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    Sarah Nichols et al. v. The New England Furniture Company.

      Deed — Description—Plat—Acceptance of street — Boundaries of lot — Fee of canal bed — Estoppel—Adverse possession.

    1. When a general description of real estate is given, followed by a more particular description, the latter expresses the intent, and controls; citing Smith v. Strong, 14 Pick. 128; Whiting v. Dewey, 15 Id. 428; Winn v. Cabot, 18 Id. 553; Dana v. Bank, 10 Mete. 250; Howell v. Saule, 5 Mason, 410; Barney v. Miller, 18 Iowa, 466; Jones v. Smith, 73 N. Y. 205; Gano v. Aldridge, 27 Ind. 294; MeFoiven v. Lewis, 26 N. J. Law, 451.
    2. When reference is made to a map or plat in a deed, such map or plat is considered as incorporated in it as fully and completely as if it were actually delineated in the instrument; citing Wilson v. Hoffman, 70 Mich. 552; Heffelman v. WaterPower Co., 78 Id. 121; Jefferis v. Land Co., 134 U. S. 178; Miller v. Land Co., 44 Kan. 354.
    3. Though a plat be not signed and acknowledged, so as to effect a statutory dedication of a street marked thereon, yet, the intent being clear, acceptance is implied from user, and improvements paid for by assessments on the land of abutting owners.
    4. One cannot have the benefit of the adverse possession of land by his predecessors in title where the conveyances under which he claims do not purport to convey the premises so occupied, and where the same are not within the inclosure of those actually conveyed.
    5. Upon the facts of this case, as stated in the opinion, it is held that it was the intention of the original proprietors of the land of which the premises in dispute form a part, who platted the same, built a dam across the adjacent river, and constructed the canal upo i which said premises abut, to reserve the title to the bed and banks of the canal, the strips of land marked on the plat as “ reserved,” the basin, and chutes as and for their private property, and tbat in the conveyances of adjoining mill lots they conveyed the fee in the lots as platted only, and that the grant of the right to use the water from the canal in connection with said lots was of an easement simply, — a right to the flow of water through flumes constructed for that purpose. An examination of the opin'on is essential to an intelligent .understanding of the questions decided.
    Error to Kent. (Adsit, J.) Argued March 7, 1894. Decided May 18, 1894.
    Ejectment. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion.

      Uhl & Grane (Fletcher & Wanty, of counsel), for appellant.

      Bundy & Travis (J. W. Ghamplin, of counsel), for plaintiffs.
   McGrath, C. J.

Plaintiffs, the widow and children of Isaac H. Nichols, bring ejectment to recover the premises lying between the north line of lot E, extended, the, south line of lot G, extended, the center line of the canal, and the east line of Mill street, as shown on the sketch on next page; the defendant having constructed a building on piles, over the canal on said premises.

Defendant claims title to the premises in question from two sources: (1) That, by conveyance of lots E and G according to the plat, it has the title in fee to Mill street, and to the center of the canal, as part and parcel of lots. E and G; and (2) by adverse possession.

Prior to 1836, the owners of certain land abutting on Grand river commenced the construction of a dam across said river, and a canal along and upon the eastern shore-thereof. In 1836 the proprietors of the land and canal made and recorded a plat of the same. The plat shows the location of the canal, dam, guard gates, chute, basin, thread of the river, and the subdivision of the adjacent land into lots, with streets and alleys. A large section of the-territory platted lies east of Canal street, and from near

Bridge street Canal street runs along the east bank of the canal to a point north of the dam. The canal is 81 feet in width, and Mill street is 25 feet wide. There appear upon the plat, under the head of “Explanations,” these words:

“A strip of ground 8 feet wide, lying on the east bank of the canal, and extending from the guard gates to the corner of lot No. 1, is reserved as private property; also <8 feet in front of the basin; also 6 feet on the east side of the canal, in front of Bank . street, is reserved as private property; also 5 feet on the’ west bank of the canal, in front of Mill street, is reserved.”

The title of the land at the time the plat .was recorded was in Lucius Lyon and Nehemiah O. Sargeant, each owning an undivided half. Sargeant, in July, 1836, conveyed his undivided half to Carroll, and in October, 1844, Carroll reconveyed to Bice, administrator of the estate of Sargeant. Bice conveyed to Lucretia Lyon, who conveyed to Daniel Ball. Lucius Lyon conveyed his interest to Thayer, and Thayer to Daniel Ball. Plaintiffs derive their title through' conveyances from Ball. The deed from Sargeant to Carroll contains in the description not only the lands described by government subdivision, but adds: “ Together with all the improvements, mills, and mill races, canals, water lots, and water power appertaining to and belonging to said premises.” It also contains a reservation of a third interest in mill lots A, B, and 0, as the same are designated on such plat, “together with the quantity of water specified and defined for the use of said mill lots in the conveyance to John P. Oalder, reference being thereto had.” The deed from Bice to Lucretia Lyon conveys the canal, water power, and undivided half of the basin. The deed from Lucretia Lyon to Ball conveys “ all the right, title, and interest in and to those certain premises known as the canal, water power, and appurtenances, including the land between the basin and Canal street, and the use of the basin, situated in the village, now city, of Grand Rapids, Kent county, and State of Michigan, according to the recorded plat thereof, subject to all rights heretofore made.” Lucius Lyon conveys to Thaj-er “all the lands, tenements, premises, water privileges, and appurtenances which the said party of the first part owns and holds, either in severalty or otherwise, within the corporate limits of the village of Grand Rapids, in the county of Kent, and State of Michigan, as aforesaid.” Thayer conveys to Ball all the interest conveyed by Lyon to Thayer.

Daniel Ball, on February 29, 1864, by separate deeds, conveyed to each of the following named parties parcels of land in said plat, and also the undivided interest in the water power, bed, and banks of the canal indicated by the figures following the name of such grantee: S. F. Perkins, 1875-8000; O. C. Comstock, 1500-8000; G. S. Deane, 375-8000; Isaac H, Nichols, 1650-8000; Martin L. Sweet, 1375-8000; and R. E. Butterworth, 1225-8000. The denominator 8000 represents the total value in dollars 'of the bed and banks of the canal and strips of land on either side, as agreed upon by the parties, and the numerator the value of the undivided interest of each purchaser. The consideration recited in the deed to R. E. Butterworth was $1,225, and the property was described as follows:

“All of mill lot L, so called, according to the Kent plat of the village, now city, of Grand Rapids, lying north of and adjoining the premises owned and occupied by the said Butterworth, being about 92 feet; also the undivided half of lot K, according to said Kent plat; also all riparian rights in and to the bed of Grand river west of said lot L, to the center of Grand river, and the undivided half of all riparian rights in and to the bed of Grand river-west of said premises described as lot K; also the right to draw from said canal sufficient water to propel two runs of mill stones with the necessary gearing attached, used in an economical manner; also the 1225-8000 of all said parties of the first parks right, title, and interest of, in, and to the canal bed, canal, canal banks, water power, water rights, privileges, and appurtenances in said city, extending from the south end of the canal basin to a point 50 feet north of the guard gates as now located, and to the guard gates and waste way; also the same interest of said parties of the first part in and to the basin and banks thereof, excepting and resérvíng the vacated portion of said basin, and the right to use the west bank of said vacated basin for a highway; also the same undivided interest of said parties of the first part of, in, and to a strip of land 8 feet wide, more or less, lying between the east bank of the canal and Canal street, extending from the north-east corner of lot 1, Kent plat, to a point 50 feet north of the guard gates as now located, and to a strip of land 6 feet wide, more or less, on the east side of the canal between Bank street and the canal, and to a strip of land 5 feet in width, more or less, on the west bank of the canal in front of Mill street, and in all lots, lands, and premises west of the canal to the center of the river between the said line 50 feet north of the guard gates to the south bank or end of the canal basin, together with all water rights, water power, and appurtenances thereto attached and belonging, not 'this day conveyed to B. E. Butterworth, I. H. Nichols, Samuel E. Perkins, Martin L. Sweet, Gaius S. Deane, and C. C. Comstock, together with all the rights to enter upon the canal banks, bed, and dam above said guard gates to repair and improve the same.”

Four of the other deeds executed by Daniel Ball as aforesaid convey water lots or mill lots, and each .of them contains a similar clause granting the right to draw water from the canal for the water-lot use. Each of said Ball deeds contains a grant of an undivided interest in canal bed and banks, in language similar'to that quoted from the deed to Butterworth.

We are cited by defendant to a conveyance made'in 1836 by Lyon and Sargeant to Calder of an undivided one-third of mill lots A, B, and 0, wherein such lots are described as:

“Known and distinguished on a map or plan of the village of Kent, made for the proprietors thereof, as ‘Mill Lots A, B, and 0/ lying between the west bank of the canal and the river, the boundaries whereof are described as follows: Beginning at a point on the front side of the west bank of the canal where the north line of Bridge street intersects the same; thence measuring along the bank of said cañal northerly 239-|- feet to an angle in the bank; thence continuing a distance of 60£ feet to the north-east corner of lot A; thence,’” etc.

