text:
    McKEE v. CITY OF GRAND RAPIDS.

      1. Waters — Obstructions—Laches.
    Where obstructions to the natural flow of water in a stream have been permitted to remain over 15 years, a riparian owner’s remedy for their removal is barred by the statute of limitations and by laches.
    2. Equity — Injunction—Estoppel.
    One who makes a mere protest, and waits until an expensive improvement is completed, cannot invoke the aid of a court of equity to undo the expensive work.
    '3. Same — Relief Impracticable.
    Equity will not grant relief which, under the evidence, is wholly impracticable.
    4. Water — Riparian Owners — Nuisance.
    A city cannot divert water from one side of the river, to the injury of a riparian owner, into a channel on the opposite . side, for the purpose of abating a nuisance in such channel, where there is another practicable way which will not damage landowners.
    5. Nuisance — Public Health — Private Injury.
    A private person can only maintain a bill to abate a nuisance to the public health when the nuisance causes special damage to him as a private person, separate from that done to the public.
    Appeal from superior court of Grand Rapids; Newnham, J.
    Submitted February 25, 1904.
    (Docket No. 53.)
    Decided July 16, 1904.
    Bill by James H. McKee and others against the city of Grand Rapids to abate an alleged nuisance. From a decree dismissing the bill, complainants appeal.
    Affirmed.
    The issues in this case are well stated in the opinion of the court below as follows:
    “In the original bill of complaint it is claimed that the complainants J. H. McKee and James Landon McKee are the owners in fee simple of certain property which adjoins the said steamboat channel, and that by virtue of their possessing the title to said premises they have riparian rights in said channel. The property which the said' James H. McKee and James Landon McKee own is in what is known as ‘ Ellsworth’s Addition to the City of Grand Rapids,’ in blocks 23, 24, 25, and 26, the same being situated between the steamboat channel and the west side of what is now known as ‘ Market Street.’ The complainant Albert M. Henry does not own any property in fee ¡simple, but has interests in the said property to the extent of a contract made with the other complainants, whereby they were to convey to him an undivided one-fourth interest in said premises.
    “The complainants also claim in the hill of complaint that what is known as ‘Island No. 3,’ and which is now known to the people of Grand Rapids as the ‘ Market Site, ’ was nothing but a sandbar or an island, which was often covered by the waters of said stream, and that they are entitled to the soil to the middle of Grand river, including portions of said Island No. 3.
    “ It is claimed that in 1832, and for many years thereafter, there was a channel about 200 feet in width between what is known as ‘ Island No. 3 ’ and the easterly bank of the said steamboat channel, upon which said complainants’ property abuts, and that this was the natural channel forming the means of navigating Grand river from below up past the premises of the said complainants; and they also allege that it is still a navigable stream, and that the same has been and still is used for the purpose cf navigation.
    “It is claimed that between what is known as ‘ Island No. 3’ and what was then known as ‘ Island No. 5’ there was a distinct channel, connecting this steamboat channel with Grand river, and that the flow of water was sufficient to cleanse the said channel, and to keep it free from all impurities; and that somewhere about 1871 certain parties •'caused a dam or embankment to be built connecting Island No. 2 with the east bank of said Grand river, thereby cut- ' ting off and diverting the flow of water which flowed through the east or steamboat channel, but that the said cast channel, or said steamboat channel, still remained the deeper channel, and ■ that it was still connected with the river by the open channel, between Island No. 5 and Island No. 3.

