author: Ostrander, J. McAlvay, J.

text:
    BRADLEY v. BOARD OF STATE CANVASSERS. WARNER v. SAME.
    1. Jurisdiction — Courts—Advisory Jurisdiction.
    This court does not act in an advisory capacity; and whenever it is convinced it has no jurisdiction in the premises, or that its orders are not capable of enforcement, it will, without suggestion, deny jurisdiction, notwithstanding both parties assert it.
    2. Same — Constitutional Law — Division op Powers — Courts— State Oppioers — Political Action — Control by Court.
    Though the board of State canvassers is a constitutional body, its duties, under Act No. 4, Ex. Sess. 1907, are not political merely, and so beyond judicial direction and control, but are statutory duties of private and publio interest and concern, the performance of which may be compelled by the courts.
    3. Statutes — Construction—Nullifying Statute.
    The court will decline to nullify a statute by construction unless the duty to do so is clear.
    4. Elections — Primary. Elections — Recount—Board op State Canvassers — Powers.
    Under section 41, Act No. 4, Ex. Sess. 1907, the power of the board of State canvassers, when a recount of the ballots cast at primary election is demanded, extends only to a recount of the ballots in the ballot boxes brought before them, and they have no power to compare the enrollment lists with the poll lists and draw from the box as many ballots as the comparison shows were cast by unenrolled voters. McAlvay, J., dissenting.
    Mandamus by James B. Bradley to compel the board of State canvassers to proceed with a recount in accordance with relator’s interpretation of the primary election law.
    Prohibition and mandamus by Fred M. Warner to compel said board to refrain from recounting in accordance with a ruling of said board, and to proceed in accordance with relator’s interpretation of said law.
    Submitted September 25,1908.
    (Calendar Nos. 23,068, 23,068½.)
    Writ denied to relator Bradley, and granted to relator Warner September 28, 1908.

      Watts 8. Humphrey, George W. Weadock, and Charles W. Nichols, for relator Bradley.

      Otto Kirchner, Alex. J. Groesheck, and Fred C. Wetmore, for relator Warner.

      John E. Bird, Attorney General, Henry E. Chase, Deputy Attorney General, and Thomas Ambrose Lawler, Assistant Attorney General, for respondent.
   Ostrander, J.

Under the provisions of section 41 of Act No. 4 of the Extra Session of 1907, a recount of the votes cast in certain election precincts of the State at the primary election held in the State on September 1, 1908, was demanded by James B. Bradley, a candidate at said election for nomination to the office of governor on the republican ticket. One of his opponents, Fred M. Warner, thereafter demanded a recount of the votes cast at said election in other designated election precincts. Apparently each of these gentlemen received more than 40 per cent, of the votes cast at said election by republican voters for candidates for said office. Each claims to have received, if only legal votes are counted, a plurality of votes. Such proceedings were had by the board of State canvassers that a recount of ballots in the designated precincts was entered upon and proceeded to a point where said board made certain rulings with respect to its powers in the premises and the manner of conducting said recount, which rulings were opposed to the contentions of both of said petitioners. The relator James B. Bradley thereupon petitioned this court for a writ of mandamus to compel said board of State canvassers to proceed with said recount in accordance with the contention of relator, and the relator Fred M. Warner petitioned this court for an order prohibiting a recount in accordance with the ruling of said board, and for a writ of mandamus commanding the board to proceed with the recount in accordance with the contention of said relator. Both relators are therefore persons who claim to have acquired rights under and by virtue of the operations of the law in question, and both have submitted the matters in issue to the judgment of this court.

To each of these petitions the respondent board of State canvassers has made answer, and has asserted, among other things, in answer to the petition of relator Bradley:

“That the board of State canvassers is invested with the power and authority to finally determine whether as a board of State canvassers or as a recount board who was elected as a party candidate for the office of governor; that, being charged with such duty, its determination as to means employed or the method to be pursued are not matters which are subject to the review of any other tribunal, but that the said primary election law being enacted for the purpose of taking the place of a convention for the nomination of party candidates for office and the only right of either candidate at this time under this recount being to have a correct and accurate recount of the said ballots in question made, and this right not being in the nature of a franchise or office, and the said board of State canvassers having determined to employ the same means to make the recount of the ballots in question that were open to the board of election inspectors in counting the ballots, the said board of State canvassers is acting within the language of the statute, and its determination is final and conclusive on all parties, and is not open to question or review.”

It is necessary, to a correct understanding of the questions presented, that a somewhat extended reference be made to the statute. It is entitled:

“An act relative to the nomination of party candidates for public office, and delegates to political conventions; to regulate primary elections and to prescribe penalties for violation of its provisions.”

Approaching directly those provisions with which we are concerned, we find, first, that the provisions of the general election laws, applicable and not changed by provisions of the act in question, are adopted, by reference or otherwise, as governing the actions of those who, in the first instance, have official relations with the ballots, the election, and the counting and return of votes. No one but an enrolled voter is by law permitted to vote at any primary election, and the method to be pursued by one desiring to be enrolled is specifically set out. Enrolled voters belonging to one political party may not lawfully vote for the candidates of a different political party. The names of enrolled voters are recorded in an enrollment book, which, in most respects, in a primary election, answers the purposes of a registration list in a general election.

