text:
    COWLEY v. McGREGOR.
    Taxation — Redemption—Specific! Performance of Oral Promise.
    In consideration that a corporation should locate and construct a mill on certain property, complainant’s father orally agreed to deed to the concern a lot owned by him. The mill was constructed, and a shop used in connection with the business was built on the lot, of which no deed was made by the owner to said corporation. Subsequently it purchased a tax interest for taxes of 1888 on the property and gave notice to complainant and other heirs of the father to redeem. On a bill against purchasers of the corporate business and assets to enforce the right of redemption, held that a decree should be entered for defendants, as prayed, dismissing the bill, since the court would, if all the persons in interest were before it, require the specific enforcement of the agreement to convey.

      Appeal from Alcona; Connine, J.
    Submitted October 18, 1910.
    ( Docket No. 81.)
    Decided December 7, 1910.
    Bill by Frank G. Cowley against John McGregor and William H. Gillespie, copartners as the Harrisville Milling Company, to redeem lands from a tax purchase. From a decree for complainant, defendants appeal.
    Reversed and bill dismissed.

      Ward B. Connine, for complainant.

      J. H. Cobb (O. H. Smith, of counsel), for defendants.
   Moore, J.

Omitting the formal parts of the bill of complaint, it is averred that May 5, 1890, Bernard P. Cowley, the father of complainant, was the purchaser from the State for the taxes, assessed in the years 1880 to 1887 inclusive, and other years, on lot No. 13 of the Cowley and Roberts addition to the village of Harrisville. It further avers that the auditor general issued State tax deeds because of said purchase; that on the 20th of May, 1890, said deeds were duly recorded. The bill further avers that on May 26, 1904, the Harrisville Milling Company obtained a tax deed on said lands for the taxes of 1888.

“That on or about the 31st day of May, 1907, the said defendants caused to be served on your orator and upon Lillian C. Monroe Cowely, and upon Marie C. Schreiber Cowely, who are the legal heirs at law of the said Bernard P. Cowely, a notice of reconveyance, a copy of which is hereby annexed as Exhibit A and made part of this bill of complaint. That the said notice purports to be that required by Act No. 229 of the laws of Michigan for the year 1897, as amended. * * * That at the time of the said service of the said notice the last grantee in the regular chain of title to the said land was one Mary Ballentine. That her whereabouts could not be ascertained, and that due service upon her was made by publication. * * * That by reason of the aforesaid tax deeds executed and delivered to the said Bernard P. Cowley, and by reason of his subsequent death, and by reason of the fact that your orator is one of the heirs of the said Bernard P. Cowley, and by reason of the service of the said notice of reconveyance upon your orator, and by reason of the laws of this State applicable thereto, your orator became and is invested with the right and power to redeem said described lands from the tax titles so held by said defendants.”

There are many other averments in the bill of complaint which it is not necessary to recite here, further than to say that the bill is filed for the purpose of allowing complainant to redeem. It is stated in the brief, and was stated by counsel on the oral argument, that it is sought to redeem only from the taxes of 1888. The defendants answered, denying nearly all of the material averments in the bill of complaint, and also filed an answer in the nature of a cross-bill in which are contained the following averments:

“ These defendants, further answering said bill of complaint, claim the benefit of a cross-bill and set up the following facts in relation thereto: They say they obtained a tax deed for the taxes assessed against said lands for the year 1888, as readvertised and sold. That said tax deed is absolutely valid and gave them the absolute title to said land in connection with the proceeding therein taken by them. * * * These defendants further state in their said cross-bill, and charge the same to be true, that the Harrisville Roller Mill Company, a corporation under the laws of the State of Michigan, built a flour mill upon a portion of this land and the adjoining lot and occupied it for a number of years. That afterwards these defendants obtained the title of said flour mill to said property through a foreclosure proceeding of a mortgage given by said flour mill company to Mrs. Joseph Comstock, but no deed was given to the lot herein described. Defendants further answering said bill say there is a building on said lot known as a cooper shop. That since they obtained title to the mill property they have been in possession of said lot herein described, by occupying the cooper shop and piling wood upon the lot and using it in every way in connection with said mill. That said complainant has never been in peaceable possession of the lot. * * * Defendants further show under their cross-bill that said Bernard C. Cowley, in order to induce the Harrisville Roller Mill Company to locate its mill on its present site, agreed to deed the land herein described to said Harris-ville Roller Mill Company, and said agreement, as your orator states, on information and belief, was carried out, and any interest that said Bernard P. Cowley has in said property belongs to and is the property of the Harrisville Roller Mill Company. Defendants, further answering said bill of complaint, state that said complainant is attempting to use this court of chancery for the purpose of enjoining them from the peaceable possession and enjoyment of the property, the title of which is in them. And they herein and hereby pray that this court will decree that said complainant has no title whatever to said land, and that these defendants are the owners thereof under their said tax proceeding, and that they may have such other and further relief in the premises under their cross-bill as they are equitably entitled to and to this court seems meet, and defendants will ever pray.”

A replication was filed to the cross-bill. A hearing was had and a decree granted, allowing complainant to redeem from the taxes of 1888. The case is brought here by appeal.

A great many interesting questions are presented, but in our view of the case it is not. necessary to discuss them. It will be remembered that Bernard P. Cowley purchased from the State May 5, 1890. He died intestate, according to the testimony of complainant, October 19, 1900, leaving four heirs, one of which is the complainant.

The record shows that in the spring of 1890 a company was organized, known as the Harrisville Roller Mill Company. Upon the records of that company appears the following:

“ First meeting of stockholders. Pursuant to call, the first meeting of the stockholders of the Harrisville Roller Mill Company was held at the office of George Rutson, in the village of Harrisville, on Wednesday, the 14th day of May, A. D. 1890. All stock subscribed was represented at this meeting, either by the stockholders in person or by proxy. On motion, Joseph Van Buskirk was elected chairman of the meeting and George Rutson secretary. The meeting then proceeded to the election of directors by ballot and the following persons, having received the greater number of votes, were declared duly elected, viz. : Joseph Van Buskirk, George W. Colwell, R. S. Lott, B. P. Cowley, D. W. Mitchell, Lew A. Colwell, George Kutson. The question of determining on a millsite was considered and discussed by the meeting, and, on vote of stockholders by ballot being taken, it was decided by such vote to accept the offer of Charles Martin and B. P. Cowley, of two lots on Lake street, in the village of Harris-ville, one known as the Martin lot and the other as the Ballentine lot. Mr. Cowley offered to quitclaim the Ballentine lot and Charles Martin to convey by warranty deed for a consideration of $300 the said Martin lot.”

It appears beyond question that the lot spoken of as the Ballentine lot is the lot involved in this controversy. The following also appears in the records of the Harrisville Boiler Mill Company:

“At a special meeting of the Harrisville Roller Mill Company, held at the rooms over the post office, on Monday, June 15, 1891. Present, J. Van Buskirk, president; John W. Cowley, vice president; B. P. Cowley, treasurer; D. M. McGregor, secretary; James Anderson, Dr. D. W. Mitchell, Robert Reed, and Robert Dobson. The committee appointed June 1st. viz.: Joseph Van Bus-kirk, B. P. Cowley and George E. Colwell, reported: That an elevator was a necessity in connection with the mill; it could be built at the south end of the mill, and the size should be 32 by 34, to contain nine bins, to be built on a stone foundation, as the mill is now, the height to be the same as the mill, and the general work conform to the plan sent up by Noyes & Son of Buffalo. The cost would probably be about $2,000; also the engine room should have a firewall across the entire end adjoining the mill to conform to the wishes of the insurance companies. Moved and seconded that each stockholder be assessed 20 per cent, of the original stock to provide sufficient funds for the improvements reported by the committee, and that the secretary notify each member to pay the assessment to the treasurer within 30 days, and that certificates of stock be issued to each stockholder for the assessment paid. Moved and seconded we now adjourn. D. M. McGregor, secretary.”

While some of the details are lacking because of the lapse of time and death of many of the parties, it is convincingly shown by the record that following the first meeting of the stockholders, held May 14, 1890, there was erected on the millsite mentioned therein a large mill, and that following the special meeting of 1891 the elevator mentioned therein was erected. It is not clear as to what part of the mill or of the elevator was upon lot 13, but it is clear they were both on what was designated in the record of May 14, 1890, as a millsite. Later a cooper shop, used in connection with the mill, was erected on lot 13, and it was also used for piling large quantities of wood purchased during the winters to be used as fuel in the mill, all the year round, and also as a means of access to the mill over a roadway thereon. The record is also clear that lot 13 was used continually from the time of the erection of the mill in 1890 by the owners of the mill in connection with its operation, until shortly before the commencement of this suit, when complainant undertook to take possession. It does not appear that the father of complainant ever in fact made the quitclaim deed referred to, but it does appear that if he did not it would be his duty, upon request, if now living, to do so. See the many cases cited in the notes to section 9513, 3 Comp. Laws.

If Bernard P. Cowley was before the court, or if all his heirs at law were, we should not hesitate, upon this record, under the general prayer for relief in defendants’ cross-bill, to make a decree settling the title in favor of defendants as against Bernard P. Cowley and his heirs at law, so far as said claim was based upon the tax purchase of Mr. Cowley, made May 14, 1890. The least we ought to do is to say that said tax purchase should not be allowed to be the basis of a decree which allows complainant, an heir at law of said Cowley, to create a cloud upon defendants’ title, and which may subject them to further litigation.

The decree is reversed, and the bill of complaint is dismissed, with costs of both courts.

