text:
    GABLE v. DEAL.
    1. Drains — Abandonment op Proceedings — Costs.
    Defendant having joined with others in signing a petition for the construction of a drain, praying that the assessment should include a specified district, and the proceedings having been abandoned after certain costs and expenses were incurred, the drain commissioners are authorized by statute (2 Comp. Laws, § 4319) to recover the expense in an action against the petitioners, unless the commissioners were at fault, and although no fund existed at the time such expenditures were made.

    2. Same — Validity op Petition — Contents.
    To insert in the petition at the request and with the consent of those who have already signed it, a direction that certain lands be assessed, does not invalidate the proceedings, and may be treated as mere surplusage; nor does such action put the drain commissioner at fault so as to prevent recovery for the expenditures made, upon the abandonment of proceedings.
    3. Same — Abandonment—Good Faith op Drain Commissioner.
    The good faith of a drain commissioner in abandoning proceedings under the petition, on the advice of the judge of probate and the prosecuting attorney, and in commencing new proceedings, is sufficiently shown to justify a recovery for the costs: following Gable v. Deal, 150 Mich. 430 (114 N. W. 214).
    4. Same.
    Dismissal of the proceedings may take place for other cause than that the drain is unnecessary or impracticable, and costs follow unless the abandonment was due to a default or neglect of the drain commissioner.
    Case made from Allegan; Padgham, J.
    Submitted April 8, 1910.
    (Docket No. 35.)
    Decided May 7, 1910.
    Assumpsit by Elmer E. Gable and Philip W. Burgess, drain commissioners respectively of Allegan and Barry counties, against Joseph Deal for costs incurred in certain drain proceedings. A judgment for plaintiffs on a verdict directed by the court is reviewed by defendant on a case made.
    Affirmed.

      Wilkes & Stone, for appellant.

      Charles Thew, for appellees.

       As to procedure for the establishment of drains and sewers, see note to State, ex rel. Utick, v. Polk County Comrs. (Minn.), 60 L. R. A. 161.

   Stone, J.

This is an action in assumpsit to recover costs in certain drain proceedings brought by the plaintiffs as county drain commissioners of Allegan and Barry counties against the defendant as a signer of an application for a drain that called for the action of the drain commissioners of both of said counties.

A case involving some of the same questions as are here presented was before this court in Gable v. Deal, 150 Mich. 430 (114 N. W. 214). The claim here sued for was disallowed in the case above referred to, for the reason that there were different signers to the first and second petitions. The statute (section 4319, 2 Comp. Laws) provides:

“Such applicants shall be jointly and severally liable for all costs and expenses in case the county drain commissioner upon examination, or upon examination and survey, shall determine that the same is unnecessary or impracticable, or in case the proceedings shall be dismissed for other cause.”

The claim in the case at bar is for the costs incurred on an application dated December 5, 1902, while the claim allowed in the case above referred to was for the costs incurred upon a later application made in June, 1903. Reference to that case renders a lengthy statement of the facts here unnecessary. Before the first application was filed with Clinton R. Baker, who was then the drain commissioner of Allegan county, and after three persons had signed the application, one of the signers saw Mr. Baker, and requested him to insert in the application the following words:

‘ 'Also that the full watershed of said Gun river drain shall be assessed for drainage.”

He wrote the same in the application with the knowledge and consent of all who had then signed the application. There were 80 signers to this application when it was filed with the drain commissioner. Along in June, 1903, and after the labor had been performed, and the expenses incurred under said first application, which constitute the plaintiff’s claim in this suit, some of the signers asked Mr. Baker as to the effect of the said change in the application. It is undisputed that some question had been raised by parties interested as to the legality of such change. The drain commissioner consulted with the prosecuting attorney and the judge of probate relative to the matter, and through the advice of these officials it was deemed more prudent and' advisable to abandon the first application, and prepare and file another. Another application was prepared, and the defendant, with full knowledge of all the facts, obtained most of the signatures to the second application. The second application was signed by 23 persons. It was in the same form as the first, except that the clause above referred to was omitted. The proceedings under the first application having been abandoned, the new application was filed, and the proceedings thereunder seem to have been regular and in accordance with the statute. During the progress of the proceedings under the second application, certain persons filed a bill in chancery in the circuit court of Barry county, attacking the validity of the drain, and praying for a perpetual injunction. Upon the hearing of the case a decree was entered perpetually enjoining the construction of the drain. Thereupon an order was entered dismissing the drain proceedings, and the suit in Gable v. Deal, supra, was brought. In that case Mr. Justice Gbant, referring to the items embraced in the present suit, said:

“ The failure to construct the drain was not due to any fault of the plaintiffs or their predecessors. The defendants, the petitioners, are therefore liable for the costs. Among the items included in the judgment are $173.50 for the services of the surveyor rendered under the first petition, and $163.50 to Mr. Baker, the then drain commissioner, for services rendered under the same petition. The theory under which these items were allowed appears to be that, although rendered upon the first application, they were used upon the second application, and these defendants received the benefit, or, as Mr. Baker in his testimony, said:
“ ‘ All these services would have had to be rendered after June 30th, if they had not been rendered before. We simply used the knowledge acquired before.’
“The result is, if the judgment be sustained, that the expense of the first and abandoned proceedings, which should have been shared among the 80, is now imposed upon 23, 7 of whom were not petitioners to the first proceedings. Drain proceedings are statutory, and the requirements of the statute must be followed. The commissioners could no more pay for the knowledge obtained by a former abandoned proceeding than they could pay for knowledge obtained from any other source. If the drain commissioners in the first proceedings were not responsible for the defect, and acted in good faith, the petitioners in that case alone must pay for the expense incurred.”

Upon the trial of this case before a jury, the circuit judge directed a verdict for the plaintiffs for the following items, with interest thereon: For services rendered by Hugh MacDougall as surveyor, $140; for services rendered by Clinton R. Baker as county drain commissioner, $87; for money paid by Clinton R. Baker for help hired by him on the Gun river drain proceedings, $39.50 — total $274. Upon the trial, of the case, the evidence was undisputed that the commissioner, Baker, between December-19, 1902, and May 25, 1903, rendered 29 days’ service, amounting to $87; also, that he paid out for hired'help to the men he employed to assist him, in connection with said Gun river drain prior to the making of the second application, $39.50; that the men he so employed assisted in cutting brush and running the line when the survey was made under the first petition; and that he had to pay the help in order to get it, and that the services were necessary.

It was admitted on the trial by counsel for the defendant that, if the plaintiffs were entitled to recover in said cause at all, the services of the surveyor, Hugh MacDougall, were worth the sum of $140 for 35 days’ services, at $4 a day. At the close of the evidence, the defendant requested the court to instruct the jury:

“First. That if they should find from the evidence that the then drain commissioner, Baker, inserted a provision in the application that the whole watershed of Gun river should be assessed for benefits, and if after proceeding thereunder and causing a survey to be made the then county drain commissioner abandoned said proceeding because of what the said Baker had inserted in the application, and if you find that this defect was one that said Baker was responsible for, then I charge you that the plaintiffs in this case cannot recover, and your verdict should be for the defendant.
Second. That, under the undisputed evidence in the case, no verdict should be rendered for the items of expense claimed to have been paid by the said Clinton R. Baker for services in the matter of said drain, for the reason that said proceedings were abandoned by the said Baker, because of what he himself had inserted in the application.
Third. If, while Mr. Baker was drain commissioner, proceedings under the first application were abandoned, and another application was filed therein, which application was accepted by the said drain commissioner, and his successor in office, and acted upon, and if no proceedings were ever taken thereunder after the said first application had been abandoned, then I charge you that the plaintiffs in this ease would have no jurisdiction over said application to dismiss the proceedings for any other or different reason than the one for which the former drain commissioner had abandoned them.”

Exception was duly taken to the refusal to so charge, and there are seven assignments of error by the defendant, and the case is here upon a case made.

1. The first assignment of error alleges error because the court did not strike out the testimony of the witness Baker as to the item of $39.50, paid out for help to the men he employed to assist him in the work, and the seventh assignment alleges error in that the court directed a verdict for this item. They may be considered together. If the plaintiffs are entitled to recover in this case at all, it seems to us that they are entitled to recover for this item. It is true that the statute provides that all orders for payment for services rendered should be drawn by the commissioner upon the drain fund of each particular drain. But it should be borne in mind that at the time this help was hired there was no drain fund for this particular drain. To hold that the commissioners cannot incur any expense for the survey, or for assistance in making the survey before the fund for the particular drain has been created, is to defeat the very object of the statute, and is to require the commissioners in such a case “ to make brick without straw.” It seems that this money was paid by Mr. Baker as a part of the expenses. The plaintiffs are his successors in office; and the undisputed testimony shows the necessity for this labor and expenditure. We think that the court did not err in this matter.