      “It is claimed also on the part of the complainants that about 1871 the said east channel was dredged near what was known as the ‘ head of the channel,’ and also the foot of Island No. 5, and that a turning basin was made sufficient for the passage and accommodation of steamers plying upon said river; that in so dredging an embankment was made by the dirt which was thrown up, which partially cut off the flow of water through the said steamboat channel.
    “It is also claimed that there was still an open channel between the two islands, which operated to prevent the stagnation of water in the so-called ‘ steamboat channel,’ but that whatever benefit was derived from it was nullified by a trunk sewer which emptied into Grand river at the head of Island No. 5, and other sewers which emptied into the river; that the current carried the contents of these sewers down the east shore of the river, and through this steamboat channel; that about 1878 it is claimed by the complainants that the said city constructed a sluiceway, but that the nuisance still continued, and continued from that time on until 1897; that the flow of water through said sluiceway would have been sufficient to prevent the stagnation but for the pollution of said channel by the sewers aforesaid; that in 1897 the city of Grand Rapids purchased Island No. 3, and built a solid roadway of earth to said Island No. 3 across the head of said steamboat channel, and that it also filled up the northerly end of the turning basin of the steamboat channel with earth for a distance of 300 feet farther south than was necessary for the roadway; that this was done without the consent of the complainants; that this filling entirely shut off the flow of water from the westerly channel of Grand river into and through the steamboat channel, and that now the said channel is in such a condition that it is a menace to the public health, and that in consequence thereof the property of the said complainants has been rendered practically uninhabitable, and its use for business or residence purposes wholly prevented; that by the action of the city of Grand Rapids in cutting off the flow of water in said channel and polluting the waters thereof the use of said channel for the purpose of navigation has been impaired and destroyed; that the premises of the said complainants were suitable for the erection of docks and warehouses for the purposes of navigation and for the construction, of business blocks and dwelling houses, and that the said premises in consequence have been greatly lessened in rental value, and the sale of the same has been prevented, and that they have been damaged in the sum of $30,000; and the complainants ask for a decree of this court declaring the condition of said channel to be a nuisance, and that the said complainants are entitled to have said nuisance abated, and that the defendants may be required to remove the roadbed, the market site approach, and all obstructions between Islands No. 5 and No. 3, and to remove the earth, gravel, and other material which it is claimed has been dumped and deposited in said steamboat channel, and that it be required to reopen the said channel so as to permit and restore the flow of water of Grand river therein, not polluted with sewage; and that the defendant, as soon as the channel is opened, be restrained from further polluting the waters, by emptying its aforesaid sewers therein, and that an accounting be taken of the damages which complainants have suffered, and that a reasonable amount, not to exceed $30,000, be made to the complainants for the damages which they have sustained, and that the defendant be decreed to pay the same.
    “Defendant, in its answer, denies many of the allegations of the bill, and states that Island No. 3 is the property of the city, and that it has complete title thereto; that the said channel filling, which was done in 1871, was done with the consent of the then holders of the property, through whom complainants derived their title; that they acquiesced and consented thereto, and that no objection was made prior to the filing of the bill.
    “ It denies that there was an open channel at the time of the city’s purchase, or even prior thereto, that prevented the stagnation of waters, or that the sewage emptied above had any deleterious effect upon the waters of the channel, and that when said sewer was constructed at Fulton street, years ago, it was constructed without remonstrance on the part of the complainants; that Grand river has been used as a source of drainage by the city for 50 years and upwards ; that the filling of the slip by the city made the phannel no more objectionable than it was before, and that the channel at the foot of Island No. 3 has not been navigable for 10 years and upwards; that, if there was any pollution in 1896, and for some years before, it was such pollution as arose from water-closets on the east bank of said channel, some of which were owned by the complainants; that the city has not permitted any one to dump anything into the steamboat channel that would be injurious to its waters, and defendant alleges that most of the property owners, outside of the complainants, in the vicinity, desire the steamboat channel to be filled; that the said steamboat channel is not now recognized as a navigable stream; that the navigation became less and less, and that now the same has practically been abandoned, to such an extent that the government of the United States has not required, in the bridge which is now being constructed across Grand river, to have a draw in any part except the main channel, or what is known as the west channel of Grand river.”
    After the original bill was filed the defendant commenced the erection of a bridge over the river at the foot of Wealthy avenue. Complainants then filed a supplemental bill, alleging that the defendant intended to make a solid fill at that point, and praying that the defendant be enjoined from filling said channel at that point, and that it be required to remove the earth and gravel which had already been dumped into the channel. Answer and replication were duly filed to the supplemental bill.
    Upon the issues thus framed a large number of witnesses were sworn, whose testimony extends over 600 pages. Proofs were taken in open court, and the court made the following finding of facts:
    “That prior to 1871 the so-called ‘steamboat channel’ was used more for navigation than what is known as the ‘ main channel; ’ that it extended along the east bank of the river for quite a distance beyond even the head of what is known as ‘Island No. 5,’ and which did lie to the north of Island No. 3; that in 1871 said channel was closed at the foot of Island • No. 2 by a dam, which was constructed between that and the east bank of the river; that in that construction the city of Grand Rapids had no hand as a property owner, or in any other way; that the same was done without remonstrance on the part of any one, so that the only flow from Grand river through into the channel was through a small raceway between Island No. 5 and Island No. 3; that in 1878 the city, in order to make a larger flow, placed a sluiceway there, which remained until the filling by the city in 1897; that in 1895 the city bought what is known as ‘ Island No. 3,’ and in 1897 filled up the head of the channel, so that there was no communication in any shape or way between the main body of Grand river and this channel in question.
    “I find the facts to be, also, that for many years the navigation of Grand river had gradually lessened until about 1893, when it was practically abandoned, with the exception of occasionally a boat or two running for a very short time up and down the river; that said east channel was becoming of less and less importance as a navigable arm of Grand river, and that the same, for all practicable purposes, had been abandoned as far as navigation is concerned ; that also the waters of the east channel, as they are at present, and as they have been for many years, by reason of its pollution and stagnation, have been a menace to the public health, and are a nuisance that should be abated.
    ‘ ‘ I find that the action of the city in filling up the head of the channel did not increase the nuisance over what existed before; that, on the other hand, from the evidence in the case, the nuisance was lessened, and that whatever pollution there is of the waters comes not from anything which is carried into it from above, but from the stagnation of the water, and the stuff and material which have been thrown into it by the adjacent property owners, and the excrements and drainings from . the water-closets which have been situated on the bank.
    “ I find that the nuisance caused by the pollution of the water has existed from 1878 at least until 1897; for a period of over 15 years, during which time the city had no interest other than that of whatever supervision it had the right to have by virtue of its powers as a municipality.
    “I find it to be a fact, from the evidence in the case, that the only way in which to abate the nuisance would be to entirely fill up the channel.
    “ I find the facts also to be that the said Island No. 3 has become very valuable property, in consequence of the improvements which have been made by the city of Grand Rapids since the purchase of the same, by the erection of valuable plants thereon, and the use of the said property as a market site for the city of Grand Rapids; that such action of the city has largely increased the value of the property.
    “ I find that the property of the said complainants is of more value at the present time than it was at the time that they purchased it; that the said property has not depreciated in rental value, or for the purpose of sale, in consequence of the nuisance which it is alleged exists there, or through any action on the part of the city of Grand Rapids. There is no evidence in the case which shows that the complainants will ever derive any more rental or revenues from docks in use or to be erected, as the use of the river for navigation purposes has declined to such an extent as precludes any such idea.”
    In accordance with the above finding the court entered a decree the material parts of which are as follows:
    “ That the steamboat channel was filled* across from the head of Island No. 3 by private parties, without the intervention of the defendant, about the year 18?1. That with the exception of extremely high water, the only water flowing through the same subsequently thereto was through slips cut through private property over to the main channel of the river, one in 1878 and one in 1892, which were insufficient to materially affect the water within the channel. That the said east channel was at one time navigable, but gradually the use of it for such purposes became less and less to such an extent that practically for several years it has ceased to be a navigable body of water.
    “That on account of the stagnation of the water, and the drainage from the shore, and more or less dumping, it has become, to a certain extent, a general nuisance. That the action of the city in filling up at the head of the channel in 189?, or thereabouts, did not increase the nuisance or objectionable character of the channel, but, on the other hand, tended to relieve the objectionable features of such channel, and improved the surrounding property. That the objectionable condition of the steamboat channel for a period of upwards of twenty years prior to the purchase of the island and the filling of the same at the head thereof has continued to exist, aside from the fact that it was relieved to a certain extent by the filling made by the city.
    “That the improvements made by the city on Island No. 3 on the westerly side of the steamboat channel, and at the head thereof, have tended to increase and did increase the value of property in that vicinity, including the property of complainants, and the property of complainants has not depreciated in rental value for any reason of which complaint is made.
    “That complainants stand upon the same footing as other parties in the neighborhood, so far as any injury that may have been sustained on account of the condition of the waters of the steamboat channel, and they have not .suffered any special injury different from that of the general public. That complainants were not damaged by the conduct of the defendant in any way. That the steamboat channel is not a navigable body of water in the ordinary sense of the term, and is a nuisance, the removal of which can only be done effectually by the filling of the same.
    “It is therefore ordered, adjudged, and decreed that the original bill of complaint filed herein be, and the same is hereby, dismissed.
    “ It is further ordered, adjudged, and decreed that the defendant be and it is hereby required, in the construction of the bridge at Wealthy avenue, at the point of its crossing the steamboat channel, to so construct the same that there be left an open space in the steamboat channel at such point at least 10 feet above the surface of the water at ordinary stages, and of a width of 30 feet, temporarily; but no draw is required to be made therein.
    “ The decree of this court shall not he prejudicial to the right of the city to have the said steamboat channel declared a nuisance, and to abate the same by the filling thereof in the manner provided by law.”
    An understanding of the situation can perhaps better be obtained from the map hereto attached (p. 308).
    Burlingame, Belden & Orton and William E. Grove (Knappen, Kleinhans & Knappen, of counsel), for complainants.

