text:
    BURNS v. MICHIGAN PAINT CO.
    1. Master and Servant — Personal Injuries — Independent Contractors — Injuries to Third Persons — Liability.
    Where a licensed expressman agreed for a certain sum per week to do defendant’s delivering, furnishing his own horse and wagon, and while doing so attached defendant’s sign to his wagon, but was not obliged to do the work in person, and was free to do similar work for others, defendant was not liable for injuries to plaintiff caused by his negligence while delivering for defendant.

    2. Same — Relationship—Burden op Proof.
    In an action against a master for damages arising from injuries inflicted by his servant, the burden is upon plaintiff to prove the existence of the relationship between defendant and his alleged servant.
    Error to Wayne; Donovan, J.
    Submitted April 13, 1908.
    (Docket No. 38.)
    Decided May 1, 1908.
    Case by Catherine Burns against the Michigan Paint Company for personal, injuries. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Lodge & Brown (Joseph M. Weiss, of counsel), for appellant.

      Clarence P. Milligan, for appellee.
    Plaintiff while driving on the streets of the city of Detroit was run into and injured by an express wagon driven by one William Boyseau. Boyseau was a licensed ex-pressman. He owned the horse and wagon which he was driving. He was delivering goods for the Michigan Paint Company, the defendant. His wagon had attached to it a sign bearing these words, “The Paint Shop, 32 Cadillac Square, phone Main 1043.” This was the name which designated defendant’s shop. Boyseau stated to a policeman immediately after the plaintiff was injured that he was working for defendant. Both Boyseau and defendant’s manager testified that the arrangement whereby Boyseau delivered defendant’s goods was this: Boyseau was to deliver these goods for $15 a week. He was to furnish the horse and wagon. He was not bound to do the work himself. He was at liberty to do it himself or by employes selected by him. He determined the route that he was to take. He exercised this liberty. Sometimes he himself delivered the goods. Sometimes they were delivered by drivers selected by him. He was free to do and did similar work for others. When he was working for defendant he put on his wagon the sign heretofore described, which defendant had furnished him.' Plaintiff brought this suit to recover damages. At the conclusion of the trial the question arose whether the foregoing facts and testimony afforded evidence that Boyseau was defendant’s servant. The trial court decided that they did. He submitted that question to the jury, who found a verdict in plaintiff’s favor.

       As to what persons are independent contractors within meaning of rule relieving employer from liability, see note to Richmond v. Sitterding (Va.), 65 L. R. A. 445.

   Carpenter, J.

(after stating the facts). If the facts were as testified to by Boyseau and defendant’s manager, Boyseau was not the servant of defendant, but was an independent contractor, for whose negligence defendant was not responsible. De Forrest v. Wright, 2 Mich. 368; Riedel v. Moran, Fitzsimons Co., 103 Mich. 262; Wright v. Manufacturing Co., 124 Mich. 91 (50 L. R. A. 495); Lenderink v. Village of Rockford, 135 Mich. 531; Joslin v. Grand Rapids Ice Co., 50 Mich. 516.

We are of the opinion that a verdict should have been directed in defendant’s favor upon the ground that there was no evidence from which the jury could infer that Boyseau was defendant’s servant. The burden rested upon plaintiff to prove the existence oí the relationship of master and servant between defendant and Boyseau. The only evidence offered by her tending to prove that fact was the sign on Boyseau’s wagon and his declaration that he was working for the defendant. In the absence of any explanation, this circumstance and this statement might have warranted the inference that the relation of master and servant existed. That circumstance and statement are, however, entirely consistent with the relation of independent contractor testified to by Boyseau and defendant’s manager. In other words, there is no conflict between the testimony upon which plaintiff relies as proof of liability, and the testimony which we are bound to hold establishes nonliability. It may be said that the circumstance and admission of Boyseau cast upon defendant a duty of explanation. This duty defendant fully performed. The case does not differ in any legal sense from the many cases in which this court has held that the party upon whom rests the burden of proof is entitled to recover because he has established his case by undisputed testimony. The trial court should have directed a verdict in defendant’s favor.

Judgment reversed, and a new trial ordered.

Grant, 0. J., and Blair, Montgomery, and Mc-Alvay, JJ., concurred.


source: Caselaw Access Project

author: Carpenter, J.

license: Public Domain

text:
    KNIGHT v. MICHIGAN FEMALE SEMINARY.
    Colleges — Property — Sale to Pay Debts — Authority of Trustees.
    Where a seminary, incorporated under chapter 218, 2 Comp. Laws, has become insolvent, and can no longer carry on its school for want of funds, its trustees have authority to sell its property for the purpose of paying its debts, though such authority is not expressly granted by the statute under which it is incorporated.
    Appeal from Kalamazoo; Adams, J.
    Submitted April 14, 1908.
    (Docket No. 65.)
    Decided May 1, 1908.
    Bill by John J. Knight against the Michigan Female Seminary to enjoin the confirmation of a sale of its corporate assets. From a decree sustaining a demurrer to the bill, complainant appeals.
    Affirmed.

      Osborn & Mills, for complainant.

      George V. Weimer, for defendant.
    The following statement is taken almost verbatim from the brief of complainant’s counsel:
    “The defendant is a corporation incorporated under the provisions of chapter 218 of the Compiled Laws of 189?, entitled ‘An act to provide for the incorporation of institutions of learning.’ It has until recently maintained and carried on a female seminary at the city of Kalamazoo which has been undenominational in its work, but under the patronage and direction of the Presbyterian synod of this State. Its property, consisting mostly of real estate, and being the seminary buildings and offices with the furniture and fixtures therein and about thirty acres of land, all situated within the corporate limits of, the city of Kalamazoo, was provided by funds which were donated to it for the purposes of its incorporation. The corporation has become insolvent and owes debts in excess of $25,000 [nearly $14,000 of this indebtedness is secured by a valid mortgage upon the real estate of defendant above described], which it cannot pay, nor •can it longer carry on its seminary for want of funds. The trustees adopted a resolution which directs the sale of all its property, and pursuant thereto the whole of its property was offered for sale at public auction and sold to Mr. O. M. Allen on his bid of $25,000. No conveyance has, however, been executed and delivered to him, nor has the purchase money been paid. It is not urged that the price bid is inadequate. The bill of complaint was filed by Mr. Knight who is a member of the board of trustees, and prays a perpetual injunction restraining the confirmation of the sale upon the ground that the trustees have no authority to make such a disposition of the property and cannot give good title to the purchaser and that the affairs of the corporation should be wound up and its assets distributed under the direction of a court of competent jurisdiction. The defendant interposed a demurrer to the bill of complaint which was sustained and a decree entered dismissing the bill.”
   Carpenter, J.

(after stating the facts). The question presented is this: Have the trustees of the defendant corporation authority to sell its property for the purpose of paying its debts? The act under which it is incorporated (chapter 218, 2 Comp. Laws) does not expressly grant that authority. Neither does it prohibit its exercise. The only authority expressly granted is this:

‘ ‘ To sell, mortgage, let or otherwise use and dispose of such property for the benefit of such academy.” 2 Comp. Laws, § 8144, subd. 2.

Complainant says this language does not grant authority to sell for the purpose of paying debts, and he invokes this rule:

The enumeration of powers in the charter of a corporation or in the act under which it is incorporated implies the exclusion of all other powers not enumerated.”