2. The second assignment alleges error in directing a verdict for the plaintiffs, and the sixth assignment alleges error because the court did not submit the case to the jury. Considering them together, it may be said that there was no conflict in the evidence, and it was clearly a case for a directed verdict. Was the verdict rightly directed ? This raises the principal question in the case. Was there any fault in the conduct of the drain commissioner in making the change in the application at the request of the three signers ? If this is to be treated as an open question, we think that the action of the commissioner was in good faith, and did not impair the validity of the application. Notwithstanding this clause, the power rested with the commissioners under the statute, after the survey and the final order of determination, to order and direct what lands were to be assessed as benefited. Any request in the petition covering this subject was unauthorized, and was not binding on the officers. It might well be treated as surplusage. Smith v. Carlow, 114 Mich. 67 (72 N. W. 22). We have examined the records and briefs in Gable v. Deal, supra, and we think that it there appears that the circuit judge in his finding in that case virtually held that the first petition was valid. Error was assigned upon that finding, and this court disposed of that and other questions by saying:

“ The other objections raised have had due consideration, and we find that they are not well taken.”

It may well be urged that the question of the sufficiency of the first petition was disposed of in that case.

That the commissioner acted in good faith in following the advice of the prosecuting attorney and judge of probate, cannot from this record be questioned, and that being so, the petitioners are jointly and severally liable for the costs and‘expenses of the proceedings, if the same have been properly dismissed. We are of opinion that the right to dismiss both of these applications has been ruled by the former case in this court. The drain commissioner made the following order:

“ State of Michigan, )
“ County of Allegan. )
“ The proposed drain to be located under the application of Joseph Deal and others, hereto annexed, having been examined by us and surveyed by Hugh MacDougall, county surveyor of said county, has been determined by us to be impracticable, which determination is hereby made of record, and having been abandoned by said Joseph Deal and other applicants, a new application made and proceedings thereon had having been stayed and annulled by a decree of the circuit court for the county of Barry, in chancery, and there being no further reason to, and it being impossible to further proceed upon said application, and all further proceedings in relation hereto, and said petition are hereby dismissed, at the cost of the applicants signing the same, to wit, Joseph Deal and other applicants signing said petition.” Signed by drain commissioners of both counties.

The order dismissing the proceeding was proper. The decree of the Barry circuit court in chancery applied to the entire proceeding, and it was impossible to further proceed therein. Such proceedings may be dismissed under the statute “for other cause” than that the drain is unnecessary or impracticable, and costs are to follow where the proceedings are dismissed or quashed for any cause not due to the negligence or fault of the commissioner. Case v. Telling, 112 Mich. 689 (71 N. W. 510); Parker v. Lincoln, 114 Mich. 306 (72 N. W. 173); Brown v. Kennedy, 132 Mich. 464 (93 N. W. 1073). If the case were to depend upon the laying aside of the first petition by the commissioner, it might be said that there could be no neglect or default, because that officer acted in good faith under the proper legal advice, to all of which the defendant assented.

If the situation at the time of the order dismissing the proceedings is to control, then there was not o.nly ample reason for such action, but further proceedings were impossible ; and it was not brought about in any sense by the' neglect or fault of the drain commissioners. In either view of the case, there was no error on the part of the circuit judge in refusing to give the defendant’s requests to charge. These refusals are the grounds of error alleged in the other assignments of error.

We find no error in the record, and the judgment of the circuit court is affirmed.

Moore, McAlvay, Brooke, and Blair, JJ., concurred.


source: Caselaw Access Project

author: Ostrandeb, J.

license: Public Domain

text:
    OFFLEY v. GARLINGER.
    1. Statutes op Limitation — Adverse User — Drainage — Prescription — Burden of Proof.
    A defendant in a proceeding in equity to enjoin an increase over the natural flow of surface water from defendant’s to complainant’s property, has the burden of showing that he has acquired the right by prescription.
    2. Waters and Watercourses — Flowing Lands — Drains.
    While the natural flow in times of high water was from defendant’s to complainant’s land from a swamp in one corner of defendant’s property, the complainant is under no obligation to submit to a discharge of surplus water artificially brought from portions of defendant’s land to a dividing highway, thence into the swamp and upon complainant’s land: and no additional right accrues to the defendant from the construction of the highway, under which a oulvert is built from the swamp to the land of complainant. Smith v. Barrett, 159 Mich. 325 (123 N. W. 1091) distinguished.
    3. Same — Estoppel—Laches.
    The doctrine of laches or of estoppel is not available to defeat the claim of the lower proprietor on any theory that his purchase of the land with knowledge that the defendant was committing a trespass subjects it to the continuation thereof.
    Appeal from Barry; Parkinson, J., presiding.
    Submitted April 11, 1910.
    (Docket No. 53.)
    Decided May 7, 1910.
    Bill by Hibbard A. Offley against Peter Garlinger to restrain the draining of surface water upon complainant’s land. Prom a decree for complainant, defendant appeals.
    Affirmed.

      Thomas Sullivan, for complainant.

      Golgrove & Potter, for defendant.
   Ostrandeb, J.

The complainant owns the N. E. £ of section 22 in the township of Castleton, in Barry county. The defendant owns the E. £ of the S. E. \ of section 15 and the W. i of the S. W. i of section 14 in the same township. There is a highway on the section line between sections 15 and 22, and 14 and 23. It is intersected, at the contiguous corners of these four sections, by a highway running north and south. From this statement it will appear that defendant’s west 80 acres is directly north of complainant’s east 80 acres, and that they are separated by a highway. The natural flow of surface water is to the south and southwest. The land on section 15 is higher generally than the land on section 22. At the point at which these highways intersect each other, but lying west of the north and south highway, is a swamp, the larger part of which is on section 15, but some of which is on section 22. There is a conduit or culvert in the highway. Defendant, by the use of tile laid in the south part of his west 80 acres, has drained some of the land into this swamp, and has drained some of it, farther west, into the highway, from which the water passes to complainant’s land. In the southwesterly part of defendant’s east 80 he has laid tile for the purpose of draining his land, or portions of it. The consequence is that water passes through his tile from both his west and east 80’s into this swamp, and water in excess of or more than would pass there if the land was in a state of nature. As a further consequence, this additional water passes from the north side of the highway to the south side through the culvert onto complainant’s land. Complainant drains the swamp, to the south, into a ravine or watercourse hereinafter referred to. Having its rise in a swamp near the northeast corner of the east 80 acres owned by defendant, a watercourse used to run from that swamp southeasterly, thence southerly, thence generally southwesterly, to the east and west highway referred to, thence southwesterly across the N. W. £ of the N. W. i of section 23, thence west and south to and across the land of complainant, which ft reaches at a point some rods south of the intersection of the aforesaid highways. It is into this watercourse that the defendant has drained various ponds and swamps lying to the north and east of complainant’s land.

The court below granted complainant no relief with respect to waters which naturally, or which artificially, for a considerable period of time, have found their way from the easterly portion of defendant’s east 80 acres into this natural watercourse, and complainant does not appeal. Relief was granted with respect to the waters collected by the tile drains constructed by defendant which are otherwise cast upon the lands of complainant. He awarded to complainant a small sum by way of damages, and the decree provides for an injunction restraining defendant from any longer maintaining those tile drains which have the effect to empty water into the highway, either into the north and south highway, or into the highway running east and west, and from collecting, by means of drains, water in the swamp aforesaid.

It is not here attempted to state with precision the particular drains affected by the injunction. For that purpose, the decree must be resorted to. Without setting out the testimony presented in a record of more than 400 pages, it is sufficient, for the purpose of this opinion, to say that it establishes beyond question or doubt that the defendant has from time to time, by tiling and ditching his lands, carried into the swamp which has been referred to as situated in the southeast corner of his west 80, and into the highways which have been referred to at other points, considerable quantities of water which would not in the same volume or in the same time be accumulated, and he has by artificial means, which have benefited his own lands, freed them from large quantities of water which otherwise would stand in low places thereon, and cast them upon the lands of the complainant with resulting injury. The applicable rules of law are not difficult to understand, and counsel do not disagree about them. It is not denied by complainant that, if these lands were in their natural state, if no artificial drainage had been resorted to, that some of the surplus waters from defendant’s lands would be cast upon his lands.

Aside from the contention that the complainánt’s action is barred, at least with respect to some of the drains, by the statute of limitations, and the contention that relief should be denied him upon the ground that he is guilty of laches in sitting by while defendant’s system of drainage was in process of construction, defendant presents two principal defenses. One of them is that, as to some of the waters which flow from his lands into the highways and find their way into the swamp which has been referred to, the action of the highway commissioner, or of highway commissioners, is responsible for that water being conducted into the swamp; that the making of the road interfered with the natural flow of all those waters across the 40 acres to the east of complainant’s land, and so down and into the natural watercourse which has been referred to. In this connection it is claimed that the township and the owner of the land east of complainant’s land should have been made parties to this bill. The other defense, and the one which, if sustained by the proofs, would in fact be an answer to the most considerable number of complainant’s claims, is that there used to be a natural watercourse which drained the swamp first referred to; that in place of that complainant has 'put in the tile drain already referred to as leading from the swamp to the south, and that the tile drain is inadequate to do that which in the state of nature the alleged natural watercourse did; that in consequence of the size of the tile used by complainant, compared with the quantity of water which in any event came upon his land, he has dammed and impeded the natural flow of the water, to which cause he ought to trace considerable, if not all, of the injury which he complains about.