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


source: Caselaw Access Project

author: Blair, J.

license: Public Domain

text:
    RISKU v. IRON CLIFFS CO.
    1. Master and Servant — Safe Plage — Scaffolding—Mines and Mining.
    A miner, engaged in timbering a new shaft in a mine, in preparation for the ordinary operations of the business, may not recover for injuries sustained from the breaking of a staging or scaffolding on which he was at work, on the theory that the master owed him a duty to provide a safe place to work, since that doctrine does not apply while construction work is in progress.
    2. Same — Furnishing Proper Materials — Scaffolding.
    In furnishing plank to construct a platform on which the men so engaged could work, the employer owed a positive duty to furnish material of a kind reasonably fit for the purpose which it was intended to serve.
    3. Same — Timber—Safe Materials.
    If planks furnished were of a species of wood which, by its very nature, was unfit for such purpose, having reference to defendant’s usual plan of construction, and plaintiff did not know of the unsuitability, he could recover for injuries caused by the breaking of defective material.
    4. Same.
    But if the timber was suitable in kind, and sufficient sound material was supplied for the purpose, defendant would not be liable for mistakes or negligence of its employés in selecting it, since they were fellow-servants with plaintiff.

    5. Same.

      Held, that the evidence of incompetency of plaintiff’s fellow-servants was insufficient to raise a question of fact.
    Error to Marquette; Cooper, J., presiding.
    Submitted October 18, 1910.
    (Docket No. 78.)
    Decided December 7, 1910.
    Case by Solomon Risku against the Iron Cliffs Company for personal injuries. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.
    P. H. O’Brien (O. F. Button, of counsel), for appellant.

      William P. Belden, for appellee.

       As to duty of master to furnish safe appliances as affected by fact that defective appliances are prepared by fellow-servants, see note to Haskell v. Cape Ann Anchor Works (Mass.), 4 L. R. A. (N. S.) 220.

   Blair, J.

Plaintiff brings this action to recover damages for personal injuries received in consequence of the giving way of a platform upon which he was working in one of the shafts in defendant’s mine. The shaft had been excavated from the seventh level to the eighth level, and defendant’s employés were engaged in timbering this new excavation, working upwards from the eighth level. The timbering was accomplished by placing sets of timbers one on top of another to form the sides and filling in behind these timbers with earth and rock to make the walls of the shaft solid. At about 12 feet from the bottom, and at intervals of 5 feet thereafter, it became necessary to build temporary platforms upon which the shovelers could stand. The material for filling was hoisted from the bottom in a bucket holding about half a ton, which was dumped, when about six inches above the platform, onto the platform. When the space behind the timbers was filled level with the platform, it was removed, additional timber sets put in, the platform put in place, and the work proceeded with as before. The shaft was divided into two compartments by dividing timbers across the middle of the shaft. The temporary platform was constructed by laying one hemlock plank 7 feet long, 8 to 12 inches wide, and 3 inches thick, at each side from the dividing timber to the wall timber, and upon these joists, as they are called in the record, three-inch hemlock planks were laid lengthwise so as to entirely cover the space in the shaft on the side where plaintiff was working. On the other side, a space was left through which the bucket was hoisted. The same planks were used in constructing the platform up to the time of the accident. The timbering, boarding of the platform, and filling the bucket were done by the miners who excavated the new part of the shaft. They were instructed how to build the platform by the timber boss:

“ The planks that we did that with were lowered from the surface. They were all there at the time when he showed us. We built the stagings that way right along then. We built them out of the same planks right along. * * * When that staging was built, the first time it was built out of new fresh plank.”

Mr. Carlson, the underground foreman, testified:

“ I had charge of the work at these two shafts on the shift that I was working on. That is right. They did not have any underground foreman on the other shift opposite to me. I worked day shift all the time. The timber boss in the shaft where Risku was working, his name was Harry Ware, I think. As to who the other timber boss was, we had only one timberman. Timber boss was over both shafts. When they were timbering that shaft, he was staying there right along. He has full charge of timbering the shaft, full charge of that work. I think he generally used to select the timber. As to it being his duty to select the plank for the staging, well, I believe he did. * * * The next boss over me was Captain Stevens. * * * He was the captain of the mine. As captain of the mine he was to hire and discharge men. Yes, hired men. To work in the mine. He could tell the men where to go, and I had a right to tell them where to go too, on the day shift. And when Captain Stevens wasn’t there I had full charge, I think so. * * * The timber boss was looking after the timber work in the mine. He had full charge of the timber work, and he was the one whose duty it was to lay out a plan for the timbering of the mine and to lay out a plan for building the stagings. When I went dowm there, I saw those stagings then that the men used to work on, when they filled in behind the timbers. I did pay attention to how they were built. I did pay attention to it, but I left that work to the timbermen mostly. Mr. Ware was our timberman. He was there at that time. And he would show these men that were working in the shaft how to put that timber together and how to build their staging. And they would build it after the plan that he would lay out. That is true; yes, sir. The men working as miners in the shaft, when they were laying those timbers, they were supposed to lay the timbers the way the timber boss directed them.
“Q. And they were supposed to build the staging the way the timber boss directed it to be built?
“A. When he was there. He told them how to build it, so they would follow his directions whether he was there or not; that is right. We always built the staging in that mine for working in the shaft in the same way.’,

There was testimony tending to show that the men were ignorant of platform building and of the characteristics of timber. The men had been timbering the shaft for over a week and had got' 30 or 40 feet from the bottom when plaintiff was sent by Mr. Carlson to shovel the rock and earth from the platform, which had been constructed before’ he began work upon it. After he had worked for a few hours, one of the joists broke, and he was precipitated to the bottom, receiving serious injuries.

“It was one of the joists that broke, closer to the other end, closer to one end than the other. The break was in on a bevel. In a bevel just a little bit. Not exactly across. It was a little bit beveled. A little bit slanting (like he holds his hand). The plank was crossgrained. The plank was soft wood. I don’t know the name of it, how to call that wood. In Finnish we would call it hemlock.”

There was testimony tending to show that hemlock was not a proper or safe wood to be used where only a single three-inch plank was used for joists, and that a platform constructed as this was constructed was not a safe platform for the purpose for which it was to be used. Defendant had judgment upon an instructed verdict, to review which plaintiff prosecutes this writ of error.

As stated in the brief for appellant, the questions involved may properly be divided into five main subjects: (1) Safe place, involving fellow-servant question; (2) improper plan of construction of the staging; (3) failure to supply suitable material; (4) incompetent fellow-servants to build the stagings; (5) assumption of the risk.

The men constructing the new shaft, whether in excavating or timbering it, were engaged in preparing a place in which the ordinary operations of the mine would be carried on and the use of the platform, or staging, was a mere incident to the construction of such shaft. While the shaft was in process of construction, the doctrine of safe place would not apply; after it was constructed, it would apply. Landowski v. Chapoton, 137 Mich. 429 (100 N. W. 564), and cases cited.

We consider 2 and 3 together. In furnishing plank for the platform, the defendant owed to the employés the positive duty of furnishing material of a kind reasonably fit for the purpose for which it was to be used. Hoar v. Merritt, 62 Mich. 386 (29 N. W. 15); Brown v. Gilchrist, 80 Mich. 56 (45 N. W. 82, 20 Am. St. Rep. 496); Cornell v. Halpin, 159 Mich. 42 (123 N. W. 578) Lafayette Bridge Co. v. Olsen, 108 Fed. 335, 47 C. C. A. 367 (54 L. R. A. 33). If the planks furnished were of a species of wood which by its very nature was unfit for the purpose for which it was used, having reference to defendant’s usual plan of construction, of which unfitness plaintiff was unaware, he was entitled to recover. If, however, the timber furnished was of a suitable species, and sufficient sound planks were furnished, the defendant would not be liable for mistakes or negligence in selection, since the employes making such selection would be fellow-servants of the plaintiff. Beesley v. Wheeler & Co., 103 Mich. 196 (61 N. W. 658, 27 L. R. A. 266).

We do not find sufficient evidence of the incompetency of the men constructing the platform to warrant the submission of the question to the jury.

The judgment is reversed, and a new trial granted.

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


text:
    STANSELL v. AMERICAN RADIATOR CO.
    1. Easements — Quieting Title — Taxation—Trusts.
    Complainant was the purchaser of a tax interest in a thirty-foot strip of land, over which defendant had an easement. The Murphy Chair Company furnished the consideration of the tax purchase and took the conveyance in complainant’s name, for its benefit, but without any trust instrument evidencing the nature of the transaction. The title to the thirty-foot strip was held in the name of the secretary and treasurer of the chair company, subject to defendant’s easement and to an easement of a third party which owned adjoining premises. Defendant’s rights had been recognized by a formal deed of the chair company to defendant in connection with a separate transaction. The Murphy Chair Company held in its own right an easement over the thirty-foot strip, which connected its premises with a public street, and with a railroad right of way. The purpose of complainant’s tax purchase was admitted to be that the rights of easement over the premises might be cut off. Held, that a suit of complainant to quiet title to the premises would be treated in equity as the suit of the Murphy Chair Company; that the statute prohibiting resulting trusts (3 Comp. Laws, § 8835), was not intended to legalize such a proceeding in fraud of rights of the defendant, and that the easement was appurtenant to property of the chair company, — not an easement in gross.
    2. Same — Taxation—Appurtenance.
    Easements not in gross are assessable to the owner of land to which they are appurtenant. 1 Comp. Laws, §§ 3825, 3850.
    3. Same — Deeds—Contracts.
    Where a deed contains a provision that the grantee confirms and recognizes an easement described in the conveyance, it is as binding as would be a separate grant of the right of way by the one who accepts the instrument..
    4. Same — Taxation—Duty to Pay Taxes.
    And the owner of the estate to which the easement was appurtenant, owed to the defendant a duty to pay taxes assessed thereon, which duty it discharged by purchasing the tax interest in the complainant’s name; nor did it acquire any additional rights by such action.