It will be observed that the north-east corner of lot A lies at the intersection of the north line of lot A and the west line of the 5-foot strip which is designated as the bank of the canal. Note also that lots A, B, and C were platted from points on the west line of this strip, and none of the lot lines extend across it. The north line of Bridge street on the plat is extended to Grand river, and forms the north line of Mill street. Lot D is platted within the lines of Bridge street, but fronting on Mill street. The north line of Bridge street intersects the east line of lot C at the west side of the strip, so that evidently the words, ."the front side of the west bank of the canal,” refer to the west line of this strip called the bank of the canal. Proceeding northerly on the west line of this strip or bank of the canal brings us to the north-east corner of lot A, in the description of the deed, and makes the whole harmonious. It was not intended by this deed that the grantee’s right or title should extend to the center of the canal, for in the same deed it is stated that " said lots above described are to be held in common by the party of the second part with the parties of the first part, subject to the following conditions, restrictions, reservations, and privileges, which are hereinafter mentioned and defined; that is to say: First. The privilege and right to draw from the canal 20 feet of water, which is the quantity appropriated for the use of said lots A, B, and C, for hydraulic purposes,” etc. ■ "And also said parties of the first part except and reserve for themselves, their heirs and assigns, forever, the right of way over, through, and across the before-mentioned lots A, B, and C; that is to say, a space 25 feet wide .on the west bank of the canal, commencing at the north line of Bridge street, and. running northerly along the bank of the canal across the aforesaid lots A, B, and C, being a continuation of a street designated on the map before referred to as ‘ Mill street/ the sarde to be kept open and used in common by the parties of the first part and second part, and also for the convenience of the parties of the first part, their heirs and assigns, servants and agents, in passing to and from their premises lying above the said lots A, B, and C.” It will also be seen that the extension of Mill street northerly continues it along the west line of the strip. When Sargeant conveyed to Carroll, in July, 1836, he excepted the undivided third of mill lots A, B, and C, conveyed to Calder, “as the same ■are designated on said village plat.”

A deed from Ball' to one Caswell, dated in 1853, is also referred to, which describes the land .conveyed as “all of Mill lot E, and so much of Mill lot E, next adjoining, in addition to said mill lot E, as shall be required to make the premises hereby conveyed 100 feet wide on a line running north and south across the said premises, the same extending on the west to Grand river, and on the east to the canal, and the north and south boundary lines thereof being parallel to each other; reference being had to the village plat of Kent, recorded, * * * for a more particular description of said lots E and F” This deed specifically grants the right to draw water from the canal, sufficient, etc.

Another deed is referred to, dated in 1873, of a portion of lot E, which describes the parcel as “30 feet front and rear off the north side of mill lot Ej being all of said lot north of a line drawn parallel to the north line of said mill lot E, and 30 feet from and south of said north line, and extending across said lot from the canal on the east to Grand river on the’ west; reference being had to the Kent plat, so called.” The same deed afterwards describes the premises immediately south of the last description as “commencing at the west line of Mill street, Kent plat, in said city, 30 feet south of the north line of mill lot E; thence westerly, parallel with the north line of said mill lot E, to Grand river; thence south 25 feet; thence easterly, parallel with the north line'of said mill lot E,£ to Mill street; thence northerly, on the west line of said Mill street, to the place of beginning.” Each description is followed by a grant of the right to draw water from the canal.

It is well settled that when a general description of real estate is given, followed by a more particular description, the latter expresses the intent, and controls. Smith v. Strong, 14 Pick. 128; Whiting v. Dewey, 15 Id. 428; Winn v. Cabot, 18 Id. 553; Dana v. Bank, 10 Metc. 250; Howell v. Saule, 5 Mason, 410; Barney v. Miller, 18 Iowa, 466; Jones v. Smith, 73 N. Y. 205; Gano v. Aldridge, 27 Ind. 294; McEowen v. Lewis, 26 N. J. Law, 451. It is also well settled that, when reference is made to a map or plat in a deed, such map or plat is considered as incorporated in it as fully and completely as if it were actually delineated in the instrument. Wilson v. Hoffman, 70 Mich. 552; Heffelman v. Water-Power Co., 78 Id. 121; Jefferis v. Land Co., 134 U. S. 178; Miller v. Land Co., 44 Kan. 354.

The defendant claims under a deed from Lucius Lyon to James M. Nelson, dated November 25, 1843, which describes the premises as follows:

“Beginning at a point in the west boundary of Mill street, where the division line between mill lots F and G intersects the same, according to the recorded plat of said village of Kent; thence southerly, along the west boundary of said street, 25 feet; thence westerly, on a line running parallel to the division line between said mill lots E and G, TO feet; tbence northerly, on a line parallel to said street, 50 feet; thence easterly,\ on a line parallel to said ■division line between said lots F and G-, 70 feet, to the west boundary of said street; and thence along said boundary to the place of beginning, — together with water to be taken from said canal at the rish and expense of said party of the second part, whenever the same may be had, sufficient to propel one run of millstones in an ordinary flouring mill.”

The defendant gave in evidence a number of other conveyances covering a period from May, 1864, to January, 1888, through which it claims title. These deeds are not .all of the same parcel, but are of “an undivided one-ninth part of lot F,” “the north 25 feet of lot G,” “nineteen feet of lot G,” “the south 75 feet of lot G,” “the north half of lot H,” “the'undivided half of 19 feet front on Mill street,” “the south 56 feet of lot G,” “an undivided half of the north 44 feet of lot H,” etc. Every one of these deeds describes the land conveyed as part of lot F, G; or H, “according to the Kent plat, recorded,” etc., .and, almost without exception,.metes and bounds are given, in which the parcel is described as “ commencing on the west line [or boundary] of Mill street, * * * thence southerly on the west boundary [or line] of Mill street, -* * * thence westerly,” etc. ' Several of the parcels •are referred to as fronting on Mill street. No one of these deeds contains any reference to the canal, except as each of them contains a separate, distinct, and specific grant of the right to draw sufficient water from the canal to propel one (or more) run of millstones. In three of these deeds the grant uses the following language:

“And also, as an easement appurtenant to said premises, * * * the right to draw sufficient water from the canal, .at the risk and expense of said party of the second part, * * * to propel * * * run of millstones.”

One of these deeds runs to the defendant.

Another grant, dated in 1865, uses the following language:

“Together with water to be taken from said canal at the risk and expense of said party of the second party, whenever the same may be had, sufficient to propel one run of millstones in an ordinary flouring mill; the said party of the second part being, to his share of all expenses in keeping a full supply of water in said canal.”

Another is as follows:

“ Together with water to be taken from said canal, at the risk and expense of said party of the second part, whenever the same may be had, sufficient to propel one run of millstones in an ordinary flouring mill; the said party of the second part, his heirs or assigns, to bear and pay his or their equal share, in proportion to the water used by them and others, of all expenses of keeping and maintaining the dam and canal in repair, for the purpose of keeping up the supply of water used from such canal.”

Another reads:

“ Together with water to be taken from said canal, at the risk and expense of said party of the second part, whenever the same may be had, sufficient to propel one run of millstones in an ordinary flouring mill. This conveyance being made * * * upon the express condition that after a dam, pier, or wing wall shall have been completed at the head of said canal, sufficient to furnish a supply of water therein, the said party of the second part shall pay his or their several shares, in proportion to the water used by them and others, of all expenses of keeping said dam, wall, and canal in repair, for the purpose of keeping up the supply of water used in said canal.”

The words, “ at the risk and expense of said party of the second part,” occur in other grants of this easement.

We have then:

1. The plat, in which the boundaries of each of these mill lots are clearly defined, which shows these lots from D to N, inclusive, as abutting upon a street 25 feet in width, between which street and the west line of .the canal, and bordering the canal, is a strip 5 feet in width, which is in terms, expressed on the face of the plat, reserved. There is no ambiguity here. The intention of the proprietors is as clear as the same could well be made.
2. In the early conveyances, whereby the original parties parted with their interests, the water power, canal, basin, mill race, etc., are specifically and independently described.
3. Every conveyance made since 1835 expressly refers to this recorded plat, and, when general descriptive language is used, reference is expressly made to the plat for a more particular description.
4. In each of the conveyances, whether of a mill lot, or of an undivided interest in a mill lot, or of a part of a mill lot, a separate and specific grant is made of the right to use the water from the canal. If the grant of the mill lot carried a fee to the center of the canal, why should there be, in any case, a specific grant of the right to use the water? Or why should the expense be referred to in any case?
5. Defendant acquired its title to the mill lots at a date which is comparatively recent, and within the statute. No one of its grantors assumed to convey to it any interest in the reserved strip or in the canal, except the right to draw water therefrom, or any interest in Mill street, except what followed from a conveyance of the lot according to the plat, or by metes and bounds expressly designating the west line of Mill street as the eastern boundary.

It is clear, we think, that it was the intention of the original proprietors to reserve the title to the canal bed, the banks of the canal, the strips, the basin, and chutes as for their private property; that in the conveyances of the mill lots they conveyed the fee in the lots as platted only; and that the grant of the right to use the water from the canal was of an easement simply, — a right to the flow of water through flumes constructed for that purpose.

"We cannot concur in the view taken by the supreme court of Wisconsin in Smith v. Railway Co., 83 Wis. 271. The appurtenance is, by the conveyance, specifically defined and measured. The grant of the right to construct a flume of dimensions sufficient for a specific purpose, and to a flow of water through the flume sufficient to operate one run of millstones, did not carry with it the fee in the land through which the flume was to be constructed, or in the canal, any more than would the grant of a right of way across an adjoining farm convey the fee in the adjoining farm and in the highway sought to be reached. Where the extent of the grant is specifically defined, it cannot be enlarged by implication. Both parties must be deemed to have contemplated such enjoyment of the water power as is in terms provided for.