As to the drains affected by the decree which are on defendant’s east 80 acres, one empties into the east and west highway some 15 rods east of the corners where the highways which have been referred to intersect, the other into the north and south highway north of said corners. It is claimed they were constructed more than 15 years before the filing of the bill of complaint in this cause, which was April 9, 1906. The contention of defendant is that complainant has not proven that his suit was begun within the statute period. Counsel rely upon Ayres v. Hubbard, 71 Mich. 594, 599 (40 N. W. 10). See, also, Belden v. Blackman, 124 Mich. 667 (83 N. W. 616). The rule followed in the cases cited is that, when the statute of limitations is pleaded, the burden is upon the plaintiff to show that he began his action within the statute period. But what is the statute period in this case ? The theory of complainant is that he is presently injured by the conduct of defendant; that the injury is a continuing one, which may not be adequately compensated by an award of damages, although damages should be awarded, and are claimed. If defendant asserts the right to continue the injury without making compensation, he is asserting something more than that complainant has not brought his action in due season. He is asserting, if anything, a prescriptive right to flow lands. This is an affirmation which he must sustain by evidence. Suppose that complainant had begun his action at law for damages. The defense, which we are now considering, must have been just what it is now. namely, that at some period of time defendant acquired the right to do what is complained of. The evidence does not satisfy us that defendant has this right. The evidence preponderates in favor of the finding that the drains were constructed after April 9, 1891. In any event, it does not appear that any water was, by means of the drains, turned upon the land now owned by complainant prior to April 9, 1891.

We fail to see how, with respect to the two drains mentioned, the action of highway officers excuses defendant. The facts are that he discharges water from his land, by means of his drains, into the highways, and that these waters, after following the highways, come again upon his land, from which they then pass to the land of complainant. There is no evidence of any obstruction by the township authorities of any natural watercourse but for which obstruction complainant’s lands would, through said watercourse, have received these waters. There is some testimony to the effect that at times of high water the waters from the swamp in question flowed southeasterly through a sluice or culvert in the highway upon the N. W. J of N. W. i of section 23, and were finally discharged into the natural watercourse, which has been referred to. But it does not appear that, if the highway as originally constructed, with its corduroy road through this swamp, had remained, defendant would have the right to discharge water, by his drains, first into the highway, then the swamp, and finally upon the N. W. £ of N. W. i of section 23. We are dealing, not with a natural flow and level of water, but with a surplus of water, artificially brought to the swamp by the defendant. The swamp is partly upon the land of the defendant, partly upon the land of complainant. The surplus water is received into that part of the swamp in defendant’s land. If there were no highway dividing the swamp, it would affect complainant wherever the outlet of the swamp might be. With the highway it flows, through the culvert therein, upon complainant’s land. He is under no obligation to defendant to receive it or to remove it. If defendant has any right to cast the water upon other land than that owned by complainant, and the township authorities have interfered with such right, it would seem to be defendant, and not complainant, who should move in the matter. The case of Smith v. Barrett, 159 Mich. 325 (123 N. W. 1091), relied upon by defendant, is in its facts wholly unlike the case at bar, as an examination will discover. That case dealt with the removal by township authority of an artificial impediment to the natural flow of water in a natural watercourse. It was held that a lower proprietor, whose lands abutted the highway in which the watercourse lay, had no prescriptive right, as against the public, to have the impediment maintained.

It is said that because complainant purchased the east 40 acres of the west 80 acres of his land — the 40 acres which is in fact most affected by the waters from the swamp — knowing that defendant drained portions of his land into the swamp, and as since his purchase no drains have been constructed upon defendant’s east 80 acres, he is estopped to complain about the effect produced by those drains the waters from which flow into the swamp. Courts of equity have sometimes, by the application of the doctrine of laches, or of estoppel, brought about results very like those which would follow the shortening of the statute period for gaining prescriptive rights in land. We are referred to no decision in which it is held that the mere fact that one purchases land upon which an adjoining proprietor habitually trespasses involves any duty on the part of the purchaser to permit the trespasses to be repeated, (pases like Edwards v. Mining Co., 38 Mich. 46 (31 Am. Rep. 301), are not in point here, even if it could be said that what is decided, by two of four justices of this court, is the rule of decision for similar cases.Having concluded that complainant is under no obligation to receive any of the waters brought to the swamp by the defendant, either by the two drains in the east 80 acres which have been referred to, or by the drain in the west 80 acres which leads to the swamp, we hold the injunction restraining the further bringing of water to the swamp by such means was properly granted by the court below.

Of course, complainant should not have damages for any injury to the land which was not caused by this trespass of defendant. We are not satisfied that the court below, in limiting the award of damages to $50, considered any injury for which complainant is himself wholly or in part responsible.

There is a pond in the southerly portion of defendant’s west 80 acres, situated west of the center of that piece of land, and it is asserted by complainant, and we think is proven, that defendant has managed, by use of tile and by turning furrows in his field, which furrows the water has deepened, to cast water from the pond into the land of complainant. It is asserted that only the overflow or surplus water of the pond is so carried away, and, also, that such surplus finds its way into what was once, and for the purposes of this case should be held to now be, a natural watercourse. The testimony does not satisfy us that defendant is right in either of these contentions. As to the first one, it is not disputed that defendant drains a portion of his said land into this pond; and, as this drain relieves the land from considerable quantities of water, it follows that thereby the quantity of water in the pond is so much increased, and the overflow of the pond is not the natural one.

We are of opinion that the decree below ought not to be disturbed, and it is affirmed, with costs to complainant.

Hooker, Moore, McAlvay, and Brooke, JJ., concurred.


author: Ostrander, J.

text:
    SKIBA v. GUSTIN.
    1. Vendor and Purchaser — Reformation of Instruments — Land Contracts — Statute of Frauds — Mistake.
    A receipt for money paid on an oral contract for the purchase of land erroneously described in the writing, which included the remaining terms of the agreement, is admissible only to show the amount paid and the contract for the sale of land therein described, not, however, for the purpose of proving the true agreement.

      2. Reformation of Instruments — Equity Jurisdiction — Evidence — Receipt.
    As a receipt, it was competent to explain and modify the terms of the writing, but as a contract for the sale and purchase of real estate, it was not competent to correct or reform the instrument in an action for breach of the agreement.
    8. Same.
    Courts of law have no jurisdiction to reform written instruments.
    4. Waiver — Statute of Frauds — Argument.
    The defendant did not waive his objections to the ruling of the trial court in permitting such reformation by his attorney’s informing the jury, in argument, after the court had ruled upon the question, that the only questions to be left to their consideration were the questions of value of the land and the alleged mistake.
    5. Statute of Frauds — Land Contracts — Remedies of Vendee.
    In the absence of evidence to show that the error might have been due to the illegibility of the figures in the description, and in view of the fact that no such question was submitted to the jury, the plaintiff could only recover the amount paid and interest.
    Error to Alpena; Emerick, J.
    Submitted April 11, 1910.
    (Docket No. 63.)
    Decided May 7, 1910.
    Assumpsit by John Skiba against Henry K. Gustin on the common counts and on a special count for breach of a land contract. A judgment for plaintiff is reviewed by defendant on writ of error.
    Reversed.

      Frank D. Scott, for appellant.

      I. S. Canfield, for appellee.
    In a special count in his declaration, plaintiff alleges that defendant contracted to sell and convey to him, and he agreed to buy, for a consideration of $150, a portion of which was paid down, the S. E. | of S. E. £ of section 13, in town 32 N., range 6 E.; that defendant afterwards sold and conveyed the said land to another for a consideration of $300. The common counts are added. The particulars of his demand are:

      Cash paid defendant January 18, 1908............. 840 37
    Interest on this................................... 10 00
    Cash received by defendant February 7, 1908, from sale of land, received by defendant for use of
    plaintiff........■-............................... 300 00
    Damages sustained by reason of the defendant’s refusal to convey the land........................ 300 00
    The plea was the general issue. The cause coming on to be tried by the court and a jury, plaintiff introduced testimony tending to prove that he desired to acquire title to the land described in the declaration, applied to defendant in that behalf, received from him a letter dated January 7, 1908, stating:
    ‘ ‘ Regarding the southeast quarter of the southeast quarter, section 13, town 32 north, range 6 east; if you will call at my office, we will see if we cannot make a deal on it.”
    That he called at the office and bargained with defendant for the land for $150, paid $40.37 on the purchase price, and received a receipt therefor. This receipt, which was offered and over objection was received in evidence, reads:
    “$40.37. Alpena, Mich., January 18, 1908.
    “Received of John Skiba, forty and 37-100ths dollars to apply on purchase price of $150 for southeast quarter of southeast quarter of section 13, T. 32 N. R. 5 E. Balance of payment to be made January 25, 1908.
    “ H. K. Gustin.”
    In various ways, by objections and argument, defendant raised the question that the instrument was not admissible under the special count; was not evidence of a contract for the purchase and sale of the land described in the declaration. Plaintiff’s testimony further tended to prove that he demanded a deed of the land described in the declaration, tendering the unpaid portion of the purchase price, the refusal of defendant to convey, and the conveyance thereof by defendant to another for the sum of $300, Counsel for defendant requested-the court to direct a verdict for plaintiff for the amount of money indicated in the receipt, with interest, and to strike out all testimony concerning the value of the land in range 6 east. Defendant produced no testimony. The court submitted to the jury the question whether the parties supposed the description in the written instrument to be of land in range 6 east. If it was found they did so suppose, then damages were to be awarded. And for arriving at the damages the jury was told to find what the land was fairly worth, deduct from that sum the $110, which plaintiff had not paid, and the balance with interest would be a proper verdict. A verdict and judgment for $202.82 was the result. Plaintiff was awarded costs.
   Ostrander, J.