      Appeal from Wayne; Murfin, J.
    Submitted October 19, 1910.
    (Docket No. 20.)
    Decided December 7, 1910.
    Bill to quiet title by Arthur D. Stansell against the American Radiator Company. From a decree dismissing complainant’s bill, he appeals.
    Affirmed.

      Orla B. Taylor and Charles F. Delbridge, for complainant.

      Bernard B. Belling (Charles H. Ripley, of counsel), for defendant.
   Blair, J.

On April 11, 1885, M. J. Murphy & Company, the predecessor of the Murphy Chair Company, purchased certain land in Detroit and a right of way over a 30-foot strip furnishing an outlet to Russell street. Subsequently, this property and easement were acquired by the Murphy Chair Company. Briggs and Sill, the originators of the American Can Company, on July 27, 1899, purchased land abutting on the 30-foot strip and on Russell street and Trombley avenue, with an easement for a railway track across the 30-foot strip. On December 21, 1899, Murphy, Wasey & Company purchased the parcel east of the land of the American Can Company, and the Murphy Chair Company is the present owner thereof. On June 22, 1899, the defendant purchased certain land east of the last-mentioned parcel of the Murphy Chair Company; the deed conveying an easement for a railway track across said 30-foot strip. On December 9, 1899, the owner of the fee of the 30-foot strip deeded the same to James F. Murphy, trustee, subject to all easements, including defendant’s. This purchase was made with the money of the Murphy Chair Company, of which James F. Murphy was the treasurer and one of the three directors. On May 16, 1901, the American Radiator Company and the Murphy Chair Company delivered deeds inter se, each releasing the land of the other from certain other easements relative to tracks to the Detroit, Grand Haven & Milwaukee Railway, but in no way affecting the easement here involved. The deed from the radiator company to the Murphy Chair Company contained the following recital relative to the easement in question:

“ The right of way or easement pertaining or belonging to the last-mentioned piece or parcel of land described in a certain deed made by Henry B. Lothrop, as executor of the last will and testament of George V. N. Lothrop, deceased, and others, to the American Radiator Company, dated June 23, 1899, and recorded in the office of the register of deeds in and for said county, in vol. 511 of Deeds, page 407, as the right to construct and maintain a railroad track across the southerly part of the remainder of said premises (being the same premises referred to in said conveyance as contracted to Force & Dickinson, a part of which is now owned by said Murphy, Wasey & Company) and across or along the thirty (30) foot strip mentioned in said contract substantially upon the line of said track as at present constructed, is not released or conveyed, but is recognized and confirmed by the parties hereto.”

The taxes not having been paid for the years 1900, 1901, and 1902, the 30-foot strip was sold therefor to one Wiltsie of Rochester, N. Y. On January 6, 1904, the Murphy Chair Company paid to Mr. Wiltsie the amount that he demanded for the certificates of purchase for the taxes of 1900, 1901, and 1902, and had such certificates assigned to one Thomas Fairgreave, an employe in the office of the Murphy Chair Company. Mr. Fairgreave never was informed of this transaction and he never saw the certificates until the trial of the case at bar.

Mr. Fairgreave testified:

“The first time I ever saw these certificates was in this courtroom.
“Q. Did you know that these certificates were assigned to you by Mr. Wiltsie prior to yesterday ?
“A. No; I cannot say that I understood.
“Q. The first you ever knew you were the owner of any tax certificates on property out by the plant of the Murphy Chair Company was yesterday. Is that right ?
“A. I cannot say that I have understood the deal at all. I knew a little about it several years ago when I got a letter from Mr. Wiltsie which I turned over to Mr. James Murphy. I don’t recall the year. I don’t remember anything about it. I had a vague idea of the business at that time. I simply turned the letter over to Mr. Murphy and had nothing further to do with it. I do not claim any interest in these certificates. At the time I was assistant to Mr. James F. Murphy.”

Michael J. Murphy, president of the Murphy Chair Company, testified as to these tax certificates:

“Q. I just want to refer to that letter which you wrote to Mr. Wiltsie which was introduced in evidence the other day, Exhibit 5, in which you make this statement, ‘ Some time ago we obtained from you a similar assignment in the name of Thomas Fairgreave and the property has since stood for assessment purposes in his name. We took an assignment of his title too. Mr. Fairgreave is an employé of ours.’ Will you state whether you were in error in making that statement in the letter.
“ A. Yes, I was in error. I thought that we had taken an assignment. I find that we have not, and under the belief that we had taken an assignment, I claimed that we owned it. * * * I find that we have had the tax certificates in our possession all the time since they came from Mr. Wiltsie. They have never been out of our possession. I have noticed that no tax deed against this property may issue without the surrender of the certificates, so that without the consent of the Murphy Chair Company, there was no way of Mr. Fairgreave getting title.”

The 30-foot strip was also sold for the city taxes, for the year 1903, and was bought in by Wiltsie, and a certificate of tax sale was issued to him. This purchase was not made at the request of James F. Murphy or the Murphy Chair Company. On July 7, 1906, the Murphy Chair Company sent its check to Wiltsie for the amount of the tax and charges and received the certificate of tax sale assigned in blank. On August 21, 1906, this blank certificate, filled in with the name of Arthur D. Stansell, an associate of Orla B. Taylor, counsel for the Murphy Chair Company, and James F. Murphy, was surrendered to the city controller and a tax lease for 99 years was issued to and in the name of Mr. Stansell.

Mr. Stansell testified:

“ The certificate was in blank when I got it. I put it in my own name at your direction. I then had the deed, Exhibit 3, made out in pursuance of that certificate. At the time I received the deed, I did not make any written or oral declaration of trust in anybody’s favor. I have not been directed by any one to transfer it to any one else. If you were to ask me to transfer the property, I would transfer it as requested. I have never been in possession of the land. I don’t think I have ever seen it. * * * I have heard Mr. Murphy’s testimony this moning, that he got the certificate for the tax list for the year 1903, but it was my recollection that I got that directly from Mr. Wiltsie himself by writing him for it. I may be mistaken.”

Neither Mr. James H. Murphy, Mr. Fairgreave, nor Mr. Stansell ever took possession of this strip, but it was used by the Murphy Chair Company as its own.

Mr. Michael J. Murphy testified:

“The title to that property was taken in the name of J ames F. Murphy, trustee, for the purpose of preventing a merger of our rights of easement over that, and a merger to the title of the two pieces of property, so as to protect our rights, whether of easement or as squatters. * * *
“ Q. So that, from the original purchase of that propperty, when the title was taken in the name of James F. Murphy, trustee, you have pursued a consistent practice of keeping the record title of that property in the names of other parties besides the company ?
“A. Yes, sir. I do not think Mr. Stansell has ever taken possession of this land. I would know, am up there every day. Neither the Murphy Chair Company nor James F. Murphy, trustee, has any agreement in writing with Mr. Stansell to convey the property to either one of them. * * * I suppose Mr. Stansell got the tax certificates in which he put his name in the blanks, 1740, from us. Mr. Taylor was attending to our business and we handed it to him to treat in any way that he thought right to protect our interest. I would have to go back to tell you when I first had the idea that it would be possible to cut off the American Radiator Company’s rights by obtaining an adverse title through a tax deed or otherwise. Mr. James F. Murphy bought that 30-foot strip. The purchase was attended to by Mr. Davock, who was acting as our attorney. Some years after that we discovered that the property had been sold for taxes and that it had been purchased by Mr. Wiltsie, and it occurred to me that it was just possible that our right of easement over that property might be lost, so that I purchased the title from Mr. Wiltsie, in order to protect our right of easement, and had the title put in the name of Thomas Fairgreave. At that time I reasoned if it was necessary for me to buy tax titles to protect my own easement, that certainly it would be necessary for everybody else to do the same thing to protect their interests. * * *
“Q. Now this suit was begun by Mr. Stansell for the benefit of the Murphy Chair Company, was it not ?
“A. Yes, sir.
“Q. There is no question about that. Mr. Stansell has no interest whatsoever in this piece of property of any kind, has he, except as your representative ?
“A. He has the title to it. We could not sell it. I do not suppose you would buy it of us.
“Q. He holds the legal title for you, doesn’t he ?
“A. He holds the legal title. If there is no object in protecting any one’s interest, I do not know whether we will ever ask him to return it to us. Since this suit was started, the Murphy Chair Company fenced in a part of this property because we are improving the appearance of things down there and we put out a lot of grass and some shrubs, and we wanted to protect the shrubs from being pulled up. * * *
“Q. You knew in 1902 there was sufficient question about it, that you did not want Wiltsie to have any tax titles against that property, didn’t you?
“A. We wanted to know who owned the tax titles, certainly. We didn’t want them outstanding in anybody we didn’t control in 1902. * * * It wasn’t our property really; that is, I mean legally. We had possession of it for a good many years — used it.
“Q. James F. Murphy simply held the legal title as trustee for the Murphy Chair Company; that is correct?
“A. Yes. The Murphy Chair Company had furnished the money for the purchase of all these tax titles in the name of Fairgreave for 1900, 1901, and 1903. The State and county taxes were paid by Murphy Chair Company money. So far as this particular piece of property is concerned, James F. Murphy, as an individual, never at any time put one dollar into the proposition, either in the way of purchase price or payment of taxes, or anything else. He always owned it as trustee.”