In Trustees v. Haven, 11 Ill. 554, certain parties were owners of town lots, designated by numbers, on both sides of the Des Plaines river. On one side of the river they extended to th'e bank, but on the other side a street was laid out along the margin of the river, and between it and the lots. The proceeding was for an assessment of damages occasioned by diversion of the stream, and damages were awarded to those parties as riparian proprietors on both sides. The court held this erroneous. They were riparian proprietors on one side, and, as such, it was held, were owners to the thread of the stream; but on the other side their lots did not border on the stream at all, and consequently the common-law rule which gives the riparian proprietor the ownership in the bed of the river had, as to these lots, no application. This case is cited in Watson v. Peters, 26 Mich. 516, 517, the Court saying:

“This conclusion is supported by Ryan v. Brown, 18 Mich. 196, and to a certain extent by Yates v. Milwaukee, 10 Wall. 497, also. Of its correctness we have no question.”

And, in speaking of the ease which it was deciding, the Court said:

If, on the face of the plat, by reference to which the defendant bought, there was anything'"'which distinctly indicated an intent on the part of the proprietors to make this ease exceptional, and to reserve to themselves any rights in front of the water lots marked on it, after they should have been sold, the case would be different.”

In Hall v. City of Ionia, 38 Mich. 498, this Court said:

There is no -foundation for the claim that a right to the perpetual use of water must be dependent on a particular estate with which it is connected. * * * The value of water as a distinct inheritance, either for creating power or for other purposes of use or consumption, has been recognized in all periods, and its ownership is well established as not dependent on lands to which it may be appurtenant, but as having a separate and intrinsic importance. There may be an occasional dictum, and possibly some decisions, to the contrary; but most cases where any doubt seems raised on this question will be found to rest on peculiar facts which in no way involved the general doctrine. The facts, are often such as to confine the use of water not only to special places, but also to specified purposes. But this limited use is the exception, and not the rule. Hathaway v. Mitchell, 34 Mich. 164. And for the general doctrine see, among many cases, Hurd v. Curtis, 7 Metc. 94; Pettee v. Hawes, 13 Pick. 323; Cary v. Daniels, 5 Metc. 236; Borst v. Empie, 5 N. Y. 33; Goodrich v. Burbank, 12 Allen, 459; Owen v. Field, 102 Mass. 90; Emerson v. Mooney, 50 N. H. 315.”

Gould, Waters, §§ 304, 304a, says:

Grants relating to water may include a certain quantity of the water itself, having reference to its bulk or weight, or to the quantity which will pass through an aperture of known dimensions in a certain time; or it may be of such water power as is necessary to propel certain machinery. In the latter case no property is acquired by virtue of the grant in the corpus of the water. Others are not deprived of the right to use it in such a manner as does not impair the power. Nor is it necessary that it should be annexed to a mill, or limited in location. Rights of water thus conveyed are distinct and substantive subjects of grant, and, although in their nature appertaining to land, they may exist without any restriction as to their use in connection with the land granted, or any other designated parcel, and stand precisely as if granted by deeds containing no conveyance of land. If the right is granted in a single deed to build a dam on the grantor’s land, to enter for repairs, and to flow the grantor’s land to a specified point, the privilege of flowing may be exercised independently by a dam erected on land other than the grantor’s. If land is granted with the right, should it' become necessary, to erect a dam on the land of the grantor, in order that the grantee may have ’the best possible use of the water of a stream for running machinery,’ the dam need not be maintained at the place where it is first erected, but the grantee is at liberty to erect and maintain the dam upon his own land. A conveyance of all the water of a river between certain points ’for the purposes and use of machinery or ditches, or for any other uses,’ does not convey the land of a mill site on the stream.
’” A grant of a water-course in law,’ says Jessel, M. R., ’ especially when coupled with other words, may mean anyone of three things: It may mean the easement or the right to the running of water, it may mean the channel pipe or drain which contains the water, and it may mean the land over which the water flows. What it does mean must be shown by the context, and, if there is no context, I apprehend that it would not mean anything but the easement, — a right to the flow of the water.’”

It is insisted that the plat referred to was not signed or acknowledged by the owners of the land, so as to efíeet a statutory dedication, hence the title to the land remained in the proprietors; but this does not aid defendant. The proprietors have nowhere conveyed the fee to the defendant. The intention to dedicate Mill street as a public street is clear, and the acceptance by user, and by grading and improving the same, is equally clear. The street was graded in 1866, and an assessment was made by the city to defray the expense of such improvement, not only upon the owners of the strip east of Mill street, but also upon defendant’s grantors; and' said assessment was paid by both parties.

It is next contended that the title to the canal is in the State. It will be observed that the original proprietors contemplated the use of the canal for water-power purposes only, and for that purpose it had been completed prior to the action hereinafter referred to. In 1847 the Legislature, by Act No. 19, which was entitled “An act to authorize the supervisors of the county of Kent to construct a canal and locks around the rapids of Grand river, at Grand Kapids,” authorized said board to construct said canal, and appropriated 25,000 acres of land for that purpose. The act contemplated the construction of a canal with locks of sufficient capacity to receive boats, and pass them to slack water above the rapids at all stages of water; that the same should be completed within three years from the passage of the act; that when completed, and “ the right of way secured to the people of the State of Michigan,” certificates for the land appropriated should be issued. Section 9 provides that—

“ Grants of the right of way, and a release of all damages to the State, * * * shall first be executed, * * * and recorded, * * * so that the said right of way shall be secured to the State of Michigan free from all incumbrances whatever, leaving to the owners of the land on either side of said canal the use of the water therein for hydraulic purposes.”

Section 11 provides that—

“The Legislature may at any time further provide for carrying out the true intent and meaning of this act, and for converting said canal into State property, whenever the public good may require, after 15 year's from the passage of this act, the rights of individuals as then existing to be fully secured to them.”

This act was amended in 1848, in 1849, and in 1851.

It appears by the proceedings of the board of supervisors that in April, 1848, a contract was entered into with one Davis for the construction of said canal, and that certain work was done under said contract. It further appears that the prosecuting attorney of the county of Kent, in January, 1850, reported to the canal commissioners that he had examined certain “releases of the right of way and passage for a canal, locks, and dam around the rapids, which releases are generally on condition that the canal should be built on the bed of the old canal, and on the east side of Grand river;” and that he was of opinion that said releases were good and sufficient, and conveyed to the State a full and absolute right of way. The records of Kent county covering this period had been destroyed, and it appeared by the certificate of the Commissioner of the State Land Office that no grants or conveyances of the right of way for said canal were to be found in his office. The releases themselves were not produced, and the only evidence respecting them was what appeared in the report of the prosecuting attorney, and what is known as the “ Scranton Abstract,” which refers to these releases or grants as “right to enlarge canal,” or “release for right of way for canal.” The act of 1851 provided for the letting of a new contract after advertisement; for the taking down and reconstruction of the dam theretofore constructed; that the new contract should be made conditional upon the procurement of a perfect right of way for the canal; that the canal and locks should be completed before January 1, 1853; and further ¡Drovided that—

“If, within one year from the passage of this act, the compensation to be made to the proprietors of the lands above the dam, ascertained as hereinbefore provided, shall not have been paid over, by the proprietors of the lands below the dam, to the said commissioner for the use of the proprietors first aforesaid, and their grants of the right of fiowage fully perfected and delivered to said commissioner, and approved by the prosecuting attorney of the county of Kent, or if, at the expiration of the said year, .the contract for the completion of said canal and locks and the removal of said dam shall remain unlet, then it shall be the duty of the commissioner to cause the dam now appurtenant to said canal to be taken down and the obstructions by said dam interposed to the navigation of Grand river to be removed, to make sale of the materials of said dam, and to render an account of the expenses of such removal to the Governor of the State, and the excess of such expenses over the receipts from sales of the materials of said dam (if any) shall- be paid out of the unexpended balance of the original appropriation for the construction of said canal and locks.”

Nothing whatever appears to have been done under this act. No contract was let, the dam was not constructed, nor was the old dam torn down or sold. The work had been about half completed under the first contract, but the most costly part of the work had not been done. The locks had not been constructed, nor had the improvements below the locks been made, nor had the canal been widened. The entire matter seems to have been abandoned by the State. In 1855 the Legislature appropriated the unexpended balance of the 25,000 acres of land to'another purpose, repealed all acts or parts of acts inconsistent with the provisions of that act, and rescinded the joint "resolution relative to the appropriation to build the canal around the rapids of Grand river. Whatever grants were made to the State were made in 1848. It nowhere appears that the State ever asked for the conveyance of the fee. It only asked for the easement, — the right of way and passage for the canal. It nowhere appears that -these releases were-unconditional. Indeed, the report of the prosecuting attorney of Kent county would indicate that conditions were attached. He says that the releases are generally on condition that the canal should be built on the bed of' the old canal, and on the east side of Grand river.” The canal contemplated by the act was never built. It is true it was commenced, blit it was not completed, but was abandoned by the State. These were voluntary grants, made by the owners of the fee, who had, conveyed water lots, and, in connection therewith, had made grants of the use of the water power, and were themselves interested, as owners of other water lots, in that use. The conveyances to the State are not before us. They appear to have been releases of a right of way only. The act itself provides for a reservation of the use of the water power, and it further appears that the releases were in other respects conditional. Section 8 of the act of 1851, above quoted, makes provision, in case of abandonment of the work, for the disposition of the dam, but contains no provision for the reconveyance, sale, or disposition of any fee acquired by the State. Even the expenses of removal were to be paid out of the appropriation. In the face of these facts it cannot be said that the releases conveyed the fee. This conclusion is further supported by the fact that for 40 years after the abandonment of the project by the State the bed of this canal has been treated by all the parties as private property, and neither county nor State has made any claim thereto, nor do they now assert such claim.