(after stating the facts). The receipt for money was competent evidence of the date and amount of money paid by plaintiff to defendant. It was competent evidence of a contract to sell and convey the land therein described. It was not evidence of a contract to sell and convey the land described in the declaration, and which plaintiff claims to have bargained for. It follows that the contract for the purchase and sale of that land, if one was made, rested and rests entirely in parol. Considered as a mere receipt for money, it was competent to explain and even to modify the terms of the instrument. Considered as a contract for the sale and purchase of real estate, it was not competent to correct it, or reform it, in this action. Nothing is better settled than that in this State courts of law have no jurisdiction to reform written instruments. All evidence of the value of other land was immaterial. We are referred to no authority which sustains the rulings complained of.

During the argument to the jury the following colloquy took place between the trial judge and counsel for defendant :

Counsel: I understand there is one question of fact to be discussed and decided by the jury, and that is as to the value. Isn’t that the only question, your honor ?
The Court: Well, there might be another question, Mr. Scott, in reference to this paper; its being intended to refer to the same land which he had written about.
“Counsel: Yes, your honor.”

Later, the following:

“The Court: Mr. Scott, just repeat that statement again, if you please, what you were saying — if they should determine that this was a slip of the pen.
“Counsel: If you should determine that this was a slip of the pen, this ‘5,’ and was actually intended by Mr. Gustin as a ‘ 6,’why then the sole question to determine, after you determine that — then the sole question to determine would be the value of this property. Isn’t that right, your honor ?
“The Court: That is just right.”

Appellee contends here that because these statements were made appellant ought not to be heard to object that the court permitted the jury to reform the instrument. Counsel for appellant had the right to address the jury upon the questions of fact which the 'court decided should be submitted. He had been overruled in his contentions, had saved the rights of his client upon the record, and did not waive his objections because he proceeded with the discussion of questions which, under the ruling of the court, were for the jury.

We have not overlooked an argument made by appellee based upon the idea that there was a doubt, raised by inspection of the instrument, concerning the figures made therein. We find no evidence tending to prove that the figures were any of them illegible. If they were, the jury was not permitted to determine what figures were actually made. '

Upon the undisputed testimony, the plaintiff was entitled to verdict and judgment for the money paid to defendant, with interest. The judgment must be reversed, with costs of both courts, and a new trial granted.

Hooker, Moore, McAlvay, and Brooke, JJ., concurred.


author: Hooker, J.

text:
    NELSON v. SMITH.
    Vendor and Purchaser — Summary Proceedings — Forfeiture
    —Waiver or Estoppel.
    Evidence that the vendor in a contract for the sale of land attempted to assist the purchaser, whose payments were overdue, in finding a loan, and that the purchaser, after being in default three months, wrote letters advising the vendor that he had found a person who would loan him sufficient money to pay the amount due, and that the vendor had said he could fix matters up sp neither party would lose much, is not sufficient to establish a waiver or estoppel to enforce a forfeiture for the default.
    Error to Lenawee; O’Mealey, J.
    Submitted April 11, 1910.
    (Docket No. 55.)
    Decided May 7, 1910.
    Summary proceedings by George H. Nelson and another against Daniel D. Smith for the possession of certain real estate. A judgment for Complainants on a verdict directed by the court is reviewed by defendant on writ of error.
    Affirmed.

      Herbert B. Clarkj for appellant.

      Smith, Baldwin & Alexander, for appellees.
   Hooker, J.

March 17,1908, complainants sold defendant a farm upon contract for a consideration of $1,610, subject to a mortgage of $2,060. One thousand was paid in cash at the time the contract was executed, and the remaining $3,610 was to be paid on December 1,1908. The contract, which was in writing, contained the following provision:

It is also agreed by and between the parties hereto that if default shall be made by said party of the second part in any of the payments of principal or interest at the time, or any of the times hereinbefore specified, or in case the said party of the second part shall fail to keep and perform this contract in any other respect, wherein the same is required by and on his part to be kept and performed, in any such case the said party of the first part shall have the right immediately after such failure to declare this contract void and at an end, and to retain all payments which shall then have been made hereon, together with all improvements that may have been made on said premises, and said parties of the first part may consider and treat said party of the second part as their tenant holding over without permission, and may take immediate possession of said premises and remove said party of the second part therefrom.”

Defendant took possession under contract on April 1, 1908, and made improvements said to amount to about $300. In September, 1908, he paid $51.50 interest upon the mortgage, which he had assumed.

At the time of his purchase the defendant had arrangement with one Miller to furnish the money necessary to make the payment to become due December 1, 1908. Before that time, Miller died. Defendant paid interest $12'?. 35 on December 23, 1908. Nothing more was paid on the contract except the taxes for 1908, which he paid during the winter of 1909. A notice of forfeiture and to quit for nonperformance, dated February 23, 1909, was served on the defendant on March 2d, and summary proceedings were begun March 11th. The case was tried before a circuit court commissioner, and judgment for complainant was rendered March 30, 1909, and a judgment for complainant was afterwards rendered in the circuit upon trial by jury on May 19, 1909; the verdict being directed. Defendant has appealed.

The questions raised on the record are two:

(1) Whether the court should have directed a verdict on the ground that a notice of three months had not been given.

(2) Whether the complainants waived their right to declare a forfeiture.

There is testimony that Miller died in September, and that defendant made no effort to obtain the money elsewhere until December 3d, when in a talk with complainant, in which he told complainant that Miller was dead, and that he was unable at that time to get anything from his (Miller’s) estate, and that he did not know what to do, but would look around, Nelson replied that he knew a man named Bennett near Hillsdale, and he would see him. On December 5th defendant wrote to complainant, stating that the interest, $127.36, was due December 1st, and that he had the money to pay it, and that, if complainant did not find any one to take up the contract by December 12th, he (defendant) would see complainant on that day. Defendant testified that complainant wrote him about December 10th or 12th that he thought Bennett would take up the contract about the middle of March or last of February. He testified, further, that on December 23d complainant came to defendant’s home, and said he needed money, and wanted to know if the witness would pay him the interest money, and said that, when he paid it, he would fix this so neither one of them would lose much. Thereupon the interest was paid. On cross-examination he stated:

“ He was not under any agreement to get the money from Bennett or any one else. He volunteered to help me out. He said Bennett was a man who loaned money on real estate.”

And defendant asked that he see him, offering to pay the expense, and that he was not relying on any promise made by complainant, only that he would go and see Bennett about taking up the contract. He testified, further, that complainant afterwards wrote him that he or his son had seen Bennett, and he thought he would take up the contract about the last of February. This was from December 5th to 11th, that some time in February complainant wrote him that Bennett would not do so, and afterwards defendant wrote two letters, as follows:

“ ‘Adrian, Mich, Feb. 22, 1909.
“ ‘ George Nelson,
“ ‘Weston, Mich.
‘Dear Sir: I thought I would write you, and have got a couple of men that think they can help me about the 15th of March or as soon as the snow goes off.
“ ‘Yours Truly,
“ ‘D. D. Smith.’
When he wrote me that letter, I still expected he was going to make a payment.
“ ‘Adrian, March 1, 1909.
“ ‘George H. Nelson,
“ ‘Weston.
‘Dear Sir: I thought I would write you and would say I will have a man that will take up the contract if everything is satisfactory to him. He will be here the 8th or 9th of March.
‘“Yours Truly,
“ ‘D. D.'Smith.’”

Defendant’s wife testified that she heard the talk on December 33d, when the interest was paid; that her husband said to complainant:

“ ‘ Now, if I pay you this and that man don’t take it up, what will be the consequence ? ’ or something like that, and he said, ‘ In that case, I will fix it so neither one of us will lose anything,’ is the way he said it, or won’t lose much,’ so anyway we thought we was all right then, that he would either pay back some of the money or else draw new papers. We talked it over after he went. During the time we were expecting that Mr. Bennett would take up the contract and if we had known that he wasn’t going to do so, and that Mr. Nelson was going to declare the contract forfeited, I don’t know what we would have done. The 1 st of December, if he had told us, then that would be business, and that would be the date to forfeit the contract, but he led us to believe to the 33d of December that that was all right. It was just two days before Christmas that he told us, and we believed then afterwards that he had that man, but still Mr. Smith kind of depended. He thought, even if Nelson did have that man, that if he could get the administrator of the Miller’s estate, if he could fix the estate so he could be calculated to carry out Mr. Miller’s wishes, so he thought even if Mr. Nelson had that man, if the estate was so he could, that Mr. Look would take it up for Millers.
"Q. State whether or not it was too late for you to find another place after you found out you couldn’t make arrangements with the estate or with Bennett — couldn’t take up the contract ?
“A. Certainly it was. It was about the 14th of February that he phoned. It was on Sunday. He wanted Dan to come down the next day, but I think he couldn’t come until Tuesday, and he told him that day he would have to commence hostilities if he wouldn’t get out. That was the first we knew we had to go, was about the 14th of February.”

