or eaves, or ornamental projections might not amount to violations of the agreement, * * * yet a porch extending the whole width of the house as a substantial and integral part of it is clearly so. If it can occupy 8 feet of the reserve space, it could as well occupy the whole 15 feet to the fence line, and thereby destroy the open, uniform, general effect meant to be secured.”

See, also, 4 Ballard on Real Property, § 148, and cases cited.

As most purchasers in the subdivision who bought after lot 66 was sold were restricted to single dwellings, and built in compliance with their restrictions, and it was represented by the owner of the plat and her agents that all purchasers were or would be so restricted, it may be fairly said to have been the general understanding amongst those interested and located along Tennyson avenue that such was a universal restriction, and an enforceable plan for Tennyson avenue frontage. But lot 66, which had a side frontage on Oakland three times greater than its end frontage on Tennyson, was sold before complainants purchased, or any of these improvements were made, with its defined restrictions which have been consistently repeated in subsequent conveyances by succeeding owners who are not shown to have participated in or acted upon or in their conveyances recognized the subsequently developed scheme, or plan, of restricting this residential district to single dwellings only, or to have waived any of their vested rights as granted and evidenced in their muniments of title. It is an elemental rule that one person is without the least power or capacity, in the absence of delegated authority, to release or change the rights of another in land. Coudert v. Sayre, 46 N. J. Eq. 386 (19 Atl. 190).

Under the' general proposition of law that a general plan of restriction such as shown here is valid and enforceable and the fact that a portion of the conveyances do not contain the restriction may not defeat the same, it is contended by complainants that subsequent conditions developed on Tennyson avenue which brought lot 66 under the single dwelling restriction, and defendant was a purchaser with actual notice that such was the case. The proof to sustain this is that he actually saw, and necessarily noticed, Tennyson avenue was a residence street of attractive homes, with single houses on each lot and no apartment houses or business places fronting upon it. As conditions then existed, he also saw that this comparatively short street terminated at either end in business sections upon important business thoroughfares; that the lots in this subdivision on Woodward avenue were devoted to business purposes, and lot 66 at the other end of the plat, with a side abutment of over 130 feet on Oakland avenue, was occupied by a real estate office. He testified, and it is not disputed, that he talked with and bought the lot from a real estate agent, who had the property for sale, in an office on the lot, and who told him it was not restricted, but could be used for business purposes the same as the Woodward avenue end; that he tentatively made the purchase with that understanding, making a deposit of $50, and then obtained an abstract which he submitted to an attorney, who advised that he could build an apartment building upon the property, and he accordingly closed the purchase, had plans prepared for a $20,000 apartment building, made available by the Oakland avenue frontage to comply with the restrictions in his deed and abstract as to roof, height, and 22-foot distance from the Tennyson street line, and was proceeding to build when warned and forbidden by complainants, who, when he did not desist, restrained him by this suit.

Can it be said that what he saw or was fold operated as legal notice that all this subdivision, or even every lot fronting on Tennyson avenue, including 66, lying against Oakland, was restricted to a single dwelling? Though tola by the agent on the premises that this lot, located along a business street, was unrestricted, he obtained an abstract and consulted counsel before closing the deal. Finding it restricted to residence purposes only, he was content to purchase and to comply with the restrictions as disclosed by his. abstract. The rule of restrictions resting in parol as to certain lots in a subdivision under a general plan, developed and consistently maintained, has not yet been carried in its application to previously acquired titles not so restrained, held by non-participants and their grantees who are strangers to the plan with antedating rights.

The cases of Tillotson v. Gregory, 151 Mich. 128, 132 (114 N. W. 1025), and Allen v. City of Detroit, 167 Mich. 464, 469 (133 N. W. 317, 36 L. R. A. [N. S.] 890), cited and relied upon as sustaining complainants’ position, involved and turned upon other facts and principles than those disclosed here. The broad rule that under certain circumstances' a general plan of restriction to certain purposes may be initiated, maintained, acted upon, and accepted by all in interest to a point where it becomes binding on lots not otherwise restricted in a generally restricted subdivision was there recognized, but in the Tillotson Case the court found from the proofs no such restriction as contended for, held that a restriction in defendant’s title “for residence purposes only” was not violated by the erection of a four-family flat, and dismissed complainant’s bill; while in the Allen Case it appeared that the original owner of the subdivision, who previously had, by written restrictions in most of his conveyances and by distinct contracts written or oral in all cases, “fully understood, accepted, and acted upon by all who purchased,” subjected all lots sold by him in that district to' a general plan limiting their use to residential purposes, was himself thereafter negotiating a sale of a lot and a fraction to the city without restrictions, for the erection of a fire engine house upon it. Notice was served upon the city by previous purchasers from him of neighboring lots who had erected homes upon them before the sale was consummated. It was held the original owner who initiated and was responsible for such general plan of restriction to residential purposes might not sell without adhering to his plan, and that the city, having been timely notified and fully informed, would take subject to such plan if it purchased. Here, as already pointed out, complainants are subsequent purchasers under restrictions not originally imposed upon defendant’s title, and which they now seek to impose, a very different proposition from a subsequent purchaser taking the benefit of restrictive covenants expressed in a prior purchase.