      Moses Taggart (Ganson Taggart and S. W. Barker, of counsel), for defendant.
   Grant, J.

(after stating the facts). The issues in this case are those of fact, rather than law. Counsel for complainants in their brief say:

“We assert that the city of Grand Rapids created and maintained this nuisance by emptying sewage at first directly into this channel, and afterwards by negligently permitting it to flow through the sluiceway into the channel; and also by the improper dumping of garbage and filth along the bank of the channel. We also complain of its action in filling and causing or permitting to be filled in portions of the east channel, including the turning basin. If the defendant did not thus cause and create this nuisance, then complainants have no cause of action., and there is no necessity to discuss any abstract questions of law.”

A, sluice from the steamboat channel to river.

B, Oak street fill of 1896.

O, O, sheds and restaurant.

D, filled turning basin.

E, the old dock torn away six or seven years ago.

F, P, P, part of the houses and closets on the bank.

H, few feet of dock of McKee’s north of Wealthy avenue.

I, I, draws in railroad bridge and Wealthy avenue approved by the United States government. Crossing of channel at Wealthy avenue shows fill authorized by United States gov» ernment.

There are some issues of fact upon which the evidence is in conflict. Upon others there is a substantial agreement.

There were originally five islands in Grand river below the rapids. Islands numbered 1, 2, and 5 were above Island No. 3. Island No. 5 was called by the surveyors “Low Willow Isle.” Their location can be seen upon a map found in the opinion in case of Butler v. Railroad Co., 85 Mich., at page 252 (48 N. W. 569, 24 Am. St. Rep. 84). There was one well-defined natural channel east of these islands. About 31 or 32. years ago this channel between Islands Nos. 1 and 2 and the east bank of the river was filled with earth by the owners of the islands and the lands on the east bank. This filling completely closed that channel of the river, and a considerable portion of the business part of the city of Grand Rapids is built upon this land so made, and upon these islands. This, of course* prevented the flowage of water through the channel. For this the city was in no wise responsible. All remedy* either at law or in equity, for such action, is now barred by the statute of limitations and by laches. This action on the part of the property holders left no flowage of water from the main channel of the river into what is known as the “ eastern channel,” except that which flowed between Islands Nos. 3 and 5. There was little current between them except in cases of high water.

' The court below found that this eastern channel had for more than 30 years been a nuisance. To this nuisance various parties contributed, as hereinafter stated. The action of the elements has also contributed to it by rains and floods, which washed the refuse deposited upon the surface of the lands adjoining into the channel. The fact, also, that the river is lower now in the summer than it was 25 or 30 years ago is another element increasing the nuisance.

In 1871 private parties interested in the use of the eastern channel. as a waterway for commerce dredged the channel, and also dredged out a basin at the head of. Island No. 3, so that boats coming up the channel could turn around. In constructing this basin the earth was excavated and thrown out, and an embankment made across the head of the channel. A small sluiceway, consisting of an iron pipe, was put in under the embankment for the purpose of admitting the water from above. The closing of the channel between Islands Nos. 1 and 2 and the main land and the erection of this embankment across the channel at the head of Island No. 3 substantially shut off all the current that would naturally flow from the main river into this channel. The'water in the channel below naturally became stagnant. Complaints were made of noxious odors, and from that time, as appears by the records and proceedings of the common council, it has been a constant source of discussion, and various efforts have been made to abate the nuisance, which proved abortive. Various parties naturally made this channel a dumping ground, even against the orders and instructions of the city, and against notices posted along the channel banks.

Upon the complainants’ property and other adjoining lands are situated some dwelling houses, in the rear of which, and near the bank of the channel, are water-closets or privies, which consist of a hole in the ground and boards upon the outside, with large cracks between. In times of high water some of these privies stand in the water. All agree that the general reputation of the neighborhood is bad. Garbage and slops were thrown out upon the ground, which would be washed into the channel by the rains. The seepage and flowage from these closets contributed to the nuisance. The boats which were used in the channel also were daily depositing offensive material.