Upon this testimony defendant’s counsel claim that the jury should have been permitted to find that complainant had waived his right to declare the contract forfeited for nonpayment, and that he was estopped to do so by his alleged promise to fix the matter up so that neither party should lose much.

We are unable to find a scintilla of evidence of any intention on the part of the complainant to waive his right to resort to any remedy which the contract gave him, or that should have been so understood by the defendant. Neither was there anything which would justify the application of the doctrine of estoppel. We have not overlooked the cases cited by counsel for the appellant, viz., Miner v. Dickey, 140 Mich. 521 (103 N. W. 855), Murphy v. McIntyre, 152 Mich. 591 (116 N. W. 197), and Maday v. Roth, 160 Mich. 289 (125 N. W. 13), and find nothing at variance with legal conclusions of the trial judge.

The judgment is'affirmed.

Ostrander, Moore, McAlvay, and Brooke, JJ., concurred.


author: Brooke, J.

text:
    HARWOOD v. WILLIAMS.
    1. Landlord and Tenant — Lease—Construction.
    Immediately after leasing premises for a year, the landlord wrote the tenant that he might have the farm for three years, subject to the reserved right to sell any part, to which the tenant should relinquish all claim at the end of the current year in which the sale should be made; held, that the tenant had a lease in writing for the three years, terminable as to the part sold at the end of any year by a sale of the whole or part of the premises.
    3. Same — Emblements—Termination of Lease.
    The right of a tenant, whose lease the landlord terminates by a sale of the leased property before the expiration of the term, to harvest the growing crops is enforceable against the landlord or his grantee.
    3. Same — Growing Crops — Straw.
    The tenant is entitled to straw grown upon the land and unharvested at the termination of his rights, as well as to the grain itself.
    Cross-appeals from Cass; Des Voignes, J.
    Submitted April 11, 1910.
    ( Docket No. 50.)
    Decided May 7, 1910.
    Bill by Guy M. Harwood against Orlo J. Williams to enjoin the cutting and removal of certain grain grown on leased premises. Defendant filed an answer in the nature of a cross-bill to establish his ownership to said grain. From the decree rendered, both parties appeal.
    Modified.

      E. E. Pealer and G. JEJ. Miller, for complainant.

      Walter O. Jones, for defendant.
    One Charles Wetherbee, being the owner of a farm of 385 acres in Cass county, leased the same to defendant on February 19, 1907. The lease contains the following, among other provisions:

      “Term: April 1st, 1907, to April 1st, 1908. Rent $650.00, payable $200 Mar. 1st, 1907, and $450 Jan. 1st. 1908. And the said party of the second part further covenants, with the said party of the first part, that at the expiration of the time mentioned in this lease, to give peaceable possession of the said premises to said party of the first part,” etc.
    On February 24, 1907, Wetherbee wrote defendant as follows:

      “Dear Sir: Your letter at hand, and would say you may have the farm for three years on condition that I reserve the right to sell all or any part during that time, and you agreeing to relinquish, or give up, all claim on the part sold at the end of the current year, during which the sale is made. You may take this letter to O. S. Jones of Marcellus, and have above written in the lease, or simply pin this letter to your copy of the lease and preserve it, just as you wish.”
    At the time defendant went into possession there was growing on the farm fall wheat, which was harvested during the summer of 1907 by the out-going tenant. During the fall of 1907 defendant sowed 45 acres of wheat and 28 acres of rye. On November 1, 1907, Wetherbee entered into a contract with complainant to sell 131 acres of the land included in defendant’s lease, and upon the land so contracted was located all the wheat and rye sown by defendant. This contract was followed by the payment of the consideration $4,800 and the delivery of a deed about December 1, 1907. The deed contained a warranty against all incumbrances—
    “Except a lease to Orlo J. Williams, and that they will, and their heirs, executors, and administrators shall, warrant and defend the same against all lawful claims, whatsoever, except as to the rights of the said Orlo J. Williams, who is now a tenant on said land and whose term of tenance expires April 1st, 1908.”
    On December 24, 1907, complainant served a notice to quit on defendant, and defendant did vacate said 131 acres purchased by complainant about April 1, 1908, but at all times claimed the right to return and enter upon said premises for the purpose of removing the crops. In July, 1908, while defendant was in the act of harvesting the wheat and rye, complainant filed his bill of complaint herein, praying that defendant be declared a trespasser, and be enjoined from cutting or removing the grain. Defendant filed an answer and cross-bill, praying to be declared the owner of the wheat and rye, including the straw, with full right to harvest and remove the same under his lease. The grain was threshed and sold under an order of the court, and a decree entered, giving to the complainant from the value thereof the sum of $256 and all the straw, and to the defendant the balance, being the sum of $559.91. Each party to pay certain specified disbursements, but no costs to be paid by either party to the other. From this decree both parties appeal.
   Brooke, J.

(after stating the facts). The first thing to be determined is the nature and duration of the tenure of defendant. There can be no doubt, when the letter of February 24, 1907, is considered, that defendant had a written lease of the entire farm for a period of three years, which could be defeated, at any time within that period, by the sale of the whole or a part thereof, in which event the lease, as to the portion sold, would terminate with the end of the current year. The lease being silent as to the right of the lessee to harvest grain sown before, but ripening after, the termination of the term, by sale,' we will look to the situation of the parties and the other provisions of the contract. In the first place, it is to be noted that when defendant entered into possession on April 1, 1907, there was grain growing, which was later harvested by the tenant who preceded him. Again, the rent reserved is a substantial amount. We do not believe it was contemplated by either Wetherbee or defendant, when the contract was entered into, that defendant should sow no fall grains, or, if he did so, be at the peril of their absolute loss in case of sale. Indeed, Wetherbee fully recognized defendant’s rights in the premises, for, before entering into the contract with complainant, he endeavored to purchase the crop from defendant for the sum of $250. Failing in this, he offered to reduce the selling price to complainant from $5,000 to $4,800, which proposition was accepted by complainant, and the reservation as to defendant’s rights under his lease was put in the deed. The record shows that all the wheat and most of the rye was sown before defendant had any notice of the negotiation for the sale, and that all was sown before the consideration was paid and the deed delivered. It further shows conclusively that complainant knew, at the time he purchased, that defendant had sown the grain and claimed the right to harvest it, and that he made no claim to the wheat or rye until months after his purchase. There is evidence tending to show, and we believe the weight of the evidence indicates, that it was fully understood between Wetherbee and complainant that defendant should be permitted to reap his crop in peace in consideration of the reduction in price to complainant.

But neither complainant’s knowledge of defendant’s claims nor his acquiescence therein is controlling of the issue here, although they dispose of complainant’s demand for equitable relief. The defendant had a clear legal right, being a tenant for an uncertain term, to harvest such crops, in the nature of emblements, as were growing, but unripe at the time of the termination of his tenancy by the act of his landlord. This right is one which he may maintain, not alone against his landlord, but against the subsequent tenant or grantee of his landlord. 2 Underhill on Landlord and Tenant, p. 1306, and cases cited; 24 Cyc. p. 1070, and cases cited.

Defendant lays claim to the straw, about 30 tons, and, inasmuch as the lease is silent upon the question, we can see no reason for holding that the straw is not as much a part of the crop as the grain itself. Had defendant continued in possession, we think he would have had a clear right (in the absence of restriction in the lease) to sell and remove the straw from the premises, and we are unable to see how that right has been lost through the termination of his tenancy by the landlord. Craig v. Dale, 1 Watts & S. (Pa.) 509 (37 Am. Dec. 477); Fobes v. Shattuck, 22 Barb. (N. Y.) 568; Rank v. Rank, 5 Pa. 211.

It follows, therefore, that the decree of the court below must be modified in the following respects: The defendant will be paid the entire sum realized from the sale of the grain and now on. deposit with the register of the court. The decree will further provide for the payment by the complainant to the defendant of the sum of $30, that being the value of the straw in the stack at $1 per ton.

The defendant will recover costs of both courts.

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


text:
    HASS v. McMANUS.
    Waters and Watercourses — Obstruction — Riparian Rights —Inland Lakes.
    In a'suit to restrain the alternate lowering and raising of the water of an inland lake, brought by the owners of adjoining real property having hotels and summer houses on the shores of the lake, and claiming to be injured by acts of the defendants in lowering the outlet and erecting and using a dam to regulate the flow of water, a decree prohibiting the artificial regulation of the height of water by flash boards, and requiring that leakage around the dam be prevented, but permitting the use of the natural overflow of water from the lake, is entered, upon a consideration of the facts.

      Appeal from Charlevoix; Mayne, J.
    Submitted April 13, 1910.
    (Docket No. 74.)
    Decided May 7, 1910.
    Bill by Alfred E. Hass and others to enjoin William L. McManus, Jr., and others from maintaining a dam so as to interfere with the natural level of a lake. From a decree for complainants, defendants appeal.
    Modified.

      W. 8. Mesick, for complainants.

      Halstead & Halstead (Kleinháns & Knappen, of counsel), for defendants.
   Ostrander, J.