July 7, 1906, President Murphy wrote the following letter:

“Mr. Charles H. Wiltsie,
“ 330 Powers’ Bldg.,
“Rochester, N. Y.
Dear Sir:
“We have received your notice to Thomas Fairgreave, with relation to the thirty (30) feet on Russell street, adjoining the Wabash Railway, for which you request him to send you $33.93 for the assignment of your claim upon this property for the taxes of 1903, under which the property was sold. This property really belongs to the Murphy Chair Company and our desire is to obtain in our own name the ninety-nine-year lease to which we are entitled. We wish you would take this lease from the city and assign the same to us. If there are any additional fees for it then we will pay them to you. Some time ago we obtained from you a similar assignment in the name of Thomas Fairgreave and the property has since stood for assessment purposes in his name. We took an assignment of his title to it also. Thomas Fairgreave is an employé of ours and has been for a great many years, and the transaction has gone on under his name for reasons which, probably, will be apparent to you. We are enclosing check for $33.93 to pay taxes, interest and your charges.
“ Yours very truly,
“Murphy Chair Company.
[Signed] “M. J. Murphy, President.”

George Y. N. Lothrop was the original owner of all of the lands involved.

On November 9, 1907, the bill of complaint was filed in this case to remove the cloud from the title to the 30-foot strip created by the easement of the American Radiator Company, upon the theory that it was wiped out by the sale and 99-year lease from the city to complainant. On June 17, 1908, the defendant filed its answer, basing its defense substantially upon the proposition that complainant acquired no rights from the tax sale, certificate, and lease, that in law he was acting for the legal holder of the title of said premises, James F. Murphy, trustee, or his cestui que trust, and that the acquiring of said tax certificate by the complainant was in fact and in law the payment of taxes by the person or persons legally bound to pay said taxes. On December 18, 1909, upon the completion of the hearing of the case, Judge Murfin dismissed the bill of complaint. The case is here on appeal from this decree.

The issues involved, as stated by counsel for complainant, are:

“(1) Is the position of complainant so independent of that of the other parties in interest that he has a full and complete right of possession of the property, divested of all easements, by reason of his tax lease for 99 years ?
“ (2) If it be conceded that complainant, the Murphy Chair Company, and James F. Murphy, trustee, are in exactly the same interest, are their relations, or the relations of any of them, to the property or to the defendant, such that it was their duty to pay the taxes upon the 30-foot-strip, and that they could not, by acquiring the tax lease, cut off the easement of the defendant for the term of the lease ? ”

It is perfectly apparent, as stated by the president of the Murphy Chair Company in his letter, that “this property really belongs to the Murphy Chair Company;” that this suit is instituted by the nominal complainant “for the benefit of the Murphy Chair Company;” that James F. Murphy holds the property for the Murphy Chair Company and not adversely to it and will turn the property over to it in recognition of his moral obligation whenever requested to do so; that the complainant, if successful in this suit, will convey the property discharged of all easements to the Murphy Chair Company; and that the primary object of these roundabout proceedings is to cut off the easement, for the benefit of the Murphy Chair Company. The statute against resulting trusts, 3 Comp. Laws, § 8835 et seq., was never intended to legalize such proceedings for the benefit of the grantor and in fraud of the rights of others, and we shall treat this suit as the suit of the Murphy Chair Company, and the property as the property of the Murphy Chair Company.

Were the taxes on the 30-foot strip legally assessable against the Murphy Chair Company solely, or should they have been divided and the value of the easements assessed against the holders thereof ?

Section 3825, 1 Comp. Laws, provides:

“For the purpose of taxation, real property shall include all lands within the State, and all buildings and fixtures thereon, and appurtenances thereto, except such as are expressly exempted by law.”

Section 3850 provides:

“The words ‘cash value,’whenever used in this act, shall be held to mean the usual selling price at the place where the property to which the term is applied shall be at the time of assessment, being the price which could be obtained therefor at private sale, and not at forced or auction sale. In determining the value the assessor shall also consider the advantages and disadvantages of location, quality of soil, quantity and value of standing timber, water power and privileges, mines, minerals, quarries or other valuable deposits known to be available therein and their value.”

While the easement under consideration was not absolutely essential to the enjoyment of the dominant estate, one of its termini was' upon that estate, and it was granted to, and to be used and enjoyed by, the defendant, “its successors and assigns,” and the easements were recognized by the parties in their deeds relative thereto as appurtenances “which appertain and belong to the following described piece or parcel of land,” etc. These easements do not fall within any definition of easements in gross. They were granted or reserved by the original owner of all of the lands, or his representatives, through whom all of the parties derive their titles, for the benefit of the lands and not as mere personal privileges. They were intended to be appurtenant and not in gross, and as appurtenances were assessable to the dominant estate, under the statute above quoted. It has never been the custom in this State to assess such interests separate from the dominant estate, and it is more logical to assess them in connection therewith. Winston v. Johnson, 42 Minn. 398 (45 N. W. 958); City of Fall River v. County Com’rs, 125 Mass. 567; City of Detroit v. Railway Co., 76 Mich. 421 (43 N. W. 447); Lever v. Grant, 139 Mich. 273 (102 N. W. 848, 103 N. W. 843); D. M. Goodwillie Co. v. Electric Co., 241 Ill. 42 (89 N. E. 272).

The deed of the defendant to the Murphy Chair Company of May 16, 1901, was as much a binding agreement as to its right to enjoy the easement as though the chair company had executed a deed confirming or granting the right of way to the defendant. Atlantic Dock Co. v. Leavitt, 54 N. Y. 35 (13 Am. Rep. 556); Hagerty v. Lee, 54 N. J. Law, 580 (25 Atl. 319, 20 L. R. A. 631); D. M. Goodwillie Co. v. Electric Co., supra.

The original conveyance of the right of way to defendant was as follows:

<<* * * together with the right to construct and maintain a railroad track across the southerly part of the remainder of said premises and across or along the 30-foot strip mentioned in said contract substantially upon the line of said track as at present constructed, and also the right to use and enjoy the said easement reserved in and by the deed and conveyance to said Huyett above mentioned ; such rights of way and easements, however, to be used and enjoyed by the said third party, its successors and assigns, in common with the owners and occupants of the remainder of the premises described and mentioned in said contract of sale.”

Under the law, it was the sole duty of the chair company to pay the taxes on the servient estate; under its contract confirming the right of defendant to construct and maintain the track and use and enjoy the easement in the future, it owed the duty to the defendant to pay the taxes, and its acquisition of the title through the transfer of the tax-sale certificates to its attorneys was, as to defendant, a mere discharge of its duty, which gave it no new rights as to him. Dubois v. Campau, 24 Mich. 360; Sleight v. Roe, 125 Mich. 585 (85 N. W. 10); Dahlem v. Abbott, 146 Mich. 605 (110 N. W. 4?); Simons v. Rood, 129 Mich. 345 (88 N. W. 879).

The decree of'the circuit court was right and is affirmed, with costs to defendant.

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


author: Brooke, J.

text:
    HOSKING v. CLEVELAND IRON MINING CO.
    1. Master and Servant — Mines and Mining — Negligence.
    While a miner working at blasting and timbering up a portion of the mine that is in process of construction, may not recover for injuries caused by a fall of ore, resulting from an unusual delay in supporting the roof, on the theory that his master owed a duty to furnish a safe place (Petaja v. Mining Co., 106 Mich. 463 [64 N. W. 335, 66 N. W. 951, 32 L. R. A. 435, 58 Am. St. Rep. 505]), he is entitled to such warning and instruction concerning the augmented risk which arises from such a delay, as his inexperience and want of knowledge may, in the exercise of due care, require of the employer.

    2. Same — Trial.
    And defendant is not chargeable with actionable negligence for failing promptly to provide an assistant so that plaintiff might proceed at once to support the earth.

      3. Same.
    No negligence is chargeable to defendant for failing to adopt safe methods of work, and see that they were carried out, so as not to subject plaintiff to hazards that were not within his contract of employment.
    4. Same — Instructing Servant — Personal Injuries.
    Where plaintiff was inexperienced in the kind of work which he was doing, had only worked for defendant about six weeks, and testified that he did not. know the danger of a fall of earth would increase by reason of a delay in timbering the raise, such as occurred before his injury, it was error to direct a verdict for defendant, although plaintiff knew that small quantities of ore were likely to fall at any time.
    5. Same — Assumed Risk — Warning!—Question oe Pact.
    If plaintiff possessed actual knowledge of the increased risk, or if, in the exercise of ordinary prudence, he should have possessed it, he assumed the risk of his injury.
    6. Same.
    The jury should have been instructed to determine, under the testimony: (1) whether or not the delay in timbering increased the danger; (2) whether or not plaintiff knew, or, in the exercise of ordinary prudence, should have known, of the increased danger; (3) whether or not, considering his experience and knowledge, defendant owed him the duty to warn him of the increased danger, if it existed.
    Error to Marquette; Cooper, J.
    Submitted October 18, 1910.
    (Docket No. 65.)
    Decided December 7, 1910.
    Case by Samuel Hosking against the Cleveland Iron Mining Company for personal injuries. A judgment for defendant on verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.
    P. H. O'Brien ( O. F. Button, of counsel), for appellant.