We deem this rule inapplicable. Under other statutes of this State, familiar alike to the legal profession and to laymen, the, first claim upon the property of defendant, legally speaking, was that of its creditors. Under the facts stated in complainant’s bill, these claims would exhaust all of such property. Nor was there any occasion to postpone the devotion of the property to the payment of the claims of creditors, for, confessedly, it hád ceased to be possible to use it for the purpose of a seminary — the purpose for which the fund was created. Under these circumstances, the creditors had a right to. have this property applied to the payment of their claims. The laws of this State gave them that right. It is impossible to say that the creditors had a right to have this property applied in payment of their debts and that the owner of the property had no right to so apply it. This right of the creditors by necessary implication imposed a duty upon the corporation and upon its trustees to sell the property and pay said debts. The rule invoked by complainant might apply if the authority in question were not granted by some other law. Here it is granted by another law. This conclusion is supported by authority. De Ruyter v. St. Peter’s Church, 3 Bar. Ch. (N. Y.) 119, 3 N. Y. 238; People v. Trustees of California College, 38 Cal. 166.

The decree is affirmed.

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


text:
    BLANCHARD v. YOUNG.
    Taxation — Tax Sales — Decree—Validity—Illegal Taxes.
    That included in the taxes for which petitioner’s land was sold was an item representing bonds, the proceeds of which had ' been used to induce certain manufacturers to locate in the city, did not deprive the chancery court of jurisdiction to enter the decree for the sale, nor in any way affect the validity or binding force of that decree.
    Appeal from Ottawa; Padgham, J.
    Submitted April 15, 1908.
    (Docket No. 77.)
    Decided May 1, 1908.
    Petition by Lewis H. Blanchard against Catharine H. Young and others for a writ of assistance. Defendant Young filed a cross-petition for a rehearing, and to set aside the sale of certain land for taxes. Prom an order granting the writ and dismissing the cross-petition, defendants appeal.
    Affirmed.

      Charles E. Soule, for petitioner.

      Walter I. Lillie, for defendants.
   Carpenter, J.

In 1904 certain lands in the city of Grand Haven belonging to Catharine H. Young were sold in pursuance of a decree, regularly obtained, for the taxes of 1901. The sale was made to one Edward S. Craw. It was duly confirmed. The deed was regularly issued, and Craw thereafter conveyed to petitioner Blanchard. Blanchard served the notice required by sections 140, 141 of the tax law upon Mrs. Young. She failed to redeem during the time given her by law for that purpose. Thereafter Blanchard filed a petition for writ of assistance. Mrs. Young filed an. answer and cross-petition, asking for a rehearing and a setting aside of the sale, upon the ground that there was included in the general city tax for the nonpayment of which the land was sold the sum of $22,000 to pay bonds, the proceeds of which had been used to induce a certain manufacturing company to locate in the city of Grand Haven. She insisted that this portion of the tax was illegal and void, and that, in consequence thereof, the court was without jurisdiction to make the decree for the sale of the land in question. The trial court granted the writ of assistance prayed for by Blanchard, and dismissed Mrs. Young’s cross-petition. Subsequently a petition was filed on behalf of Mrs. Young praying relief upon the ground that she was a mentally incompetent person. The trial court withheld his decision of this petition until the disposition of this appeal.

The single question for our determination is that already indicated: Did the fact that an illegal item was included in the taxes for which the land was sold deprive the trial court of jurisdiction ? The argument of counsel for Mrs. Young goes this far, and this far only, viz., that it is illegal to tax the inhabitants of a municipality to raise a bonus to induce manufacturers to locate therein. That argument is not helpful. It only proves that included in the taxes for which this land was sold was an illegal item. The question is not whether there was included an illegal item among those taxes, for that is conceded. The question is: Did the court have jurisdiction ? The argument that the item was illegal proves, not that the court lacked jurisdiction, but that it improperly determined a question which it had jurisdiction to determine. It is clear to us that the court possessed ample jurisdiction to enter the decree. Neither the validity nor the binding force of that decree is affected by the circumstance that any question involved was erroneously determined.

The decision of the trial court was correct, and is affirmed. The order of affirmance will be entered without prejudice to the disposition of the question raised by the petition praying relief upon the ground that Mrs. Young is mentally incompetent.

Grant, O. J., and Blair, Montgomery, and McAl-VAY, JJ., concurred.


text:
    WILLIAMS v. MERRITT.
    1. Taxation — Payment Under Protest — Voluntary Payment— Reooyery.
    Taxes paid before the time when payment can be enforced are paid voluntarily, and cannot be recovered, in the absence of ■ a statute authorizing payment under protest before that time.
    2. Drains — Taxes—Payment Under Protest.
    The general statute authorizing payment of taxes under protest does not apply to drain taxes.
    8. Same — Statutory Provisions.
    Section 4359, 2 Comp. Laws, gives to persons assessed for drain taxes the same right of paying under protest as is given to other taxpayers by the general tax law.
    4. Same — Payment Under Protest — Recovery—Amount Recoverable-Illegal Tax.
    Where a drain tax paid under protest, consisted of a single item, in which were improperly included the expense of constructing two sections of tile drain, which should have been let as open drain, and a large amount for tile and a bridge, rendering it impossible to separate the legal from the illegal portion of the tax, the taxpayer could not be limited in his recovery to the portion of the tax which was illegal, but was entitled to judgment for the entire tax..
    5. Appeal and Error — Review—Question op Fact.
    The refusal of the trial court to make certain findings of fact not proved by the undisputed testimony cannot be reviewed.
    Error to Eaton; Smith, J.
    Submitted April 16, 1908.
    (Docket No. 98.)
    Decided May 1, 1908.
    Assumpsit by George Williams against Harry E. Merritt, treasurer of Benton township, and John B. Rudesill, drain commissioner of Eaton county, for taxes paid under protest. There was judgment for plaintiff, and defendants bring error.
    Affirmed.

      Elmer N. Peters, for appellants.

      Bosslyn L. Sowers, for appellee.
   Carpenter, J.

Plaintiff brought this suit to recover certain drain taxes paid to the first-named defendant by himself and others whose claims were assigned to him. The proceedings for the laying out of the drain were conceded to be regular. The drain was, however, to be an open drain. Contracts covering two sections of the drain were illegally and improperly made for tile drains instead of an open drain. Improperly included in the amount for which the assessment was levied was a large amount for tile and for a bridge. It is conceded these items were illegal. The taxes in question were paid under protest. They were paid at various times between December 39, . 1906, and January 8, 1907. They were payable at this time with one per cent, cost of collection. Their payment could not be enforced until January 10, 1907, at which time there would have been an additional cost of four per cent.

The case was tried before the circuit judge without a jury and judgment entered in the plaintiff’s favor for the full amount of the tax paid, without interest. Defendants ask a reversal upon several grounds.

First. They contend that payment under protest could not be made until January 10, 1907, and that as the payment in question was made before that time, it is a voluntary payment and cannot be recovered. It is settled by our decisions ( see Peninsular Iron Co. v. Township of Crystal Falls, 60 Mich. 79; Louden v. City of East Saginaw, 41 Mich. 18) that this contention must prevail unless the payment in question was authorized by a statute. It is also settled that our general statute authorizing payment of tax under protest does not apply to drain taxes. Thompson v. City of Detroit, 114 Mich. 502.

Section 4359, 3 Comp. Laws, contains the following provision:

“No suit shall be instituted to recover any drain tax or money paid or property sold therefor, or for damages on account thereof, unless brought within thirty days from the time of payment of such money to, or sale of such property by, the collecting officer; and if such tax shall be paid under protest the reasons therefor shall be specified, and the same procedure observed as is or may be required by the general tax law.”

Does this language authorize payment to be made under protest before a levy of seizure of the taxpayers’ property by the tax collector ? Did it authorize payment to be made under protest at any' time that the taxpayer had a right to pay his taxes ? The answer to this question determines the proposition under discussion. While the proper construction of this language is not free from doubt, we are of the opinion that the legislature by its enactment intended to give to persons assessed for drain taxes the same right of paying under protest as is given to taxpayers by the general tax law. As the latter taxpayers have by that general law the right asserted in this case to pay under protest (see Mills v. Township of Richland, 72 Mich. 100) so persons assessed for drain tax have the same right. We therefore overrule the contention of defendants under consideration.