The complainants desired, and the board of health advised, the construction of a sluice, instead of this small one, which was of little or no use; and in 1878 the city constructed such sluice. It did not carry water at the low ■stages of the summer in sufficient quantities to remedy the evil. Much of the time it carried little, if any, water. It is claimed that the sewage from the sewer pipes above flowed down through this sluice into the channel, and contributed to the nuisance. We agree with the ■finding of the circuit judge that there was not sufficient offensive material which came through this sluice from the sewers to cause the nuisance. Other cities ■and villages above the defendant city also emptied their sewage into the river, and there is good reason for the testimony of one witness, who stated that there was no longer pure water in the river during the low stages. The sewers were emptied into the river at the usual distance from the hank. Finally, in order to remedy the evil, some of the sewers were carried out near the center of the river. Originally, some of the sewers emptied into the eastern channel, but this was some years ago, and there is no xeason to believe that this contributes now to the nuisance. The floods in the spring and fall flushed this channel out sufficiently to carry with it all offensive matter. The "trouble evidently is in the low stages of water in the summer, when stagnant water becomes unhealthful without the addition of offensive matter.

The city is not responsible for closing the channel between Islands Nos. 1 and 2 and the main land; neither is it responsible for the embankment at the head of the basin, which cut off all the current there was between Islands Nos. 3 and 5. We find no substantial foundation for the claim that the city has created the nuisance. If these complainants or their grantors desired to prevent these obstructions to the natural flow of water, they should have proceeded against those who caused them. Their remedy is now barred by the statute of limitations and by laches, mo'matter whether these obstructions were made by priwate parties or by the city.

We think the evidence fails to sustain the complainants’ -allegation that the city has deposited upon Island No. 3 garbage which contributed in any appreciable amount to-the impurities of the water of the channel. The city constructed an incinerator, where it burns all its refuse which can be burned. The more offensive, which cannot well be-burned, is taken to the foot of the island, and dumped into-the main channel. If any offensive matter has occasionally been dumped into the channel, it has been against the-express orders of the city. The city cannot be held liable for this entire nuisance, even if on a few occasions one of its employés has violated its instructions.

As against the city the complainants are not now entitled to the gracious writ of injunction to compel the city to undo what it has done. The purchase of the island,, the intention to connect it with the main land and to close up the sluiceway, and the progress of all these important and extensive improvements were known to the complainants. They contented themselves with a mere protest at some stage of the proceedings. Two courses were then, open to them: (1) To file a bill in equity to enjoin the work on the ground that it would increase the nuisance already existing, and cause them irreparable damages;, (2) to wait'until the work was done, and bring an action, at law for damage. They waited. Equity will not now lend its aid to a party to compel an expensive work to be undone which the party might, by planting a bill in equity in reasonable season, have prevented. 16 Am. & Eng. Enc. Law (2d Ed.), pp. 356,357; Traphagen v. Mayor, etc., of Jersey City, 29 N. J. Eq. 206; City of Logansport v. Uhl, 99 Ind. 531 (50 Am. Rep. 109); Griffin v. Railroad, 70 Ga. 164; 1 Spelling on Injunc. and Other Ext. Rem. § 26; Edwards v. Mining Co., 38 Mich. 46 (31 Am. Rep. 301). See, also, Clifton Iron Co. v. Dye, 87 Ala. 468 (6 South. 192).

A mere protest under such circumstances will not open the door of equity to parties who thus delay in seeking its-aid. 16 Am. & Eng. Enc. Law (2d Ed.), p. 357; Easton v. Railroad Co., 24 N. J. Eq. 50; Kerr on Injunc. (4th Ed.)p. 138. When these complainants chose to content themselves with the simple protest, and then to stand by in .silence, and see these extensive and valuable improvements progress, they estopped themselves to any remedy by injunction.

Another reason why the relief sought cannot be .granted is that it is, under the evidence in this case, wholly impracticable. An engineer, one of the complainants’ •witnesses, testified that, to he effectual, the channel into the'river should be as wide as the eastern channel, and as •deep as the bed of the river. Another testified that pure water could only be obtained by running the channel into •or near the middle of the main river. Whether sufficient water at low stages in the summer, when it is most needed, ■could be obtained, may be questionable. If it could what •effect would such a channel have upon the volume of water in the river ? To be effective, it must necessarily divert from the river more water than naturally ran through the -original channel between Islands Nos. 3 and 5. The restoration of the sluice, or even the original channel, or .their equivalent, would not abate the nuisance. It is not at all certain that the diversion of the volume of water necessary to abate the nuisance would not result in injury to the inhabitants on the west side. Has the city, or have the inhabitants on the east side, the right to divert the water to the injury of those upon the west side, even though the water so diverted would abate a nuisance to the health of the city upon the east side ? This question must be answered in the .negative; especially when, as therein shown, there is another sure and practicable way to .abate the nuisance, and one which will not only cause no ■damage to the landowners, but will increase the value of their lands. All that the complainants, in any event, would be entitled to as against the city, would be the restoration of the volume and current of water equal to that which ran through the original sluice between Islands Nos. .3 and 5; and as against all would be entitled only to that which originally ran through the original channel between those islands. The question of abating the nuisance as a menace to the public health is not now before us for discussion. Complainants, as a part of the general public, cannot maintain a suit upon that ground. Only when the nuisance causes special damage to a private person, separate and apart from that done to the public, can he maintain a suit to abate it. The city is not responsible for the embankment made in 1871, and cannot be compelled to remove it. The city did not thereby stop the flow of.' water. It cannot, therefore, be compelled to restore it. It can only be compelled, in any event, to restore what it-took away. As the complainants desired, and as the-board of health advised, the city undertook to increase the flow of water, not for the benefit of the defendant, but for the benefit of the public health. The experiment made in good faith by the advice of those upon whom the city had. a right to rely proved a failure, and in 1896 the city closed, it up; thereby, as is clearly established by the evidence, adding value to the complainants’ lands. Even if the city were under any obligation to restore the channel, it is now,, for the reasons above stated, impracticable and of doubtful propriety.