We fail to find in the cases cited by complainants, too numerous to review at length, that the rule contended for has been enforced under facts analogous to those disclosed here. In many of the cases referred to the restrictions to be interpreted and sought to be enforced were contained in the defendant’s own deeds or chain of title; in others their titles originated from the owner of the subdivision subsequent to that of complainants, in whose favor rights had arisen of which defendant had express notice, or by active participation had become parties to a general, developed plan of restriction.

It may be conceded, as insisted by complainants, that defendant’s conduct and retorts in connection with his building project indicate that neither his presence nor proposed improvements are desired or desirable in that community; but that alone will not justify an injunction. Equity follows the law, and equity courts are not yet endowed with power to enforce the golden rule against the cupidity of those acting under strictly legal rights of property. Complainants have failed to establish a proposed violation by defendant of any of the restrictive covenants in his chain of title, or to clearly show that subsequent events have by legal implication imposed additions to such original restrictions. Courts of equity do not aid one man to restrict another in the use to which he may put his property unless the right to such aid is clear. Fortesque v. Carroll, 76 N. J. Eq. 583 (75 Atl. 923, Am. & Eng. Ann. Cas. 1912A, 79) ; Camovito v. Matthews, 82 N. J. Eq. 218 (88 Atl. 187).

From the foregoing views it follows that the decree of the lower court will be reversed, and complainants’ bill dismissed, with costs to defendant.'

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

Justice McAlvay, who sat in the case, took no part in this decision.


text:
    PEOPLE, for use of H. HOUGHTON & SONS, v. TRAVES.
    1. Compromise and Settlement — Contracts — Principal and Surety — Evidence—Debtor and Creditor.
    Where a contractor,. engaged in constructing a public building, became financially involved, and, at.-a meeting of his creditors, offered to give 3-year notes for his various accounts and some of the creditors or their representatives were not present, but others who were at the meeting expressed their willingness' to grant the reguest if all would join in doing so, there was insufficient evidence to entitle the debtor’s surety on his construction bond to a directed verdict upon the ground óf a compromise and extension of time.
    2. Same — Evidence — Trial — Striking out Testimony — Conclusion oe Witness.
    The testimony of defendant that, when he had made a proposition to his creditors, at a meeting, to give them 3-year notes for his indebtedness, they agreed to it, was incompetent as proof of their consent and the trial court did not err in striking from the record that part of his statement relating to the alleged agreement, as a conclusion, where he afterwards admitted that some of his creditors were not present and that he was not sure that one of those who was present expressed his consent.
    3. Same — Acceptance—Conclusions.
    Nor was it erroneous to strike out the testimony of another witness who was at the alleged meeting of creditors and stated that he went away with the impression that everybody present at the meeting would accept defendant’s proposition, and that most of the creditors seemed to be satisfied; the court granting an opportunity to counsel-to show what the actual facts were and what took place.

      Í. Evidence — Sales—Delivery—Admissions.
    Plaintiff sold to defendant Través a quantity of material for use in the construction of a schoolhouse and upon the trial offered in evidence delivery slips signed by the defendant, also books of account showing the amount due. Defendant’s counsel admitted that the receipts which bore defendant’s name were correct and might be received.* Proof was made as to plaintiff’s method of sale and delivery and the method of keeping track of the same. There was testimony tending to show that regular statements of account were made -to Través without objection 'and plaintiff’s auditor testified to the sending of the statements to defendant. Held, that such testimony, with other proof having a tendency to show the claims of plaintiff, was admissible and presented a question for the jury, in a suit on defendant’s construction bond to which the contractor and surety were both parties.
    5. Same — Presumptions—Delivery.
    Proof tending to show that the. material for building was ordered by the contractor and delivered at the place c>f construction, with evidence that the contractor gave his notes without- objection, for the price, and that monthly statements of account were rendered by the vendor to the buyer, who made no, complaint as to their correctness, was evidence of the correctness of. plaintiff’s claim and that the material was used for contract purposes, in a suit against him and his surety on the construction bond.
    6. Principal and Surety — Extension of Time — Release of Surety — Bills and Notes.
    The acceptance by the vendor of the notes of said contractor, which the former discounted to obtain credit or funds, did not release the surety unless it suffered prejudice by the extension: nor did payment of interest or the addition thereof to the renewal notes operate as a release, where the surety was paid for its services and suffered no injury by the action.