Second. It is insisted that plaintiff should have been limited in his recovery to the portion of the tax which was illegal, and that therefore the court erred in giving judgment for the entire amount paid. This is not a case where the tax complained of consists of several items, some of which are legal and some illegal. Nor is it a case where the illegal part of the tax — which consists of a single item — can be definitely pointed'out by the testimony in the record or by any testimony which might have been produced. The contracts covering 'two sections of the drain requiring the use of tile were illegal. Only a small portion of those contracts have been performed. Those contracts should have been for the construction of an open drain and they should have been1 so let at public auction. Under these circumstances it may be said in this case, as the court said in Solomon v. Township of Oscoda, 77 Mich. 365: “That it is impossible to ferret out the legal from the illegal taxes,” and therefore the rule invoked by the defendants has no application. See, also, Auditor General v. Pioneer Iron Co., 123 Mich. 531; Auditor General v. Hughitt, 132 Mich. 311.

Third. Complaint is made because the circuit judge did not make certain findings of fact insisted upon by defendant. We deem it sufficient to say that those findings were not proved by the undisputed testimony, and we cannot therefore review the action of the circuit judge. No other complaint demands consideration.

The judgment is affirmed.

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


text:
    TRIMBLE v. MORRISH.
    1. Libel and Slander — Privileged Communications — Absolute Privilege.
    A communication absolutely privileged — as, for instance, words spoken by a judge in his judicial capacity in a court of justice — is not actionable, even though spoken maliciously.

      %. Same — Qualified Privilege.
    Where the privilege is qualified, the communication is not actionable if made in good faith, but is actionable if made maliciously, that is, with actual malice.
    3. Same — Qualified Privilege — What Constitutes.
    Qualified privilege extends to all communications made bona fide, upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, to a person having a corresponding interest or duty; and the privilege embraces cases where the duty is not a legal one, but where it is of a moral or social character of imperfect obligation.
    4. Same — Interest Creating Qualified Privilege.
    A druggist who has an arrangement with a physician under which the physician has all his prescriptions filled at the druggist’s store, in consideration of which the druggist pays a part of the physician’s office rent, has an interest in the physician’s business sufficient to render privileged a communication made by the druggist to the physician in good faith relative to the character of a young woman employed by him in his office.
    5. Same — Malice—Evidence—Falsity of. Charge — Sufficiency.
    Where a communication is privileged, the plaintiff cannot recover without proving affirmatively, not only the falsehood of its contents, but also that it was published with express malice.
    6. Same — Malice—Evidence—Refusal to Name Informant — Sufficiency.
    Malice in making a privileged communication is not to be inferred because defendant declined to name his informant upon being told that if he would do so he would not be further troubled, and stated that the story was told him in confidence and he did not desire to implicate any other person in it.

      7. Same — Words Used — Sufficiency. .
    Malice can be inferred from the words of a privileged communication only when the words used are such that the communication bears upon its face evidence of malice.
    Error to Chippewa; Steere; J.
    Submitted April 17, 1908.
    (Docket No. 114.)
    ' Decided May 1, 1908.
    Case by Meda Trimble against Nicholas D. Morrish for slander. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Sharpe & Handy (Warner, Sullivan & Wiley, of counsel), for appellant.

      M. M. Larmonth and F. T. McDonald, for appellee.
    This is a slander suit. Plaintiff recovered a verdict and judgment in the circuit court. The slander was spoken in a confidential conversation had by defendant with one Dr. Thomas N. Rogers. Dr. Rogers was a physician in practice in the city of Sault Ste. Marie. Plaintiff was his employé in charge of his office. Defendant was a druggist in the city of Sault Ste. Marie. Between Dr. Rogers and defendant there existed this arrangement: The doctor agreed to have all his prescriptions filled at defendant’s store, and in consideration thereof defendant agreed to pay a part of the doctor’s office rent. During the existence of this arrangement, the conversation in question occurred. It was testified to by the doctor. He testified as follows:
    ‘' Mr. Morrish called me back: of the prescription case in the drug store. * * * I think he started by saying if I knew what kind of a girl I had in my office. * * * He said he had heard she had been giving entertainments or seancélTNflbmek'i^NS~tliS~M(HavisnBTocFrandthaf.. --~-her'"fiamé"kad'l3een„mentibh^-with'some'paytl6s~amTnd - — fówn. *’ * * He did not know anything about her personally. It was only reports. I said, then I could not keep her any longer. Well, he said he would not, if he were me, let her go until he would make some inquiry and found out, and I said I couldn’t do that; that even if I knew it was untrue, I couldn’t keep her, but it was his suggestion that I should keep her until I should find out more about it. He said girls had hard enough time of it making their own living without anybody knocking. * * * After Mr. Morrish told me these things regarding Miss Trimble, I talked the matter over again with him before discharging her. I had told Mr. Morrish to investigate further, if he could find out if there was any truth in these reports, and a few days afterward he told me that he had learned that part of what he had told me, at least, was not true; that is, about holding these performances. * * * I think he advised me to keep her, and I said I couldn’t, even if I knew there wasn’t a word of truth in any of the reports, because I said it would be injurious to my work to do so after such reports were going about, even if they were untrue.”
    The witness also testified that no third person heard -this conversation, and that he soon thereafter discharged plaintiff from his employment. The defendant insisted that, under these circumstances, the communication was privileged,, and that a verdict should be directed in his favor. The trial court submitted the question to the jury who, as already stated, rendered a verdict in plaintiff’s favor.
   Carpenter, J.

(after stating, the facts). The important question raised in this court is that above indicated, viz., Was defendant entitled to a directed verdict upon the ground that the communication was privileged ? In disposing of this question we shall assume, and the briefs of counsel assume, that the testimony of Dr. Rogers, as above stated, is true. In the law of slander there are two classes of privileged communications. There are communications which are absolutely privileged; and there are communications which have a qualified privilege. A communication absolutely privileged — as, for instance, words spoken by a judge in his judicial capacity in a court of justice — is not actionable, even though spoken maliciously. Where the privilege is qualified, the communication is not actionable if made in good faith. It is actionable if made maliciously; that is, with actual malice. It is not claimed that the communication in question is absolutely privileged. It is claimed that it is qualifiedly so. Says Mr. Justice Champlin, speaking for this court in Bacon v. Railroad Co., 66 Mich. 170:

“ Qualified privilege * * * extends to all communications made bona fide, upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, to a person having a corresponding interest or duty. And the privilege embraces cases where the duty is not a legal one, but where it is of a moral or social character of imperfect obligation.”

Within this rule defendant had a qualified privilege to make the communication in question. He had an interest in the business of Dr. Rogers. He had become possessed of information which affected that business. It was clearly his duty to communicate it to the doctor. It follows that, in making this communication, he committed no actionable wrong, unless he exceeded the limits of his privilege — unless he acted maliciously. Is there evidence that he acted maliciously ? Plaintiff insists that there is. Her counsel say that malice is to be inferred from the falsity of the statement. The contrary is the rule.

“The falsity of the charge alone will not establish malice so as to authorize a recovery, if the charge be privileged, and only becomes sufficient when coupled with evidence tending to show that plaintiff made the charges knowing them to be false, or with other evidence tending to show malice.” 25 Cyc. p. 524.

Said this court in Edwards v. Chandler, 14 Mich. 471:

“Where a communication is privileged, the plaintiff cannot recover without proving affirmatively, not only the falsehood of its contents, but also that it was published with express malice.”

See, also, Konkle v. Haven, 140 Mich. 472.