We agree with the conclusion reached by the court below that as a highway of commerce this eastern channel is now useless, and will ever remain so. There is not the remotest probability that the United States will ever dredge it out so as to make it a commercial channel, and certainly no private parties ever will, in view of the fact that the United States has now recognized the channel upon the west side of the island as the commercial channel; and if it ever improves any it will improve that. It has already recognized this channel by ordering draws in the bridges upon the west óf the island, and refusing to require them over the eastern channel. Commerce and the general public will be as well accommodated on the west side of the island as they can be upon the east, and probably better. Not only would the channel itself have-to be dredged to be useful for commercial purposes, but it would be necessary to divert the water of the river into it. in sufficient quantities to purify it. No witness has expressed a belief that this will ever be done. It follows from what has bqgn said above that the only practicable way to abate this nuisance is to fill the channel. Upon this there is also a substantial agreement of the 'witnesses. It is probably the only safe and effective way.' Complainants’ lands are already increased in value by the purchase of this island and the extensive improvements put upon it. It is unquestionable, and virtually admitted by the complainants themselves, that - the filling of the channel will increase the value of their property, and add to it land which, under the present conditions, is of virtually no value. There is evidence that one of the complainants signed a petition to have this channel filled. Another testified as follows:

Q. Don’t you think, under the condition this property is in down there now, and with the present policy of the government not to have any draw in the east channel, that it would be worth more with the old channel filled up ?
A. There is no question about it at all.
Q. Or that it would be worth more than it would be with any little artificial channel, such as existed at any time within the last thirty years ?
“A. If things were returned, and a pure stream of water was flowing through there, I should rather have it in that shape than the present state and have to fill the land.
‘ ‘ Q. There was no pure stream of water flowing through this little artificial sluiceway from the river, was there ?
“A. No, sir; but there should be.
“ Q. I am speaking of it as it existed for the last thirty years. Taking into consideration the little artificial sluice that was there, the land is worth more filled up, now that the government has abandoned it as a navigable stream of water ?
“ A. I answered it two or three times that if it is to stay as it is now it is worthless.
Q. If it stays as it was with that little channel that carried sewage into it, it is not worth much?.
A. No, sir.
Q. You have in contemplation a large channel through there that would bring pure water, such as has not existed for thirty years ?
“A. Not necessarily.
Q. It would have to bring pure waiter to be of value ?
“A. Yes, sir; but I don’t think it would be a very large channel.
“ Q. It would take a very different channel from any that was made by the city, wouldn’t it ?
“A. I am not an engineer. I could not say as to that.”

We have already stated whát the complainants’engineer testified to in regard to the channel. Under this state of facts the complainants’ cause is without equity. If the present condition of the channel is a menace to the public health, the law provides a remedy for its abatement. With that question we, however, now have nothing to do. It is sufficient to say that for the reasons above stated the complainants are not entitled to any relief in equity. The _ bridge, as proposed by the decree, permits the passage of all the boats which now have occasion to use the channel. The defendant not having appealed, that decree stands, and the defendant can proceed with the construction of the bridge in accordance therewith.

The decree is affirmed, with costs.

The other Justices concurred.


source: Caselaw Access Project

author: Moore, C. J.

license: Public Domain

text:
    PEOPLE v. MUSTE.
    Homicide — Insanity—Instructions.
    Where, on a trial for murder, there is some evidence tending to establish insanity, it is error to refuse a request that, if respondent was laboring under such a defect of mind and reason as not to know the nature and quality of the acts' he was doing, and incapable of forming a criminal intent, he should be acquitted, and that it was incumbent upon the people to prove beyond a reasonable doubt that he had the capacity to form an intent to commit the crime.

      Error to superior court of Grand Rapids; Newnham, J.
    Submitted February 26, 1904.
    (Docket No. 203.)
    Decided July 16, 1904.
    John E. Muste was convicted of murder in the second ■degree and sentenced to life imprisonment in the State prison at Jackson.
    Reversed.

      Dunham & Malcolm, for appellant.

      William B. Brown, Prosecuting Attorney, for the people.
   Moore, C. J.

Respondent was convicted of murder in the second degree. He has brought the case here by writ ■of error.

On the night of June 8, 1903, the respondent shot and killed one Albert Schultz. It was the claim on the part - of the people: That the respondent had been in the saloon business, and in April, 1903, made application to the city ■council for a renewal of his saloon license. That said application was denied. The application was renewed, and came up for final determination on June 8th, when it was again rejected. Charles A. Hilton was a member of the license committee, which committee reported adversely to the allowance of the applications. That respondent believed the rejection of his first application was due to the influence of said Hilton. That, before respondent’s second application was acted upon, he told several persons that, if it was not allowed, he would kill Alderman Hilton, and that he went to the council for the purpose of learning its action thereon; taking with him from his house a loaded revolver, with which to kill Alderman Hilton if this application was refused. It was refused. Respondent followed Alderman Hilton, who was in company with Albert Schultz, from the city hall to near the corner of Bridge and Ionia streets, in said city, where respondent accosted Alderman Hilton, calling him vile names, and finally attacked him, and attempted to pull the revolver from his. pocket. That Alderman Hilton, seeing this attempt, caught hold of respondent, and tried to prevent him getting the revolver, and, in the scuffle, that he and the respondent both fell to ground. That Alderman Hilton got away from respondent, and started to run, and that respondent fired his revolver, intending to shoot Alderman. Hilton. That instead, he shot Albert Schultz, who died from the effect thereof. That respondent premeditated and attempted the killing of Alderman Hilton, and, in such attempt, shot and killed Albert Schultz, and that such act was murder.