      7. Same — Disohakge of Liability.
    The rule of strictissimi juris does not usually apply to the undertakings of a surety company, acting for a compensation; but if a material variance in the contract is disclosed, the surety may be held discharged.
    Error to Wayne; Mandell, J.
    Submitted April 28, 1915.
    (Docket No. 150.)
    Decided September 29, 1915.
    Assumpsit by the People of the State of Michigan for the use of H. Houghton & Sons, a corporation, against William H. Través and the Fidelity & Deposit Company of Maryland, a foreign corporation, upon a construction bond. Judgment for plaintiff. Defendants bring error.
    Affirmed.

      Donnelly, Lyster, Brennan & Munro, for appellants.

      Selling & Brand, for appellee.
   Steere, J.

On May 26, 1910, defendant Traves contracted with the board of education of the city of Detroit to do the mason work, and furnish material for the same, in the construction of the Cass high school building, to be erected at the intersection of Grand River and Second avenues, in the city of Detroit. On the same date he furnished a bond to said board, in form required by Act No. 187, Pub. Acts 1905, to pay subcontractors, wages earned, for material used, etc., executed by himself as principal and the Fidelity & Deposit Company of Maryland, a foreign corporation, the other defendant herein, as surety. This action is brought against Traves and his surety by and in behalf of H. Houghton & .Sons to recover the purchase price of sand, cement, stone, and other material furnished to Traves and used by him in the construction of the said building. It is conceded that said bond was within the corporate power of the Fidelity & Deposit Company to execute and assume, and that it was duly executed in prescribed form according to the provisions of the statute requiring a bond in such cases.

Plaintiff claims to have furnished Traves building material of different kinds as required for his contract, and used by him in the construction of said schoolhouse, delivered upon the premises between October 30,1910, and November 1, 1911, except one small delivery made January 3,1911. It is shown that in the course of their dealings plaintiff from time to timé received from Traves, for the material supplied him, short-time notes running from 30 to 90 days, their dates extending over a period from June 22, 1911, to March 20, 1913. This action was begun August 5, 1913. Traves fell into difficulties and became financially embarrassed before the completion of his contract, being unable to meet his obligations when they-fell due, or later.

In January, 1912, shortly after the last material was furnished by plaintiff, a meeting of Traves and some of his creditors was held in plaintiff’s office, when he solicited of them an extension of time in which to re-establish his business and meet his indebtedness. It is claimed by defendants that plaintiff, through its authorized officials, co-operating with other creditors, agreed to the requested extension, and accepted a note in full of its account payable in three years. This is denied by plaintiff’s officials, who claim that the proposal was not generally accepted by Traves’ creditors, nor by plaintiff, and his note payable in three years was declined, word, being sent to him that only short-time notes for his indebtedness would be accepted, after which he executed and furnished short-time notes to plaintiff for what he owed it.

The trial court submitted to the jury as an issue of fact, under proper instructions, the question whether plaintiff did, in January, 1912, extend to Traves time of payment for, three, years as defendants claimed. This question was decided against defendants’ contention. The only other issue submitted to the jury was whether the material, as claimed by plaintiff, was actually furnished by it to Traves and used by him in the high school building under his contract. The jury also found for plaintiff upon this issue and rendered a verdict in its favor against defendants for the sum of $3,573.33, for which judgment was entered accordingly.

At the conclusion of plaintiff’s testimony, and again after both parties rested their case, counsel for the Fidelity & Deposit Company, defendant, moved the court for a directed verdict in its favor on the grounds that no delivery or use of the material such as would hold it as a surety had been proven, because there was no evidence of what material was furnished by plaintiff to Traves or used by him in the building; that plaintiff’s books were not properly proven; and that extension of time in which to pay, as shown, granted without knowledge or consent of the surety on the bond, operated to release it. These motions were denied.

Defendants’ counsel concentrate their numerous assignments of error into four different grounds for ereversal, as follows: “Exclusion of evidence; books of account; admissions of Traves; extension of time.”

Defendants’ claim that the surety was released by extension of time arose under two heads or lines of testimony — one that plaintiff took short-time notes from Traves and renewals of the same during a period of approximately a year and a quarter after the account became due; and the other that it consented to an extension of time for three years and accepted in payment a note running for that length of time. The first proposition was disposed of by the court in plaintiff’s favor as a question of law. The second, as before stated, was submitted to the jury as an issue of fact, with the direction that, if they found from the evidence plaintiff did agree to extend the time for three years, it could not maintain this action, and their verdict must be for the defendant surety.