Walloon Lake is a body of fresh water lying partly in Charlevoix and partly in Emmet counties. The complainants, 18 in number, own real estate bordering on the lake, maintaining, not jointly, but severally, hotels, summer homes, boathouses, docks, accommodations for swimming. The outlet of the lake is Bear creek, or Bear river, which empties into Little Traverse Bay at Petoskey, seven or eight miles from the lake. The lake is about 80 feet above the level of Lake Michigan. The defendants own the land through which Bear creek flows, not only at the immediate outlet to the lake, but for about a half mile down the stream. This land was purchased by defendants in 1900. They also own and operate mills at Petoskey, near the mouth of the stream, and there they use the water of the stream for power.

It is charged in the bill of complaint that, soon after their said purchase of land, defendants lowered the bed of the creek to the depth of 24 inches below the natural level, in a space about 14 feet wide, constructed a plank floor therein, constructed sides of timber, forming a flume or conduit for the escape of water from the lake, and at the point where the lake ends and the stream begins planks were laid one above another so as to form a dam to prevent the escape of the water, said planks or any of them being removable. It charged that, by means of this dam and the removal or putting in place of the said planks, the lake can be lowered 24 inches below its natural level, and that the planks are frequently removed and the water drawn down so far below its natural level that boats cannot make landings or be brought into boathouses, that at particular times the waters of the lake are raised higher than the natural level, and that the inconstant level resulting from the use or the withdrawal of the planks is a serious inconvenience and a great injury to complainants. The twenty-ninth paragraph of the bill is as follows:

“That the said defendants should be required by the order and decree of this court to remove said dam and restore the said outlet to its natural condition as it was wont to be before said dam was constructed, or to repair said dam by making it solid and permanent, and put the same in a proper condition to permanently hold the waters of said lake up to its natural level as heretofore described, and no higher, and, in case of default, * * * to so remove or repair, * * * complainants may have the right to so remove or repair the same as they may elect.”

This sufficiently indicates the nature of the prayer for relief. The answer of defendants, so far as is material here, admits the construction and maintenance of the dam by them, denies that it is improperly constructed, denies that it can be manipulated in such a way as to lower the water of the lake 24 inches below the natural level, admits the dashboards are removable at pleasure, but denies that they have been removed so far below the natural level of the lake as to cause the inconvenience and injury charged in the bill. It admits that the dam leaks, but denies that the quantity of water escaping affects the level of the lake. It denies that since the dam was built the water in the lake has fallen and remained at times 24 inches below its natural level, and asserts that the use made of the water by defendants is a lawful and proper one. The cause was heard upon the pleadings and proofs taken in open court. A decree was entered, the essential portions of which are as follows:

“ That, in the construction of said dam at the point where said dam was erected, they lowered and caused to be lowered the outlet of said lake; that said dam was constructed with a plank floor, the upper surface of which was placed 18 inches below the surface of the bottom of the lake and outlet at that point as it was in its natural condition and before the same had been disturbed by said defendants in the construction of said dam; that said dam was so constructed that flashboards could be placed therein extending from the upper surface of the floor of said dam upwards for a distance of 49 inches; that said flashboards were so manipulated that the water in said lake could be, and at times was, raised very much above its normal level in said lake, and at other times was lowered 18 inches below its natural or normal level, as it would have been had said dam not been so constructed; that said dam has been allowed to get out of repair and the water of the lake allowed to pass under and through said dam below the natural surface of the outlet of said lake to such an extent as to materially lower the water of said lake below what would be its natural or normal level had said outlet of said lake not been interfered with by the construction of said dam and the lowering of said outlet; that the complainants are, respectively, the owners and the occupants of the several parcels of land described in their said bill of complaint, and that said lands are valuable as alleged by said complainants in their said bill of complaint; that the construction of said dam and its operation by the manipulation of said flashboards in such manner as at times to greatly raise the water of Walloon Lake above its normal level and at other times to lower the water of said lake at least 18 inches below the natural or normal level thereof, as it would have been had not said dam been constructed, and the failure of said defendants to keep that part of said dam placed below the bed of the outlet of said lake in repair, is a nuisance and a damage to all of complainants.
“It is therefore ordered, adjudged, and decreed that the said dam be reduced from its height at the time of filing complainants’ bill of complaint to a point 18 inches above the upper surface of the plank floor in said dam, and that the remainder of said dam be so rebuilt or reconstructed so that, as far as possible, no water shall pass through said dam, underneath the same, or around the ends thereof, and to so reconstruct said dam as that it cannot be so manipulated nor added to nor detracted from or to in any manner raise or lower the natural flow of Walloon Lake either above or below the said 18-inch elevation above the upper surface of the floor of said dam, and the said defendants William L. McManus, Jr., and Thomas Birkett, are hereby ordered to abate and reduce said dam to a point 18 inches above the upper surface of the plank floor in said dam, and to rebuild and repair the remainder of said dam so that the water shall not pass through said dam under the same or around the ends thereof, and to have the same fully completed by July 1, A. D. 1909.”

Defendants have appealed.

Counsel do not disagree about applicable rules of law. The right of the riparian owners on the lake and on the river to enjoy and use the waters is conceded. The dwellers on the lake may not as of right permanently prevent and may not considerably postpone the flow of water through the outlet. The proprietors on the river may not impound the waters in the lake in such manner as to set water back upon the surrounding property and may not lower the level of the water in the lake by increasing the volume of the natural overflow. The questions presented are questions of fact, and the effort to judicially determine rights is complicated by the admitted facts that no one can possibly ascertain what the precise conditions would have been in a state of nature, and no one apparently desires conditions approximating natural ones to be restored.

The flow of water from the lake has been impeded from an early date. Defendants seek to impound the water, making of the lake a reservoir. A dam is erected in a watercourse to impede the flow of water, and this is true of the structure itself and of any narrowing of the natural channel. Complainants desire that the water be impounded as to some extent it has been artificially impounded since 1889. The real trouble seems to be that defendants have a structure which enables them to impound considerable water in times of high water, and then, by removing the barriers, to use it as needed. What they do increases the constancy of the flow in the stream and at the same time disturbs the level of the lake. The testimony supports the conclusion that less water comes into this lake than in earlier years and such as comes to it comes more quickly.

In 1874 the outlet into Bear creek was 10 or 12 feet wide; in 1877 some one deepened this outlet, but it was promptly filled in again by people who lived on the lake. In 1889 what is known as the Olds dam ” was built in the outlet by those who lived at or resorted to the lake. At that time the water had washed the banks surrounding the outlet until it was 40 or 50 feet wide. By means of the dam the opening was narrowed to 16 feet in width, wings were put in up stream and planked, and the effect was to hold the water in the lake in the spring and summer — to maintain a higher level of water in the lake. The defendant McManus and his associates, some of whom had been interested in the flow of water in this creek for a good many years, replaced the old dam with a new one— the present structure. The work was done in October, 1900. The Olds dam was in the highway, and the new dam was placed northwest toward the outlet 16 feet. The sill of the new dam was put in at the exact level of that of the old dam. There is some testimony from one of complainants’ witnesses, who worked on the darn as a laborer, and who testified from recollection, that the sill of the new dam was lower by some inches than the sill of the old dam, but the preponderance of the testimony is to the effect that the levels of the tops of the two sills were substantially the same. The inlet of the new dam was 13 feet 10 inches wide, and there were three flashboards provided, each 8 inches high. It was and is a substantial structure. It is evident that, if the flow of water can be impeded until it overflows the flashboards, the overflowing surplus will still be available to the lower proprietors. As the level of the lake is lowered, one and then another of the flashboards can be removed, securing, as has been stated, some constancy to the flow of water in the stream. To some extent, therefore, and for some periods of time, the level of the lake may be and is artificially controlled by defendants. Redress for this should not be denied because at its highest level the water does not actually invade the premises of the complainants, or, in times of flood, reach a level above that which it reached in ancient times. It may be necessary for proprietors of the lands surrounding the lake to adjust and adapt their property to the present natural mean level of the lake. They may not be compelled to deal with a level of the lake variable as defendants may desire to raise or lower the water by the use of the dam. Neither may they require defendants to maintain for them by means of the dam an artificial mean level of the water.

The court below found that the bed of the stream was lowered by defendants in constructing the dam, the present structure being nearer the rim of the lake and at a point where the bottom of the stream was higher than at the Olds dam, that, while the sill of the present structure was placed on a level with the sill of the Olds dam, some excavating was required at the point where the sill is laid, and some was done in the bed of the stream below the dam. The lake is a deep one with a bottom sloping but little from the rim to the line of deep water. A survey shows little difference between the elevation of the top of the sill of the dam and the bottom of the lake for 150 feet. Assuming the lake level, when water would first flow over the sill of the dam, to be 96.1, the elevation of the bottom of the lake at stations 5 feet apart is, as shown by the profile, and beginning at the dam, 95.8, 96.0, 96.4, 96.1, 96.3, 96.2, 96.2, 96.3, and so on; the greatest elevation given being 96.6. No one pretends to know the elevation of the bottom of the outlet at the rim of the lake before obstructions were placed therein. No witness measured or estimated the increased level or flow of water, if there is any, resulting from the narrowing of the outlet and from the removal of obstructions and deepening of the channel below the dam. We have no doubt that the Olds dam was manipulated by the lake proprietors, or for them, to relieve the lake in times of high water, and to impound the water at other seasons. From the data afforded we do not find that by stripping both dams to their sills more water would flow over the sill of the present dam than would flow over the sill of the Olds dam. To state the fact affirmatively, the outflow of water from the lake would be entirely interrupted at the same time by the sill of either dam.