Respondent claims that he had the revolver for a proper purpose; that in the controversy Hilton struck him and got on top of him; that Hilton then got up; that respondent was stunned; that it was dark; that he feared another attack from Alderman Hilton, and that, without any idea as to what he was doing, took the revolver from his pocket and fired while on his knees; that the first he remembered', that he had a revolver was when he heard its report; that, as a matter of fact he fired four times, but this he did not know until he was afterwards told by an official that four shots had been fired; that his head and face were cut and bleeding; that blood was running from his nostrils; that he was so hurt and injured that he was not conscious of the act of firing, except that he remembered hearing the-report of his pistol; that when he left the house that night, he had no intention of taking the revolver to the council meeting; that he never threatened to shoot and kill Aider-man Hilton; that he never blamed him for any action of his as a member of the license committee; that he was. upon friendly terms with Alderman Hilton; that he did. not at anytime intend to inflict any injury upon Alderman Hilton, and never intended to shoot him; that he had no> intention of shooting Schultz or Alderman Hilton, or of shooting in the direction of either, or of ‘inflicting upon either bodily injury of any kind.

He interposed two defenses: First, that of temporary or emotional insanity; and, second, that the homicide in question was the result of temporary excitement of respondent, by which the control of his reason was lost, caused by a fierce and vicious attack upon and injury to him by Charles A. Hilton.

The first group of assignments of error relate to the exclusion of testimony. As to many of these, exceptions were not taken; counsel apparently acquiescing in the rulings of the court, and framing other questions, so they were not objectionable. We shall not discuss those assignments of error.

Other of these assignments of error relate to the striking out of testimony bearing upon the subject of insanity. Counsel are not agreed as to what was stricken out, and the record is ambiguous. In view of our conclusion which, we shall express later, it is not necessary to decide what was stricken out.

Among other requests, the court was asked to charge the jury as follows :

“(23) If you find that the respondent on the night of the shooting was laboring under such a defect of mind and reason as not to know the nature and quality of the acts he was doing, and was incapable of forming a criminal intent, he cannot be convicted of the offense charged.
“ (24) If, from all the evidence in this case, you are not convinced beyond a reasonable doubt that on the night of the shooting the respondent was of sound mind and discretion, and was capable of forming a criminal intent, you. should acquit.
“ (25) It is incumbent upon the people to prove beyond a reasonable doubt the criminal intent with which the fatal shot was fired, and the respondent’s mental capacity for forming an intent to commit the alleged crime. If, from all the evidence in the case, you cannot say you have a moral certainty that on the night of the shooting the respondent’s mind and discretion was sufficient for him to form a rational intent to kill, then respondent’s guilt has not been proved to you beyond a reasonable doubt, and you should acquit.”

He refused to give these requests, and failed to charge the jury upon that subject. This is said to be error. Counsel for the people says the requests were properly refused, because there was no testimony upon which to base them. This involves a question of fact. It would not be profitable to insert the testimony here, but an examination of the record discloses that there was some testimony which tended to support the theory of the respondent upon this branch of the case, and it should have been submitted to the jury.

The only portion of the charge which we deem so objectionable as to call for reversal is disposed of in what is ■said above.

The conviction is set aside, and a new trial ordered.

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


text:
    LOESER v. JORGENSON.
    1. Chattel Mortgages — Recording—Actual Notice.
    A chattel mortgagee cannot complain of a charge that the mortgage was valid against one who had actual notice of its existence, though filed in the wrong township.

      2. Saving Questions for Review — Evidence—Objections.
    One cannot urge on error that certain evidence was not admissible under the pleadings, unless such objection was made on the trial.
    3. Domicile — Evidence—Statements—Relevancy.
    Where the place of residence of a person, not a party to the suit, is at issue, testimony by the supervisor that such person claimed a homestead in the township, and made and delivered to him a statement of his taxable property in the township, is relevant to the issue.
    4. Same — Residence—Intent—Voting.
    Testimony that the mortgagor of chatties registered as a voter in a certain township the day after the mortgage was given, and three days later voted there, tends to show his intent, and is therefore admissible on the question of his residence.
    Error to Crawford; Sharpe, J.
    Submitted March 16, 1904.
    (Docket No. 115.)
    Decided July 16, 1904.
    Trover by Leo Loeser, Ferdinand Loeser, and Solomon Loeser, copartners as Loeser Brothers, against Walmar Jorgenson and George F. Owen. There was judgment' for defendants, and plaintiffs bring error.
    Affirmed.

      William D. Totten and J. L. Boyd, for appellants.

      Main J. Connine and Ward B. Connine, for appellees.
   Moore, C. J.

November 2, 1900, Bert Wilcox gave a chattel mortgage to plaintiffs for $350, which was filed on the same day in the township of Grayling. Afterwards defendant Jorgenson obtained a judgment and execution against Wilcox, which execution was delivered to defendant Owen, who levied upon and sold the property covered by the chattel mortgage. Plaintiffs made a demand for the property or the proceeds. Suit was brought, and the case was tried by a jury, which rendered a verdict in favor of defendants. The case is brought here by writ of error.

It was the claim of plaintiffs that the residence of Wilcox was in Grayling, and that the mortgage was properly filed, and gave them a lien ahead of that of the defendants. It was the claim of defendants that Wilcox was not a resident of Grayling when the mortgage was given, but was a resident of Maple Forest, - and that the chattel mortgage was not properly filed. It was the claim of defendant Jorgenson that before extending credit to Wilcox he was told by him that this property was unincumbered, and that Wilcox offered to give him security, and that Jorgenson* had no knowledge of the mortgage until after the credit was given. Wilcox and his wife were both sworn as witnesses on the part of plaintiffs, and testified their residence was in Grayling, and that Jorgenson was told of the mortgage before the credit was extended.