Without reviewing the testimony relating to the latter question at length, it is sufficient to say that it clearly involved an issue of fact for- the jury. This issue was raised by special notice added to defendants’ plea of the general issue, alleging that at a meeting of Traves’ creditors held on or about January,/1912:

“It was mutually agreed that sa-id creditors and each of them, including the above-named corporation, H. Houghton & Sons, should accept the promissory notes of said William H. Traves payable three years from date and in full payment of their respective debts and accounts, and that said creditors, including said H. Houghton & Sons, each in consideration of the fact that the others should and did accept said promissory notes, accepted said notes as aforesaid; that the note so accepted by said H. Houghton & Sons was not due or payable at the time that this suit was brought or is the same now due and payable.”

It is conceded that at this meeting Través asked for an extension of time, offering his creditors three-year notes; that some of the creditors or their representatives, including plaintiff, expressed a willingness to grant the request if all the creditors would join in doing so. It is clearly shown that all the creditors did not consent, a number not being present at the meeting nor represented;,in fact, one of the largest creditors was not present nor shown to have at any time been asked for an extension, and later recovered a judgment for its claim in the Wayne county circuit court. The testimony of several witnesses was introduced as to what took place at this meeting. No witness testified directly that plaintiff agreed unconditionally to an extension, During his examination Través testified to-what he proposed, concluding with the general statement, “And they agreed to it.” This, on plaintiff’s motion, was stricken out. Error is assigned on this ruling under Detroit River Transit Co. v. Aldrich, 176 Mich. 357 (142 N. W. 373). In that case it was held not reversible error to permit an answer to the question “whether or not Mr. Aldrich agreed to pay you 50 cents for the gravel.” The witness answered: “Yes; I remember distinctly he agreed to pay 50 cents.” This was in relation to a conversation between two individuals, one of whom was the witness being interrogated, and was but a fragment of his testimony as to a deal between them in which the facts were fully gone into on both sides, by direct and cross examination. The witness was giving the substance of what a particular person said to him. Under these circumstances no prejudicial error calling for a reversal was found. In the instant case the facts in relation to this meeting were also fully gone into by direct and cross examination. Traves was given full opportunity to relate all that occurred, tell what any particular person said, who agreed to his proposition, and in what manner. He by his own testimony negatived, and in effect struck out, this answer, by stating that a number of his creditors were not present or represented, that he did not know that a Mr. Wolff, who was present and afterwards absolutely refused, ever opened his mouth at the meeting, that he could not tell exactly what anybody did say, but from what those who spoke said he “took it for granted they all agreed.” We find no error in the court striking out this omnibus, general statement that “they agreed to it,” when the witness himself shows that all did not, and testifies that he simply took it for granted.

A witness named Daigle, who was present representing a creditor, said:

“All I can remember hearing was that Mr. Través got up and made this speech. I did not' hear what the other people said.”

And he further testified that:

He “went away from there with the impression that everybody there would accept this condition .that, he put forth; * * * that most of the people and I would accept the condition; * * * most of the people seemed to be satisfied with that.”

The latter testimony was stricken out, the court saying in part:

“What satisfied you of that? * * * How — by words or looks or actions, or what? * * * You said you came to the conclusion that certain persons who were there understood certain things; what was it that influenced you in drawing that conclusion ? In the meantime the testimony concerning that may be stricken out; all testimony concerning an impression or conclusion of the witness may be stricken out.”

The distinction between opinion and fact as applied to his case being correctly stated by the court as follows:

“A lot of men get together and talk back and forth, and that talk must form a basis for any contractual relations between the parties, and if that talk was not given, no contractual relations can be had. Some words must be given as a basis for some impression or conclusion.”

Full opportunity was granted the witness to tell what was said and in what manner the consent, of which he had an impression, was expressed. Under such circumstances we see little force in the assignment of error upon this ruling.

Counsel for defendant say in their brief:

“To prove the receipt, by Traves, of the material for the price of which the suit was brought, the plaintiff relied up’on its books of account, and upon certain admissions by Traves as hereinafter described,” both of which are claimed to have been erroneously admitted.

If the evidence of delivery, receipt, and use of the material sought to be recovered for was confined to plaintiff’s books and proof of admissions by Traves, these objections might call for more serious consideration; but we think the record discloses much more. To establish its prima facie case plaintiff produced but two witnesses, one to prove the bond, and the other, George Harkness, who became manager and auditor for plaintiff after the delivery of this material, but was familiar with its books, files, business methods, and records. He produced in court its books, slips for delivery of this material, invoices, etc. These were numerous and voluminous. There were 664 delivery slips, the majority signed by Traves himself and some signed by his authorized employees. When these were offered in evidence counsel for defendant said:

“You offer them to show the material shown in the slips were delivered to him?”