“Sec. 35. After the polls are open at a’primary election, any elector who is legally qualified and enrolled as hereinbefore provided, shall, before entering the booth, be furnished a ballot of the. political party with which he is enrolled, and no other. It shall be incumbent upon him to state to the inspector who has the ballots in charge, the party ballot he desires, which, if he is enrolled as a member of the party represented by said ballot, and if his right thereto is not challenged, shall be delivered to him forthwith. Any voter enrolled as a member of any political party for which no ballots have been prepared, shall not be permitted to vote any other party ballot at such primary election. It shall be competent for any enrolled voter or primary election inspector present to challenge the right of anyone offering to vote, on the ground that he is not a legal voter in that precinct, or that he belongs to a political party other than that represented by the ballot for which he has asked. When the right of any enrolled voter to a ballot is challenged he shall be required to take and subscribe an oath that he is a qualified enrolled voter and has the qualifications of a voter and that he believes in the principles of the political party represented by the ballot for which he has asked. * * *
“ Sec. 36. The enrolled voter, after having received his ballot, shall enter a booth, and while there concealed from view prepare such ballot by making a cross in the square at the left of the names of such candidates as he may desire to vote for, but in no case for more candidates for any office than is indicated under the title of such office. He may, however, vote for any person whose name is not printed on the ballot by inserting such other name in such manner as shall make it a substitute for any name which is printed thereon or where no candidate’s name appears upon the ballot. He shall then fold the ballot so that the perforated corner having within ballot number shall be on the outside, and present it to the proper inspector, who shall tear off the number and deposit the ballot in the ballot box. When an enrolled voter asks for a ballot the inspector shall enter his name upon the poll list, the name of the political party and the number of his ballot, before the same is given to voter, and the inspector receiving the ballot shall, before depositing it in the box, ascertain by comparison with the poll list whether it is the same ballot given to such voter, and if it is not the same ballot he shall reject it and such voter shall not be allowed to vote at such primary election. If any enrolled voter shall, after marking his ballot, so expose it to any person as to reveal the name of any candidate voted for thereon, such ballot shall be rejected and such enrolled voter shall forfeit the right to vote at such primary election, and a brief minute of such occurrence shall be made in the enrollment book and upon the poll list opposite the name of such enrolled voter. Challengers appointed by the several political parties shall be allowed to be present with the same powers as are provided by law for general elections.
“Sec. 87. After the closing of the polls on the day of holding of any primary election, the ballots shall be counted as provided by law for the counting of the ballots of any regular election. • In counting such ballots only those candidates for nomination to office who have a cross made in the square at the left of their names shall be deemed to have been voted for, and any ballot upon which more candidates for any office have been voted for than may, by law, be elected to such office, shall be rejected as to all names appearing for that office. The required number of electors who receive the highest number of votes for delegates to the county convention of any political party shall be declared by the board of primary election inspectors to be elected. Said board shall certify to the county clerk the names of the electors so elected as delegates, naming the political party upon whose ballots such electors were elected. Said board shall also certify to each delegate so elected his election as such delegate. The county clerk shall certify to the chairman of each political party of the county the delegates elected by each such political party as delegates to the county convention.
“Sec. 38. After the votes at any primary election in any election precinct shall have been counted, the officials counting the same shall publicly declare the result, and forthwith make and certify written detailed statements, such as are required by law for general elections, except as hereinafter provided, showing the whole number of votes cast in such election precinct for each candidate voted for on each party ballot, and shall certify, subscribe and seal in a separate envelope such statements and one of the tally sheets, and write thereon the name and number of the election precinct, if any, and deliver such statements and tally sheets to such persons and at such times as are required by law for general elections. As soon as they have completed the counting of the votes of their respective precincts they shall return all the ballots voted to the ballot boxes, which shall be locked and sealed, and such ballot boxes, and all books, unused ballots, supplies, lists and subscribed oaths shall be safeguarded and returned in the manner provided for by law governing general elections.
“Seo. 39. The returns of said primary election shall be canvassed and the results declared in the same manner and within the same time after the primary election and by the same officers as is provided by general law for canvassing the returns of and declaring the result in city, county, district and State elections, except that in the case of nominations for United States senator, governor, or lieutenant governor, or officers from districts comprising more than one county, the county clerk of each county affected shall transmit to the secretary of State, within ten days after the primary election, certified copies of the number of votes received by each of the candidates for the nomination of any of the said offices. The secretary of State shall appoint a meeting of the board of State canvassers at his office not later than twenty days after the primary election, which date shall be certified to the chairman of the State central committee of each political party, for the purpose of canvassing the votes of the candidates for such office. The said board shall proceed in the same manner in canvassing the votes, certifying, recording and determining results, etc., for nomination for United States senator and governor and lieutenant governor as is done in canvassing the votes in the case of election of State officials. In canvassing the votes of candidates for members of congress, State senators and representatives in tbe legislature, in districts composed of more than one county, said board shall proceed in like manner as is done in the canvassing of votes cast for members of congress. * , * *
“Sec. 41. Any candidate voted for at any primary election provided for in this act, who conceives himself aggrieved on account of fraud or error by the board of primary election inspectors, in the count of the votes cast, or the returns made by said board, may, on or before the close of the day or days upon which the board of State, city, or county canvassers meet, present to and file with the chairman of the particular board, a written or printed petition, which shall be sworn to, and shall set forth, as near as may be, the nature of the errors or fraud complained of, and the particular township, ward, or precinct in which the alleged irregularities occurred and ask for a recount of the votes cast therein. Such petitioner shall at the same time deposit with the chairman of said board the sum of ten dollars for each and every township or ward, the vote of which he requests to have recounted by said board: Provided, That no candidate shall be required to deposit more than one hundred dollars. When said petition is filed and the amount herein prescribed is deposited, and after giving at least twenty-four hours’ written notice thereof to the opposing candidate, by handing to such candidate a copy of the petition, or if such candidate cannot be found, by leaving such copy at his place of residence, with some person of suitable age, it shall be the duty of said board of canvassers to designate a time and place when the facts set forth in said petition shall be investigated and when the ballot boxes used in such election in such township or ward shall be brought before it. The said board shall thereupon, in some public place where the interested candidates and their counsel may be present, if they so desire, proceed forthwith to open the ballot boxes from such townships or wards and to make a recount thereof as to such candidates, and make a correct and complete return in writing showing the full number of votes cast and the names of the candidates and the number of the votes given to each. When the recount of each box is completed the said board shall at once return the ballots thereto, carefully lock and seal same, and deliver the ballot boxes to the officer having the care and custody thereof. The returns made by the said board of canvassers upon such recount shall be deemed to be correct, anything in the previous return from such township, ward or precinct, to the contrary notwithstanding. In all cases where, by reason of such recount, the petitioner succeeds in establishing-fraud or mistake sufficient to change the result, the money deposited by him shall be refunded; otherwise it shall be turned into the treasury of the State, county or city, as the case may be. If two or more candidates of the same political party are tied for the same office, the tie shall be determined by lot to be cast then and there as the canvassing board may direct.”

Counsel for the respondent board and for relator .Warner are agreed that the board of State canvassers may do those things, and those only, which the inspectors of election may do in counting the votes. The board determined, and ruled, over the objection and protest of Mr. Warner, that it had authority to compare the poll list and the enrollment list or book in each voting precinct for the purpose of ascertaining whether the persons whose names appeared upon the poll list were enrolled as republican voters. If, upon such inspection of the record, it appeared that one not enrolled as a voter, or one enrolled as a voter of different political faith, had voted for either candidate, votes so cast were treated as illegal votes, not entitled to be counted. The effect in the particular case stated in the petition was this: It appeared from a certified copy of the enrollment book in the office of the secretary of State that in one township certain persons, to the number of 11, had enrolled on August 31,1908, which day was not a legal enrollment day. We assume, although it is not so expressly averred in the petition, that these same persons as appeared from the poll list voted at the primary. They also found by a similar comparison that three persons, enrolled as democrats, voted at said primary election as republicans. They drew from the box indiscriminately 14 ballots. They proceeded to count the remaining ballots. It is the contention of Mr. Bradley that the board has authority to compare the enrollment book and the poll list as it did do, but that it should have refused to count the remaining ballots for either candidate unless the legal vote cast in the precinct was made to appear. He further contends that the board may, and should, go behind or outside of the enrollment book and receive, and use as a basis for its conclusions, parol and other evidence of illegal enrollment and illegal voting. It is urged that, if the consequences of thus securing the legal rights of an aggrieved candidate and the political rights of the electorate is a delay so great that no candidate of the party can be presented to the electors at the November election, then the court should hold the act invalid because incapable of being given effect. In no other way is the validity of the act, directly or indirectly, questioned.

An analysis of the views of the able counsel who have aided the court in briefs and in oral arguments discloses few points of essential difference. We have noted the suggestion, not pressed at the hearing, that the respondent board is not subject to judicial direction or control with respect to the duties and performance thereof devolved upon it by this statute. It was also said at the hearing that the conclusions which the court shall announce are advisory. If the court was convinced that it had no jurisdiction in the premises, or that its orders were not capable of enforcement, it would, without suggestion, deny jurisdiction, although relators have both of them asserted it. We have considered the point. We are agreed that, while the board of State canvassers is a constitutional body, it is performing in this instance statutory duties; its authority in the premises being derived wholly from the legislature. The board (and so the members thereof ) is by law charged with the performance of duties of private and public interest and concern. The duties are not political merely, and performance does not involve the exercise of powers belonging to a co-ordinate branch of government. That performance of such duties may be compelled is not open to question. And, if a particular method of performance is pointed out by the legislature to reach a result which is also clearly indicated, that method should be pursued, especially in cases where pursuing a different method would or might involve a different result or no result at all. The exercise of certain powers having been provided for, the exercise of others not incidental or necessary to the exercise of those expressly given is forbidden. It is too late to deny the power and the duty of the judiciary to restrain such public officers performing such duties to the exercise of powers lawfully conferred to the use of means expressly indicated. In principle the point is ruled against the suggestion which is made by Rich v. Board of State Canvassers, 100 Mich. 453.

Aside from the matter of jurisdiction, counsel are agreed that the question presented is primarily one of construction of the statute. In what has been said we have indicated our view of the proper and necessary meaning of the law. The controlling language of the statute is:

“Any candidate * * * who conceives himself aggrieved on account of fraud or error by the board of primary election inspectors, in the count of the votes cast, or the returns made by said board, may * * *. Said board [respondent] shall * * * open the ballot boxes * * * and make a recount thereof # * * and make a correct and complete return in writing showing the full number of votes cast and the names of the candidates and the number of the votes given to each.”