Our conclusions respecting the facts require a modification of the decree. In so far as the decree prohibits the impounding of water by the use of flashboards — the artificial holding of the water and the lowering of it at the pleasure of defendants — the decree is affirmed. It is affirmed, also, with respect to the requirement that defendants shall so repair the present dam as to prevent water escaping under or around the ends of the sill of the dam, provided, always, that defendants desire to maintain any structure in the stream. It is reversed in so far as it requires defendants to maintain any structure above or higher than the plank flooring of the present dam. The cost of preparing and printing the record will be evenly divided and no other costs will be allowed to either party.

Unless we have greatly misapprehended the conditions disclosed by the record, it would seem that the case is one for accommodation and for such a mutual and good faith use of the dam as will, with experience, serve best to maintain during the summer months a level of the water in the lake as little inconvenient to complainants as the rights of defendants to the natural overflow of the water will permit.

Hooker, Moore, McAlvay, and Brooke, JJ., concurred.


text:
    ATKINSON v. SCHELL.
    1. Adverse Possession — Recognition oe Superior Title.
    Having caused premises for which he paid the consideration to be conveyed to his sister, and having subsequently lived with her and secured her signature to a lease of the premises running to a tenant, the deceased, who occupied and controlled the place, did not hold the same adversely to her rights.
    2. Equity — Pleading—Answer—Prayer.
    Affirmative relief to a defendant whose answer prays only the dismissal of complainant’s bill is unwarranted.
    Appeal from Sanilac; Beach, J.
    Submitted April 15, 1910.
    ( Docket No. 158.)
    Decided May 7, 1910„
    Bill by Mary G. Atkinson against Augustine R. Schell and others to set aside a deed. From a decree dismissing the bill and quieting title in defendants, complainant appeals.
    Modified and affirmed.

      Moore & Wilson, for complainant.

      Wilford MacMem and William H. Burgess, for defendants.
    Complainant and her brother, Frederick J. Fitzgerald, are the sole heirs at law of one James M. Fitzgerald. Frederick J. Fitzgerald has deeded his interest in the lands in question to complainant. Defendants are, respectively, nephew and nieces of said James M. Fitzgerald, being children of Catherine Schell, his sister. About the year 1867, Fitzgerald settled in Sanilac county with his wife and four children. In 1869, a divorce was had between him and his wife, and in 1871 the wife took all the children, and went to California. Two of the children later returned to Sanilac to live. Those two are now both dead. It does not appear that the mother or either of the other children ever returned to Michigan to live. Complainant paid two visits to her father, one 28 and one 18 years ago. After the removal of Fitzgerald’s family to California, he made his home, in part, with his sister, Catherine Schell. For some years he taught school, principally in Huron county, and thus was away much of the time. On November 10, 1873, one Patrick Quinlan, then being the owner of the S. W. í of the S. E. section 21, town 11 N., range 16 E. (the land here in question), executed a mortgage thereon for $516, running to Catherine Schell as mortgagee. Quinlan is still living, and testifies that he borrowed this money from Fitzgerald. On May 15, 1876, Quinlan, by warranty deed, conveyed the same description to Catherine Schell, being requested to do so by Fitzgerald, who told him that he (Fitzgerald) made his home with her, that she was very good to him, and he wanted to remember her. On February 4, 1879, Quinlin executed a quitclaim deed to Fitzgerald of 240 acres, and included in the description is the 40 acres in question. Upon this particular 40 acres there appears to have been buildings, and Fitzgerald seems to have spent much of his time there, retaining a couple of rooms in the house when it was occupied by a tenant. The farm was reputed to be his, and it is not disputed that he exercised full dominion over it, and paid the taxes upon it from about the time it was deeded to his sister. In 1901, Fitzgerald executed a lease of 120 acres to a Mrs. Carpenter, in which was included the 40 acres in dispute. After a consultation with his sister, he caused her also to execute the lease.
    Complainant filed her bill of complaint against defendant, praying that the deed given by Quinlan to Catherine Schell be set aside and declared void. Defendants answered, denying the equities of the bill, and praying for its dismissal, but asked for no affirmative relief. The court below entered a decree dismissing the bill of complaint, and further decreeing that the quitclaim deed from Quinlan to Fitzgerald, dated February 4, 1879, be set aside, vacated, and declared null and void as against defendants, their heirs and assigns, so far as it affects the title to the land in question, and, further, that the said defendants are the owners of the land and premises above described in fee simple by a title perfect as against the complainant in this suit. From this decree complainant appeals.
   Brooke, J.

(after stating the facts). We are quite satisfied, after a careful reading of the entire record, that Fitzgerald’s occupancy of the farm in question, and his exercise of dominion thereover, was in recognition of and not adverse to the title in his sister, Mrs. Schell. He had caused the deed to be made to her in the first instance, after having the mortgage run in her name, because he wanted to provide for her, and the record shows he thereafter expressed satisfaction by reason of having made this provision. His relations with her during his long life appear to have been more than usually intimate, due, no doubt, to the fact that he had no other family ties, and she was his nearest relative in Sanilac county. In making the lease to Mrs. Carpenter, he caused her to execute it as well as himself. This act indicates a distinct recognition of Mrs. Schell’s title so late as 1901. The decree dismissing the bill of complaint was therefore properly entered.

We are of opinion, however, that that part of the decree granting affirmative relief to the defendants is not warranted by an answer praying only the dismissal of the bill of complaint, and not for affirmative relief, either specifically or generally. Schwarz v. Sears, Walk. Ch. 170; Andrews v. Kibbee, 12 Mich. 94 (83 Am. Dec. 766); Hackley v. Mack, 60 Mich. 591 (27 N. W. 871); McGuire v. Van Buren Circuit Judge, 69 Mich. 593 (37 N. W. 568); Coach v. Kent Circuit Judge, 97 Mich. 563 (56 N. W. 937); Griffin v. Griffin, 118 Mich. 446 (76 N. W. 974); Chancery Rule No. 11.

The decree will be modified accordingly, with costs to the appellant.

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


text:
    HARRIS v. CRAWLEY.
    1. Infants — Damages—Emancipation.
    The right of recovery for loss of an infant’s ability to work, unless an emancipation is shown, belongs to the parent.

    2. Same — Damages—Medical Attendance — Parent and Child.
    A father owes his child a duty to provide necessary medical attendance and support, but the infant maybe liable for necessaries furnished it, if the father refuses or is unable to provide them.
    3. Negligence — Action—Evidence.
    While defendant’s bond to release property from attachment, showing ownership of the attached property, may be used as evidence of title, it is necessary to connect the injury with acts of defendant or his agent.
    Error to Eaton; Smith, J.
    Submitted April 15, 1910.
    (Docket No. 125.)
    Decided May 7, 1910.
    Case by Bernice Harris, by nest friend, against Peter Crawley for personal injuries. A judgment for plaintiff is reviewed by defendant on writ of error.
    Reversed.

      Charles A. Watt (J. B. Judkins, of counsel), for appellant.

      Q-. D. Blasier and A. G-. Fleury, for appellee.

       As to right of infant to recover damages for loss of services or diminished earning capacity, during minority, from personal injuries, see note to Comer v. W. M. Ritter Lumber Co. (W. Va.), 6 L. R. A. (N. S.) 552.

   Hooker, J.

The plaintiff recovered a judgment against defendant, Crawley, for injuries caused by a fall from a “carousal” or “merry-go-round” in operation at a fair. She was a girl in her teens, who lived with her father, a widower, and cared for the house. She was permitted to recover damages for medical attendance, and for ‘ ‘ damage in her daily avocation. ” We feel constraifaed to reverse the judgment for the latter reason, as the right to recover for her loss of ability to work during her minority belongs to her father, unless she has been emancipated, which did not appear. She should not have been allowed such damages for that period. Reeder v. Moore, 95 Mich. 594 (55 N. W. 436).

It is also contended that she should not have been allowed to recover for expenses of medical attendance, which it is claimed were chargeable against her father, but not against her. It is true that a father owes a child the duty of providing such things as support and medical attendance and care, but it is also true that, where he refuses or is unable to furnish it, a child may be liable for necessaries furnished it. This question was not very fully discussed, and we therefore do not decide whether the rule can be applied in this case or not.

Another point should be noticed, viz., the fact that nowhere in the evidence is the defendant connected with the injury. It is a fact that the plaintiff testified to conduct of the “merry-go-round man,” but she does not identify Crawley as such man. It is urged at the hearing that the fact that Crawley filed a bond to release the machine from attachment justifies the inference that he was owner. The bond is not shown in the printed record; and, while if it showed ownership by Crawley (and perhaps it does), it could be used as an admission of ownership, it does not follow that he was running the machine himself, or that ■he was necessarily responsible for the neglect of the man in charge, who may have been operating it on Ms own or another’s account. This is mentioned because the subject may be important in another trial.