And, being answered in the affirmative, they conceded :

“That the material shown in certain of those slips was delivered and received by Mr. Traves, and at the job, namely, the ones that were receipted for by him, either his initials or his name, or the ones receipted for by three other persons who were authorized to receipt for him, their names being, as was stated by counsel, Roran, Wilson, and Pata.”

After some further discussion and statement by plaintiff’s counsel as to what further it was proposed to show in that connection, defendants’ counsel said:

“We will admit in evidence without objection such ones of these slips as bear the receipt of Mr. Traves’ name, or any one of the names I have mentioned, but as to the others that are not receipted, or that bear the signature of some person — some other person — we object to their admission.”

The slips receiptéd by others were few in number, and of small amount after March 11, 1911. Payments had been made which balanced Traves’ account up to that date, and plaintiff only asked and recovered a verdict for material delivered at and used by the Cass high school building after that time. Credit was also given for $245.30 worth of cement sacks returned, not all of which were shown to have been received by Traves at this building. Harkness was examined and testified at length as to plaintiff’s method of sale and delivery, showing, in brief, that when an order was received for material to be used at a certain place a delivery slip was made in triplicate, with carbpn paper, one being given to the price clerk and entered upon the proper record with the price of each article, and two copies were taken by the teamster with the load of material, who gave one copy to the purchaser or his representative at the place of delivery and returned the other to the office receipted by the person receiving the goods. An invoice would also be made out at the office with a carbon copy, which was retained, the original being mailed the same day to the purchaser. Monthly statements were also sent to the purchaser showing the total of each day’s delivery. Witness testified, under objection, that Traves’ accounts, which were in court, contained an exact transcript of the delivery slips, which would be duplicates as priced by the pricing clerk, one being mailed to Traves, and one posted in the ledger. The court allowed the witness to state the result of an examination of the books on this matter, “because it appears from the books that they are very voluminous, and every opportunity will be given to defendant to examine them with regard to the items testified to,” and to counsel’s further objection “to proving by saying what is in the books” repeated this in substance. Plaintiffs books were not formally offered and received in evidence in its main case, though after a full cross-examination of Harkness defendants’ counsel offered the ledger'account in evidence. Harkness also testified without objection that Través made no objection to the monthly invoices and statements sent him.

Plaintiff claimed, and claims, that by proof of the receipt of this material “on the job” or at the place where the contract was being performed, it raised a presumption that it was used in the building and made out a prima facie case — citing Rice & Floyd v. Hodge Bros., 26 Kan. 164, 171; Morrison v. Hancock, 40 Mo. 561, 565. In overruling defendants’ motion for a directed verdict, when plaintiff rested, the court said l

“There is the evidence of the slips, evidence that the-! amounts stated in the slips are entered on the ledger,, evidence that the ledger accounts were transcribed upon a bill, and that the bill was delivered monthly to Mr. Través, and that settlement or conversations were had, and in none of them was the account disputed.”

Counsel for the defendant surety company called Través to the stand in its own behalf, and in the course of his direct and cross-examination he testified that he received monthly statements from plaintiff containing a memorandum of where the material was delivered, which also appeared in the daily invoices sent him; that when the material was delivered it was accompanied by a delivery slip describing the article, amount delivered, name of driver, and when delivered, followed by a daily invoice sent through the mail; that he checked the slips up with the daily invoice, and if any discrepancy appeared notified plaintiff’s office, and it was corrected; that his monthly statements were always correct for material received up to the time of giving the notes for their value; that he'.was allowed 5 per cent, for cash, otherwise 30, 60, and 90 days’ time; that the prices he was charged were correct; that he never had any material delivered at the high school building which was used on another job. Plaintiff then called its bookkeeper, who produced and identified the carbon duplicates of the invoices which were set out in its bill of particulars and testified to personnally and correctly posting them into the ledger, and that monthly statements showing the transactions of the previous month, with any balance' over from the month before as appeared by the ledger, were promptly sent to Traves every month. While perhaps this testimony would more properly have been part of plaintiff’s main case, we think, under the circumstances disclosed, it was a matter in the discretion of the court, and find .no material error in admitting these accounts or the manner of submitting such testimony to the consideration of the jury under the condition of the evidence when both parties rested.

Upon Traves’ so-called admissions counsel cite an abundance of authority sustaining the proposition that declarations and admissions of the principal to be admissible must be part of the res gestæ, and made during transaction of the business for which the surety was obligated to bind the latter. This would apply to objections interposed against the testimony of other witnesses as to statements or admissions made by Traves subsequent to the transaction, but not to the testimony of Traves himself when called by defendant as a witness in his own behalf. In such case his testimony under oath as to material facts is for the jury to weigh as. that of any other witness. Neither is the surety, having called him, in a position to invoke the rule. Upon this the court charged the jury that:

“The recognition by Traves of the correctness of the charges against him and the giving of his note therefor established prima facie that the materials charged against Través as delivered at that site were actually received and used in the construction of the Cass high school.”