Counsel for plaintiffs say the following questions are involved :

“(1) Whether Wilcox resided in Grayling township or in Maple Forest township on that date; and (2) whether the defendant Jorgenson knew of the mortgage before he extended credit to Wilcox; and (3) whether the court below erred (a) in his rulings on the admission of evidence, (b) in his charge to the jury, (c) in overruling plaintiffs’ motion for a new trial. ”

As to the first of these questions, the jury were told by the judge that, if Wilcox resided in Grayling when the mortgage was given, plaintiffs were entitled to recover. As to the second question, the jury were told:

“If you find that part of Wilcox’s debt to Jorgenson was extended after Jorgenson knew of the mortgage to the plaintiffs, then the verdict here will be for the plaintiffs. * * * And this brings us to the second question — as to whether or not Jorgenson, at the time he furnished these goods to Wilcox, had notice that Loeser Bros, held a mortgage upon this property. The object of the filing of a chattel mortgage, you can see, was to give every one notice who chooses to go and examine the records of the township clerk’s office where a man lives, and see whether or not his goods are incumbered. If, however, actual personal notice is brought to the man that some one else holds a mortgage upon personal property, why, that is just as efficacious, as far as giving him notice is concerned, as filing. And if you find that Wilcox told Jorgenson, while he was getting this credit, and before all of these goods were ■ furnished, that this mortgage existed to Loeser Bros., then, if Jorgenson furnished goods after that, then he couldn’t complain that he did not know of the Loeser Bros.’ mortgage.”

We think these were questions of fact, and were properly submitted to the jury.

Was there error in the admission of evidence ? The plea gave notice that Wilcox was a resident of Maple Forest when the mortgage was given. Evidence was intro■duced showing that Wilcox claimed to be a resident in 1897 of Presque Isle county, and registered and voted there, and continued to reside there until the spring of 1899. Counsel say it is elementary that the evidence ¡should correspond to the plea, and that this testimony ¡should have been rejected. Counsel, in his opening statement to the jury, claimed Wilcox was a resident of Gray-ling, and had been for years. There was no suggestion in the objection that it was not admissible under the pleadings. We think that objection cannot now be urged.

It was the claim of the plaintiffs that, though Wilcox was living with his family in Maple Forest, he was there temporarily to do lumbering, and that his actual residence was in Grayling. Defendants were allowed to show that Wilcox told the supervisor in the spring of 1900 that he had a homestead in Maple Forest, and that he made and delivered to the supervisor a statement of his taxable property in that township. The objection was that the testimony was irrelevant and incompetent. None of it was «objected to as being hearsay. We think the testimony bore upon the issue.

Testimony was introduced showing that Wilcox appeared before the registration board of Maple Forest November 3d, the next day after the mortgage was given, and claimed he was a resident of that township, entitled to vote; that he was registered on the 3d and voted on the 6th of November. It is said this was error, because ¡anything Wilcox said or did after the mortgage was filed, November 2d, was immaterial. We cannot agree with ■counsel. The question of residence is largely a question of intent. The contemporaneous acts of parties throw light upon what they intend. We think this testimony was competent.

It is said the court should have granted plaintiffs a new trial because the verdict was contrary to the charge of the court, the law, and the weight of evidence. In refusing -the motion for a new trial, the judge found to the contrary of each of these contentions. We have already stated enough from the record to show a sharp conflict in the testimony. The case was submitted to the jury under a clear and careful charge. There was testimony which, if believed, justified the verdict.

Judgment is affirmed.

The other Justices concurred.


author: Montgomery, J.

text:
    TOWNSHIP OF ONEIDA v. ALLEN.
    1. Equity — Parties — Townships — Cemeteries — Board of Health.
    A township is a proper complainant in a suit in equity to enforce rights pertaining to lands purchased by the board of health for a cemetery under the provisions of 2 Comp. Laws,, §§4414, 4415.
    2. Same — Parties—Objection—Amendments.
    An objection that the township board of health is a necessary party to a suit by the township to enforce rights relative to a. cemetery, and has not been joined, should be timely made, and the court may permit an amendment therefor if necessary.
    3. Easements — Private Ways — Use by Owner op the Fee.
    The owner of the fee, over which a private way passes, has a, right to use the way for any purpose not inconsistent with, the right of the owner of the easement.
    4. Same — Prescription—Dedication.
    Where a strip of land, dedicated as an approach to a cemetery, has been used by defendant and his grantors, for more than 15 years, as a private way to his adjoining farm, and it does not appear that the original dedication intended to exclude such use, the defendant’s continued use of the approach will not be enjoined.
    Appeal from Eaton; Smith, J.
    Submitted April 5, 1904.
    (Docket No. 4.)
    Decided July 16, 1904.
    Bill by the township of Oneida against Charles G. Allen to restrain the use of an approach to a cemetery as a farm lane. From a decree for complainant, defendant appeals.
    Reversed and bill dismissed.

      George E. & M. A. Nichols and Clarke & Latting, for complainant.