      William P. Belden, for appellee.
    Plaintiff, who had theretofore had no experience in iron mining, went to work for the defendant company on February 27, 1905. He worked as a stemmer or assistant for three weeks in various parts of the mine, after which he was given employment as a regular miner. On April 14, 1905, he was injured through the fall of a large quantity of ore from the roof of a raise which was in process of construction. It appears from the record that a blast had been exploded on the evening of the 13th, in the raise in which plaintiff and his partner were engaged. In the ordinary course the space caused by this blast should have been timbered the first thing on the morning of the 14th. Upon arrival at the mine, however, plaintiff found that his partner had not come. Instead of supplying him with a stemmer to assist him in timbering the raise in contract 34 (his own contract), plaintiff was directed by Samuel Metherell, the shift boss, to go into contract 43 and work with one Emil. At noon he was instructed by the same official to go back to his own contract (34) after dinner, and timber it with Emil’s assistance. Some five or six hours had elapsed between the hour in the morning when, according to,the rules of the defendant company, this work should have been done, and the time when it was actually commenced. When plaintiff and his partner, Emil, arrived at the raise (contract 34), they found the roof squared u$ ready for the timber. It appeared safe. They had erected the uprights and caps, and had nearly completed the placing of the lagging or overhead protecting timbers, when a large quantity of ore fell from' the roof, striking plaintiff and so severely injuring him that one of his legs was amputated a few weeks later.
    Plaintiff alleges that the defendant was negligent in the following particulars:

      “(a) The failure to furnish the plaintiff with a reasonably safe place in which to work.

      “(b) The failure to warn and notify the plaintiff of the fact that the ground would be liable to fall in case the same was not promptly timbered after a blast, and the failure to warn and notify the plaintiff that it would be more dangerous to timber up the ground at a later period than it would have been to have timbered it right away.

      “(c) The failure to furnish the plaintiff with a stemmer, so that he, the said plaintiff, could carry on his contract and proceed to work at his own contract in the morning, so that said raise could have been timbered right away.

      “(d) The failure on the part of the defendant to adopt reasonably safe methods of work, and to see that they were carried out, so as to not subject the plaintiff to hazards that were not within his contract of employment.”
    Upon the trial a verdict was directed in favor of defendant upon the theory that the case was in all respects similar to, and controlled by, Petaja v. Mining Co., 106 Mich. 463 (64 N. W. 335, 66 N. W. 951, 32 L. R. A. 435, 58 Am. St. Rep. 505). Plaintiff has brought the case here by writ of error.

       As to master’s duty to warn or instruct servant, see note to James v. Rapides Lumber Co. (La.), 44 L. R. A. 33.

   Brooke, J.

(after stating the facts). As to plaintiff’s claims of negligence under the heads “a,” “c,” and “d,” we are of opinion that the case falls directly within the principles of the decision in Petaja v. Mining Co., supra. This leaves for consideration only the alleged negligence of defendant set out under “6.”

The record shows that, except between February 27th and April 14th, plaintiff had had no experience as an iron miner. He testified he did not know that, if the roof was allowed to stand several hours longer than usual, there was greater danger of the fall of a large body of ore from the roof, due to continued earth pressure from above. He further testified that he was never warned of this extraordinary danger. There is abundant testimony in the record tending to show that, if the timbering was not done promptly, the danger would be greater by reason of the earth pressure.

The questions involved, therefore, are:

(1) Was the risk or danger greater by reason of the delay in timbering ?
(2) Did the plaintiff understand the additional risk, if there was any, or should he have understood and appreciated it, if exercising ordinary prudence ?
(3) If there was an added danger by reason of the delay, was there a duty on the part of the defendant to warn plaintiff of it ?

Baldwin on Personal Injuries, § 347, lays down the following rule:

“The general rule is that it is the master’s duty to instruct the servant as to the character of risks to be run, which he will not discover by the exercise of ordinary care. Where the danger is not undisclosed, and the servant is a mature man doing ordinary work, he assumes such risks as are obivious, and negligence will not be imputed to the master for an accident therefrom.”

In Ribich v. Smelting Co., 123 Mich. 401 (82 N. W. 279, 48 L. R. A. 649, 81 Am. St. Rep. 215), it was said:

“ Where extraordinary risks are or may be encountered, if known to the master, or should be known by him, the servant should be warned of these, their character and extent, so far as possible” — citing Smith v. Car Works, 60 Mich. 501 (27 N. W. 662, 1 Am. St. Rep. 542).

See, also, Hoffman v. Adams, 106 Mich. 111 (64 N. W. 7); Barr v. Cask Co., 129 Mich. 278 (88 N. W. 640); La Barre v. Railway Co., 133 Mich. 192 (94 N. W. 735); Getter v. Manufacturing Co., 136 Mich. 330 (99 N. W. 281); Brockmiller v. Industrial Works, 148 Mich. 642 (112 N. W. 688); Lehto v. Mining Co., 152 Mich. 412 (116 N. W. 405).

It is strenuously urged on behalf of the defendant that the examination of the plaintiff himself shows that he was fully aware of the danger of injury from falling ore, and that to have given the warning, which plaintiff complains he did not receive, would have conveyed no information to plaintiff which he.did not already possess; i. e., that ore from the roof of the raise was liable to fall at any time. There can be no doubt that plaintiff knew that ore, in small quantities, was liable to drop at any time, and it may be true that he knew, or should have learned from his experience and the character of the ore in which he was working, that a delay of six hours would be likely, or at any rate liable, to cause a large mass to become dislodged. The knowledge of this danger, if he possessed it, or if, in the exercise of ordinary prudence, he should have possessed it, would prevent plaintiff’s recovery, even if it should be determined that defendant owed him the duty of warning.

Under all the circumstances disclosed by this record, we think the jury should have been instructed to determine:

(1) Whether or not the delay in timbering increased the danger.
(2) Whether or not plaintiff knew, or in the exercise of ordinary prudence should have known, of the increased danger.
(3) Taking into consideration plaintiff’s experience and the knowledge he had gained of the character of the ore in which he was working, did defendant owe him the duty of warning him of the increased danger, if such existed ?

The judgment is reversed, and a new trial ordered.

IIooxer, Moore, McAlvat, and Blair, JJ., concurred.


text:
    PAUL v. BENZIE CIRCUIT JUDGE.
    Criminal Law — Mandamus—Former Jeopardy.
    Mandamus will not issue to compel a circuit judge to vacate an order discharging a respondent accused of violating the local-option law, [where it appeared that respondent stood mute, a plea of not guilty was entered, a jury selected and sworn, and the testimony for the people had been partly introduced, after which respondent was discharged on the ground that prohibition was not duly adopted in Benzie county; since he had been placed in jeopardy for the offense with which he was charged.

      Mandamus by Marion G. Paul, prosecuting attorney of Benzie county, to compel Fred. S. Lamb, circuit judge, to set aside an order discharging respondent in a criminal case, and to proceed with his trial.
    Submitted October 17, 1910.
    (Calendar No. 24,268.)
    Writ denied December 7, 1910.

      M. Q. Paul, in pro. per.

      D. Gf. F. Warner, for respondent.
   Brooke, J.

This is an application for a writ of mandamus commanding respondent to vacate an order made by him in a certain criminal case then pending in the circuit court for the county of Benzie; said case being entitled the People v. Chandler Rowe. It appears that Rowe was on trial, charged with the offense of unlawfully selling intoxicating liquor in Benzie county; it being claimed by the prosecution that such sale was prohibited by virtue of an election held, and a resolution passed by the board of supervisors, in the spring of 1909. After the prosecution had offered in evidence the record of the proceedings of the board of supervisors touching the adoption of prohibition in said county, counsel for Rowe moved that he be discharged. This motion was granted, and respondent was discharged.

It is the contention of relator that by a writ of mandamus the respondent should be ordered to set aside and vacate his order of discharge, and proceed with the trial. We are of the opinion that this cannot be done. Rowe was upon trial under a plea of “not guilty.” After a jury was sworn and the testimony of the people introduced, his discharge was ordered by the court. He cannot again be placed in jeopardy.

The writ is denied.

Bird, O. J., and Ostrander, Blair, and Stone, JJ., concurred.


author: Stone, J.

text:
    OSBORNE v. READING CENTRAL TELEPHONE CO.
    Telegraphs and Telephones — Duty to Render Service — Statutes.
    Plaintiff was a stockholder of a local telephone company which had a contract with defendant to render to its subscribers telephone service with independent telephone systems in the county. Plaintiff’s brother was a member of an unincorporated independent association, in the same county, which had entered into a contract with defendant to connect its lines with the switch board of defendant. Under the agreement the independent association contracted to pay all transfer charges and messenger fees incurred by its members, and an annual fee, to the defendant; amounts so incurred to be a charge upon the individual member of the association who incurred the charge. Although defendant’s contract with plaintiff’s company provided that service might be refused to delinquent subscribers, no such provision appeared in the contract with the independent association. Defendant, on numerous occasions, refused plaintiff connections with the telephone of his brother, a member of the voluntary association, alleging as a reason for its refusal, that the brother was in arrears for certain charges. Plaintiff brought assumpsit to recover the penalties imposed under 2 Comp. Laws, § 5270, for refusing to render the service. Held, that, under the contract of the voluntary association, of which the delinquent was a member, the association was primarily liable for the fees, and defendant was bound to furnish connection with his telephone at plaintiff’s request.
    Error to Hillsdale; Chester, J.
    Submitted October 2i, 1910.
    (Docket No. 6.)
    Decided December 7, 1910.
    Assumpsit by Byron S. Osborne and the people of the State of Michigan against the Reading Central Telephone Company to recover a statutory penalty. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.

      Paul W. Chase, Prosecuting Attorney, and Spencer D. Bishopp (F. A. Lyon, of counsel), for appellants.