We find no ambiguity here. It is fraud or error by the board of inspectors in the count or in the return which may be investigated. What is provided for is a recount —another count — of the ballots. It seems to be conceded that neither relator occupies the position de facto or de jure of a public officer, and that an inquiry now or hereafter in the nature of quo warranto proceedings cannot be instituted by a candidate. In short, the finality of the determination of the respondent board is admitted. While counsel for Mr. Bradley find in the act support for their contention — the essence of the reasoning employed by them is that by force of a supposed, we may say a presumed, general intention of the legislature to secure as a final result an honest expression of the electorate — the court is driven to the necessity of finding in the act security for such an expression. If the language employed by the legislature was ambiguous, if upon it and the general purpose of the act an implication could be raised that the respondent board had power to do something more than the act appears to provide for doing, and if it were necessary, in order to make the legislation effectual, to indulge such an implication, then the possible or probable effects of differing interpretations might be, and ought to be, considered, and the result of such a comparison of results might be controlling of the proper interpretation. We have no such case. We do not find ambiguity in the language of the act, nor any necessary conflict between the general purpose of the legislation and the provision for a recount of votes. We find a provision for a recount of votes, for doing again what the inspectors of election have done. This conclusion is supported by a consideration of other provisions of the.law. The fixing of dates for enrollment, and for the primary election, with reference to the constitutional general election day, is indicative of the legislative conception of the powers and duties of the respondent in the premises. But beyond this the object of the legislation, which is to secure direct voting for candidates for public office, could not be, in fact, accomplished if the inquiry proposed could be entered upon. Upon well-settled principles courts will decline to nullify a statute by construction unless the duty so to do is clear.

The court is not insensible to the argument that, unless the board of State canvassers exercises powers beyond those imported by the words employed in the statute, a defeated candidate may have no redress, a successful candidate may profit by illegal acts of voters and inspectors, and the will of the party electors, legally expressed, may be legally reversed. Every experiment in popular government has its attendant dangers. No individual or public right would.have been infringed if the legislature had made no provision for an appeal from the decison of the various boards of election inspectors. Holding, as we do, that the respondent board may lawfully do no more than recount the votes and declare the result in accordance with such count, it follows, as was indicated early in this opinion, that the powers conferred by the act are ministerial, and not judicial. It remains to apply the ruling to the facts. It is a mistake to suppose that the inspectors of election at a general or primary election may look beyond the poll lists and the ballots in the proceeding to count the votes. There is no provision of the law, to which we have been referred, which permits the drawing out of ballots, except when it appears that they exceed the number of ballots cast as shown by the poll lists. The enrollment book is to the primary election what the registration list is to the general election. It is supposed that no man will vote at either election unless there is found, or is presently made, record evidence of his right to vote. Such a record cannot be reviewed or changed for the purpose of affecting the count of the votes actually cast. And it was held 5n May v. Board of Canvassers of Wayne County, 94 Mich. 505, in considering action of a canvassing board under a statute, the provisions of which were broader than those now under consideration, that the board had no power to compare the registration lists with poll lists for the purpose of determining whether the votes of nonregistered persons had been received. We are of opinion that the respondent acted beyond its powers in a similar use of the enrollment list and in withdrawing from the ballot box of the township of Oliver 14 ballots, and that for anything made to appear such ballots should be counted as cast.

Mr. Justice MeAlvay assumes in his opinion that the record of the party enrollment is the only basis for determining the fact that a candidate for governor has received the required '40 per cent, of lawful votes cast at the primary election. In this we think he is in error. It is 40 per cent, of «the vote cast at the election which is required, a fact to be determined by the board of State canvassers, if no recount is demanded, from the returns. It is manifest that, in the absence of a contest between candidates, no recourse would be made by the board to the record of enrollment. There would be before the board nothing with which the record of enrollment could be compared. Whether, if there is a contest, the record of enrollment should be examined, depends, therefore, upon the construction of section 41 of the act.

The writ applied for by relator Bradley is denied, and the writs applied for by relator Warner are both of them granted. The good faith of the respondent board is in no manner questioned, and we assume it will be unnecessary that either writ shall actually issue. No costs will be awarded.

Grant, C. J., and Blair, Montgomery, Hooker, and Moore, JJ., concurred with Ostrander, J.

McAlvay, J.

(dissenting). I am not able to agree with the majority of the court in the conclusions arrived at in the opinion filed.

I think that the distinction which seems to me very clear between recounts in election cases and this case under the primary election law has been lost sight of. The plain intent of this law was to correct abuses which had arisen under the convention system of 'making nominations, and give the individual member of a political party an opportunity to make his selection of candidates for office on his party ticket, and to have that selection counted as made by him. It was to remove all improper influence and manipulation from primaries and conventions, and to permit a political party to select its candidates as a distinct political organization unassisted by zealous and willing members of other parties. As a basis to this intended reform, party enrollments are provided for, recorded in books furnished by the secretary of State. Days upon which such enrollments may be lawfully made are fixed. All of this, including all corrections, changes, new enrollments, are made a matter of record in the office of the secretary of State. No one may lawfully vote at any primary election who is not lawfully enrolled in the enrollment of the party to which he belongs or with which he affiliates. This enrollment is not for all its uses and purposes identical with a registration of voters. It performs some of the functions of a book of registration; but it has been adopted for other and different purposes. Its primary object is the separation of the voters in each precinct into the parties to which they belong, and to maintain such separation absolute and complete, and to prevent anyone from voting for party candidates not lawfully authorized so to do. This enrollment or a certified copy is before the inspectors of election of every precinct and the several canvassing boards of the districts and State. It is intended to be the preserver of party solidarity. The right to be declared the nominee of a party to a certain office is not the right to an office or a franchise, nor is it a constitutional right. But the machinery furnished by the legislature for the purpose of permitting the electorate of the different parties to confer such rights upon some of its individual members is within the powers given the legislature under the Constitution. The people have the right to have this machinery so operated that the plain legislative intent shall be given effect; hence the importance of a correct determination of the important question here involved. It is clear to my mind that the party enrollment is so carefully safeguarded by this statute because the legislature knew that the success or failure of this legislation depended upon it. If party lines could be unlawfully invaded at the ballot box by outsiders on primary election day without any possible check or redress, this last condition of party politics would be much worse than the first.

It appears to me that the legislature has provided both the check and the redress — the first by the party enrollment ; the second by the recount. It is not contradicted that no one could vote except he was lawfully enrolled or-entitled to enrollment in the party to which he claimed fealty. The statute provides the record to be duly made if he is enrolled on election day. I insist that this record (the party enrollment) is the only authority for receiving the party votes, and the only basis upon which may be determined the fact that a candidate for governor has received the required percentage of all the lawful votes cast by his party for that office. The general election laws of the State are applicable to a primary election where such laws or their construction already given will not contravene the plain provisions and intent of such law, but to no greater extent. The general election laws know nothing about parties except as printed upon a common ballot. The primary law is based entirely upon party recognition. Under the general election laws, an individual is given his remedy by quo warranto to try the title to an office to which he claims to be entitled. Under the primary election law, the party and the individual can only know whether a lawful nomination has been made by having recourse to a recount, and the legality of the votes cast for the candidates of a party can only be determined by the party enrollment which has been made the basis of the proceeding from the beginning.

The case of May v. Board of Canvassers of Wayne County, 94 Mich. 505, which is relied upon as determining this case, is distinguishable, first, because the party had all the remedy to redress his wrong by quo warranto; and, second, because it was an election to an office, and not a party primary, and the registration excluded was not identical with the party enrollment. It was not before the canvassing board, and could not be there lawfully. From it the board was not required, as in the case at bar, to determine that a candidate had received 40 per cent, of all the votes lawfully cast before such candidate could be declared nominated for the office of governor. I think the argument is captious which confines the work of the board to merely counting the votes in the boxes. The statute means the counting of the lawful votes cast, and the enrollment is the only guide which points out such votes. I also consider the argument that sufficient time does not intervene in which the respondent board may complete its recount of no force. No such presumption arises, and no facts appear to create it. To me the view of this statute taken by the respondents is a rational one. By it nothing is considered except such matters as are of record, and, in fact, before them. They are vested with the same powers as the several boards of inspectors in so far as said inspectors have acted within the law, and, if said inspectors have unlawfully allowed votes to be cast by men not lawfully enrolled, respondents may and should correct such unlawful action by drawing out the surplus votes. Other errors pointed out by the general law the board have authority to correct. No authorities in like cases have been furnished by counsel. Primary election laws are of recent growth. The utmost care should be taken in their construction, and to give them effect if possible, or to point out clearly and logically the reasons why such effect cannot be given.

It seems to me that the logical conclusion of the majority opinion is to hold the statute invalid and incapable of being made effective to carry out the plain legislative intent. A well-settled principle of statutory construction is that effect will if possible be given to the legislative intent. In this case, to give such intent effect and save this remedial legislation and make it workable requires no strained construction. It only permits the officers to use the material put into their hands by the legislature with the clear intent that it should be used.