It is next insisted that plaintiffs are estopped from asserting title to the canal bed by an agreement entered into August 15, 1866, between a number of parties who were interested in the water power on the east side of the river, including Isaac H. Nichols, through whom plaintiffs derive their title, C. C. Comstock, R. E. Bu.tterworth, M. L.' Sweet, G. S. Deane, and Frederick B. Perkins, as parties of the first part, and one Powers, party of the second part, which recited:

“That whereas, said parties of the first part own and control the water-power interest of the canal on the east bank of Grand river, in said city, made by the water of said river, in proportion to their respective rights to the use of such water-power, and said party of the second part owns and controls the water-power interest on the west bank of said river opposite' said canal;
“And whereas, the said parties of the first part, in connection with said party of the second part, are about to improve the water power on each bank of said river by building a dam across said river from the west end of the guard gates across said canal, as well as otherwise improving said water power;
“And tvhereas, in the construction and maintenance of such dam it is important that said parties of the first and second part shall treat together and establish a plan of action, so that said contemplated improvements may be proceeded with in concert, and, when completed, in like manner may be cared for, preserved, and protected.”

This agreement related to the water-power interest solely. The original idea was that the expense of the repairs to the canal was to be borne by those interested in the use of the water power. Several of the deeds expressly provide that the' expense is to be so borne. The agreement expressly declares that the improvements, when made, shall inure to the benefit of the parties, as incidents and easements to their present right to water power, in proportion, not to the frontage upon the canal, but to the right to water power held by each; and provides that the expense of maintenance shall be borne by assessments, not upon said frontage, but upon such water power, equally. It further appears, however, that on August 13, 1866, Charles C. Comstock, E. E. Butterworth, Martin L. Sweet, Isaac H. Nichols, G. S. Deane, and Frederick B. Perkins, as parties of the first part, executed to the parties named as parties of the first part in the agreement aforesaid, the grantors excepted, a deed which recited that the parties of the second part, in connection with the undersigned grantors, are about to improve the water power on Grand river, in the city of Grand Eapids, by building a dam across Grand river at or near the guard gates across the canal on the east side of Grand river, and otherwise improve said water power;” and granted the right to enter upon the canal and banks, and do the very work contemplated by the aforesaid agreement; and provided that “said rights hereby granted and conveyed are to be held and owned by said parties of the second part hereto as tenants in common in proportion to their respective rights to the use of the water power along said canal on the east side of Grand river, said parties of the first part hereby saving and reserving to themselves, their and each of their heirs and assigns, forever, from the grants and rights hereby made, an interest equal in proportion, respectively, as the rights which the said parties of the first part each have to the use of the water power along said canal; said grants and reservations hereby made to be owned and used by the parties hereto as tenants in common in proportion to the right which each person has to use the water power along said canal, their heirs and assigns, forever.” It will be borne in mind that the grantors in such deed were the same persons to whom Daniel Ball had, on February 29, 1864, conveyed the bed and banks of the canal, and strips of land on either side, to each an undivided part -thereof. It is significant that the date of the conveyance from Ball to said parties of the first part is three times mentioned in the deed now under consideration. The right is granted to erect a dam at or near the guard gates, as such guard gates existed February 29, 1864, and to remove the west bank of the canal as it existed February 29, 1864. It will also be remembered that to each of the said grantors had also been conveyed a mill lot, with the right to use the waterpower, so that they were interested with the others in the water power. Both of these instruments were recorded, and through parties to these agreements defendant derives its title. These instruments, so far from operating as an estoppel against plaintiffs, would seem to have an effect directly opposite.

Several other questions are raised upon instructions given to the jury, but, in the view' which we take, it is unnecessary to discuss them. Plaintiffs were entitled to a verdict. Neither the defendant nor any one of its grantors has used or occupied the property in question for 15 years. All of the property immediately across the street from that sought to be recovered was conveyed by descriptions bounding it on the east by the west line of Mill street. It had been invariably conveyed by the same description, and in each conveyance a separate grant had been made of the right to connect with the canal, and use a prescribed quantity of water. The plat to which these conveyances refer for description, and the conveyances through which defendant obtained its title, affirmatively show that, the title to the strip at the canal and to the canal bed was reserved, and did not pass by the conveyances of the land opposite the land in question. Defendant and each of its grantors had ample notice thereof. No one of defendant's predecessors has ever assumed to convey with the mill lots, or parts thereof, any land east of the west line of Mill street, or to transfer any possessory rights. It cannot be held that there is any such privity between these parties as to property on the other side of Mill street from that actually conveyed as enables defendant to tack, and thus make up the statutory period of adverse possession. The land in controversy is a parcel distinct and separate from the parcel west of Mill street. It is not, in any sense, within the same inclosure. The parcels are separated by a public street. While there is some testimony tending to show that lumber was at times piled along the east side of Mill street, it clearly appears that a passageway for the public was maintained between such lumber and the west line of that street, and no claim is made of a right to exclude the public from that way. Jenkins v. Trager, 40 Fed. Rep. 726; Erck v. Church, 87 Tenn. 575; Sheppard v. Wilmott, 79 Wis. 15; Dhein v. Beuscher, 83 Id. 316; Ablord v. Fitzgerald, 58 N. W. Rep. 745. While it is unnecessary, in the present case, to go to the extent to which some of the cases go, the facts present a case where the principle of the cases cited should, we think, be applied.

The judgment is therefore affirmed.

Long, Grant, and Hooker, JJ., concurred. Montgomery, J., did not sit.

       The opinion here referred to is that filed upon the original hearing, and first reported in 50 N. W. Rep. 497. Subsequently, upon rehearing, the court held that the claim of title to the roadway and raceway by virtue of the ownership of adjacent lots was rejected in Smith v. Ford, 48 Wis. 115, and was therefore res judicata, the parties to the case in question being privies in estate to the parties in the prior case. See 83 Wis. 279.

        Taylor v. St Helens, 6 Ch. Div. 264, 271.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    Darius W. Loree v. George W. Smith, Drain Commissioner, and Joseph E. Hunter, Clerk, of the Township of Ridgeway.

      Drains — Determination of commissioner — Certiorari—Notice.
    1. The question of the estoppel of a land-owner, who seeks to review on certiorari the proceedings of a drain commissioner in cleaning out a drain, by reason of his knowledge that the drain was being cleaned out, and his admission of having received the benefit of the drain, is not open to consideration on a motion to dismiss the writ; citing Rowe v. Rowe, 28 Mich. 358; Maybee v. Miner, 44 Id. 207.
    2. The order referred to in 3 How. Stat. § 1740e4, which provides for the review on certiorari of proceedings in establishing a drain, and that notice of such certiorari shall be served on the drain commissioner within 10 days after the determination of such commissioner in establishing the drain, is the order mentioned in 3 How. Stat. § 1740d8, which provides, that “upon the release of right of way and damages, or upon the determination and return of the special commissioners, or the order of the probate court, as the case may be, the drain commissioner shall make his final order establishing the drain, and shall give the same a name by which it shall be known and recorded.”
    3. Two unsigned documents, forming a part of the proceedings of a drain commissioner in cleaning out a drain, one purporting to be the determination by the commissioner of the necessity of granting the application, and the other his order and determination that the drain shall be cleaned out, are not such orders as are contemplated by 3 How. .Stat. § 1740e4, and proceedings thereunder are subject to review under the common-law writ of certiorari.

    Error to Lenawee. (Lane, J.) Argued March 9, 1894. Decided May 18, 1894.

      Certiorari to review proceedings to clean out a drain. Plaintiff brings error from order dismissing the writ.
    Reversed, and cause remanded.
    The facts are stated in the opinion.

      Mains é Mains, for appellant.

      Westerman & Westerman, for defendants.
   Montgomery, J.

The plaintiff in error sued out a writ of certiorari to review proceedings taken wherein an assessment was attempted to be made against plaintiffs property for benefits accruing to the property on account of cleaning out a drain. Notice of intention to sue out the writ was served on the 14th and 15th of November, 1892. The writ was allowed on December 10, 1892, and issued on December 19 of the same year. A motion was made by defendants in error to set aside this writ on the ground that notice of the intention to remove the proceedings to the circuit court for review by certiorari was not served within the time prescribed by statute. This motion was granted by the circuit court, and plaintiff in certiorari brings the record here for a review of that order.

The ruling of the circuit court was based upon 3 How. Stat. § 1740«4, which provides that—

The proceedings in establishing any drain shall be subject to review upon certiorari, as herein provided. Notice of such certiorari shall be served on the commissioner within ten days after the determination of such commissioner in establishing any drain, as provided in section one of chapter 4, in the same manner as notice is required to be given of certiorari for reviewing judgments rendered by justices of the peace, and the writ shall be issued and served, and bond given and approved, and the subject-matter brought to issue, in the same time and manner, as near as may be, as in such cases provided. * * * If no certiorari be brought within the time herein prescribed, the drain shall be deemed to have been legally established, and its legality shall not thereafter be questioned in any suit at law or equity: Provided further, that, when such proceedings are brought, the commissioner shall postpone the letting of contracts and all other proceedings until after the determination of the court.”

It will be noticed that the 10 days begin to run upon the determination of the commissioner in establishing the drain. Assuming that the time would begin to run at the date when an order was made for cleaning out a drain, the question remains whether any such order was made as would set this time running. The order which is mentioned in this section is to be a determination of the commissioner as provided in section 1 of chapter 4 of the act. This section, which is section 1740d8 of 3 How. Stat., provides: .

Upon the release of right of way and damages, or upon the determination and return of the special commissioners, or the order of the probate court, as the case may be, the drain commissioner shall make his final order establishing the drain, and shall give the same a name by which it shall be known and recorded.”