It is urged that this was error, because such recognition by Través could only apply to his indebtedness to plaintiff, and not to the amount of his indebtedness for material delivered and used in the job for which the other defendant was surety. Not only does delivery of suitable material at the place of performing the contract, as ordered, raise a presumption of its use for that purpose, in the absence of any proof to the contrary, under the authority cited, but Través himself testified:

“I never had any material delivered at the Cass high school that was afterwards used in another job. It had to be used there.”

We find no error in the admission of Través’ testimony or the instructions of the court in relation to it.

Upon the claim of the release of surety by extension of time in accepting short-time notes and renewals of the same, it is urged that the court should have directed a verdict in favor of the defendant bonding company, under the undisputed evidence, instead of directing the jury, as a matter of law, that the surety on the bond was not thereby released from its liability.

Través testified that by their method of dealing 5 per cent, discount of monthly bills was allowed for cash or time given for 30, 60, or 90 days. He gave the notes, and, not paying them when due, they were renewed. It was shown that plaintiff, in the conduct of its business, secured credit, indorsing and discounting notes of its customers, instead of discounting its own notes. In discounting these notes interest was charged plaintiff, and in some cases interest was added in the renewals, and it is contended that the facts bring the case squarely within the rule stated in People, for use of The C. H. Little Co., v. Grant, 138 Mich. 60 (100 N. W. 1006). This may be conceded, with the marked exception, on which the dividing line is drawn by many courts, that in the Little Case the sureties, Archer and Porath, were natural individuals gratuitously signing Grant’s bond for accommodation, while in the instant case the surety is .an artificial person, a corporation, engaged in the business of becoming surety on bonds for profit. Of this distinction it is said:

“The trend of all our modern decisions, Federal and State, is to distinguish between individual and corporate suretyship where the latter is an undertaking for money consideration by a company chartered for the conduct of such business. In the one case the rule of strietissimi juris prevails, as it always has; with respect to the other, because it is essentially an insurance against risk, underwritten for a money consideration by a corporation adopting such business for its own profit, the courts generally hold that such a company can be relieved from its obligation for suretyship only where a departure from the contract is shown to be a material variance.” Young v. Bonding Co., 228 Pa. 373 (77 Atl. 623).

Defendant has not in its pleadings or proofs claimed or shown that it was in any manner prejudiced or actually harmed by the extension of time complained of. That payment of interest is not necessarily a controlling factor in this class of cases is determined by the decision in Guarantee Co. v. Brick Co., 191 U. S. 416 (24 Sup. Ct. 142), where it appeared the materialman in whose behalf the action was brought had accepted short-time notes, drawing 10 per cent, interest, after the account had become due. It not appearing that the surety suffered any material harm thereby, the court held its bond was not released. This particular feature of the case has recently been considered and reviewed by our court in People, for use of T. B. Townsend Brick, etc., Co., v. Bowen, 187 Mich. 257 (153 N. W. 672). We regard the principles there recognized as applicable to the facts in this case, and controlling upon the question of extension of time.

For the foregoing reasons, we are constrained to conclude that the judgment of the lower court ought to be, and the same hereby is, affirmed.

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

The late Justice McAlvay took no part in this decision.


author: Brooke, C. J.

text:
    GUIDO v. DETROIT STOVE WORKS.
    Master and Servant — Negligence—Instructing Servant — Elevators.
    Evidence that a foreign laborer, 52 years of age, was instructed by the operator of a freight elevator how to run it, and how to use the lever and manage the gates or shutters, that he ran the same over 30 days without accident and that in some unexplained manner the elevator started and ascended, injuring him, had no tendency to show insufficient instructions by the employer so as to establish its liability for negligent injuries.
    Error to Wayne; Tucker, J., presiding.
    Submitted April 13, 1915.
    (Docket No. 50.)
    Decided September 29, 1915.
    Case by Guiseppe Guido against the Detroit Stove Works for personal injuries. Judgment for plaintiff. The court on defendant’s motion for a new trial after-wards set the judgment aside, granting a new trial. Plaintiff brings error.
    Affirmed.

      Henry F. Chipman, for appellant.

      Keena, Lightner, Oxtoby & Hanley, for appellee.
   Brooke, C. J.

Plaintiff, a native of Italy, at the time of his injury was 52 years of age, and had lived in this country 8 years — in Detroit 5 years — and had worked for the defendant for 2 years. During 18 months of that time he had worked in the barn, cleaning horses, washing wagons and automobiles, etc. From this employment he was taken into the factory, where the foreman instructed one Tano Wassella, who up to that time had operated the elevator, to instruct plaintiff how to run the elevator, and open and close the iron shutters inclosing the elevator shaft. The elevator was used for freight only..