The prayers of the petitioners in both cases should be denied.


source: Caselaw Access Project

author: Grant, C. J.

license: Public Domain

text:
    PERE MARQUETTE RAILROAD CO. v. UNITED STATES GYPSUM CO.
    1. Eminent Domain — Railroads—Condemnation Proceedings— Public Use — Necessity.
    To entitle a railroad company to condemn land, the use for which it is required must be a public use, and the necessity for its taking a public necessity.
    2. Same — Burden of Proof.
    Under section 6245, 2 Comp. Laws, when the allegation in a petition for condemnation that the taking is necessary for the public use is traversed, the burden is upon the petitioner to prove the public use and necessity.
    3. Same — Public Use — Necessity—Evidence—Sufficiency.
    The building of a spur track to accommodate a single plaster mill, the products of which are not shown to be required for public use, and of which it is not shown that they cannot reach market in some other manner, does not appear to be a matter of such public necessity as to support condemnation proceedings for right of way, more especially where a contract between the railroad company and the mill owner obligates the mill owner to bear the entire expense of the proceedings and the building of the track, and places the track when built under his control.
    Certiorari to the probate court of Kent; Jewell, J.
    Submitted May 11, 1908.
    (Docket No. 105.)
    Decided September 29, 1908.
    Condemnation proceedings by the Pere Marquette Railroad Company against the United States Gypsum Company and others. There was an order dismissing the petition for want of jurisdiction, and petitioner brings certiorari.
    Affirmed.

      Charles E. Ward, for appellant.

      Butterfield & Keeney and Albert N. Eastman, for appellees..

      After the decision of the case of United States Gypsum Co. v. Kent Circuit Judge, 150 Mich. 668, and by special permission of the court granted in. that decision, the case is now before us by writ of certiorari from the probate court. The petitioner filed its petition in the probate court for the condemnation of a right of way across the lands of the defendant gypsum company to land owned by William F. Dummer. Dummer and his wife were made parties because Mr. Dummer claimed ownership of a right of way over the proposed line. The petition is correct in form, and contains the following allegations :
    . “ That the property so particularly described in this petition is required for the purpose of constructing, operating, or repairing your petitioner’s said railroad or its appurtenances, viz.: For the purpose of building, maintaining, and operating a spur track from your petitioner’s main line to develop business along your petitioner’s line of road. That the taking of the lands and property above particularly described is necessary for the public use.”
    The Federal Trust & Savings Bank and the German-American Bank are made parties as mortgagees of the defendants’ road and property. Dummer and his wife filed their consent to the proposed condemnation. The right of way sought to be condemned is entirely on the land of the gypsum company. The petitioner proposes to take a strip 50 feet wide across its land, containing valuable deposits. The gypsum company and the mortgagees answered, denying the jurisdiction of the court, and that the land was required for a public use or by public necessity.
    In United States Gypsum Co. v. Kent Circuit Judge, supra, will be found a quotation from the answer, the finding of the probate judge, and the decree dismissing the petition. Upon the hearing, preliminary inquiry was had upon the question of the jurisdiction, and the authority of the court to condemn the lands and proofs were taken thereon. Petitioner introduced the record of a resolution from the board of directors of the petitioner, in which “ it was resolved that it is expedient and necessary for the development of business along the line of the Pere Marquette Railroad Company that a spur track be constructed along such route as shall be selected by the chief engineer from the main line near Grandville to the plaster mills near the northwest corner of section 20, of town 6 north, of range 12 west.”
    Petitioner’s counsel then called Mr. Keeney, one of the attorneys for the respondent, to the stand to prove negotiations for the purchase of the right of way. A letter was produced, written by the attorney for the petitioner, directed to Messrs. Butterfield & Keeney, attorneys for the gypsum company, offering $400 per acre for a right of way 50 feet wide across the land, containing the statement that it would not permit the United States Gypsum Company to remove the rock under the right of way, unless it could be done without injury to the railroad track, and a letter on the part of the gypsum company declining to accept the offer. On cross-examination, Mr. Keeney testified that he had a conversation with the attorney representing the railroad company, in regard to this right of way, in which Mr. Keeney informed said attorney that he did not think Mr. Dummer had any intention of good faith to operate his mills, and that the attorney for the petitioner replied that he did not believe Mr. Dummer did intend to run his mills, “ at least so that they could get enough business out of it to warrant their putting in a side track, and for that reason they had been unwilling to do it, and he did not think there was any probability that they would enter into any enterprise of that kind.”
    A few weeks after this conversation, the same attorney informed Mr. Keeney that circumstances had changed, and that an agreement had been made between Mr. Dummer and the Pere Marquette, under which Mr. Dummer was to pay all the expenses of putting in a side track and the condemnation proceedings, and that the railroad company was to institute the same. Thereupon followed the letters above referred to. Upon this showing the petitioner rested its case.
    The respondents then introduced the agreement which had been made between Mr. Dummer and the railroad company, the material parts of which are as follows:
    “Agreement made this 23d day of September, A. D. 1905, between the Pere Marquette Railroad Compány, a corporation, as party of the first part, hereinafter called the ‘Pere Marquette,’ and "William F. Dummer, of Lake Geneva, Wisconsin, as party of the second part:
    “Whereas, the party of the second part is the owner of land containing deposits of gypsum and a mill for converting such deposits into plaster or stucco, situated near the village of Grandville, which mill formerly had but is now without railroad facilities. The Pere Marquette is the owner of a railroad passing through Grandville, and the party of the second part desires to obtain railroad facilities for his said property:
    “Now, therefore, in consideration of the premises and of the mutual promises herein contained, and other valuable considerations, it is hereby agreed as follows :
    “ (1) The Pere Marquette agrees to have instituted by an attorney acceptable to the party of the second part, proceedings for the condemnation of a right of way across sections 17 and 18 substantially as shown on the annexed blueprint, such right of way not to exceed a strip of land 50 feet wide, being 25 feet on each side of the center line of such right of way, and both branches thereof where the track divides near said mill, and to prosecute said proceedings diligently, with a view of obtaining the said right of way at the earliest practicable date. No more land shall be condemned for such right of way than is reasonably necessary for the purposes of this agreement.
    “ (2) The party of the second part agrees to pay all the costs, charges, and expenses attending the commencement and prosecution of said proceedings, except for the services of the salaried officers and employes of the Pere Marquette who may be engaged in connection with said proceedings, who shall render all necessary assistance in connection with a local attorney who shall be employed, such local attorney to be paid by the party of the second part, and also to pay the amounts awarded as damages and compensation to the owners of said right of way, together with all costs awarded in the same connection, such award and costs to be paid within the time allowed by the statute. The party of the second part shall have the right to appeal in the name of the Pere Marquette from such award, the expenses of such appeal to be paid by said party of the second part. The party of the second part further agrees to pay to the Pere Marquette in advance of the construction of said tracks the sum of five thousand fifty-nine dollars and sixty-six cents, being the estimated total cost of the material and labor to be furnished for said track by the Pere Marquette, and the Pere Marquette agrees to refund in cash to the party of the second part, upon the completion of such track, any part of the said sums not actually expended in the construction of such track, and to refund the balance of said sum to the second party at the rate of three dollars per car on each car load of freight shipped in or out over said track via the lines of the Pere Marquette or as routed by it over other lines. Settlements to be made quarterly on the last day of March, June, September, and December of each year, and the payment of such refunds shall cease when the total of such refunds shall equal the net amount advanced by the second party to the Pere Marquette for the cost of material and labor furnished by the Pere Marquette in the construction of such track. In case such condemnation proceedings shall fail and such track shall not be constructed, the Pere Marquette shall refund in cash to the second party the whole amount so advanced, less the amount of the actual expenses incurred by the Pere Marquette prior to the failure of such condemnation proceedings. It is expressly understood that the refunds above provided for shall not apply to or be allowed upon any amounts paid by the second party on account of damages, compensation, costs, charges, and expenses in connection with the condemnation proceedings herein provided for.
    “(3) The Pere Marquette agrees that as soon as it is authorized to enter upon the said right of way, either by the consent of the owners thereof or by the proceedings aforesaid, it will do the necessary grading and furnish the necessary rails and material, and construct with all reasonable diligence, at its own expense, a track over such right of way to the property of the second party aforesaid.
    “(4) The said side track, including ties, rails, switches, and crossing material, if any, shall be and remain the property of the Pere Marquette and its lessee and assigns, and under its exclusive control except as herein otherwise stated; and the Pere Marquette and its lessee and assigns shall have the right to use the whole or any part of said track for other business than that of the second party, when it will not interfere with the second party’s business, without any allowance therefor to the second party, and without restriction except as herein stated.