It is said that malice may be inferred because defendant declined to name his informant. No authorities are cited in support of this contention, and it does not appear to us to be sound. Defendant was told that, if he would name his informant, he would not be troubled. He declined to do this, saying:

“ The story was told to me in confidence, and I do not desire to implicate any other person in it.”

This is the precise course that a high-minded person would have taken. He would have taken that course, not because he was actuated by a desire to save a wanton wrongdoer, but from considerations of true manliness. Only a despicable character would have availed himself of the privilege of escaping responsibility by exposing another to the danger which threatened him. Surely, because one does just what he ought to do, it should not be said that his conduct furnishes evidence of malice.

Plaintiff also insists that malice may be inferred from the words of the privileged communication. He relies upon the following statement in the opinion of Bacon v. Railroad Co., supra:

“ The jury may find the existence of actual malice froi the language of the communication itself as well as froi extrinsic evidence ” — citing cases.

This does not , aa ^gawnant of plaintiff’s com sel seems to assume; that the inference of malice ca always 'bellrawn from the language of a privileged con “rntrnicatliSñ" xno such proposition was before the Ar,”r ^WlhN& was'meant was this: That when a privileged con munication contains on its face evidence of.jnalice^thi " — ffvTaence may be used to prove malice. This is mac cfeSl* by bHe application of the principle in that case, an by the- authorities cited in its support. Respecting this. point, the law is correctly stated in the following quotation from the opinion of the supreme court of Pennsylvania in Mulderig v. Wilkes-Barre Times, 215 Pa. 474:

“If there is that in the publication which furnishes a basis for reasonable inference that malice was back of it, the burden remains with the party charged to establish, either its truth, or the probable ground for believing it true. When such is not the case, there must be some evidence beyond the mere fact of publication; but there is no requirement as to what the form of evidence shall be. It may be intrinsic, from the style and tone of the article.”

It is not contended that the communication in question contained on its face any evidence of malice. It clearl did not. We conclude, therefore, that defendant had right to a directed verdict, upon the ground that the con munication was privileged. No other complaint demand consideration.

Judgment reversed, and a new trial ordered.

Grant, O. J., and Blair, Montgomery, and McAlyay, JJ., concurred.


author: Ostrander, J.

text:
    COX v. COMMON COUNCIL OF THE CITY OF JACKSON.
    1. Intoxicating Liquors — Licenses—Revocation — Grounds — Municipal Ordinance — Construction.
    Where a municipal ordinance providing for the licensing of saloons provides that two convictions of the license holder for violation of the ordinance, or of “the State law,” or one conviction of violation of the ordinance and one of “the State law,” shall be ground for a revocation of the license, the State law referred to is the State law or laws governing the business of selling liquors; and a conviction for violating a State law other than the law relating to the business of liquor selling cannot be made the ground of revocation under the ordinance.
    2. Same — Municipal License — Application—Construction.
    Where a municipal ordinance providing for the licensing of saloons provides that the application for a license shall contain an agreement by the applicant that if he is convicted of certain violations of the law such convictions shall be grounds for revocation of the license and of debarring the applicant from thereafter conducting the business in the city, the application is no broader than the ordinance, and no convictions will be grounds for refusing a subsequent license that would not be grounds for a revocation of the license under the ordinance.
    3. Mandamus — Defenses—Questions Considered.
    Where a mandamus is sought to compel a city council to approve relator’s bond and grant him a license to sell liquors, and the council has not refused to act in relator’s favor upon any ground other than that his previous license was revoked and he agreed that, if it was revoked, he should be debarred from conducting a saloon, and it appears that the revocation relied upon was unauthorized, respondent is not entitled to urge, in support of its refusal to act, that in view of its knowledge of the violations of the law by relator, admitted by his petition, it had the right to refuse him a license.
    4. Judgment — Res Adjudioata — Matters Concluded — Judgment on Certiorari.
    The common council of the city in which relator’s saloon is situated assumed to revoke his license under the terms of the ordinance under which it was granted, because, he had been convicted of a violation of the ordinance and of the State law within the year; and on certiorari the circuit court determined that it was unnecessary to decide whether the conviction under the State law was under the State law contemplated by the ordinance, holding that the council had the right to revoke his license under its charter, and dismissed the writ; subsequently the council refused to renew his license on the ground of the revocation based on the previous convictions and relator brought mandamus to compel it to approve his bond and grant him a license. Held, that the judgment on certiorari was not conclusive of the question whether the convictions were such as were contemplated by the ordinance, the court not having decided that question.
    5. Intoxicating Liquors — License—Application —Determination — Duty op Council.
    Where a saloon keeper tenders his application for a license, in conformity with the ordinance of the city, and” tenders his bond, in conformity with the statute, he is entitled to have them considered by the common council of the city at an early date, and approved or disapproved, and in case of disapproval, to be given reasons therefor.
    6. Same — Mandamus—When Issued.
    A peremptory writ of mandamus will not issue to compel a city council to approve a saloon keeper’s bond and grant him a license, though it has refused to do so on untenable grounds, it being presumable that a writ will not be required to secure performance of the duty pointed out of considering relator’s application on its merits, though a writ will be granted in case of delay.
    Mandamus by John Cox to compel the common council of the city of Jackson to approve a liquor bond and grant a license.
    Submitted April 28, 1908.
    (Calendar No. 22,833.)
    Writ denied conditionally May 5, 1908.

      Forrest O. Badgley and Verne W. Badgley, for relator.

      T. F. Barkworth and John F. Henigan, for respondent. -
    By its charter the common council of the city of Jackson may pass ordinances (Act No. 399, Local Acts 1905, title 6,-section 17, subds. 13, 34):