      Frankhauser & Cornell, for appellee.
   Stone, J.

An action of assumpsit was brought in the circuit court for the county of Hillsdale to recover the statutory penalty provided by section 5370, 3 Comp. Laws, being Act No. 73 of the Public Acts of 1883, entitled “An act relating to telephone companies, and to regulate the use and rental of telephones in this State.” Said statute, so far as applicable to this case, reads as follows:

“It shall be the duty of every telephone company, or person, firm, or corporation, engaged in the business of leasing telephones to the public, or supplying the public with telephones and telephonic service, or operating a telephone exchange, to receive and transmit without discrimination messages from and for any other company, person or persons, upon payment or tender of the usual or customary charges therefor, and upon payment or tender of the usual or customary charges, or usual or customary rental sum * * * to furnish without unreasonable delay; without discrimination, and without any further or additional charge * * * a telephone or telephones, with all the proper or necessary wires and fixtures, and the use of such telephones, wires and fixtures, as well as connection with the central office or telephone exchange, if desired, and shall connect the telephone of such person, firm, or corporation with the telephone of any other person, firm, or corporation having connection with the same, or a connecting exchange or central office, whenever requested so to do. * * * Every company, person, firm, or corporation neglecting or refusing to comply with any of the provisions of this act, shall forfeit all right to transact a telephone business in this State, and may be enjoined therefrom, and from leasing telephones to the public, from supplying the public telephones and telephonic service, and from operating a telephone exchange * * * by any person, firm, or corporation injured, interested or denied any of the rights herein given, or * * * shall forfeit not less than twenty-five dollars, nor more than one hundred dollars, for each and every day such neglect or refusal shall continue, one-half to the person * * * prosecuting therefor.”

It appeared upon the trial that the defendant was organized January 19, 1904, under Act No. 129 of the Public Acts of 1883, entitled “An act for the organization of telephone and messenger service companies,” being chapter 177 of the Compiled Laws, and acts amendatory thereto. Acts Nos. 16, 93, Pub. Acts 1899. Its principal office is located in the village of Reading, in said county, where it has, in connection with its other business and equipment, a switchboard, which is used not only for its business, but as well for other companies having contract relations with it, as will hereafter appear. The Reading Telephone Company, of which the plaintiff, Byron S. Ofiborne, is a stockholder and subscriber, is also a corpora tion organized under the same act as the defendant, and was incorporated on April 18, 1903, and was reorganized and reincorporated on April 12, 1904. The Central Cambria Telephone Company is a voluntary, unincorporated association composed of 12 or more members, including one Wellington D. Osborne.

On June 1, 1905, the Reading Telephone Company entered into a written contract with the defendant. The object of said contract was therein stated as follows:

“The object of this contract is to encourage'and build up a united, permanent telephone system in the vicinity of Reading, Mich., and to encourage free, independent exchange service through the county of Hillsdale among subscribers to independent systems; to the end that each party hereto may be protected and encouraged to build in its respective fields, without fear of encroachment, and each be protected from its absorption by antagonistic companies; and this object shall be maintained in letter and spirit, and a breach hereof shall constitute a forfeiture of all rights hereunder.”

It was provided in said contract that the defendant was to do the switching for the said Reading Telephone company, at its switchboard in the village of Reading. The ninth clause of said contract was as follows:

“First party (the Reading Telephone Company) agrees to pay second party (the defendant) in consideration of the agreements of second party, and the services herein set forth to be performed, a switch fee of three ($3.00) dollars per annum for each telephone connected with first party’s lines, payable quarterly in advance. First party also agrees to pay second party as they occur all messenger fees, and also transfer charges and tolls, and other charges incurred on account of any subscriber to first party; such, charges and the switchboard fee above specified to be a charge against the individual subscriber of first party in whose interest they occur. All charges to be payable at the company’s office in the village of Reading. In case any subscriber shall refuse, or for the space of fifteen days neglect to pay to second party when due charges or fees as above, second party may, at its option, refuse further service until all arrearages are paid, and such subscribers shall not be entitled to any rebate on account of service having been denied pending payment.”

Under and by virtue of the said contract the defendant had done the switching for the Reading Telephone Company from the date of the contract to the time of the trial of the case. In January, 1904, said voluntary association, known as the Central Cambria Telephone Company, entered into a contract with the defendant for the construction of rural lines by said Central Cambria Telephone Company, and the connection of its lines with the switchboard of the defendant in the village of Reading. This contract provided, among other things, that the Central Cambria Telephone Company was to have the right to string a line of wire on the trunk line poles of the defendant, which extend from the village of Reading to the city of Hillsdale; this privilege to extend to three miles of such line, namely, from the Petrie schoolhouse in Cambria, so called, to the corners below Burch’s residence, near Reading, upon certain conditions relating to the setting of poles. Said contract contained the following language:

“First party (the defendant) to do the cross-arming and assist in bracing the line, and to give second party (Central Cambria Telephone Company) free use of its exchange in the village of Reading, and of its trunk line from Reading to Hillsdale, also such other free privileges as are accorded other lines connected with its switchboard in the village of Reading, upon the payment of a switchboard charge of $3.00 per annum for each telephone on second party’s lines; said $3.00 per annum to be paid quarterly on or before the middle of each quarter. It is further agreed by second party that no telephone shall be attached to its line except such instruments as are approved by first party. First party also agrees, in consideration of the agreements of second party, and of the payments herein specified, to keep the poles and lines in repair, including line of second party on said trunk line poles, free of charge to second party for a period of ten years, during which time second party’s line is to be connected with first party’s switchboard in the village of Reading; first party meeting the wires of second party at the corner one mile east of the center of the village of Reading. It being understood that no telephones shall be attached to second party’s line, not approved by it, and no telephones shall be attached to second party’s line within the village of Reading, except through first party’s switchboard. Second party agrees to pay first party, as they occur, all transfer charges and messenger fees incurred on account of any member of second party. Such charges and switchboard fee of $3.00 per annum above specified to be a charge upon the individual member of the second party in whose interest they occur.”

Business had been carried on under this contract down to the time of the trial.

It appeared that Wellington D. Osborne, one of the members of the Central Cambria Telephone Company, is a brother of the plaintiff, Byron S. Osborne, and lived about two miles from the residence of said plaintiff, and on the line of said Central Cambria Telephone Company. During the time complained of in the pleadings, it became necessary for said plaintiff to use the telephone in communicating with his brother, Wellington D. Osborne, on account of sickness in the latter’s family. On July 29, 1907, and on several subsequent occasions, said plaintiff attempted to get telephone communication with Wellington D. through the switchboard of the defendant, in the village of Reading, and was by defendant refused. The reason given was that Wellington D. had not paid his switch fees. This, however, was denied by said plaintiff, as he claimed he had paid said fees for his brother, Wellington B,, and that no more switch fees were due until August 15, 1907. This claim the court found to be true. Upon the trial, however, it appeared, for the first time, that there was a small amount of toll service unpaid for long distance service rendered to Wellington D. It also appeared that, during the time the defendant was refusing to give said plaintiff connection with the telephone of Wellington D., at least three other persons were permitted, by defendant, to telephone to said Wellington D. through the switchboard of the defendant, and it was the claim of the plaintiffs that this conduct of the defendant amounted to a discrimination within the meaning of the statute. Upon the trial the following general rule of defendant was received in evidence, under the heading “Long Distance or Trunk Line Service

“Toll line service will be charged to the subscriber from whose instrument the toll message is sent. If not willing to guarantee charges, do not allow others to use your ’phone.”

It appeared that Wellington D. Osborne had seen a copy of said rule. At the close of the testimony, the counsel for defendant moved for the direction of a verdict for the defendant upon the ground that at the time the defendant shut off the said plaintiff from talking with his brother, Wellington D., the latter owed the defendant for toll service. This motion was granted. In directing the jury to find a verdict for the defendant, the court found that Wellington D. was not in default in his payment of the switch fees at the time of the refusal to said Byron S. Osborne; but the court based its ruling solely upon the ground that .at that time there was a small amount of long distance service that was unpaid, and which Wellington D. owed defendant. The plaintiffs have brought error, and the only questions urged are whether the court erred in directing a verdict and judgment for the defendant, and in not submitting the case to the jury.

Counsel agree that there is really but one question to be considered, and that is whether the nonpayment of the small amount due defendant for long distance service justified it in refusing to give Byron S. Osborne connection with the telephone of Wellington D. Osborne.

It should be borne in mind that the plaintiff, Byron S. Osborne, was in no wise in default; and this brings us to note the difference between the two contracts. The contract with the Reading Telephone Company, of which Byron S. Osborne was a stockholder and subscriber, contained an express provision that in case any subscriber should refuse, or for the space of 15 days should neglect, to pay the defendant, when due, charges or fees, the defendant might at its option refuse further service. There is no such provision, either in form or substance, in the contract with the Central Cambria Telephone Company, of which Wellington D. Osborne was a member. He and the other associates are not even called “ subscribers,” but “ members.” They were members of the voluntary association. In our opinion this difference was not a mere accident. The relation .betwéen the association and defendant was created by the special contract above set forth, and we do not think that the general rules of the defendant applied either to such association or to its members.

In the contract between the association and the defendant it was expressly provided that:

“Second party (the Central Cambria Telephone Company) agrees to pay first party (defendant), as they occur, all transfer charges and messenger fees incurred on account of any member of second party.”

In our opinion, the primary obligation to pay is'on the Central Cambria Telephone Company, and not upon its members, and the defendant should, under the terms of the contract, look to the association for its pay; and it cannot invoke its general rules, applicable to subscribers, in this case. If it could do so, it would have an equal right to shut off every member of the association, for the debt, default, or obligation of the Central Cambria Telephone Company.