      “ (5) One of the principal inducements for the construction of said side track by the Pere Marquette is to secure it, its lessee and assigns, as much as possible of the freight to be shipped in connection with the business carried on by the second party along or near said proposed side track, and, in consideration of the agreements herein contained, the second party hereby agrees that from the date of completion of such track all freight shipped by the second party in connection with said business (and all freight shipped to him so far as he controls the shipment thereof) shall be shipped over the Pere Marquette Railroad whenever — either alone or in connection with other lines — it or its lessee or assigns shall be willing to carry the same at rates equally favorable with those actually offered by another carrier. The second party further agrees that all freight, the destination or place of shipment of which shall be off the lines of the Pere Marquette Railroad, shall, so far as the second party may be able to control the same, be so routed as to give the Pere Marquette Railroad the benefit of the longest possible haul over its lines, provided the service via the Pere Marquette and its connections is equally favorable, including time of delivery, to that offered via other routes. It is further agreed that the shipments from and to said mill shall be given the same rates as are given shipments from or to other mills on the same spur track or in the same locality.” •f* íj»
    [Paragraphs 6 and 7 relate to insurance and the building of structures, and are unimportant. ]
    “ (8) Said side track shall be maintained by the Pere Marquette, and the cost of such maintenance shall be borne by the Pere Marquette.
    “(9) In case the mill on the property of the party of the second part shall cease to be operated for a period of one year, the Pere Marquette shall have the right to terminate this agreement after sixty days’ notice in writing to the second party, unless the second party shall before the termination of said sixty days pay to the Pere Marquette an amount equal to interest at 5 per cent, from the time said mill ceased to be operated to the date of such payment on the amount of refunds paid to the second party by the Pere Marquette under the provisions of the second paragraph hereof. In case the second party shall pay to the Pere Marquette interest on the amount of refunds as aforesaid, this agreement shall be extended indefinitely, subject to termination by notice and renewal by payment of interest as above provided, in case said mill shall then cease to be operated for the period of one year. For the purpose of this agreement said mill shall be deemed to have ceased to be operated at the commencement of any period of 365 consecutive days in which said mill shall not have been actually engaged in the manufacture of gypsum products to at least one-half of its full capacity for at least twenty days. In' case of the destruction of said mill by fire, this clause shall not be operative or apply until said party of the second part shall have had a reasonable time within which to rebuild said mill. In case this agreement shall be terminated as above provided, the Pere Marquette shall have the right to enter upon the property of the second party and remove said track and connections, but in such case the Pere Marquette shall convey to the second party the legal title to the right of way for said track obtained at the expense of the second party under the provisions of the second paragraph hereof. So long as this agreement remains in force, the Pere Marquette shall have the right to maintain and use said track pursuant to this agreement.
    “ (10) This agreement shall be binding upon, and enforceable by, the parties hereto and their successors, assigns, and legal representatives, and the successors in interest to the respective parties hereto shall succeed to all the rights and liabilities of their respective predecessors in interest.”
    The respondent also gave testimony showing the value of the deposits under the proposed right of way and the use for which the surface of the land was then mainly occupied where the right of way would go. The testimony upon these last two points is immaterial. The above comprises all the testimony introduced upon the hearing material for consideration.
   Grant, C. J.

{after stating the.facts). Counsel for the petitioner rested his case upon the proposition that the statute casts the burden of proof upon the respondent to disprove the facts stated in the petition. The statute provides :

“On presenting such petition to said court or the judge thereof at chambers, with proof of service of a copy thereof and due notice as aforesaid, all persons whose estate or interests are to be affected by the proceedings may show cause against the prayer of the petition and may disprove any of the facts alleged therein, and said court or judge shall hear the proofs and allegations of the parties and if ' no sufficient cause is shown against granting the prayer of the petition, said court or judge shall make an order appointing three disinterested and competent freeholders as commissioners to ascertain and determine the necessity for taking such lands, franchises or other property and to appraise and determine the damage or compensation to be allowed to the owners and persons interested,” etc. 2 Comp. Laws, § 6245.

The use mentioned in the statute must be a public use, and the necessity a public necessity. The resolution of the board of directors in New York city made no reference to public use or public necessity, but only to the expediency and necessity of developing its own business. There is nothing in any of the proofs offered by the petitioner to indicate a public use. The only allegation in the petition upon this point is “that the taking of the lands and property above particularly described ig necessary for the public use.” It is repugnant to common sense and justice that the mere allegation that one’s land is necessarily required for the public use by a corporation is sufficient to cast upon him the burden of showing why it should not be taken, and to show those facts, many of which are peculiarly within the knowledge of the petitioner. The statute provides for framing an issue. When the allegations are admitted, or, as held by some authorities, not denied, proof of the facts alleged is not essential; but, where the answer expressly traverses them, the effect of the statute simply is to put the petitioner to its proofs. This is nearly the universal holding of the courts. The learned counsel for the petitioner cites but one case to the contrary. In re New York Bridge Co., 67 Barb. (N. Y.) 295. Not only was this case not followed by the courts of New York, but was overruled by the following eases. In re New York Cent. R. Co., 66 N. Y. 407; Rochester R. Co. v. Robinson, 133 N. Y. 242; 2 Lewis on Eminent Domain (2d Ed.), § 397, note 78. The same is held in Carolina, etc., R. Co. v. Manufacturing Co., 132 N. C. 644; Tracy v. Railroad Co., 80 Ky. 259; Wisconsin Cent. R. Co. v. Cornell University, 52 Wis. 537.

This proposed side track terminates at the line between the lands of the Gypsum Company and Mr. Dummer; at least there is nothing in the petition or proofs to show that it is to extend further. There is no allegation in the petition nor showing by petitioner’s proofs that Mr. Dummer is at the present time engaged in any business in which the public is interested, or that the products of his manufactory are required for public use, or that any products he may manufacture cannot reach the market or the railroad in other ways. There is nothing in this case to indicate that the proposed side track can or will be used by anyone except Mr. Dummer. As is well stated by counsel for the respondents, there is nothing to indicate that it would serve any public use, unless the mere fact that it accommodates Mr. Dummer’s mill makes the use a public one. Petitioner’s entire case is barren of any allegation of facts or proofs upon which the court could base a finding that the property of the defendant is necessary for a public use.

If we resort to the contract and the statements made by the attorney for the petitioner, as testified to by Mr. Keeney and not contradicted, not only do we not find any evidence of a public use, but we find that the railroad company did not consider that the land of the gypsum company was required for public use, but for Mr. Dummer’s own interests, and that it refused to take any proceedings contemplated by the statute until Mr. Dummer had made a contract with it to institute proceedings in the name of the railroad company, to pay all the expenses, to control the litigation, and to provide that his own attorney, rather than the attorney for the railroad company, should institute and manage the litigation. Under some of the authorities cited in behalf of the petitioner, it is correctly held, without doubt, that agreements between railroad companies and manufacturers that the manufacturers will pay part or even all of the expenses of the condemnation and of the award, are not conclusive against the public use and the public character of the proposed improvements. Hairston v. Railway Co., 208 U. S. 598; Chicago Dock & Canal Co. v. Garrity, 115 Ill. 155; St. Louis, etc., R. Co. v. Petty, 57 Ark. 359 (20 L. R. A. 434). The public character of the work may be the same, although it is assisted by private contributions. It must, however, be shown that the work will contribute to the public interests and enhance the financial welfare of the people.

This court held in Mansfield, etc., R. Co. v. Clark, 23 Mich. 519, that the finding by a jury that “it is necessary that said real estate and property should be taken for the purposes of said company ” is not a finding of necessity for the public use. Neither was a finding by the jury “that it was and is necessary to take and use said land for the purpose of operating and constructing said railroad by said company” held a sufficient finding of the necessity to take the property for the public use. Grand Rapids, etc., R. Co. v. Van Driele, 24 Mich. 409. There are many authorities holding that statutes of condemnation do not apply to a siding for the accommodation of a single manufactory. Pittsburg, etc., R. Co. v. Iron Works, 31 W. Va. 710 (2 L. R. A. 680); Chicago, etc., R. Co. v. Wiltse, 116 Ill. 449; Kyle v. Railway Co., 3 Tex. App. (Civ. Cas.) 518 (4 L. R. A. 275); Weidenfeld v. Railroad Co., 48 Fed. 615; In re Niagara Falls, etc., R. Co., 108 N. Y. 375.