      - “ To regulate and license all taverns and houses of public entertainment, all saloons and eating houses. * * *
    “To restrain and regulate saloons and to prescribe the location thereof.”
    Section 18:
    “The council may prescribe the terms and conditions upon which licenses may be granted, and may exact and require payment of such reasonable sum for any license as they may deem proper. The persons receiving the license shall, before the issuing thereof, execute a bond to the corporation in such sum as the council may prescribe, with one or more sufficient sureties, conditioned for a faithful observance of the charter of the corporation and the ordinances of the common council, and otherwise conditioned as the council may prescribe. Every license shall be revocable by the council at pleasure, and when any license shall be revoked for noncompliance with the terms and conditions upon which it was granted or on account of any violation of any ordinance or regulations passed or authorized by the council, the person holding such license shall, in addition to all other penalties imposed, forfeit all payments made for such license, and no new license for the same purpose shall be granted to such person for one year thereafter.”
    An ordinance of the city, known as the “Bryer’s Ordinance,” was adopted by the common council March 4, 1907. Its title is:
    “An ordinance relative to licensing saloons, limiting the number thereof, prohibiting boxing, dancing and stalls therein; also prohibiting gambling devices, disturbances, and classing certain drug stores and hotels as saloons.”
    By the terms of this ordinance, every person desiring to run or operate a saloon in the city is required to make application in writing to the .city recorder, stating the street and number, and location of the saloon where the business for which the license asked for is proposed to be carried on, and the application must be accompanied by a written recommendation signed by at least three reputable and respectable citizens of the city, certifying that the applicant is well known to them and is well qualified to keep a saloon, and has a good reputation and moral character. A nominal license fee of $1 is required, and, when that sum has been paid to the city treasurer and receipt taken therefor and exhibited to the city recorder, that officer issues a license, “if the application shall have been approved and granted by the common council.” It is required that the application for the license shall contain an express provision and agreement, signed and executed by the applicant, that if a license be issued and he shall be convicted more than once in one year of a violation of the ordinance and more than once in one year “of a violation of the State law,” or shall be convicted once in any year of a violation of the State law-and in the same year of a violation of the ordinance, such conviction shall be a sufficient reason for revoking the license and for debarring the applicant from thereafter conducting a saloon in the city of Jackson. It is made the duty of the common council if there is more than one conviction in any one year of a license holder for a violation “ of the State law governing the sale of liquor at retail,” or of more than one conviction for a violation of the ordinance, or in the case of one conviction for a violation of the State law, and one conviction for a violation of the ordinance within the same year, to give the license holder at least a five days’ notice in writing of the time and place of hearing when the common council shall determine whether the license shall be revoked.
    “If, after hearing the proofs, said common council shall find that said applicant and licensee has been convicted either of a violation of the State law twice within one year or of a violation of this ordinance or the ordinance which it amends, twice in one year, or that said applicant has been convicted once of a violation of the State law within one year and once of a violation of this ordinance * * * then said common council shall, by resolution, revoke the license of said applicant and licensee and a majority vote of said council shall be sufficient foi that purpose.”
    John Cox has for a number of years conducted the búsiness of selling spirituous, malt, brewed, and fermented liquors at retail in the city of Jackson in a building owned by himself. Some time prior to May 1, 1907, and after the ordinance above mentioned as amended was in force, he made the application required by the ordinance, filed his retail liquor dealer’s bond, which was approved by the common council, received his license, and continued his business. In November of that year he was notified to appear before the common council and show cause why his license should not be revoked. The notice set out that after May 1, 19Q7, he had been convicted of a violation of the ordinance in question, and had also been convicted in the circuit court for the county of Jackson “of a violation of the State law.” He appeared before the common council, and after hearing proofs it was found that he had been convicted once of a violation of the ordinance and once “of a violation of the State law,” and a resolution revoking his license was duly passed, and the chief of police directed to close his business, unless he should within 30 days apply to the courts, “and, if said Cox apply to the circuit court, he is allowed to remain open pending the decision of the case in the circuit court.”
    The violation of the ordinance for which he was convicted was for having a show in his saloon, of which he was convicted May 16, 1907. The conviction under the State law was for keeping a house for the resort of prostitutes ; the record of his conviction being made November 4,1907. He applied to the circuit court for the county of J ackson for a writ of certiorari to review the action of the common council, and that court determined and held that under certain provisions of the charter of the city, the common council had the right and power to revoke the license, if a license had been issued, and, further, that whether he had been twice convicted within the meaning of said ordinance was a question unnecessary to be determined, expressing a doubt whether the convictions herein referred to were, under the terms of said ordinance, ground for forfeiting the license. It is assumed, perhaps without warrant, that the writ of certiorari was dismissed. Cox’s place of business was not closed, and at the time of making his application to this, court he was still conducting his business. On the 7th day of April, 1908, he filed with the city recorder of the city of Jackson an application for ■ a license to carry on his business for the year beginning May 1, 1908, the application in form complying with the terms of the ordinance. He also filed the statutory liquor dealer’s bond. The application and bond were referred to a committee, and that committee on the 20th of April reported to the common council:
    “ In the case of John Cox, your committee find that he signed an application a year ago in which he agreed that if his license were revoked that he should be debarred from conducting a saloon in the city of Jackson, and your committee find his license was revoked, and that he is not for that reason entitled to a license, and they therefore recommend that his license be rejected.”
    The common council thereupon adopted a resolution, of which the following is the part important here:

      “ Inthecaseof JosephSchultz and John Cox, that licenses be refused and their bonds be not approved for the reasons mentioned in the report of your committee on file with the recorder and this day adopted by the common council.”
    John Cox applied to this court for a writ of mandamus to th® common, council of the city of Jackson, requiring it to approve his bond and grant his application for a license, and, upon a showing of exigencies, an order to show cause was issued and an answer has been filed. Without here setting out the numerous objections fnade to the validity of the ordinance and to the force and effect of the alleged revocation of the license, it will be sufficient to refer to such of them as it seems important to discuss.
   Ostrander, J.

(after stating the facts). We have no doubt that the ordinance in referring to a conviction of a license holder under the State law was intended to mean, and means, the law or laws governing the business of selling liquors. Any other meaning would make the provisions of the ordinance insensible. The ordinance does not say “a State law.” The words employed in various places in the ordinance are “the State law,” and in one portion of the ordinance which has been set out, and in the same connection, express reference is made to the liquor law. It follows that a single conviction for violating the ordinance and a single conviction within the same year for violating some State law, other than the law governing the sales of liquors, would not, under the terms of the ordinance, make a case for revoking the license. It also follows that, whatever the effect of the agreement of the applicant may be otherwise found to be, it is in terms an agreement no broader than the ordinance. We have not before us the particular reasons given by the court in the certiorari proceedings referred to for holding that the common council had the right to revoke the license for other reasons than those expressed in the ordinance. It is urged in the brief for the respondent that, so far as the license now applied for is concerned, the common council had the right, in view of its knowledge of the violations of law admitted by the petition, to decline to recommend the fitness of the applicant to conduct the business and the right to refuse a license. We think the respondent may not urge here in support of the action taken by it a reason based upon the asserted premises, although the reason asserted may be one affecting the discretion of the court in granting or refusing a peremptory writ of mandamus. It has not refused a license and has not refused to approve the bond for any reasons other than that petitioner’s license of 1907 was revoked, and that he agreed that, if it was revoked, he should be debarred from conducting a saloon. The common council found that his license had been revoked, and that for that reason he was not entitled to a license. As has been shown, the ground upon which the common council revoked the license was that the respondent had been, within the terms of the ordinance, convicted of two violations of the law. That is the ground of the ordinance. We reach the conclusion that two violations of law within the meaning of the ordinance were not shown, and, unless petitioner is concluded upon the subject, no valid reasons were assigned by the common council for refusing the present application for a license and the approval of petitioner’s bond. If petitioner is concluded, it is because he is bound by the finding and determination of the court in the certiorari proceeding which he instituted for the purpose of vacating the determination and order of the common council. Clearly he is not concluded. The former' action of the common council was predicated upon the terms of the ordinance and upon certain declared facts. It was an attempted revocation of a license in enforcement of the ordinance. The case made did not meet the requirement of the ordinance. The count did not determine that it did. The action of the common council which is now complained of is based upon its former action and upon the Bryer’s ordinance.

We are not, however, required to grant a peremptory writ of mandamus. Petitioner has tendered his application for a license, in conformity with the ordinance, and has. tendered his bond, in conformity with the statute. He is entitled to have them considered by the common council at an early date, and approved or disapproved. If disapproved, reasons should be given. The previous action, declaring the former license to be revoked, is not of itself ground for refusing approval. If a license is refused, we may assume that it will be because of facts to be found and not now appearing. We think the court should not anticipate the action which will be taken. It is not likely that the mandate of this court will be required to secure the performance of the duty pointed out.

Petitioner will be given the writ in case of delay. No costs are awarded.

Hookek, Moore, Carpenter, and McAlvay, JJ., concurred.


author: Blair, J.

text:
    KUITE v. LAGE.
    1. Ejectment — Right of Action — Vendor.
    Under section 10949, 3 Comp. Laws, a vendor of land, by an executory contract which gives the vendee the right to immediate possession, who holds the legal record title, cannot . maintain ejectment against a stranger who has taken possession of a strip of the land so sold, and ousted the vendee therefrom.
    a. Same — Purchaser.
    A purchaser of land in possession under an executory contract of purchase is the person entitled to maintain ejectment against a stranger who ousts him from the land.
    3. Principal and Agent — Power of Attorney — Construction.
    Powers of attorney are strictly construed and not extended by construction, whence a power which was special and only authorized the institution of proceedings “in our name, place and stead,” etc., did not confer upon the attorney power to institute suit in his own name.
    Error to Ottawa; Padgham, J.
    Submitted April 10, 1908.
    (Docket No. 30.)
    Decided May 12, 1908.
    Ejectment by Jacob Kuite against Gerhard Lage. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      Sooy & Heck and Smedley & Corwin, for appellant.