The judgment is reversed, and a new trial ordered.

Ostrander, Moore, Mo Ad vat, and Brooke, JJ., concurred.


author: Stone, J.

text:
    BRADFORD v. CITIZENS’ TELEPHONE CO.
    Telegraphs and Telephones — Discrimination.
    A telephone company which renders identical services to all subscribers makes an unlawful discrimination in violation of the provisions of 2 Comp. Laws, § 5270, if it charges new subscribers a higher rate than it charges its old subscribers.
    Appeal from Ottawa; Padgham, J.
    Submitted April 18, 1910.
    (Docket No. 36.)
    Decided May 7, 1910.
    Bill by Lewis C. Bradford to compel the Citizens’ Telephone Company to furnish complainant telephone service. From a decree for complainant, defendant appeals.
    Affirmed.

      Charles H. McBride (Charles B. Wilkes, of counsel), for complainant.

      W. J. Stuart (Kleinhans & Knappen, of counsel), for defendant.
   Stone, J.

The bill of complaint in this cause was filed to compel the defendant to furnish the complainants telephonic service through defendant’s exchange at the city of Holland at the same price charged to other subscribers at said city. Complainant relies upon the provisions of section 5270, 2 Comp. Laws. This section of the statute provides, among other things, that upon the payment or tender of the usual or customary rental sum:

“ It shall be the duty of every telephone company, or person, firm or corporation engaged in the business of leasing telephones to the public, or supplying the public with telephones and telephonic service, or operating a telephone exchange, * * * to furnish without unreasonable delay, without discrimination, and without any further or additional charge, to the person, firm or corporation applying for the same, including all telegraph companies, a telephone, or telephones, with all the proper or necessary wires and fixtures, and the use of such telephones, wires and fixtures, as well as connection with the central office, or telephone exchange, if desired, and shall connect the telephone of such person, firm or corporation, with the telephone of any other person, firm, or corporation having connection with the same, or a connecting exchange or central office, whenever requested so to do, without regard to the character of the message to be transmitted, provided they are not obscene nor profane; and every company, person, firm or corporation neglecting or refusing to comply with any of the provisions of this act shall forfeit all right to transact a telephone business in this State, and may be enjoined therefrom, and from leasing telephones to the public, from supplying the public with telephones and telephonic service, and from operating a telephone exchange, by bill of complaint filed in any court of competent jurisdiction, by any person, firm or corporation, injured, interested, or denied any of the rights herein given.”

The bill alleges that the defendant corporation had been guilty of discrimination against complainant, in that it refused to give him telephonic service from its exchange in said city as it did to other residents thereof using the same service, and in the same manner as complainant requested, unless he paid a higher price or rental for such, service than was required of the other subscribers.

The facts are not much in dispute. The answer of defendant practically admits the facts as set forth in the bill, but denies that it discriminates against complainant. It appears that in 1898 the defendant purchased the telephone exchange in said city from the Ottawa Telephone Company, and since that time the said telephone exchange has been operated and carried on in said city by the defendant. In the summer of 1907 the defendant installed an automatic telephone exchange, taking out the phones which had been' previously used, and replaced them with new phones connected with the automatic system. Upon installing the automatic system aforesaid, the rates charged to all subscribers were fixed at $15 for residences, and $34 for business places, and contracts for service, for 10 years in some instances, and 5 years in others, were entered into between the defendant and some of its patrons, at these rates, and other contracts for 3 and 2 years were also entered into by the defendant and some of its patrons, at the same rate. However,.on the 1st day of January, 1908, the defendant fixed new rates for all new subscribers at $18 for residences, and at $30 for business places. The new subscribers were to be served with identically the same service, and were to use the same fixtures as the old subscribers. The phones were placed free to all patrons, whether new or old subscribers. Upon the hearing, a decree was entered for complainant and defendant appeals.

We quote from the opinion and finding of the learned circuit judge:

“In February, 1908, the complainant applied to defendant company, through its manager, to be supplied with telephonic service at his business place in Holland, and tendered the sum of $24 for a year’s service by the automatic system, and offered to. enter into a ten-year contract at the same rate, but the defendant company refused to place a phone in complainant’s business place for less than $30 per year, because complainant was a new subscriber, and not entitled to the rate granted the old subscribers; that is, those who applied for service before the 1st day of January, 1908. There was no claim on the part of the company at this time that it would be more expensive to connect complainant’s business place with the exchange than any other of its old subscribers, or that the location of complainant made it more expensive or difficult to reach than any of the old subscribers, and no claim, then or now made, that complainant’s business place was substantially different than any other place in Holland, but was centrally located, and could easily have been connected with said automatic exchange. There was nothing shown upon the hearing in this case, or any reason given, for refusing to comply with complainant’s request, except , that he was a new subscriber, and new subscribers after January 1, 1908, were to be charged $30, instead of $24, for business phones.”

There was evidence introduced by the defendant showing the amount invested in said exchange, the increase in telephones, the increased expense of operating the greater number of telephones, and the profits on the investment for the different years, and it argues that the business cannot live at the rates charged, and that the loss is occasioned by the investment for new subscribers, and the increased expense of operating the exchange which they cause; that it is just and reasonable that they should be charged more than old subscribers, and that any discrimination which is just and reasonable in itself is lawful; that by reason of the increased cost, both of investment and service, which they cause, the new subscribers are in a class by themselves. It is also urged that the old subscribers had previously a service that was limited in its numbers and efficiency.

These contentions, in our opinion, are not impressed with merit. These ideas, carried to their full extent, would require every later subscriber to pay more for the same service than his former neighbor subscriber. While it is probably true that the cost of operating a telephone exchange increases with the increased volume of business, it is equally true that the whole body of subscribers, whether new or old, makes the added expense, and reaps the added benefit. A telephone exchange with 1,000 members is manifestly more valuable to every subscriber than one with 100 members, bus it is equally valuable to each member in the same class, and its value to the subscriber does not depend, in any degree, upon whether he is a new subscriber or an old one. It is difficult to understand why new subscribers should pay any more for the right to talk to old members than the latter do for the right to talk to new ones. What by way of investment or extension benefits one equally benefits the other. If the defendant is running its business at a loss at the price charged old subscribers, and taking on new subscribers increases the loss, then it may increase its rates, but it should do so without discrimination, and treat alike the subscribers getting the same class of service. The manager of the defendant testified that he stated to complainant that there was no charge for installation, that the basis of defendant’s charge of $30 to complainant was not based on installation expense, but that the sum named was an established rate for new subscribers, and that was the only reason for making that charge. The statute above quoted is but declaratory of the common law, and in addition provides the remedy in case a telephone company attempts to discriminate between subscribers of the same class.

In 27 Am. & Eng. Enc. Law (2d Ed.), at page 1021, it is said:

“Telephone companies, whether corporations or not, are affected with a public interest, and are bound to serve impartially, and without unjust discrimination, all who apply for their service and offer compliance with their reasonable regulations. In many of the States statutes exist which provide for the recognition and enforcement of these obligations, but it seems that these are merely declaratory of the common law on the subject.”

See many cases there cited. Counsel upon both sides cite Western Union Tel. Co. v. Call Publishing Co., as it appears in 44 Neb. 326 (62 N. W. 506, 27 L. R. A. 622, 48 Am. St. Rep. 729); 58 Neb. 192 (78 N. W. 519), and 181 U. S. 92 (21 Sup. Ct. 561). Counsel for defendant relies upon the following language, taken from the decisions of the United States Supreme Court in said cause:

“There is no cast-iron line of uniformity which prevents a charge from being above or below a particular sum, or requires that the service shall be exactly along the same lines. But that principle of equality does forbid any difference in charge which is not based upon difference in service, and, even when based upon difference of service must have some reasonable relation to the amount of difference, and cannot be so great as to produce an unjust discrimination. * * * It is not an undue preference to make to one patron a less rate than to another when there exist differences in conditions as to the expense or difficulty of the services rendered which fairly justifies such a difference in rates.”

The distinction is clearly pointed out in the headnote to the case cited, as follows:

“Where there is dissimilarity in the services rendered by a telegraph company to different persons, a difference in charges is proper.”

In the case at bar no such distinction exists or is present. The service to the old and to the new subscriber is identical. The case is readily distinguished from the Gall Case. We have examined the following cases cited by counsel: American Waterworks Co. v. State, 46 Neb. 194 (64 N. W. 711, 30 L. R. A. 447, 50 Am. St. Rep. 610); Richmond Natural Gas Co. v. Clawson, 155 Ind. 659 (58 N. E. 1049, 51 L. R. A. 744); Snell v. Power Co., 196 Ill. 626 (63 N. E. 1082, 58 L. R. A. 284, 89 Am. St. Rep. 341); Griffin v. Water Co., 122 N. C. 206 (30 S. E. 319, 41 L. R. A. 240). We are of opinion that the defendant in its conduct complained of was guilty of a discrimination against the complainant in violation of the letter and spirit of the statute, and that the circuit judge reached the proper conclusion.

The decree below is affirmed, with costs to complainant.

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