The contract between Dummer and the petitioner, considered as a whole, shows conclusively, in my judgment, that this proposed side track is for the sole benefit of Mr. Dummer, and to increase the business of the petitioner. This is especially shown by two paragraphs, to which I now refer. In paragraph 4 it is agreed:

“The Pere Marquette and its lessee and assigns shall have the right to use the whole or any part of said track for other business than that of the second party when it will not interfere with the second party’s business, without any allowance therefor to the second party, and without restriction except as herein stated.”

Can a side track or any part of a railroad be intended for the public use which one private party can control to the exclusion of all the others? The question answers itself. In paragraph 9 it is provided that, if Mr. Dummer shall cease to operate his mill for a year, the railroad company may terminate the agreement, and, if it does, it “ shall convey to the second party [Dummer] the legal title to the right of way for said track obtained at the expense of the second party under the provisions of the second paragraph hereof.” It seems to be contended on behalf of the petitioner that this does not mean the right of way across the land of the gypsum company. It is difficult to understand what else it does refer to, as the proposed side track is entirely on the gypsum company’s land.

We think that the probate court reached a correct conclusion ; and its decree is affirmed, with costs.

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


author: Ostrander, J.

text:
    McINTYRE v. CITY OF KALAMAZOO.

    Highways and Streets — Defective Sidewalks — Actionable Defects — Municipal Corporations — Torts—Negligence.
    The building of two contiguous sections of sidewalk at different levels and connecting them by a cement apron or bridge of the length of 14 inches, having a drop in that length of from 14 to 6 inches, the apron itself not being out of repair, does not constitute an actionable defect, so as to make the city liable for an injury to a pedestrian caused thereby, though the apron at the point where the injury occurred was 1-J- inches higher than the higher walk.
    Error to Kalamazoo; Adams, J.
    Submitted June 2, 1908.
    (Docket No. 6.)
    Decided September 29, 1908.
    Case by Anna McIntyre against the city of Kalamazoo for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      W. L. Fitzgerald (H. Clair Jackson, of counsel), for appellant.

      Harry C. Howard, for appellee.

       Rehearing denied November 2, 1908.

   Ostrander, J.

The cause of plaintiff’s injury is not doubtful. Walking in the dark along a cement sidewalk, she came to a point where it joined a tar walk built upon a level a few inches lower than the cement walk. She fell on the tar walk as she stepped from the cement walk; the reasonable inference from her testimony and from that showing existing conditions being that in her last step no allowance was made for the difference in the levels of the walks. She testified: “I apparently stepped into space. ” The walks were joined by a cement apron, resting on the tar walk, having a face, inclined, of at least 14 inches. Both walks had been constructed, and the cement apron had been in place, for many years, and were, on the night in question, in the condition, substantially, they were when first laid. There is no testimony tending to prove that the sidewalk needed repairs.

The city is not charged with negligence in constructing or in maintaining the walks at different levels or according toa faulty plan. The case appears to have been tried upon the theory that the bridge or apron was the faulty thing. There is no testimony tending to prove that the alleged rough condition of the cement apron had anything to do with plaintiff’s misfortune. She neither slipped nor stumbled. There was testimony tending to prove that in the center of the walks the difference in their levels was from to 2 inches; that the tar walk was higher in the center than it was at the sides, and that on the east side, where plaintiff walked, it was 6 inches or more from the level of the cement walk to the level of the tar walk; that the upper edge of the bridge, or apron, was higher than the general level of the cement walk; that the foot supporting plaintiff’s weight at the instant of her fall rested upon the highest point of the concrete apron, the distance from that point to the tar walk being 7 inches or more. The jury were permitted to determine whether the walk as constructed and maintained was in a reasonably safe condition; plaintiff asserting that it was not, and defendant that it was. The declaration is not criticised, nor is the charge of the court.

It is contended that a verdict for defendant should have been directed (1) because the walk was not shown to have been in an unsafe condition; (2) because plaintiff was guilty of negligence contributing to her injury. It is contended, also, that the court should have instructed:

“Upon the undisputed evidence in this case the plaintiff cannot recover, because of the condition of the apron which joined the two walks in question. In other words, if the apron was as originally placed there or as shown by the evidence was ever a proper junction of the two walks, there is no evidence in the case that shows that the apron was out of repair to any extent to make the city liable.”

Counsel are agreed that a city may lawfully construct and maintain connecting sidewalks at different grades or levels. With this concession the single meritorious point in plaintiff’s case is that the city did more than this; that it attempted to bridge or to connect walks having different levels by a bridge or apron which was piled upon, overlaid, and elevated, by an inch and a half, the level of the higher walk. It is not claimed that this condition was not, in part, the cause of the injury. We are not able to distinguish the case, in principle, from Weisse v. City of Detroit, 105 Mich. 482; Yotter v. City of Detroit, 107 Mich. 4; Shietart v. City of Detroit, 108 Mich. 309; Jackson v. City of Lansing, 121 Mich. 279; Bennett v. City of St. Joseph, 146 Mich. 382. The walk did not need repairs. It was not defective* unless made so by the difference in the elevation of the walks. This, as the cases referred to and others distinctly affirm, is not ground for the ruling that the walk was not reasonably safe.

The judgment is reversed, with costs, and a new trial is granted.

Grant, C. J., and Blair, Montgomery, and Hooker, JJ., concurred.


author: Montgomery, J. Hooker, J.

text:
    CHARETTE v. VILLAGE OF L’ANSE.
    1. Electricity — Personal Injuries — Action — Contributory Negligence— Interference With Wires— Custom— Instructions — Sufficiency.
    In an action for the death of a boy of 14, caused by an electric shock received while shaking a wire for the purpose of igniting the light which it suspended, there being testimony tending to show that other boys and young men, to the knowledge of the superintendent, occasionally performed the same act with reference to the lights of the village, it was not error for the court to state to the jury that there was no legal custom shown; and plaintiff was given full benefit of the testimony by an instruction that the jury might consider it upon the question of the negligence of both parties.
    3. Same — Instructions — Contributory Negligence — Sufficiency.
    A requested instruction relieving deceased of . the imputation of contributory negligence “ if he did not do anything'that a youth of his age and experience * * * might not have done under the same or similar circumstances,” held, sufficiently covered by an instruction given.
    3. Same — Instructions—Contributory Negligence — Misleading Instructions.
    A requested instruction to the effect that the mere fact that deceased grasped the wire was not of itself enough to justify a finding of contributory negligence, but that the jury must further find that deceased in so doing did something which an ordinarily prudent person of his knowledge and experience would not have done under the circumstances, was properly refused as calculated to mislead the jury into the view that defendant had the burden of proof as to deceased’s contributory negligence, and to imply that as a matter of law the fact of his grasping the wire was not contributory negligence; that question being one for the jury.
    4. Same.
    A requested instruction to the effect that deceased had a right to presume that defendant had done its full duty in protecting and safeguarding its wires, and to act upon that presumption, and that it was not negligence on his part not to look out for danger, if, under all the circumstances, there was no reason to apprehend any, was properly omitted, as improperly assuming that defendant owed a duty to deceased to protect him from injury resulting from his interference with defendant’s plant, whether authorized or not, and whether it was such as might have been expected of one of the age and experience of deceased.
    5. Same — Question for Jury.
    Such request was also properly denied as invading the province of the jury, there being evidence that deceased had received warning that it was dangerous to handle the wires, and that he should keep away from them.
    6. Same.
    There was no error in instructing that if defendant kept its plant in a reasonably safe condition it was not necessary for it to station an officer at each pole, or to enclose each pole so that the wire could not be reached by anybody who deliberately undertook to take hold of it, and leaving it to the jury whether, under the circumstances, a reasonably careful man would have taken any further precautions.
    7. Same — Contributory Negligence — Proximate Cause of Injury — Instructions—Propriety.
    A requested instruction that deceased’s negligence would not defeat plaintiff’s right to recover, unless it contributed proximately to bring about his death, was properly refused as abstract, there being no room for an intervening cause.
    Error to Baraga; Streeter, J.
    Submitted June 17, 1908.
    (Docket No. 62.)
    Decided September 29, 1908.
    . Case by Joseph Charette, administrator of the estate of Eugene Charette, deceased, against the village of L’Anse for the negligent killing of plaintiff’s intestate. There was judgment for defendant, and plaintiff brings error.
    Affirmed.