Wassella showed the plaintiff how to start and stop the elevator by the use of a lever which controlled the electricity, and instructed him to permit nobody to handle it except himself, or to ride upon it unless accompanied by freight. The elevator was equipped with automatic gates, 'and in front of each opening there was placed an iron curtain or shutter, which it was the duty of the elevator operator to open in the morning and close at night. These curtains or shutters hung upon rolls fixed at the top of each opening. The operator was able to draw the curtain down, thus closing the opening, and in the morning to push it up upon the roll. After receiving instructions from Wassella, the plaintiff undertook the operation of the elevator and the raising and lowering of the curtains, and performed his duties in both respects with safety to himself and satisfaction to his employer for 30 days. During this period he ran the elevator up and down, stopping at the various floors (of which there were five) as occasion required for the movement of freight.

It was the plaintiff’s duty to close the iron curtains at 4:55 p. m. At about that time on the day of his injury he had the elevator at the top floor. He descended to the first floor, where a fellow employee instructed him to carry a stove to the third floor. This he did, stopping the elevator opposite the third floor. He .then removed the stove to a point about 10 feet distant from the elevator shaft, when he returned to the elevator, which was still in position. No one was in or about the elevator cage, except himself. It being time to close the iron shutters, he then turned, facing partially outside, and grasped the curtain at its lower edge to pull it down according to custom. While he was engaged in this act, he testified that the elevator started to ascend. This action of the elevator released the automatic gate, directly under which he was standing, which in descending struck him on the head. He fell backwards into the elevator, but testified that the descending gate caught'his legs. The elevator continued to ascend, and according to plaintiff’s testimony his legs were caught between the floor of the elevator and the fourth floor, where one leg was broken, and he received other injuries resulting in a double hernia. At the fourth floor he was thrown out of the elevator onto that floor; the elevator proceeding to the fifth floor, where apparently it stopped automatically.

The plaintiff offered no testimony tending to show that either the elevator or any of its appliances were out of order. He further offered no testimony tending to show how the elevator was started. He contented himself by showing that it did start, and by asserting that he himself had not started it. He testified that during the entire month during which he had operated the instrumentality it had worked perfectly, and that it had worked perfectly on the day of his injury up to the moment it started while he was pulling down the iron shutter. No evidence was offered of the failure on the part of the defendant to properly inspect the machinery. Nor was any evidence introduced by plaintiff tending to show that the elevator could be started by any person or at any point in the building, except by the operator of the car in the car itself. The record being in this condition at the close of plaintiff’s proofs, defendant moved for a directed verdict, upon the ground that no negligence on the part of the defendant had been shown. Counsel for plaintiff having stipulated that the trial judge, upon motion for a new trial, might set aside the verdict if one should be rendered in favor of the plaintiff, the court submitted the case to the jury upon one question only, which is indicated by the following excerpt from the charge:

“I have concluded to submit that question to you upon the_ sole proposition as to whether or not this man received, through Tommy, from the man there in charge, Mr. Gamble, such instructions as you consider, as reasonable men, a man in his circumstances ought to have received, and further than that you must be satisfied from his testimony introduced here that if it had not been for that, and if he had received instruction, such instruction as you believe he ought to have received, that this accident would not have happened. Only in that event can the plaintiff recover at all.”

A verdict having been rendered in favor of plaintiff, a motion was made by defendant for the entry of a judgment in its favor non obstante veredicto. In answer to this motion, plaintiff filed an affidavit, made by the witness Tano Wassella, in which said Wassella described the mechanism of the elevator as follows:

“That said_ elevator is run by electric power, and is supplied with a certain rope, which is in the brick well hole or shaft which incloses said elevator, but which is. outside of the car of said elevator, by means of which said rope said elevator can be set in motion from any point from the top to the bottom of said elevator well hole or shaft, by persons who cannot see the persons upon said elevator, unless the person starting said elevator was at the immediate level or in front of said elevator car, and, further, that said person in charge of said elevator could not see the person starting said elevator, except under the same circumstances.”

The court, in disposing of the motion, said:

“There is no testimony fairly tending to show the cause of the accident, and nothing in the case, in my judgment, tending to establish ány definite negligence on the part Of the defendant, unless it may be negligence in hiring such a man as the plaintiff was to run an elevator. Plaintiff did run it successfully for nearly a month, and I am convinced that, even if he were not sufficiently instructed in the first instance, the simplicity of the operation of the elevator was such as to warrant a finding that a man of the grade of intelligence of the plaintiff would and should easily have become entirely familiar with its management in less than a month. At the time of the trial, and after the conclusion of the testimony, the court announced to counsel that a verdict for defendant would be directed, unless counsel consented that if it were submitted to the jury, and a verdict for plaintiff resulted, that this court, if it afterward concluded that a verdict should have been directed, might set aside the verdict and judgment, and diréct the entry of a judgment for the defendant as if a verdict had been in the first place directed for the defendant.”