It is evident, from a reading of section 1740e4, that the order referred to is the order establishing the drain, or, in case of a widening or extending, a similar order for one of these purposes; for in the concluding portion of the section it is provided that, when a certiorari is brought, “the commissioner shall postpone the letting of the contracts and all other proceedings until after the determination of the court. ” TJpon an examination of the proceedings, we find that no such order was made. It is true that there are two unsigned documents, referred to in the brief of counsel for defendants in error as the first and second orders of determination, bearing date, respectively, as of September 5 and September 26. Bat we do not think it could be said that these unsigned documents are such orders as are contemplated by the provision which requires notice within 10 days after the making of an ■order If the tax-payer had been fully apprised of the filing of these unsigned orders, he would not have been bound to assume that any attempt would be made to proceed under them. This being so, these proceedings, which affect the rights of plaintiff in error, are subject to review under the common-law writ of certiorari. Thompson v. School-Dist., 25 Mich. 483; Merrick v. Township Board 41 Id. 631.

But it is said that, if this view be taken, still the common-law writ of certiorari is a discretionary writ, and the order of dismissal ought to be allowed to stand. It is said in the defendants'’ brief that the plaintiff was well aware that the drain was being reconstructed, and that, as he admits having received the benefit' of this ditch, he ought not to be held entitled to this remedy. But this question was not open to consideration on a motion to dismiss the writ of certiorari. Rowe v. Rowe, 28 Mich. 353; Maybee v. Miner, 44 Id. 207.

The judgment of the circuit court dismissing the writ of certiorari is reversed, and the cause remanded for further proceedings.

The other Justices concurred.


author: McGrath, C. J.

text:
    Mark Norris and Dorinda N. Shepard v. William E. Grove, Circuit Judge of Kent County.

      Actions — Survival—Malpractice.
    Under 3 How. Stat. § 7397, which provides for the survival of actions for negligent injuries to the person, an action against a physician for negligent malpractice survives against his executors.

      Mandamus. Argued April 3, 1894. Denied May 18, 1894.
    Relators applied for mandamus to compel respondent to vacate an order allowing the amendment of a declaration in an action for malpractice sought to be revived against them, as executors.- The facts are stated in the opinion.

      Mark Norris, for relators.

      Turner, Turner é Turner {Turner é Carroll, of counsel), for respondent.
   McGrath, C. J.

The only question involved is whether, under our statutes, an action for ’negligent malpractice survives against personal representatives. The statute provides:

“ If any person professing or holding himself out to be-a physician or surgeon shall be guilty of any malpractice, an action on the case may be maintained against such person so professing, and the rules of the common law applicable to such actions against licensed physicians and surgeons shall be applicable to such actions on the case.” How. Stat. § 7782.

Section 7397, as amended in 1885, provides for the survival of actions “for negligent injuries to the person.” The relators contend (1) that by the latter act the Legis-Tature did not intend to include actions for malpractice; and (2) that the amendment to the general statute relative to the survival of actions cannot be held to be an implied amendment of the statute respecting actions for malpractice.

The latter contention is, we think, without force. The language of section 7782, making the rules of the common law appljpable, has an office independent of the question of survival. Provisions conferring a remedy, and those which limit the time within which such remedy may be employed, and those which relate to survival, are rarely found in the same statute. The subjects are usually treated by independent acts.

The statute provides for the survival of all actions for negligent injuries to the person. The word “person” is evidently used in contradistinction to the word “ property.” It is true that the books speak of willful malpractice, negligent malpractice, and ignorant malpractice, but it is unnecessary to determine whether all actions for malpractice would survive under this statute. Shearman & Redfield (Neg. § 7) recognize the right of an injured party to elect to treat an act as negligent although it was in fact willful and malicious. Unless the injury be a negligent injury, the action does not survive; but it is no more difficult to determine that question in an action for malpractice than in any other action for injury to the person. The declaration in the present case alleges a negligent injury to the person, and we think the statute applies.

The writ must therefore be denied.

The other Justices concurred.


author: Hooker, J.

text:
    Clarence E. Gifford, Executor, etc., v. Henry C. Gifford and Ellen Gifford.

      Will — Charge upon land devised — Foreclosure of lien- — Gifl— Adverse possession — Specific performance.

    A father, desiring to provide a home for his son, purchased a farm for $10,000, upon which the son afterwards resided. The son paid the taxes assessed on the farm, and a portion of the interest on a §8,000 purchase-money mortgage given by the father, who took the title in his own name, and who paid the remainder of said interest and the principal of the mortgage, but never deeded the farm to the son, nor was he asked to do so. Some two years before his death, and 23 years after he purchased the farm, the father devised the farm to the son, subject to a charge of $3,000, to be used in paying legácies to his daughters. A bill was filed by the executor to foreclose the lien sought to be created by the will, and the son in his answer alleged that the land was given to him by his father, who put him in possession, and that he had occupied the premises for a sufficient period and under such circumstances as to establish a title by adverse possession. And it is held:
    a — That it would be going a great ways to hold that the son’s possession was hostile and adverse, and that it is more reasonable to conclude that he was content to occupy upon such terms as his father had imposed.
    h — That, had the gift been completed by the giving of a deed, the son could not complain if his father had chosen to take an assignment of the mortgage from the mortgagee, to whose rights he had a right to be subrogated upon payment of the mortgage, which precaution the father probably thought unnecessary, as he held the title, and accordingly made the amount of the mortgage a charge upon the land, perfecting his intended gift by a will.
    c — That the defendant is in no position to ask for a specific performance upon the ground that he entered and made improvements under a contract, for the reasons that there was little in the nature of a contract in the arrangement under which he entered, and that he has done little, if anything, in the way of making improvements; neither has he performed the contract, if it can be called one, for he has left his father to pay the mortgage, and equity would require him to pay the same and interest before granting specific performance, which is more than the complainant asks.
    Appeal from Kalamazoo. (Buck, J.) Argued April 4, 1894. Decided May 18, 1894.
    Bill to foreclose a lien on real .estate. Complainant appeals.
    Decree reversed, and one entered in favor of complainant.
    The facts are stated in the opinion.

      Osborn é Mills, for complainant.

      B. M. Irish, for defendants.
   Hooker, J.

In the year 1867, one Elihn Gilford, residing in the state of New York, came to Michigan, with his son, Henry C. Gifford, and purchased a farm for §10,000, paying the consideration therefor, except §3,000, for which he gave a purchase-money mortgage. He took title by a conveyance to himself. _ The- evidence indicates that this farm was purchased for a home for said son, who moved upon it, and has since resided there. He has made some' repairs, but the place has deteriorated, rather than improved, under his occupancy. He paid the taxes, and a portion of the interest upon the mortgage. His father .paid the remainder of the interest, and also the principal of the mortgage, taking a discharge of the same in the year 1872. He never deeded the place to Henry, nor was he ever asked to do so; and after his. death it was found that he had devised the place to Henry, subject to a charge of §3,000, to be used in the payment of legacies to his daughters. Demand was made upon the defendants for this sum, and they failed to pay it. A bill was filed to foreclose the lien sought to .be created by said wiJl. The answer alleges that the land was given . to Henry C. Gifford by his father, who put him in possession, and that he has occupied the premises for a sufficient period and under such circumstances as to establish a title by adverse possession. The evidence shows that Elihu Gifford stated to several that he had bought the place for Henry,” and that he had given the place to Henry.” On the other hand, Elihu Gilford never parted with the title. He paid the mortgage upon the place, and made two other wills, preceding the one involved herein, each of which contained the same provision regarding this farm. The second will was drawn in 1886, and the date of the first one does not appear. The circuit court dismissed the bill of complaint.

The circumstances under which this farm was purchased show a plain intent upon the part of 'the testator to help his son to a home, but for some reason he was not disposed to have him take the title at that time. He took it himself, giving his personal obligation, secured by mortgage upon the premises, for $3,000, creating a personal liability that he might easily have avoided by having the land deeded to the son. These facts were known to the son, and we cannot assume that he entered with the understanding that the land was unconditionally given to him. His father paid much of the interest and all of the principal of the mortgage, — facts that were, doubtless, also known to the son. There was nothing to indicate that this was expected; and, on the contrary, the son appears to have made some feeble efforts to keep up the interest, but was compelled to ask assistance from the father. It would be going a great ways to hold that his possession was hostile and adverse under circumstances of this kind. On the contrary, he was leaning heavily upon his father, who was disposed to assist him. *It is more reasonable to conclude that the son was content to occupy upon such terms as his father had imposed. Had the gift been completed by the giving of a deed, the son could not complain if his father had chosen to take an assignment of the mortgage from tbe mortgagee, to whose rights he had a right to be subrogated upon payment of the mortgage. The father probably considered this unnecessary, as he held the title. He accordingly made the amount of the mortgage a charge upon the land, perfecting his intended gift through a will.

We think that the defendant is in-no position to ask a specific performance upon the ground that he entered and made improvements under a contract, for the reasons that there was little in the nature of a contract in the arrangement under which he entered, and that he has done, little, if anything, in the way of making improvements. His own testimony shows that he set out a hedge, and put about $850 on, the house when he first went there, but this testimony was inadmissible; and other witnesses say that the place has run down under his management. Neither has he performed the contract, if it can be called one, for he has left his father to pay the mortgage, and equity would require him to pay the same and interest before granting specific performance, which is more than the complainant asks. Hardesty v. Richardson, 44 Md. 617; Freeman v. Freeman, 43 N. Y. 34; Ackerman v. Ackerman, 24 N. J. Eq. 315, 585; Shellhammer v. Ashbaugh, 83 Penn. St. 24; Williamson v. Williamson, 4 Iowa, 279.