      P. H. O’Brien (M. H. Crocker, of counsel), for appellant.

      W. L. Mason (J. J. O’Connor, of counsel), for appellee.
   Montgomery, J.

The defendant village maintains an electric lighting plant for the purpose of supplying electric light for public and private use. For this purpose it occupied the streets of the village with its poles and strung its wires, and at the intersection of Third and Railroad streets, where certain of its wires were strung, there was, as in other places in the village, a so-called “hanger” wire, used for the purpose of raising and lowering the lamp. The lower end of this hanger wire extended to within six feet and six inches of the level of the street. On the 7th of September, 1906, the plaintiff’s son, then 14 years and 7 months old, reached up, seized hold of this hanger wire, so-called, shook the same for the purpose of lighting the lamp which was not lighted, and received a charge of electricity which caused death instantly. This action is brought to recover damages on the ground that the defendant was negligent in the original construction of its plant, and also that it was guilty of negligence in permitting the insulation to become defective, so that this hanger wire, which was not intended to be charged with electricity at all, became charged with a deadly current, and that its position in the public street was such that the deceased, if not impliedly invited to make use of it, was at least not guilty of any act in that regard which a young man of his age might not have committed without being charged with negligence, particularly in view of the alleged custom which prevailed in the village on the part of the public in making such use of this hanger wire, and other hanger wires in different localities in the village. The case was tried before a jury, and, upon full instructions submitting the question of the defendant’s negligence and the plaintiff’s negligence, the jury found a verdict for the defendant, and the plaintiff brings error.

There are numerous assignments of error, but plaintiff’s counsel in his brief has limited the discussion to the following questions: Whether the question of contributory negligence was properly submitted to the jury; whether the question of defendant’s negligence was properly submitted to the jury; whether the court erred in refusing to grant a new trial; and whether the court erred in his remark to counsel.

It is contended by the plaintiff that the court was in error in saying to the jury that there was no legal custom shown. Without attempting to repeat the evidence tending to show the custom, the most that can be said of it when analyzed is that certain boys or young men were known to occasionally seize hold of the hanger wire, and turn on the light by shaking the wire. It is manifest from this testimony that there was no custom which imposed the duty of interfering with the defendant’s plant in this manner, or which raised the right to do so. The most that can be said is that the testimony tends to show an interference with the defendant’s plant more or less frequent. We think the plaintiff was given the full benefit of this so-called custom when the court said to the jury:

“ I think it is my duty to say to you, gentlemen, that that there is no custom established by the testimony here as a matter of law. There was no such custom amongst the public. It is true, however, and it is a circumstance which you should consider when you are considering the question of the negligence of both parties or of either party, it is true, that a number of boys in the village had done that very same thing that Eugene Charette did that night; that they had done it repeatedly; that the fact that they did it was known to the superintendent of the plant.”

We think this was giving the plaintiff the full benefit of the evidence bearing upon the question of the use by others of this hanger wire for the same purpose for which he was attempting to make use of it. Doubtless this fact did have a bearing upon the question of the negligence of the deceased; but the jury were permitted to give it full effect as bearing upon that question.

The plaintiff’s sixth request was given, omitting the following:

“If, after carefully considering all of the testimony in this regard, you conclude that plaintiff’s intestate, Eugene Charette, in so grasping the hanger wire for the purpose of shaking on the light, did not do anything that a youth of his age and experience and knowledge of the danger, or lack of knowledge, might not have done under the same or similar circumstances, then the deceased cannot be said to be guilty of negligence contributing to his death.” :

We think the same general proposition was sufficiently covered by the instruction actually given by the court, as follows:

“Plaintiff’s intestate was bound to exercise ordinary care for his own safety, taking into consideration his age and experience, and all of the other circumstances of the case. You have a right to consider in this regard the question of whether the hanger wire was such a contrivance and placed in such a situation that a boy of the age, knowledge, and experience of plaintiff’s intestate would be liable to attempt to turn on said light in the manner in which it is claimed the plaintiff’s intestate did at the time of his death; the usage or custom, if any, that existed among the public generally as to grasping the hanger wires on the lamps on the public streets, and shaking the same for the purpose of turning on said light; the distance of said hanger wire from the street; its proximity to the sidewalk; the fact that said pole upon which said wires were strung occupied a public street; the knowledge, if any, which the plaintiff’s intestate had as to the danger of grasping said hanger wires; any warning which you may find he had received as to keeping away from the poles or wires of the defendant; the question of whether the danger of grasping the hanger wire, as he did, was an apparent danger or hidden danger; whether the hanger wire was supposed to be charged with electricity or not; and all of the other circumstances of the case, which in your judgment have a bearing upon the question of whether he exercised that due and reasonable care for his own safety which a boy of his age and experience should have exercised under the same or similar circumstances.”

The jury could not have failed to understand from this instruction that, if the plaintiff’s intestate in grasping the hanger wire for the purpose of shaking on the light did no more than a youth of his age and experience might have been expected to do under similar circumstances, no negligence was to be imputed to him.

The plaintiff’s seventh request to charge was as follows:

“Themerefaetthattheplaintiff’sintestate, Eugene Charette, grasped the hanger wire at the time he received the shock which resulted in his death, is not enough in and of itself to justify you in finding that he was guilty of contributory negligence. You must further find from all of the circumstances of the case that in so grasping the hanger wire or cable plaintiff’s intestate, Eugene Charette, did something which an ordinarily prudent and careful person possessing the knowledge which he then had of the danger likely to arise from grasping such hanger wire or cable, and beingof the same age, judgment, and experience, would not have done under the same or similar- circumstances ; otherwise, he is not guilty of contributory negligence.”

This request was not given, and, we think, was properly omitted, because it was calculated to mislead the jury in two particulars: First, to cast upon the defendant the burden of proof as to the plaintiff’s contributory negligence; and, second, to imply that as a matter of law the fact of his grasping this hanger wire was not contributory negligence. We think that the most that can be said is that this question was a question for the jury.

The plaintiff’s ninth request was as follows:

“Deceased had a right to presume that the defendant had done its full duty in protecting and safeguarding its said wires, so that any wire which was supposed to be safe to handle, and which was as near the street as the hanger wire was at the time in question, would actually be safe to handle. He had a right to act upon this presumption, and in passing upon the question whether he was guilty of contributory negligence you have a right to consider, together with all of the other circumstances of the case, the question of whether the deceased had any knowledge of the precise danger he encountered in grasping said hanger wire. It was not negligence on his part not to look out for danger, if under all of the circumstances of the case there was no reason to apprehend any.”

This request was properly omitted, for the reason that it improperly assumes that some duty was, as a matter of law, owing by defendant to the deceased to guard against any injury which might result to him by reason of an interference with the defendant’s plant, whether authorized or not, and whether it was such as might have been expected of one of the age and experience of the deceased. But a further sufficient reason why this request should not have been given is found in the fact that there was testimony tending to show that the deceased had received warning that it was dangerous to handle these wires, and that he should keep away from them. We think the question of the plaintiff’s contributory negligence was properly submitted to the jury.

It is contended that the court was in error in instructing the jury as follows:

“Now, if the village, having a duty on it to reasonably care for its plant so as to keep it in a reasonably safe condition, had so performed its duty, I cannot charge you as a matter of law that it was necessary for the village to station an officer at each pole, or to inclose each pole so that the wire could not be reached by anybody who deliberately undertook to take hold of it. That will be a matter for you to determine, whether a reasonably careful man, having placed a wire out of ordinary reach, and one used for a particular and innocent purpose — that is, the raising and lowering of a lamp — and one which had been used for months by people having no business to use it, to say the least, without any danger, would feel it necessary to take any further precautions. That will be a question for you to consider.”