      George A. Farr, for appellee.
   Blair, J.

As stated in the brief for appellant:

“ The only question involved in this appeal is, whether the vendor of land, by an executory land contract which gives the vendee the right to immediate possession, but who still holds' the legal record title, can bring ejectment against a stranger, who has taken possession of a strip of the land so sold, and ousted plaintiff’s vendees therefrom.”

The trial judge was of the opinion that the ejectment statute compelled a negative answer to this question and directed a verdict for defendant. We concur in this opinion. Section 10949, 3 Comp. Laws, provides:

“No person can recover in ejectment, unless he has at the time of commencing the action a valid subsisting interest in the premises claimed, and a right to recover the possession thereof, or of some share, interest or portion thereof, to be proved and established at the trial.”

This statute is plain and explicit in its terms; it makes no exception, as to the proof of the right to recover possession, in the case of strangers or intruders, but clearly states a universal rule applicable in all cases of ouster. The vendees in the land contract were in actual possession of the land at the time of the commencement of this suit and at the time of the trial. Under the decisions of this court, such vendees were entitled to maintain ejectment against one who should oust them from the land. Covert v. Morrison, 49 Mich. 135; Olin v. Henderson, 120 Mich. 149.

The right of the vendee to bring the action to recover possession necessarily negatives the possession of any such right by the vendor, since the right of the one would be destructive of the right of the other. This was recognized by the court in Olin v. Henderson, where it was said:

“A vendor in a land contract giving the vendee right of possession cannot maintain ejectment until he has in some manner terminated the contract relation. Michigan Land & Iron Co. v. Thoney, 89 Mich. 226.”

See, also, Bay County v. Bradley, 39 Mich. 163; Van Vleet v. Blackwood, 39 Mich. 728; Corning v. Loomis, 111 Mich. 23; Stephens v. Motl, 82 Tex. 81; Gazzalo v. Chambers, 73 Ill. 75; Lannay’s Lessee v. Wilson, 30 Md. 536; State v. Japan Co., 66 Ohio St. 182; 15 Cyc. pp. 15, 28.

In their reply brief, filed since the case was received on briefs, counsel lay stress upon a power of attorney whereby the vendees in the land contract—

‘{Made, constituted and appointed, and by these presents do make, constitute and appoint Jacob Kuite, of Holland, Michigan, true and lawful attorney for us and in our name, place and stead, to conduct suit in chancery instituted by us against Gerhard Lage, of Zeeland, Michigan, and to negotiate any settlement or institute any further proceedings said Jacob Kuite may deem expedí ent,” etc.

The suit in chancery referred to was for an injunction to prevent the defendant cutting off the eaves of the building purchased by the vendees, to make room for the building defendant was erecting on adjoining land. After said power of attorney was given, the complainants therein (vendees in said land contract) filed an amended bill, making Jacob Kuite a complainant, and the ejectment suit was also started..

Powers of attorney are strictly construed and not extended by construction. The power of attorney in question was special and only authorized the institution of proceedings “ in our name, place and stead,” etc.; it did not confer authority upon the plaintiff to institute suit in his own name. Instead of constituting a warrant for the plaintiff’s position in this case, the power of attorney was a clear recognition on his part as well as on the part of the principals that they alone had authority to institute suits on account of the ouster.

The judgment is affirmed.

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


author: Hooker, J.

text:
    TARSNEY v. WAYNE CIRCUIT JUDGE.
    1. Equity —Chancery Practice — Witnesses—Examination in Open Court — Notice—Waiver.
    • The notice to take proofs in open court required by section 10188, 3 Comp. Laws, may be waived.
    2. Same — Stipulation—Effect as Waiver.
    A certain letter and stipulation, followed by notice of hearing on pleadings and proofs and an order setting the case for hearing on a day certain, examined, and held, in the light of the surrounding circumstances, equivalent to a consent that • the cause be heard on pleadings and proofs to be taken in open court, and that subsequent proceedings in open court amounted to a waiver of the notice of intention to take proofs in open court required by section 10188, 3 Comp. Laws.
    3. Mandamus — Propriety—Review able Order.
    Mandamus is not the proper remedy to secure a review of an - order allowing the complainant in a chancery case to take proofs in open court though no notice of intention was given as required by the statute, there being an adequate remedy by appeal.
    4. Same — Grounds—Expense.
    That unnecessary expense will be incurred if the chancery court is permitted to hear relator’s case on evidence taken in open court is not a sufficient reason why this court should interfere by mandamus to prevent it, though the order to so hear the case was irregular, the remedy by appeal being adequate.
    Mandamus by Timothy E. Tarsney to compel Harry A. Lockwood, acting circuit judge of Wayne county, to vacate an order setting a cause for trial.
    Submitted May 5. 1908.
    (Calendar No. 22,824.)
    Writ denied May 14, 1908.

      Timothy E. Tarsney, in pro. per.

      Hunt & Altland, for respondent.
   Hooker, J.

The statute provides that one who would avail himself of the right to an examination of witnesses in open court, in a chancery case, must serve upon his adversary’s counsel a notice of such intention, within 10 days after the cause is at issue, and that failing to do this, the cause shall stand referred to a commissioner to take proofs, etc. 3 Comp. Laws, § 10188.

Such a notice was not served in this cause, but the parties stipulated that the hearing of a then pending demurrer should be adjourned to August 19, 1907, and that in the event of the demurrer being overruled, and the order overruling the same not being appealed from, the defendant should answer within such time as the court should prescribe, and when at issue, the cause might be placed upon the docket of the then present term for hearing. This stipulation was dated August 14, 1907, and followed a letter of July 33, 1907, written by.counsel for complainant to defendant Tarsney, which reads as follows:

“July 33d, 1907.

“Timothy E. Tarsney, Esq.,

“404-405 Whitney Building,

“Detroit, Michigan.

Dear Sir: Marcel E. Hude et al. vs. Timothy E. Tarsney et al.

“We appeared in court this morning and adjourned the hearing on the demurrer filed by you in the above suit. As you were not present we had the hearing adjourned one week. You will remember that we consented to an adjournment of this hearing to August 1st, upon the understanding that the suit should go to hearing on its merits at the September, 1907, term of court. This request was made by you upon the ground that you desired Mr. Elliott G. Stevenson to represent you in this suit. As you are aware Mr. Stevenson is abroad and’ we consider the condition of the matters involved in this suit such that we are not warranted in granting any greater extension of time than is necessary before going to hearing upon the merits. . We, therefore, desire to say that unless you enter into a satisfactory stipulation with us before next Monday, the time to which the hearing has been adjourned, we shall insist upon the same being taken up at that time.

‘ ‘ Very truly yours,

“Altland & L’Esperance.”

These papers indicate that the parties must have mutually understood and expected that said cause would be heard upon proofs taken in open court, a conclusion which accords with subsequent proceedings.

The cause was noticed by complainant for hearing upon pleadings and proofs, at the January term, 1908, and at the call of the calendar was set for February 5th. It was afterwards adjourned to February 21st, and upon the latter day, counsel were before the court, complainant’s counsel urging a speedy hearing, defendant Tarsney asking further time, stating that a judge who would hear the cause could not be obtained before April 1st, and that his own intended absence in California would make it inconvenient for him to try the cause before March 20th, after which time he would be ready. The judge said: .

The application made by the defendants is that the cause be fixed for some time after March 20th. It will now be set peremptorily for hearing * * * on March 23d.”