We are of opinion that the action of the learned trial judge was warranted under the following authorities: Perry v. Railroad Co., 108 Mich. 130 (65 N. W. 608) ; Voigt v. Car Co., 112 Mich. 504 (70 N. W. 1103) ; Dombrowski v. Manufacturing Co., 180 Mich. 202 (146 N. W. 666) ; Beach v. Railroad Co., 180 Mich. 524 (147 N. W. 586) ; Meyer v. Chair Co., 180 Mich. 604 (147 N. W. 488) ; Cressler v. Paper Co., 181 Mich. 422 (148 N. W. 176).

The judgment is affirmed.

Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.

The late Justice McAlvay, to whom this case was assigned, took no part in this decision. '


author: BROOKE, C. J.

text:
    HENDERSHOTT v. MOORE.
    Equity — Adequate Remedy at Law — Injunction — Trespass —Restraining Invasion op Property.
    Where defendants were charged by the bill of complaint with committing a simple trespass, in that they entered upon an island, consisting of two acres and upwards of land, proceeded to construct a house or similar structure upon it, the remedy of complainant was properly an action at law, not a suit in equity for an injunction to restrain the unlawful acts of defendants which were not shown by the bill to have constituted an injury to the freehold.
    Appeal from Barry; Smith, J.
    Submitted June 9, 1915.
    (Docket No. 36.)
    Decided September 29, 1915.
    Bill by Robert L. Hendershott against William Moore and others to enjoin a trespass. From a decree for complainant, defendants appeal.
    Reversed.

      Rodgers & Rodgers, for appellants.

      Colgrove & Potter, for appellee.
    The bill of complaint in this cáse sets out that in the year 1887 the complainant and one William E. Powers purchased from one John H. Williams, a small island known as “Williams Island,” containing about two acres and located in Gunn Lake, on the southeast quarter of section 32 in the township of Yankee Springs, Barry county. The value of said island is fixed in the bill of complaint at the sum of $100 and upwards. It is alleged that complainant, ever since acquiring title to said island, has exercised acts of dominion over it, planting it, and protecting its banks from the ravages of the waters of the lake, and paying taxes upon it each year since the date of the conveyance to him and Powers. It is further alleged that on the 30th day of May, 1914, defendants entered upon said premises and commenced the erection of a building, and that defendants, or any of them, never had any title, possession, occupation, or control of said island, or any part thereof. The bill further charges that complainant fears defendants will seek to acquire title to said premises, that they evidently expect to continue to trespass upon said premises, that he feels they will do so unless restrained by the order of the court, that the continued trespass will necessitate a multitude of suits, that complainant cannot have an adequate remedy at law, and that the damage will be a continuing damage. Complainant prays for an injunction.
    Defendants in their answer deny that complainant has any title to the land in question, and deny that any patent was ever issued by the government for the sale of said southeast quarter section of said township, but allege that said island has been universally conceded by every one who has been at all familiar with the circumstances to be a public island, owned by no one except the United States government. They deny that the complainant or his grantor have ever exercised any acts of dominion over said island. They further deny the jurisdiction of the chancery court, and aver that all and every of the matters in said complainant’s bill of complaint contained are matters which may be tried and determined in a court of common law.
   BROOKE, C. J.

(after stating the facts). Upon the trial of said cause the complainant introduced much testimony tending to show acts of dominion over the disputed island and possession of the same consistent with its character. Defendants offered no testimony. A decree was rendered fixing title to said island in complainant and the heirs of William E. Powers, deceased, declaring defendants to be without any title or interest in said land, and permanently enjoining them from further trespassing thereon.

At the outset we are met with a question of jurisdiction. So fair as this record discloses, defendants committed a simple trespass upon lands claimed by the complainant to belong to himself and the heirs of his cograntee. That trespass consisted in going upon the lands in question, and erecting, or starting to erect, .a building. Such an act on the part of the defendants would, it appears to us, have no tendency to injure the freehold, and is not a trespass of such a nature as, under the authorities in this State, would clothe a court of equity with jurisdiction. See Nicholls v. Lumber Co., 157 Mich. 234 (121 N. W. 742), and cases there cited.

The bill of complaint is dismissed, with costs of both courts to defendants, and complainant remitted to his remedy at law.

Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.

The late Justice McAbvay took no part in this decision.