The debt or default here complained of was, under the contract, primarily the debt or default of such association, and not of its members. True, it might in the end be charged by the association to the individual member thereof ; but this did not change the right or duty of the defendant.

We are of opinion, therefore, that the circuit court erred in directing a verdict for the defendant. Upon the retrial of this case it may become a question for the jury whether there was a deliberate and wilful violation of the statute on the part of the defendant. For the error pointed out, the judgment of the court below is reversed, and a new trial granted.

Bird, C. J., and Ostrander, Hooker, and Moore, JJ., concurred.


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    PEOPLE v. McDONALD.
    1. Burglary — Identity of Property — Possession.
    In a prosecution for burglarizing an office, from which some caps, dynamite and fuse were stolen, testimony that the property was found concealed a couple of feet from where the respondents were arrested, two days after the crime, warranted the submission to the jury of the question whether or not respondents were in possession of it.
    2. Same — Evidence of Identity.
    While the prosecution failed to identify positively the articles found on respondents, with, the stolen property, there was sufficient evidence to support the finding of the jury, where the stolen property was of the same kind and character as the respondents had, and was found on the morning of the second day following the crime.
    3. Same — Larceny—Possession oe Stolen Goods.
    The possession of the stolen property, standing alone, is not even prima facie evidence that the person in whose possession it was found, committed the burglary, and although such proof unexplained is prima facie evidence of larceny, it will not sustain a conviction for burglary, unaccompanied by testimony of other facts and circumstances indicating the guilt of respondents.

    Error to Jackson; Parkinson, J.
    Submitted October 21, 1910.
    (Docket No. 143.)
    Decided December 7, 1910.
    Benjamin McDonald and John Mason were convicted of the statutory offense of breaking and entering in the nighttime, an office not adjoining to or occupied with a dwelling house, with intent to commit larceny, and were sentenced to hard labor for a minimum period of seven years.
    Reversed.

      James J. Noon, for appellants.

      Albert 0. Beece, Prosecuting Attorney, and Frank L. Blackman, Assistant Prosecuting Attorney, for the people.

       As to presumption of burglary from possession of recently stolen property, see note to State v. Brady (Iowa), 12 L. R. A. (N. S.) 199.

   Brooke, J.

Respondents were convicted of breaking and entering an office in the nighttime, with intent to commit the crime of larceny. The material facts are as follows: The American Sewer Pipe Company maintains a small structure at its clay pit, about four miles outside the city of Jackson. This building was closed and locked at 4:30 o’clock on the afternoon of Friday, October 1, 1909. At 6 o’clock on the following morning, it was found to have been broken open. A small quantity of dynamite, some caps, and fuse were missed. On Sunday morning respondents were arrested upon the Michigan Central track in or near Jackson. After they were lodged in jail, the officers returned to the spot where the arrest was made and discovered, in that immediate vicinity, under some weeds, a parcel containing dynamite, fuse, and caps, and a revolver with a black mask tied around it. Cartridges corresponding in caliber to those in the revolver were found upon the person of respondent McDonald. While the dynamite, caps, and fuse, being common articles of commerce, were not positively identified as the property of the sewer pipe company, it was shown that they were in all respects similar to the property taken. About a month later, another parcel with like contents was found along the railway tracks, at a point some distance away from the place where the first parcel was discovered. The information contained two counts; one charging burglary, and the other larceny from an office in the daytime. After the proofs were closed, the prosecuting attorney dismissed the latter count, and the court, over objection, submitted the case to the jury upon the burglary charge alone.

Respondents denied possession of the property. While it is true, as urged by respondents, that none of it was found upon their persons when they were apprehended, yet it was found concealed at a point so close to where they were when arrested (less than two feet) and so near in point of time to the commission of the crime, we are of opinion that the question of whether or not respondents, at the moment of their arrest, were in the actual possession of the stolen property, was a question for the jury. Upon this question the court instructed the jury at length and properly.

The failure of the prosecution to positively identify any of the articles taken as the property of the American Sewer Pipe Company was made the ground of a motion for a direction of a verdict of “not guilty.” This motion was overruled. The evidence as to identity was heard by the jury, who evidently determined that, while not positive, it was sufficiently persuasive to warrant them in finding, beyond a reasonable doubt, that the property discovered by the officers on Sunday morning was the same property which had been stolen from the building of the American Sewer Pipe Company on Friday night. Assuming the possession to have been proven to the satisfaction of the jury, and such possession not being explained by respondents as innocent, we think the testimony as to identity sufficient to support the determination of the jury.

But assuming the identity of the property with that stolen, and further assuming that it was actually in possession of respondents at the time of their arrest, we think they could not properly be convicted of burglarly. This court is committed to the doctrine that the possession of stolen property, standing alone, is not even prima facie evidence that the person in whose possession it was found committed the burglary. People v. Gordon, 40 Mich. 716; Stuart v. People, 42 Mich. 255 (3 N. W. 863). Beyond the mere fact of possession (if that be shown), there is absolutely nothing in this record connecting the respondents with the commission of the crime. In this the case is clearly distinguishable from the case of People v. Wood, 99 Mich. 620 (58 N. W. 638), upon which the learned circuit judge evidently relied. There, the respondent was seen with his two companions going in the direction of the scene of the burglary, in a conveyance which, by reason of certain peculiarities, was readily traced from the place burglarized to the home of one of respondent’s companions. Here, there is not a scintilla of evidence that either of the respondents were ever even in the vicinity of the clay pit where the crime was committed. The unexplained possession of property recently stolen is prima facie evidence of larceny (People v. Carroll, 54 Mich. 334 [20 N. W. 66]), but, unaccompanied by other facts or circumstances indicating guilt, will not sustain a conviction for burglary.

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

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


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      In re HOWARD’S ESTATE. LINTON v. HOWARD.
    1. Witnesses — Statutes — Transactions Equally Within Knowledge of Deceased.
    Where claimant filed an account as trustee of her father’s estate, under the terms of a will giving her the use of his real and personal property during the lifetime of his widow, conditioned upon claimant’s supporting and caring for her during her lifetime, the testimony of claimant relating to matters occurring after testator’s death, but within the knowledge of the deceased widow, was admissible.
    3. Estates of Decedents — Accounting—Trusts—Questions for Jury.
    It was proper to submit to the jury, questions of fact raised by evidence in support of claimant’s claim against the estate, as trustee, for expenditures and care in executing the trust, created by testator’s will, which conferred upon the claimant authority to sell property if necessary to carry out its provisions.
    3. Same — Trusts.
    The use or usufruct of a thing does not mean the thing itself, but means that the user is to enjoy, hold, occupy and have the fruit thereof. If the thing to be used is in the form of real estate, the use is its occupancy or cultivation or the rent obtainable for it; if it is money or an equivalent, generally speaking, it is the interest which it will earn.

      4. Same — Construction op Wills.
    Whether or not the trustee had power to sell real estate, where it is undisputed that she did not sell it or attempt to do so, but necessarily incurred expense in excess of the income from the estate in her possession, she was entitled to recover, in any event, the amount which the jury might find she had so expended.
    5. Same — Trusts—Trial.
    The claim of the trustee, presented in probate court against such estate, is properly treated, on appeal to the circuit court, as an action at law, instead of being treated as a settlement of a trustee’s account, on the equity side of the court. 1 Comp. Laws, § 673, Act No. 253, Pub. Acts 1899.
    Error to Calhoun; North, J.
    Submitted October 25, 1910.
    ( Docket No. 103.)
    Decided December 7, 1910.
    Carrie Linton presented a claim in probate court for the county of Calhoun, for the support and maintenance of the widow of John W. Howard, under trust provisions of his last will. Eugene Howard appealed from the allowance of the claimant’s account and claim to the circuit court. Judgment for claimant; contestant brings error.
    Affirmed.

      Jesse M. Hatch, for appellant.

      M. H. Nichols, for appellee.
   Stone, J.

This claim originated in the probate court of Calhoun county, where the claimant, Carrie Linton, as trustee of the estate of John W. Howard, deceased, filed a claim for the support and maintenance of her mother, Sarah Howard. The claim having been allowed in the probate court, an appeal was taken by Eugene Howard, one of the heirs and legatees under his father’s will, to the circuit court of said county, where the case was tried by a jury and resulted in the recovery by the claimant of the sum of $540.15. The alleged claim is founded upon the provisions of the will of John W. Howard, deceased, who died on the 29th day of January, 1896, leaving a last will and testament, which was duly admitted to probate on the 16th day of March, 1896.