At that time Judge Lockwood, of the Monroe circuit, was present to try the cause, when counsel for the defendant insisted that the cause was not in a condition to permit the taking of proofs in. open court, and seem to have contended that the cause must be heard upon the pleadings, and possibly the testimony of one witness, which had previously been taken de bene esse. After hearing counsel the learned circuit judge said that he was convinced that it was the expectation of counsel for both parties that proofs should be taken in open court, and that although no formal notice had been given, the court ought to permit it on reasonable terms, and a formal notice was then served and the cause was set for April 21st, to be heard upon proofs to be taken in open court. A motion to vacate this order was subsequently denied, and mandamus is asked to compel it.

The stipulation, when read in the light of the circumstances, was equivalent to a consent that .the cause be heard on pleadings and proofs to be taken in open court. There was a clear waiver of formal notice in what occurred later. While the practice was irregular, for want of the formal notice, such irregularity might be waived. No one would question the validity of a stipulation unequivocally waiving such notice or that going to hearing without objection would have the same effect as such a stipulation. The conduct of counsel and the parties in open court in this cause was a recognition of the right to such hearing, when we consider the record in the cause.

The order to show cause should not have been made for the question is one which might have been reviewed on appeal, but having been made we have disposed of the merits of the application. We have often said that mandamus will not lie where there is another adequate remedy. The following cases where the authorities are collected show the attitude of the court upon this question: Sharp v. Montcalm Circuit Judge, 144 Mich. 328; Cosgrove v. Wayne Circuit Judge, 144 Mich. 682. In City of Flint v. Genesee Circuit Judge, 146 Mich. 439, and Geddis v. Wayne Circuit Judge, 151 Mich. 122, a long list of cases are cited in support of this rule.

The only plausible excuse that can be given for asking us to overrule or disregard this rule, is that unnecessary expense will be incurred if the court should hear the case .on evidence taken in open court, and therefore we should prevent it. This is no more true than it would be in a case where a court erroneously refuses a continuance, or erroneously decides to admit testimony early in the case. There is always expense and loss where a case is reversed.

The trial court is the great forum of justice in the land. When it refuses to proceed we may be appealed to to compel action, but not to direct its determination, which can only be corrected on appeal. It would be unseemly if the action of judges is at all stages of proceedings to be interfered with, and whenever counsel may'think or claim that an error or irregularity has been committed or is imminent. The aggregate cost and loss arising from such a practice would far exceed that of the existing rule, to say nothing of the necessary inconvenience, delay, and injustice which would inevitably follow, if this court is to be constantly appealed to, through interlocutory applications, to steer the trial judges of the State.

The writ is denied, with costs.

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


author: McAlvay, J.

text:
    WHITMAN v. MUSKEGON LOG LIFTING & OPERATING CO.
    1. Loas and Logging — Loa Marks — Failure to Record — Effect.
    Failure of log owners to record their log marks, as provided by section 5083, 2 Comp. Laws, does not deprive them of their property in logs bearing their marks, but only deprives them of the statutory presumption of ownership, leaving the title to be established by other means, one of which might be the fact that the logs were stamped with a particular mark which the claimant had used and put upon all his logs.
    2.. Same — Abandonment—Sunken Loas-.
    The fact that marked logs, placed in a river for transportation to market, sunk and remained- for a time on the bottom of the river, is no evidence to support a finding that the owner had abandoned them.
    3. Same — Abandonment—Intention—Necessity—Marked Loas.
    Where it appears that the owners of logs marked and placed in a river for transportation have made annual efforts to recover, and in fact have recovered each year many of the deadheads from the bottom of the river, the circumstances negative the existence of the intention necessary to show an abandonment of such of the sunken logs as bear distinguishable marks.
    4. Same — Obliterated Marks.
    It being presumable that all logs placed in the river were marked as the law requires, and that the abrasions of transportation have obliterated the marks upon such as no longer bear distinguishable marks, the proof supporting the finding that there has been no abandonment of the marked logs applies with equal force to those upon which the marks are no longer distinguishable.
    5. Same — Ownership op Unmarked Logs.
    The fact that the owners of deadhead logs cannot say to which of them the unmarked ones respectively belong does not divest them of the ownership, nor of the right to make any contract they see fit with another to raise their property, and according to a custom long established to allow their contractor to retain such of the logs as are without marks.
    6. Evidence — Judicial Notice — Operation op Natural Laws.
    The court will take judicial notice that when the specific gravity of a saw log becomes greater than that of water it will sink to the bottom, and that in streams of any considerable current such sunken logs will become embedded in the soil to a greater or less extent.
    7. Navigable Waters — Rights op Navigators — Streams.
    In navigating a stream for any lawful purpose, the navigator, for that purpose, may make all such reasonable use of such stream as may be neoessary which does not deprive the riparian proprietor of his rights, or the enjoyment thereof.
    8. Same — Use op Stream — Recovery op Logs.
    The use of a stream by the navigator of logs thereon to recover sunken logs, marked or unmarked, not abandoned or lost, from the bed of the stream, without injury to its banks or unlawful trespass thereon, is no unlawful interference with the rights of the riparian owner, but is a proper and lawful use of the stream incident to the business of navigation.
    9. Same — Riparian Rights — Ownership op Sunken Logs.
    Deadhead logs lying in the bed of the stream in which they were placed for navigation, partly or wholly embedded in the soil, but neither lost nor abandoned by the original owners, are not the property of the riparian proprietor.

      10. Same — Banks of Stream — Use by Navigators.
    The owners of- deadhead logs recovered from the bed of a ' stream have no right to pile them on the banks, and in doing so are trespassers. Such trespass, however, gives the riparian owner no title to the logs, though he has his remedy at law.
    Appeal from Montcalm; Davis, J.
    Submitted October 18, 1907.
    (Docket No. 47.)
    Decided May 26, 1908.
    Bill by Edgar O. Whitman against the Muskegon Log Lifting & Operating Company to restrain the removal of logs from the bed of a navigable stream. From a decree for complainant, defendant appeals.
    Reversed, and bill dismissed.

      John G. Anderson and Wil'iam A. Norton (Edwin H. Lyon, of counsel), for complainant.

      Nims, Hoyt, Erwin & Vanderwerp, for defendant.
   McAlvay, J.

Complainant, a riparian owner along • the Muskegon river, a stream used for many years for the navigation, floating, and driving of saw logs, and other forest products, filed his bill of complaint against defendant company seeking to restrain it from digging up and removing from the bed of said stream all saw logs and other forest products, and from taking away from the premises of complainant all such logs and products already taken from the bed of said stream and piled upon said premises by defendant, claiming to be the owner of all such property by reason of his riparian proprietorship, and praying the court to so decree and determine. From a decree granting complainant full relief as prayed, defendánt has appealed.

The Muskegon river has been used for the navigation of forest products to as great an extent as any river in Michigan. Many hundreds of millions of feet of saw logs, and other forest products, have been lumbered and put afloat in the waters of this river to be floated to the places where they were to be manufactured. That it is and always has been a navigable stream for such purposes is not in dispute in this case. This record shows that in navigating forest products along a stream certain logs, from various causes, sink to the bottom, and, by the action of the water, some of them become more or less embedded in the soil. These are called sunken logs and “deadheads.”

Defendant is a Michigan corporation, operating on Muskegon river, engaged in raising these sunken and deadhead logs from their bed, under contract with the original owners of a large number of these logs to raise from the bed of the river logs bearing their log marks, and float them to their mills at Muskegon for an agreed consideration. Owners of logs put in the water to be run down stream, for purposes of identification, put their log mark upon each log. f

By statute logs put into the water must be marked with log marks duly recorded, and logs having marks impressed thereon are presumed to belong to the person owning the recorded mark. On some of the logs raised by defendant the marks have become obliterated. Upon these logs defendant has placed its own mark as soon as they were raised. All the logs when raised are water soaked and heavy. They are placed upon the banks of the river at different points in rollways to dry, so that they will float when put into the water. There are now piled upon the banks of the river, upon complainant’s land, logs which have been raised from the river bed by defendant company.