The decree of the circuit court will be reversed, and a decree entered here in favor of the complainant, with costs < of both courts.

The other Justices concurred.


author: Hooker. J.

text:
    William J. McGregor v. George Cole.

      Replevin — Demand—Joint possession — Parties.
    1. The failure of a mortgagee, to whom a husband and wife mortgaged, household goods, to make a demand upon the wife for the delivery of the goods before replevying them of the husband upon default, the same being in their joint possession, will not defeat the. action.
    2. Where, in such a case, the goods are in the exclusive possession of the wife, and replevin is brought against her for the same without demand, she can defeat the action, not because she is entitled to the possession, but because she is not guilty of unlawfully detaining the goods, in which case she will be entitled to a judgment for costs, but not for a return of the property as against the lien of the xffaintiff; citing Darling v. Tegler, 30 Mich. 54; Gidday v. Witherspoon, 35 Id. 368; Sinehman v. DoaJc, 48 Id. 168; S'teere v. Vanderberg, 90 Id. 189.
    Error to Hillsdale. (Lane, J.) Argued April 4, 1894. Decided May 18, 1894.
    Replevin. Plaintiff brings error.
    Reversed.
    The facts are stated in the opinion.

      F. A. Lyon, for appellant.

      Franlchauser Bros., for defendant.
   Hooker. J.

Defendant, being in the employ of the plaintiff, got married, and, wishing to go to keeping-house, prevailed on the plaintiff ‘ to aid him in buying-some household goods, which he did by signing a note with him for $72, and paying for a stove $6, making $78 in all.. The defendant gave the plaintiff a chattel mortgage for the amount, which provided that, if the mortgagor should attempt to remove the goods, or any part of the same, from the house where he was living, without the written consent of the plaintiff, the plaintiff might take the same, and hold them until the mortgage should become due, when he might foreclose it. The wife signed this mortgage. The articles were removed without plaintiff’s consent, and, after the mortgage became due, he demanded possession of the defendant, which being refused, he brought replevin.

Upon the trial it was claimed by the defendant that the non-joinder of the wife, and the failure to make demand for the property upon her, were fatal to the plaintiff’s action, and the court so held, and, a return of the property being waived by the defendant, -judgment for its value, to the amount of $54, was rendered. The wife was not made a party, and defendant was allowed to recover upon the theory that, being in the joint possession of the property with her husband, and such possession being lawful, it could not be lawfully interfered with before demand upon her, and that she was a necessary-party to the action, which must fail for these reasons. There was no denial that the defendant was in possession,, but he claims that his Avife was also in possession, Avhich Avas lawful until demand Avas made- upon her as Avell as. him.

Had the property been in the exclusive possession of the wife, and replevin been brought against her, she could have asserted the want of demand, and defeated the action, on the technical ground that, while the plaintiff Avas entitled to the property, her detention was not Avrongful,. because she had never denied it to him, or asserted any claim to said property inconsistent Avith his rights. The-action would, in such case, be defeated, not because she Avas entitled to the possession, but' because she was not guilty of unlawfully detaining; and in such case the judgment would be in her favor for costs, but she would not be entitled to a return of the property as against the lien of the plaintiff. Wells, Repl. § 372; Cobbey, Repl. § 468; Gidday v. Witherspoon, 35 Mich. 368; Hinchman v. Doak, 48 Id. 168; Darling v. Tegler, 30 Id. 54; Steere v. Vanderberg, 90 Id. 189. But this defendant cannot shelter himself behind a defense which his wife might make had she been the defendant. Suppose he did satisfy the court that she did not unlawfully detain this property, it goes for nothing, because she has never been charged with so doing. The plaintiff has not asserted that she detained it at all. Defendant, being unable to set up a right of exemption as to himself, and being equally unable to maintain the proposition that the plaintiff should be defeated because of his wife's right of exemption, — i. e., the right of possession in another, — sets up the flimsy claim that if the plaintiff had seen fit to bring an action against his wife, she, although without a just right to the possession, might have shown that it could not be maintained against her for want of a demand.

It follows that the judgment of the circuit court must be reversed, and a new trial ordered.

The other Justices concurred.

       See Farrah v. Bursley, post.


author: Grant, J.

text:
    Edward W. Upham, Administrator of the Estate of Charles H. Brown, Deceased, v. George A. Caldwell.

      Replevin — Right of possession — Log lien — Judgment.
    1. In an action of replevin, the plaintiff must recover, if at all, upon the strength of his own title or right of possession.

      2. No right of possession attaches under a void judgment and execution.
    3. A judgment entered by the clerk of the circuit court upon a reference to him to assess plaintiff’s damages, after the,court has adjourned, and in the absence of the' presiding judge and without his authority, is absolutely void.
    4. Where, at the time of the execution of a writ of replevin, the defendant is in the possession of the property as purchaser at an execution sale, he is in possession under a claim of right and title, and the plaintiff must establish a right of possession superior to that of the defendant, in order to entitle him to recover.
    5. A judgment was entered in favor of the plaintiff in a log-lien suit, but it was absolutely void by reason of defects not affecting the validity of the attachment. The lumber attached was sold on executions in favor of other parties, and three days later was s.old on an execution issued on plaintiff’s judgment, and the purchaser assigned his interest to the plaintiff, who marked the lumber, and left it in the mill yard of a stranger to the proceeding, where it had theretofore been situated, over which yard the plaintiff had no control. The purchaser at the prior execution sale took possession of the lumber, and plaintiff brought replevin. And it is held that judgment should have been rendered in favor of the defendant for the value of the lumber, less the value of the plaintiff’s lien, which he had taken the proper steps to enforce, pursuant to How. Stat. S 8342, which provides that when either of the parties to an action of replevin, at the time of the commencement of the suit, shall have a lien upon, or special property or part ownership in, the goods and chattels described in the writ, the court shall render such judgment as shall be just between the parties.*

      Error to Kent. (Adsit, J.) Submitted on briefs April 4, 1894. Decided May 18, 1894.
    Replevin. Plaintiff brings error.
    Judgment modified.
    The facts are stated in the opinion.

      George Glapperton and Frank W. Mine, for appellant.