The provisions of said will pertinent to this issue are as follows: After providing for the payment of his just debts, last sickness, and funeral expenses, the will proceeds :

“ (2) After which I give and bequeath to each of my ten children, the sum of $50 to be payable as soon as may be after my death, their names being as follows: Martha Launstein of Chesaning, Michigan, George Howard, Concord, Kansas, Harry Howard, Homer, Michigan, Eugene Howard, Washeugle, Washington, Louisa Launstein, Kane, Pa., Jennie C. Loomis, N. Y., Willard Howard, Falkton, Dakota, Carrie Linton, Paw Paw, Michigan, Ella Anderson, Falkton, Dakota, Frank Howard, Falkton, Dakota, but said bequest to my said daughter, Carrie Linton, is to be paid by the delivery to her of the kitchen range or cook stove, now in use in my house, but in case such range or cook stove is not owned by me, at the -date of my death, then $50 shall be paid to said Carrie Linton in lieu thereof.
“ (3) I hereby give and bequeath to my said daughter, Carrie Linton, the use of my real and personal estate, during the lifetime of my wife, Sarah Howard, conditioned upon her caring for, providing a home and supporting in a reasonable manner, paying her last sickness and funeral expenses, according to her condition in life, my said wife, Sarah Howard; and in carrying out said trust (supporting my said wife as aforesaid) said Carrie Linton is authorized and shall have power to use any real and personal property, out of my estate, as shall be found necessary to properly and adequately carry out and perform said trust.
(4) To my said wife I give and bequeath the benefits that are to accrue by the performance of said trust by my daughter, Carrie Linton, and it is my intention that any sum derived from the income and use of my estate, over and above what shall be necessary to carry out said trust, during the lifetime of my said wife, shall be and remain the sole property of said Carrie Linton.
“(5) All the rest, residue and remainder of my estate, after the payment of said legacies, and the performance of the conditions of said trust, for the care of my said wife, it is my will, and I hereby, as td any residue or remainder that shall then remain in my estate, give, devise, and bequeath the same to my said ten children above mentioned, share and share alike as near as may be, or as nearly as the property can be divided.”

After the death of her father, the claimant, as trustee under the will, took possession of the real estate, consisting of one farm of 80 acres inventoried at $1,300, and all of the personal estate left by the testator, which latter was of little value, and proceeded to care for and maintain her mother, in accordance with the provisions of the will, down to the death of the mother, which occurred on the 19th day of October, 1908. For nearly 13 years the claimant cared for and supported her mother in a suitable manner, and paid the taxes on the farm. During the last years of her life the mother was in poor health, requiring much care and considerable medical aid. After the death of the mother, the administrator of the estate, who had not been discharged, made application to the probate court for leave to sell the real estate, for distribution. After the sale had been ordered and made, and after the administrator had asked to have his account allowed, this claim was filed. It is made up of items of expenditures, and the alleged cost or value of the care and nursing of the mother of claimant on the one hand, and the value of the use of the farm on the other hand. Upon the question of fact the controversy was as to the value of the use of the farm during the years claimant had it in possession; and there seemed to be little or no question as to the expenditures for doctor’s bills and other charges.

Upon the trial it was the contention of the appellant, that from the whole will it was clear that the testator intended to give only the use of the estate to the claimant in trust, conditioned upon the care and support of his widow, and that that construction should be placed upon the will, which, if possible, would give force and effect to. every clause therein; and that the words, “the use of,” and, “to use,” should be given their ordinary meaning. It was further contended that the claimant never intended to make any charges for the support of her mother, and that she was to be recompensed by the use of the real estate and the personal property which she appropriated. At the close of the testimony of the claimant, the appellant moved the court for a directed verdict against the claimant for the reasons above stated, among others. This was refused, and, after offering certain evidence as to the value of the use of the farm, the case was submitted to the jury, by the circuit judge, and the following excerpt from the charge will clearly show the views of the circuit judge as to the proper construction of this will:

“ I charge you, as a matter of law, gentlemen, that the intention of the testator, as drawn from the will itself, was, that his widow should be cared for in a reasonable manner; that, so far as it was sufficient, the income of the estate which the testator left should be used to do for his widow, what he himself if living would have done in the way of giving her reasonable care, support, and maintenance. The duty of this disposition of the said property is devolved by the will upon Carrie Linton, one of the testator’s daughters, and the claimant here in this case, who, as you already understand from that portion of the will, was designated as trustee to carry out this trust created by Mr. Howard, and under the legal construction that must be given to this instrument, the will also gave Carrie Linton not only the right to use so much of the estate as was necessary to properly care for her mother, but it enjoined upon her, as a duty, to carry out the trust in properly and adequately caring for and supporting her mother, even to the extent of using the body of the estate, or, if necessary, even to the extent of the whole of the estate as contradistinguished from using only the income derived from the estate left by Mr. Howard; and the trustee, Mrs. Linton, was not bound to keep within the income if the same was insufficient for the purpose of carrying out the trust provided for in the will in a proper manner. If Carrie Linton, the trustee, properly and adequately carried out the trust imposed upon her by the will of her father, in caring for and supporting her mother during her mother’s lifetime, and in doing so it became necessary for Mrs. Linton to perform extra services and expend more money than the income from the farm and the personal property, which the evidence shows she received, then Mrs. Linton is entitled to be reimbursed for all the money she expended in so caring for her mother, and for all the extra time and care which she gave, or which was necessary in order to give her mother the proper care which she did give her, in so far as you find the same shown by the evidence; and also she is entitled to be reimbursed for such amounts as were paid for doctors’ bills, for nursing, if any, and the expenses of sickness and funeral expenses over and above the net income from the farm and the personal property which she admits having received from the hands of the administrator of her father’s estate, as all of these items to which I have called your attention would be valid claims against the estate of John Howard, under the terms of the will from which I have just quoted.”

The appellant brings the case here upon writ of error and assigns error:

(1) That the court erred in permitting claimant to testify to matters equally within the knowledge of John W. Howard and Sarah Howard, both being deceased.
(2) Because the court erred in not directing a verdict for appellant on the motion made by his attorney at the close of claimant’s proofs.
(3) That the court erred in construing the will of John W. Howard, deceased, and in holding that said will gave to claimant as trustee more than the use of the real estate.
(4) The court erred in construing the will of John W. Howard, deceased, and in holding that it passed the whole of the real estate to the claimant, if the same was necessary, to properly support her mother.
(5) Alleged error in treating the case as a suit at law, and in submitting the same to the jury.

Referring to the first assignment of error, it must be held that an examination of the record fails to disclose any testimony of claimant, relating to matters that were equally within the knowledge of John W. Howard, the testator. Her testimony relates solely to’ matters arising after his death. We do not think that the statute applies to matters equally within the knowledge of the deceased mother, Sarah Howard.

We are of the opinion that there were questions of fact for the jury to consider, and that the circuit judge did not err in refusing to take the case from them.

The third and fourth assignments of error may be considered together. Undoubtedly the general rule is that the use, or usufruct of a thing, does not mean the thing itself, but means that the user is to enjoy, hold, occupy, and have the fruit thereof. If the thing to be used is in the form or shape of real estate, the use thereof is its occupancy, or cultivation, etc., or the rent which can be obtained for the same. If it is money or its equivalent, generally speaking, it is the interest which it will earn. 29 Am. & Eng. Enc. Law (2d Ed.), p. 444. The term “use of” has, in some cases in this court, been held to be ambiguous. Proctor v. Robinson, 35 Mich. 284; Patterson v. Stewart, 38 Mich. 402.

In any view of this case, it is not necessary to decide whether the claimant had the power under the will to sell the real estate, in any event. The fact is undisputed that she did not sell it, or attempt to sell it. She cared for it, and paid the taxes assessed thereon, and saved it to the estate. The primary object of the testator, in so far as Sarah Howard was concerned, was, that she should have reasonable care and support, in sickness and in health, “according to her condition in life.” This care and support was committed to the claimant, who was authorized to use the property belonging to the estate for that purpose, “ as shall be found necessary to properly and adequately carry out and perform said trust.” The proper care and support of his widow, and not the creating of a life estate, seems to have been the purpose of the testator. If in carrying out this object and purpose the claimant found it necessary to incur more expense, and pay out more money than she received from the reasonable use and income of the property placed in her possession, then it would seem just that she should be reimbursed out of the said estate to the extent of such excess. That seems to be just what the claimant is seeking here to do, and with that end in view, she has filed this claim against the estate as a creditor thereof.

So it appears to us that, in any'view of the case, the circuit judge did not err in submitting the question of claimant’s right to recover, and the amount of such recovery to the jury, whether he correctly construed the will or not. If he did not, it was error without prejudice, if they found, as they must have found, that she necessarily expended, and became liable for, “ more money than the income from the farm, and the personal property which the evidence shows she received” were worth. We find no reversible error here.

Did the court err in treating the case as a suit at law, and in submitting it to a jury? Appellant’s counsel contends that trusts belong to the jurisdiction of equity, and that this was the settlement of a trustee’s account. We do not think that the case presented the ordinary settlement of a trustee’s account, or that the cases cited by counsel relating to the ordinary settlement of a guardian’s account for services, as such, apply here. It is a claim filed in the probate court against the estate for the support of the widow of the deceased; the estate having been by the will charged with her support. It presented the usual questions of fact, which were properly submitted to a jury. Mower’s Appeal, 48 Mich. 441 (12 N. W. 646). The issue was whether or not the claimant had expended more than the income of the farm, which was turned over to her under the terms of the will, in the care of her mother, and, if so, how much. The issue was made on the account filed in the probate court, and, on the trial of the appeal in the circuit court, the claimant was entitled to a trial by jury. Section 673, 1 Comp. Laws, and cases cited in note to section; Grovier v. Hall, 23 Mich. 7.

Even if the case be treated as falling within the provisions of Act No. 253 of the Public Acts of 1899, relating to testamentary trusts, the right to settle the account in the probate court remains, and.section 42 of the act expressly provides for an appeal, in the following language:

“The decree of the probate court upon the settlement of the account of any testamentary trustee, as herein provided, or any other order or decree of the probate court, made pursuant to any provision of this act, may be appealed from in the manner provided by law for appeals from other orders, sentences, decrees, or denials of a judge of probate, and the like proceedings shall be had upon such appeal,” etc.

See Cole v. Cole’s Estate, 125 Mich. 655 (85 N. W. 113).

The judgment of the circuit court is affirmed.

Bird, C. J., and Ostrander, Hooker, and Moore, JJ., concurred.