The facts in the case are practically undisputed. The court granted complainant relief tfpon the ground that the marked logs had been abandoned by their original owners, and, if not abandoned, were in the same situation .as the unmarked logs because the marks were not properly recorded, and that all logs both marked and unmarked belonged to the riparian proprietor by virtue of his ownership of the soil to the middle thread of the stream, and defendant had no right to recover or remove any of them.

Appellant alleges that the case presents the following questions:.

(1) As to the title to logs still in the bottom of the river and upon which the original log marks are distinguishable.

(2) As to the title to logs still in the bottom of the river and upon which the marks have become obliterated.

(3) As to the right of defendant to go upon the river to recover both marked and unmarked logs.

(4) As to the title to logs which defendant company has already removed from the bed of the river and which are now piled on complainant’s land. .

The court held in effect that the log marks in question were not recorded according to law and were no evidence of identification of the logs of the owners of the marks. In this case it is not necessary to consider the construction given by the court to section 5083, 2 Comp. Laws, relative to recording log marks (nor do we intimate that such construction was correct) for the reason that the failure to record the log marks could only deprive the owners of the statutory presumption pf ownership. The fact that the statute makes the recorded mark prima facie evidence of ownership of logs upon which it is impressed is no warrant for the inference that the owner is deprived of his property, title to which could be established by other means, one of which might be the fact that his logs were stamped with the mark in dispute which he in fact used and put upon his logs. St. Paul Booming Co. v. Kemp, 125 Wis. 138; Weiler v. Coleman, 71 Pa. 346.

The court held that the marked logs had been abandoned and therefore belonged to complainant as riparian proprietor. We do not find from this record any evidence upon'which to base such a finding. Complainant introduced no testimony on the question of abandonment, and the fact that the marked logs were in the river bottom is of itself not sufficient to support such finding. There is abundant proof to show that these logs were not abandoned. The testimony of complainant and his witnesses, and the witnesses for defendant, shows, without contradiction, that efforts were made by the owners each year for many years to recover sunken logs and many were in fact recovered each year. The authorities are harmonious in holding that there must be an intention to abandon, without which there can be no abandonment. “ The intention is the first and paramount object of inquiry.” 1 Cyc. p. 5, and cases cited.

1 ‘ The mere failure to exercise the act of removal would not operate as an abandonment or proof of an intention to abandon.” Log-Owners’ Booming Co. v. Hubbell, 135 Mich. 65 (4 L. R. A. [N. S.] 573).

In the case at bar an abandonment of property of great value is claimed upon the bare fact that the act of removal has not yet been exercised. In addition to the evidence as to the steps taken each year by the owners of the log marks to recover their sunken logs, the proofs show that they have not yet abandoned logging upon the Muskegon river. There was no abandonment, and the title to the marked logs already removed from the water and those still remaining in the bottom of the river is in the owners of the marks and those lawfully claiming under them.

It appears undisputed in the record that for more than 30 years a custom, known and acquiesced in by all log owners and operators upon Muskegon river, has prevailed, that sunken and deadhead logs raised from the bottom of the river upon which log marks are no longer distinguishable were retained by the booming company engaged in such work as its property and were stamped with its log mark. In raising these logs defendant is the successor of the Log-Owners’ Booming Company, which is still operating on Muskegon river as a booming company, but not engaged in the work of raising sunken and deadhead logs; that work being carried on by defendant under contracts with the owners of nearly all the log marks originally used on the river for a consideration, to raise their logs and bring them to Muskegon. The testimony of complainant and his principal witness shows that they had knowledge of such custom, and that complainant as late as 1908 had entered into a contract with the booming company to raise logs sunken and embedded in the stream along his property and did do so and delivered all such logs marked and unmarked to the company without questioning its right or title. Defendant urges that such custom has the force of law and cannot be questioned by complainant.

Complainant’s claim in this case is that logs sunken in the river and partly or entirely covered with the soil by the action of the current and upon which the marks are no longer distinguishable belong to the riparian proprietor by virtue of his ownership of the soil to the middle thread of the stream. The distinction is made by complainant between personal property lost and found upon the surface and the same kind of property found embedded in the soil. It being admitted that the former may belong to the finder. Can it be said that any of this property may be treated as lost property ? If it is not to be so considered, then a discussion of the rights of the finder and the rights of the proprietor upon whose land the property is found, whether on the surface or embedded in the soil, would be foreign to the issue and fruitless.

We have already arrived at the conclusion in.this opinion that the proof shows that the marked logs had not been abandoned. The title to that class of logs,.then, continues in the original owners or their representatives and assigns. The law requires that all logs put into these waters must be marked. The presumption follows that the great share of these logs were originally marked for the purpose of identification, and that the abrasions of transportation have obliterated the marks upon the unidentified logs. Can we say on that account that the logs upon which the marks have become obliterated have been abandoned or lost ? The efforts made every year by all of the log owners to -recover their sunken logs were directed to the whole mass of logs put into the waters to be navigated to market, and all kinds were recovered each year. The obliteration of the marks was necessarily gradual so that a log readily identified at one date might within a short time losé its identity as far as the mark was concerned. The proof which supports the finding that there had been no abandonment of marked logs will apply with equal force to those logs from which the marks have been obliterated by the abrasions of navigation. The loss of its mark does not divest the owner of his title to the log. The mark simply makes identification certain. We find no evidence in the case to show that these unmarked logs have been either abandoned or lost. The title therefore to such property is also in the original owners and their representatives and assigns. And the fact that they cannot say to which owner the unmarked logs respectively belong does not divest them of the ownership, nor of the right to make any contract or arrangement they see fit with defendant tó raise their property, and according to a custom long established to allow it to take such of the logs as are without marks. It is taking no property from complainant which by purchase or gift has come to him. His only claim to it can be by reason of his riparian ownership which we will next consider.

An immense commerce in the navigation of logs and forest products upon this stream has been carried on for many years by those engaged in lumbering. All the logs now in the stream were put into its waters by the owners for the sole purpose of navigation, and for that purpose this stream is a public highway, as this court has frequently decided. This court will take judicial notice that when the specific gravity of a saw log becomes greater than that of water it will sink to the bottom, and that in streams of any considerable current such sunken logs will become embedded in the soil to a greater or less extent. This, we assert,, is one of the incidents of the use of the stream for the lawful purpose of navigating logs and forest products. It is not necessary to cite authorities to show that in navigating a stream for any lawful purpose the navigator, for that purpose, may make all such reasonable use of such stream as may be necessary and which does not deprive the riparian proprietor of his rights, or the enjoyment thereof. We hold that to recover property, marked or unmarked, not abandoned or lost, from the bed of a stream without injury to its banks or unlawful trespass thereon, is no unlawful interference with the rights or enjoyment of the riparian owner. Such recovery would be a proper and lawful use of the stream, and would be a right incident to the business of navigation. As we understand the argument of complainant, this right is conceded to an owner recovering his property about the title and the identification of which there is no dispute.

From the views herein expressed, we hold that the logs now remaining upon complainant’s premises, which have been raised from the bed of the river and placed there by defendant, are not the property of complainant. Upon complainant’s own theory they could not be held to be his property, for the reason that there is no evidence in the case identifying these particular logs as having come from the bed of the stream on complainant’s land. The claimed admission in the answer does not so state.

Defendant very properly disclaims, in the oral argument, any right to put these logs on complainant’s land. Its agents and servants in so doing were unlawfully trespassing upon complainant’s premises. Such trespass however did not operate to give complainant any title to the property; for all of which trespasses complainant has an adequate and complete remedy at law.

Our conclusion is that the circuit judge was in error in granting relief to complainant. The decree is reversed, and a decree will be entered in this court dismissing the bill of complaint, with costs of both courts.

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