      L. F. Garroll, for defendant.

       For cases bearing upon the proper construction of and practice under How. Stat. § 8342, which provides that “ when either of the parties to an action of replevin, at the time of the commencement of the suit, shall have only a lien upon, or special property or part ownership in, the goods and chattels described in the writ, and is not the general owner thereof, that fact may be proved on the trial, or on the assessment of value, or on the assessment of damages, in all eases arising under this ohapter [chap. 288J, and the finding of the jury or court, as the case may be, shall be according to such fact, and the court shall thereupon render such judgment as shall be just between the parties,” see:
      1. Sweetzer v. Mead, 5 Mich. 107, 111, holding that where, in replevin against two, the court finds that each of the defendants has an independent lien, to a specified amount, on the property in controversy, it is erroneous to render a joint judgment in their favor for the value of the property.
      2. Williams v. Vail, 9 Mich. 162, holding that, where a plaintiff in replevin is nonsuited, the defendant, if he waive a return of the property, is entitled .to a judgment for its full value.
      3. First National Bank v. Crowley, 24 Mich. 492, where an iron company had contracted for the sale of a quantity of iron to a bank, and before its delivery so as to pass title, and while it was yet in the possession of the company, a portion of the iron was levied upon by virtue of executions against the company, and was replevied by the bank. And it was held that had it appeared that the plaintiff had the right to the property or its possession, subordinate only to the executions, or had the property been taken by the defendant from the possession of the plaintiff, the judgment should only have been for the amount of the executions; but, as the property was not taken from the possession of the plaintiff, and as it had no right to it or its possession, the sheriff, from whose rightful possession it was taken, was entitled, as against the plaintiff, to recover its full value, being accountable over to the vendor for the excess beyond the executions and costs.
      4. Cary v. Hewitt, 26 Mich. 228, where the holder of a past-due but unforeclosed chattel mortgage replevied the property, the value of which exceeded the mortgage debt, from an execution creditor of the mortgagors, in whose possession it liad been placed by an officer who had seized it on the execution, and who was joined as a co-defendant in the replevin suit, and before anything further had been done under the levy the property was sold on the mortgage to the execution creditor. And it was held:
      a — That the statute regulating the course in replevin where there are separate interests in tire same goods makes the determination depend upon the existence of the distinct interests at the time of the commencement of the suit, and not upon the union or division of interests before or after that time.
      b — That the plaintiff was not entitled to the pqssession of the property, as against the execution, when the suit was commenced, and that the defendants were entitled to a judgment for the difference between the value of the property and the interest of the mortgagee therein, not exceeding the amount due on the execution, together with the costs occasioned by the suit instituted by the plaintiff for the possession when he was not entitled to it.
      5. Chadwick v. Broadwell, 27 Mich. 6, holding- that where a defendant in replevin establishes a lien for a saw bill upon a quantity of lumber, a portion only of which has been replevied, an instruction that, if the jury find in favor of the defendant, they shall assess her damages at such a proportion of the whole amount of the lien as the lumber replevied bears to the whole amount in her hands subject to the lien when the writ • issued, is not one of which the plaintiffs can complain, it not being-claimed that the verdict exceeds the amount due the defendant, who had a right to demand payment of the whole saw bill before any of the lumber was taken from her.
      6. Walrath v. Campbell, 28 Mich. 111, holding that a defendant in replevin, whose lien under a chattel mortgage upon the property is sustained, cannot recover beyond the value of the prop>erty, and, in the absence of other proof of value, the appraisal made under and returned with the writ will measure the amount of his judgment.
      7. Macomber v. Saxton, 28 Mich. 516, holding that where, in replevin by a mortgagee of the mortgaged property from an officer who lias seized it upon executions against thd mortgagor, the suit is tried by the court upon an agreed statement of facts, and it is expressly stipulated that if the court shall find that the defendant was lawfully entitled to the possession of the property by virtue of the levies, and that the plaintiff was not so entitled, judgment shall be rendered in favor of the defendant for a specified sum, such stipulation, in the event of such a finding being-made, is conclusive as to the judgment to be given, and supersedes all inquiry into the value of the interest to which the levies attached, and precludes the .plaintiff from contending that the defendant’s right was one possessing only a nominal value.
      8. Darling v. Tegler, 30 Mich. 54, holding that where, in an action of replevin, the plaintiff’s uncontradicted proofs show that the defendant, if in possession, was a possessor without any valuable interest in the property, but yet require the rendition of a judgment in his favor for want of a proper demand, he can recover under the statute only nominal damages; and, to the same effect, Weber v. Henry, 16 Mich. 399; Ellis v. Simpkins, 81 Id. 1.
      9. Fowler v. Hoffman, 31 Mich. 215, holding it error to instruct a jury, in an action of replevin by a mortgagee against the mortgagor under a mortgage not yet all due, that, if they shall find that there was no continuing breach of the mortgage at the time the suit was brought, the defendant will be entitled, on waiving a return of the property, to recover its full value, as such an instruction wholly ignores whatever is to become due thereafter ■on the mortgage; and that, under the statute, the mortgagor should have judgment for the real value of his interest, namely, the value of the property, less the amount still to come due on the mortgage.
      10. Moore v. Vrooman, 32 Mich. 526, holding- that a finding in an action of replevin that the defendant did not unlawfully detain the property as alleged, that he had a lien on or special interest in the property for a specified amount, and that the plaintiff was the general owner subject to such lien, will authorize a judgment in the usual form in favor of the defendant for the amount of said lien, and is not open to the objection that the statute requires a more particular finding to warrant such a judgment, and especially in regard to the amount of the respective interests, no special findings being requested, nor any exception taken to the finding as made.
      11. Kohl v. Lynn, 34 Mich. 360, holding that where, in replevin by a mortgagee of a portion of the mortgaged property, which lias been sold to the defendant by the mortgagor, it appears that after the suit was commenced the plaintiff sold the remainder of the property on his mortgage, it is competent for the defendant to show to what extent the plaintiff’s claim was reduced by such sale, as, in case the property was sold for enough to pay the mortgage, the defendant would be entitled to a return of the property, or such other judgment as would be equitable, and, if the debt was not entirely discharged, he would still be entitled to show the extent to which the plaintiff’s claim had been reduced, and to pay it and redeem the property.
      12. Farmers’ Loan & Trust Co. v. St. Clair, 34 Mich. 518, holding that where in replevin the verdict is for the defendant, and he claims only a lien upon or special interest in the property, the general title being in the plaintiff, the verdict is clearly irregular if it fails to find the amount of the defendant’s lien or interest.
      13. Gidday v. Witherspoon, 35 Mich. 368, holding:
      a — That the statute requires a lien or special property, when relied upon by a plaintiff or defendant in replevin, to be specially found, and, in the absence of such finding, the court cannot recognize it by the judgment.
      b — That, in order to warrant a finding of a lien or special property in favor of an officer under a levy,. proof must be made of the judgment upon which the execution was issued.
      14. Quackenbush v. Henry, 38 Mich. 369, holding that the object and purpose of the statute is to permit the special property or part ownership in the property replevied to be proved and determined upon the trial of the case, and by the same jury, if a jury trial be had, or on the assessment of value where a demurrer has been interposed, or on the assessment of damages in cases of judgment by default and other like cases, and that it is error to permit a second jury to be impaneled for the assessment of damages in such a case.
      15. Alderman v. Manchester, 49 Mich. 48, holding:
      a — That, under the statute, the verdict must be special, and full enough to enable the trial 'court to render a proper judgment.
      Z> — That, in an action of replevin against a constable for goods levied upon, a finding that plaintiff is the general owner of 'the property, and that the defendant has a lien thereon to the amount of his levy, cannot be sustained where the intei'ests of the parties are conflicting, as where the defendant levies upon plaintiff’s goods to satisfy an execution against a stranger.
      c — That where a defendant in replevin is, under the finding, entitled to a return of the property, there is no propriety in determining the amount of his lien, unless he waives a return, and asks to have the value determined.
      d — That, where the jury find that a defendant in replevin has a special lien on the property, but do not find its value, there is nothing on which to base a personal judgment against the plaintiff for the amount of such lien.
      16. Steele v. Matteson, 50 Mich. 313, holding that where,, in replevin against three defendants, only one of them is found to be at all interested in the property, it is error to render a money judgment in favor of all of the defendants.
      17. Frederick v. Circuit Judge, 52 Mich. 529, holding that, where goods held by a sheriff under an attachment are replevied, a judgment in his favor, rendered before the attachment proceedings are decided, must be for the return of the property, and not for the value of his lien.
      18. Berger v. Clippert, 53 Mich. 468, holding that the judgment recovered by a plaintiff in an attachment suit is admissible on the trial of a replevin suit brought by a purchaser of the attached property against the attaching officer, as evidence of the extent of the defendant’s lien on or special interest in the property.
      19. Williams v. Bresnahan, 66 Mich. 634, holding that it is error to render a judgment for the value of the property in favor of a defendant in replevin who has only a special interest therein by virtue of its seizure on legal process, and that the judgment should be for the value of such special interest.
      20. Charpentier v. Bresnahan, 74 Mich. 48, holding- that where an entire stock of goods, which had been seized on executions against the owners, is replevied by them upon a writ which contains a specific description of a portion only of the goods, and all of the goods are appraised, and delivered to the plaintiffs on the execution and delivery of the statutory bond, the defendant is not limited in his recovery to the value of the goods described in the writ.
      21. Steere v. Vanderberg, 90 Mich. 187, holding that a defendant in replevin, in order to show himself entitled to a judgment for the value of the goods replevied, need not, in addition to showing possession under a claim of title, preve that he has a title as against all the world, when no right or title appears in the plaintiff.
      22. Whitney v. Hyde, 91 Mich. 13, holding that where the original vendor of a piano, which had. been delivered to a railroad company for shipment to a subsequent purchaser, replevies the instrument from the carrier under a claim that the original vendee purchased it fraudulently, with intent not to pay for it, which issue is found against the. plaintiff, the defendant, on waiving a return, is entitled to a judgment for the value of the property.

   Grant, J.

This case was tried by the court without a jury, and findings of fact and law made. Plaintiff claims the right, of possession under proceedings taken to enforce a lien under the log-lien law. The defendant claims title and possession under certain execution sales.

April 26, 1889, Mr. Brown filed notice of a lien for work and labor of himself and others performed on the logs from which the lumber replevied was manufactured. On the same, day he' commenced suit to enforce his lien in the circuit court of Ottawa county, by attachment, against one Arthur W. Jordan, individually; and the officer, under that writ, attached the logs, which were situated in the mill yard and woods belonging to said Jordan. Some of the labor for which this lien was being-enforced was performed for said Jordan individually, and the remainder for Jordan as assignee of one Shoemaker. June 5, 1889, Brown settled with Jordan for the labor performed for him individually, and agreed to discharge the attachment suit- against the said Jordan on his individual claim. July 1, 1889, Brown filed his declaration in said cause against Jordan as assignee of said Shoemaker, filed an affidavit of non-appearance, entered defendant’s default, and on July 5 entered an order making the default absolute, and referring the case to the clerk to assess the damages. July 5, judgment was entered by the clerk. This judgment was absolutely void, because entered by the clerk without any authority from the court. An execution was issued upon this .void judgment, and the lumber sold, on the 13th day of July, 1889, to one Bus-kirk, who was interested with Brown, and wlio subsequently assigned to Brown. Meanwhile, the lumber, both before and after the levy and sale, remained in the mill yard. July 10, 1889, the lumber was sold on two executions against Shoemaker, and was bid in by.the defendant. Defendant took possession under this sale, and was removing the lumber, when Brown brought this suit. It was first tried March 19, 1890, when Brown discovered that he had no judgment upon which to base his execution and sale, and voluntarily submitted to a nonsuit. This judgment was subsequently set aside. Brown on the 14th day of April, 1890, filed another affidavit of default in his log-lien attachment suit, again entered Jordan’s default, which was made absolute, and on April 17, 1890, took judgment. No execution has been issued under this judgment.

The court found that defendant was in possession under his execution sale. lie was therefore in possession under a claim of right and title. Plaintiff must establish a right of possession superior to that of defendant, in order to entitle him to recover. Plaintiff’s right of possession under the execution sale in his attachment suit cannot be maintained. No right of possession attaches under a void judgment and execution.

Brown was not in actual possession. The attaching officer did not give him possession under the attachment proceedings. His right of possession depended entirely upon the validity of his execution sale. The property was situated in the mill yard belonging to a stranger, over which he had no control. The mere marking of the lumber, and leaving it there, did not give him actual possession. It gave him constructive possession, with ' the right to remove, but his right to actual possession and of removal depended upon the validity of, his judgment. A plaintiff in replevin must recover upon the strength of his own title or i’ight of possession. This plaintiff has shown neither, and judgment was therefore properly rendered for the defendant.