It should be said that this instruction did not stand alone, but was preceded and followed by instructions to the effect that if the jury found that the village had negligently constructed its plant, and that the feed wire and hanger wire came in contact so that the current of electricity was brought into the hanger wire and became a dangerous force, then it would be for the jury to say whether that was the proximate cause of the death of Eugene Charette, and that if they find that it was, and that the fact of its being so charged with electricity was the result of negligence on the part of the village, then, unless Eugene Charette was guilty of contributory negligence, the plaintiff was entitled to recover. We think the jury could not have been misled by this instruction, nor do we think it was, in the abstract, error.

The plaintiff’s eighth request to charge was as follows:

“Or, even if you find that plaintiff’s intestate, Eugene Charette, was guilty of negligence, such negligence would not defeat plaintiff’s right to recover in this case, unless you further find that the negligence of the plaintiff’s intestate contributed proximately to bring about his death.”

This request was omitted; and error is assigned upon the omission. The proposition as an “abstract proposition of law is undoubted, but there was no occasion to give such instruction in the present case. There can be no doubt that any negligence, if negligence were found, of Eugene Charette, was negligence which contributed to the injury. It was directly related to the injury. There was no room for intervening cause, and such an instruction would only tend to confuse the jury.

A motion for a new trial was denied, and it is urged in this court that the verdict was against the weight of evidence. We have given careful attention to this contention, and agree with the trial judge that it cannot be said that the jury did not properly weigh and consider the testimony submitted on both sides; nor do we think that the case made by the plaintiff was by any means so clear as to lead to a fair inference that the correct result was not reached. It is enough to say that we find nothing in the remark to plaintiff’s counsel which should justify us in setting aside the verdict.

The judgment is affirmed.

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

Hooker, J.

I concur in the affirmance of this cause upon all of the grounds stated in my Brother Montgomery’s opinion, and for the further reasons that, under the undisputed testimony, the court might have charged that the defendant was not guilty of negligence in failing to anticipate and provide against a climbing up and seizing a wire connected with the electric street lighting system by a 14-year old boy, which he could not reach from the ground, and that it was contributory negligence in such a boy to do so, even if he was not a trespasser, which need not be decided. See Palmer v. Harrison, 57 Mich. 182; Trudell v. Railway, 126 Mich. 73 (53 L. R. A. 271); Wade v. Railway, 151 Mich. 684.


author: Hooker, J.

text:
    FEUERSTEIN v. RICHTER.

    1. Appeal and Error — Chancery Appeal — Several Defendants — Decree..
    On appeal from a decree dismissing a bill against several, the decree stands as to a defendant against whom the appeal is not perfected, and the court makes no decree in his favor, as it might otherwise do.
    3. Waters and Watercourses — Surface Waters — Drains— Injunction — Propriety.
    A bill to restrain the casting of surface waters upon complainant’s land was properly dismissed where it appeared that, though water was probably being delivered upon complainant’s lands by defendants’ ditches faster than it would have been without them, a third person had relieved the situation by providing a sufficient outlet.
    Appeal from Saginaw; Beach, J.
    Submitted June 17, 1908.
    (Docket No. 91.)
    Decided September 29, 1908.

      Bill by Marcus Feuerstein against Peter Richter and others to enjoin the casting of waters upon complainant’s land. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Hugo P. Geisler, for complainant.

       Rehearing denied March 3. 1909.

   Hooker, J.

Complainant and defendant Wickham (the latter now deceased) owned adjoining premises, viz., the east and west halves, respectively, of the N. E. £ of section 24, in township 9 N., range 3 W., Saginaw county. Defendant Aselton owned the N. % and defendant Richter the S. -J- of the S. E. J of said section. All of this land is flat, though not level. A watercourse, called in this record “ Fairchild Creek,” extends north through the west halves of these quarter sections, and approaches comparatively near the line between the east and west hialves of the northeast quarter section, opposite the south 4Í) rods thereof. Defendants Richter and Aselton made open drains, which, being connected, extend from south to north across the southeast quarter of said section, east of Fairchild creek, ending at or near a point in the north line of said quarter section, where complainant’s land joins that of defendant Wickham. The last, or northernmost, section of said drain when completed had the effect of discharging its accumulated waters' at that point, though a short ditch was extended from the end of said drain to Fairchild creek on the land of Aselton, or possibly partly on the land of Wickham, who seems to have thought that its effect was to discharge an undue amount of water into the creek, causing it to flood his premises. There is some testimony tending to show that at some stage of the controversy he attempted to fill or dam it, while the complainant extended a low dam or dyke on his land, extending some distance north and east from the southwest corner of his premises, to keep the water off from them. There was much controversy over this situation between complainant and defendant Wickham, and it seems to have crystalized into the claim by complainant that all of the water brought through this long drain had its natural outlet in Fairchild creek, and therefore should not be allowed to overflow his land, while Wickham claimed that the natural outlet of most of the land drained by said ditch was to the northeast, across complainant’s land to Spring brook, which was to the eastward. It is noticeable that at all times Wickham was willing and desirous of adjusting the difference, and made various attempts to do so, but complainant was unwilling to assume any share of the cost thereof, claiming that the water did not belong upon his land, and that he should not be to expense in the matter. They had quarrels and lawsuits over them, and finally, at Wickham’s instance, they made an oral agreement that was substantially as follows: i. e., that, if complainant would extend a ditch across his land to the highway on the east side of his land, Wickham would dig a ditch in said highway connecting it with the county drain hereinafter mentioned. Wickham dug such ditch. Complainant did not do as he promised. Subsequently, at the intervention of neighbors, a written contract was made, and at complainant’s suggestion it provided a penalty of $25 for its breach. Complainant did not perform and was sued, and in justice’s court a judgment went against him, but on appeal the cause went against Wickham upon a law question. Complainant thereupon filled up so much of the drain as he had made.

There was a county drain on the south side of the east and west highway north of their premises. Wickham thereafter, and at his own expense, and upon his own land, made a ditch the whole length of his east line, connecting the Aselton drain with said county drain which furnished an outlet both to the east and west. The complainant subsequently filed this bill to restrain all of the defendants from maintaining these several drains, and for an award of damages. He was defeated, and his bill was dismissed by the learned circuit judge after a full hearing upon testimony taken in open court. Complainant has appealed from the decree against Aselton and Richter. His counsel calls our attention to the fact that the appeal against Wickham has not been completed, inasmuch as he has died since the appeal was taken out, and that counsel have stipulated that he need not complete his appeal against Wickham. Counsel asks us to decide certain questions growing out of the situation, but we think it will be unnecessary.

The cause seems to turn largely upon the questions whether the Aselton ditch delivered "water at complainant’s corner which naturally should have gone to Fair-child creek, and whether, notwithstanding Wickham’s drain, the Aselton ditch caused an increased flow over complainant’s land. There was proof tending to show that there were two or three watersheds upon the Richter and Aselton lands, one of which, the westerly, sheds towards the west and northwest into Fairchild creek. The other two shed to the northeast, the water ultimately crossing complainant’s land. There was a low ridge or slight elevation between the westerly wateished and the one next east, and this ridge extended to a point a short distance east of complainant’s southwest corner. If this is true, and we.agree with the learned circuit judge that a great preponderance of the proof indicates it, there is little room for the claim that much, if any, water belonging in Fairchild creek finds its way over his land. It is overwhelmingly proven that there is a low ridge along the line between complainant’s and Wickham’s premises. Wickham’s ditch is upon or near it. It is obvious that the ditch takes off some of the accumulated water, and is therefore a benefit to complainant, rather than an injury, and that complainant had no just cause of complaint against Wickham. Understanding that the decree of the circuit court stands as to Wickham, because not appealed from, we make no decree in his favor as we should otherwise do.

There remains the claim that the complainant is injured by the undue collection and rapid delivery upon his land of the water from the lands of Richter and Aselton. We think it probable that the water is being delivered through these drains more rapidly than it would be were there no such drains; but, on the other hand, Wickham, by his ditch, has largely relieved complainant from the consequences, doing that which defendants should have done in the first instance, viz., provided an outlet. We are of the opinion that this drain is adequate in all ordinary times, and, when inadequate, the overflow upon complainant’s land is no greater than it would be had no ditches been made. The claim that the Wickham ditch overburdens the county drain is without merit. Complainant’s case is one without equity, and the learned circuit judge properly denied him relief.

The decree is affirmed, with costs.

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