At the time of the levy upon the executions under which defendant purchased, Brown had a valid lien upon the property, and had taken the proper steps to enforce it. Section 8342, How. Stat., provides that when either of the parties to an action of replevin, at the time of the commencement of the suit, shall have a lien upon, or special property or part ownership in, the goods and chattels described in the writ, the court shall render such judgment as shall be just between the parties. Had. Brown's first judgment .been valid, his title under the execution sale would have been complete. Under this replevin statute, we think the court should have rendered judgment in favor of the defendant for the value of the lumber, less the value of Brown's lien. The value of the - lumber was found by the court to-be $848.87, including interest. The value of the lien was $570.24, including interest. Judgment should therefore have been “rendered for the defendant for $278.63. Judgment will be rendered in this Court for that amount, with interest from the date of the judgment in the court below. The defendant will recover costs.

The other Justices concurred.

      The case was subsequently transferred to the Kent circuit.


author: Long, J.

text:
    Archibald L. Badder v. Ulysses Grant Keefer.
    [See 91 Mich. 611.]

      Seduction — Evidence—Credibility of witness — Instructions to jxiry-— Damages.

    1. The plhintiff in a civil suit for seduction may introduce testimony relating to the pregnancy of the female who is claimed, to havé been seduced, notwithstanding the defendant admits the alleged illicit intercourse.
    2. The testimony of a physician that the defendant called upon him, and asked “what was good to get a young lady out of a fix,” is competent in such a case, as bearing upon the question whether the defendant was the father of the child, the fruit, as claimed, of the illicit intercourse.
    8. On the trial of a civil suit for seduction, the girl testified to-repeated acts of intercourse with the defendant, commencing in December, 1887, and ending in March, 1889, which latter date she fixed as the time when the child, born in the following November, was conceived. On her cross-examination she admitted testifying in a bastardy ca¿e, lately tried, against the same defendant, that her pregnancy resulted from intercourse with him in February, 1889, and stated that she was probably mistaken as to the time. The defendant admitted having intercourse with the girl, and to having such intercourse in March, 1889, under the circumstances detailed by her, but denied that any of the acts of intercourse were had under-promise of marriage. And it is held that there was no material discrepancy, and that the mistake of the girl in fixing the time would not warrant an instruction that the jury should, by reason of it, discredit her in her claim that the intercourse was consented to under promise of marriage, nor would such mistake have any bearing upon the question of her right to-recover damages .by reason of the birth of the child, if the ' defendant was its father.
    Error to Ionia. (Smith, J.) Argued April 4, 1894. Decided May 18, 1894.
    Case. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion, and in 91 Mich. 611.

      George E. Nichols and E. O. Miller, for appellant.

      Clute & Flute, for plaintiff.
   Long, J.

This action is brought by the plaintiff on behalf of his daughter Nora, a girl of the age of 19 years, for seduction under promise of marriage. The cause was in this Court at the April term of 1892, and was there, reversed, and remanded for another trial. Badder v. Keefer, 91 Mich. 611, 616. The case has again been tried, and a verdict found in favor of plaintiff for the same amount as on the former trial, — §1,000. The facts are stated in the former opinion.

The first 13 assignments of error relate to the ruling of the court in admitting evidence relating to the pregnancy of the girl, Nora, and that the defendant was the cause. The contention is that, the defendant having admitted the intercourse, this evidence was not admissible. The-court was not in error in admitting it. The defendant could not, by the admission, prevent the plaintiff' from making his case with any competent evidence.

Some question is raised as to the admissibility of the-evidence of Dr. Kelley, who testified that the defendant called upon him, and asked “what was good to get a young lady out of a fix/'’ This evidence was competent, as bearing upon the question whether the defendant was the father of the child.

Some other questions are raised, but the principal one relates to the refusal of the court to. give the defendant’s request to charge as follows:

“If you find from the testimony in this case that the daughter of the plaintiff has made different statements in relation to the time and circumstances surrounding the intercourse at which she claims the child in question was conceived, then you will take into consideration that evidence, as bearing, not only upon the credibility to be given to her statements as to the first act when the seduction is claimed, but as to whether you should, in reaching a verdict, if you do reach one, in favor of the plaintiff, allow anything as compensation for injury done her by reason of the claim that the defendant is the father of the child.”

The claim made is that the girl, Nora, had made different statements in relation to the time and circumstances surrounding the intercourse at which the child was begotten. She had testified that the acts of intercourse commenced on December 6, 1887; that prior to that time the defendant had promised to marry her; and that the intercourse was continued from time to time till some time in March, 1889, when she became pregnant. On cross-examination she was asked whether, in the bastardy case then lately tried, she had not testified that she became pregnant from intercourse with defendant on February 10, 1889, while on the way home from a party, and admitted that she did so testify, but said that she was probably wrong in regard to the time. Whether she was correct or not as to the time is of but little moment. There was substantially no controversy but that the defendant was the cause of the pregnancy, and the girl’s testimony was not at all contradictory upon that question. The court, by the request, was asked to charge that, inasmuch as she may have been mistaken as to the exact time when this intercourse took place in the spring of 1889, that fact threw discredit upon her testimony as to whether the first intercourse was permitted under a promise of marriage. We think the court fully and fairly submitted that question to the jury in the general charge, and was not in error in refusing this request. The important question in the case was whether the intercourse was permitted by her under a promise of marriage. The intercourse was admitted, but the promise of marriage denied. The girl claimed that she became pregnant in the spring of 1889, and put the time in February; while the defendant acknowledged that the intercourse took place under the same circumstances as she testified, — coming home from a party, — but testified that it took place in March. The child was born in November. So there was no material discrepancy, and the mistake of the girl in fixing the time would not warrant the instruction that the jury should, by reason of it, discredit her in her claim that the intercourse was consented to under promise of marriage. And this mistake of time would have no bearing upon the question of damages by reason of the birth of the child. If the defendant was the father of it, the damages would be increased by , that fact.

We have examined the other questions raised, and find no error in the record.

Judgment is affirmed.

The other Justices concurred.


text:
    Thomas Mackin, By his Next Friend, v. The Alaska Refrigerator Company.

      Master and servant — Negligence—Defective appliances — Failure to give instructions.

    1. Where in a personal injury case the evidence conclusively shows that it was not usual or feasible to put a cover or screen over the machine in the use of which plaintiff’s hand was mutilated by coming in contact with the knives which formed a part of the machine, it is error to submit to the jury the question whether the defendant was negligent in not covering up or protecting the machine by some screen, device, or apparatus that' would have prevented the injury complained of.
    2. An employer is not guilty of negligence in failing to instruct a boy 18 years of age that he must keep his hands away from the knives forming a part of the machine, at which he is working, or he will get injured, the working of such machine being apparent at a glance, and it further appearing that the boy had been apprenticed to a plumber, for whom he had worked for some time, and that he had also worked in a pulp mill.
    Error to Muskegon. (Dickerman, J.) Argued April 5, 1894. Decided May 18, 1894.
    Negligence case. Defendant brings error.
    Reversed.
    The facts are stated in the opinion.

      Smith, Nims, Hoyt c§ Erwin, for appellant.

      Turner, Turner é Turner (Brown & Lovelace, of counsel), for plaintiff.
   Hooker, J.

The plaintiff, a young man between 38 and 19 years of age, recovered a judgment for $5,000 for the loss of a hand which was mutilated by defendant’s buzz planer. The plaintiff sought work from defendant’s foreman, and. was at first denied, but, in view of his necessities, he was given work at removing small pieces of wood from the planer table after the operator of the machine had dressed them on the machine. These sticks were piled up by the operator, in lots of 10, upon the table, after they had been planed. The plaintiff describes the machine as a table with a slot about two inches or more wide extending across it, in which slot was a cylinder, with knives upon it, which cylinder, with its knives, extended from a sixteenth to a half inch above the table, at the will of the operator. The plaintiff's version of the accident is that no one instructed him how to do his work, and that he had worked for some hours, when he was injured in taking away the last lot of pieces that were to be planed at that time. The negligence alleged in the declaration consisted in (1) not having the machine covered; (2) not giving the plaintiff proper instruction. ,,

The evidence conclusively showed that it was not usual or feasible to put a cover or screen over such planers, and, upon the hearing in this Court, counsel for the plaintiff disavowed any claim based upon the insufficiency of the machine. The judge submitted the question to the jury, however, and this was error. It was urged that this question is not raised by counsel for the defendant, but the brief refutes the claim.

Upon the second ground alleged the evidence is conflicting upon the subject of instruction, hence the inquiry must be whether the failure to give instruction was ’negligent. Plaintiff testified that he had worked in a pulp mill, and that he had been apprenticed to a plumber, for whom he had worked for some time, so that he had some knowledge of mechanics, if not machinery. The machine is one whose working is apparent at a glance, and we have no hesitation in saying that a boy of 18 should know that, if he got his hands upon the knives, they would get injured. Some prominence is given to the fact that this boy had been in the country less than a year at the time of the accident, and that he came from Liverpool; but we see nothing in these facts to affect the result, unless we are to hold that the law presumes such boys to be duller than those who have lived here longer, or come from some other locality. It does ribt appear from the evidence that there was a necessity' for giving directions about the method of doing the work, and the most that could have been said to the boy was that he must keep his hands away from the knives, or he would get injured, — a fact so patent that a much younger boy should know it. Prentiss v. Manufacturing Co., 63 Mich. 478; Schroeder v. Car Co., 56 Id. 132; Michigan Central R. R. Co. v. Smithson, 45 Id. 212.

The judgment must be reversed, and a new trial ordered.

The other Justices concurred.