      J. L. Sutherland (Black & Reasoner, of counsel), for defendant.
   Montgomery, J.

The bill in this case was filed to restrain the defendant from using an approach to a cemetery for the purpose of drawing hay, grain, or other products over it, or driving his stock over it, or using the approach as a farm lane,

It appears that about the year 1839 one James Nixon dedicated to the public a cemetery lot consisting of one-half acre of ground, which extended from a point two rods from his northern line southerly, and was eight by ten rods in dimension. At the same time Nixon and his adjoining neighbor, Daniel Monroe, each dedicated a two-rod strip, extending from an existing highway westerly to the westerly limits of the cemetery lot, as an approach to such cemetery. No written conveyance was made of either description until 1887, when James Nixon conveyed the one-half acre description to the board of health of complainant. ' The defendant had succeeded to the title of Nixon in the farm which includes the fee to the two-rod strip dedicated in connection with the Monroe strip, and claims and has exercised the right to use the strip in question for the purpose of reaching the rear of his farm. The township authorities, desiring to improve the cemetery and approach, and believing the use made of the latter by the defendant to be detrimental to the improvements contemplated, on his refusal to refrain from such use, filed the present bill. On the hearing below an injunction was issued, and defendant appeals.

Numerous questions not going to the merits are discussed, but in the view which we take of the case the only one of these preliminary questions which need be referred to is the contention that complainant is not a proper party, and that the suit should be in the name of the board of health of the township. The statute (2 Comp. Laws, §§ 4414, 4415) authorizes the board of health to purchase lands for cemetery purposes and hold the same in trust for the township. In a suit in equity to enforce rights arising out of such holding the township is a proper party.' If the board of health should have been joined, objection for failure to do so should be timely. In the present case the question is first raised in this court. See Snook v. Pearsall, 95 Mich. 534 (55 N. W. 459). In such a case the absent party may be brought in by amendment if necessary. Id. But as we are of opinion that on the merits the bill cannot be sustained, we discover no occasion for directing an amendment in this case.

It appeared on the trial that at one time there had been surveyed a highway which embraced the four-rod strip in question and extended westerly some distance, and that later that portion lying westerly of the strip in question was discontinued.

The circuit judge, in treating of this subject, said:

“The approach has been used by the general public to reach the cemetery, and also to reach a way which is claimed to have been a public highway, having-its starting point at the west end of the approach to this cemetery. Whether this was a public highway or not, is, in my judgment, of but' little account, because it has been long since discontinued and closed up, and whether this highway was legally laid out, and had its starting point from the north and south highway lying east of the cemetery or not, is, in my judgment, of but little value, because, before this highway is claimed to have been laid out, the approach to the cemetery had been dedicated, accepted, and used as such, and I do not think it could be converted into a public highway in the way it is claimed it was done.”

We do not find it necessary to hold that the strip in question became a public highway, but the fact that it was used for many years as a way without objection, so far as appears, and the fact that the approach, when dedicated, was carried past the cemetery at the customary width of four rods, is of some significance as indicating the intent with which the original dedication was made, ánd whether it was made with a view of excluding the owner of the fee from such use of the property as the defendant and his grantors have since made. It is clear to us upon the whole testimony that the defendant and his grantors have made use of this way for more than the statutory period, and that the original dedication was not intended to exclude .such use. Defendant and his grantors had the right to use the way in question for any purpose not inconsistent with the right of the owner of the easement. Harvey v. Crane, 85 Mich. 316 (48 N. W. 582, 12 L. R. A. 601); 2 Dillon, Mun. Corp. (4th Ed.) § 633. In determining whether such use as defendant has made is or is not inconsistent with the dedication, it would seem clear that the court should consider what such dedication was, and the limitations placed upon it by the. acts of the parties, as well as their interpretation of such dedication for these many years. If the case be so viewed, we can reach no other conclusion than that the defendant has the right to the use which he has made of the way in question.

The bill will be dismissed, with costs of both courts.

The other Justices concurred.


text:
    MALONE v. DANFORTH.
    1. Mortgages — Deed as Security — Equity.
    Complainant, being the owner of the equity of redemption of certain premises, agreed to convey them to defendant, if the latter would advancé money sufficient to redeem, and allow him to repurchase within two years upon payment of advances, interest, and expenses. Defendant was authorized to sell within, two years, deduct from proceeds of sale his advances, interest, and expenses, and account to complainant for the balance. Thereafter the complainant conveyed by warranty-deed to defendant’s wife subject to the.mortgage. Held, that the transaction should be treated as a mortgage and complainant’s right to repurchase did not lapse at the end of two-years.
    2. Equity — Maxims—Usury.
    One who comes into equity to have a deed and contract declared to be a mortgage must be prepared to do equity, and will be required to pay legal interest although the contract-rate was usurious.
    Appeal from Berrien; Coolidge, J.
    Submitted April 5, 1904.
    (Docket No. 9.)
    Decided July 16, 1904.
    Bill by George J. Malone, by Cora Malone Smith, guardian, against Erskine Danforth, Flora A. Danforth, and Herbert M. Danforth to have certain conveyances declared mortgages. From the decree rendered, all parties appeal.
    Modified and affirmed.

      O’Hara & O’Hara and G. M. Valentine, for complainant.

      Harris S. Whitney and Gore & Harvey, for defendants.
   Montgomery, J.

On June 24, 1899, complainant, the estate of Rachel Malone, deceased, .and the defendantErskine Danforth, acting for himself and Flora A. Dan-forth, entered into an agreement as follows:

Whereas, that certain tract of land situated in the-township of St. Joseph, county of Berrien, and State of Michigan, described as follows, to wit: That certain parcel of land described in a warranty deed dated June 9, 1886, wherein Rachel Malone is party of the first part, and George Julius Malone is party of the second part, recorded in the office of the register of deeds for Berrien county, November 11, 1886, in liber 82 of deeds, on page 208, except 10 acres sold to John Jacobson, and also described in the mortgage hereinafter referred to, was on. June 24, 1898, sold at mortgagee’s _ sale to William R. Lyon, mortgagee, and the amount required to redeem said .land from said sale is the sum of $904.25; and
Whereas, said lands were sold June 27, 1898, at mortgagee’s sale under a mortgage dated March 12, 1897, for the principal sum of $2,000.00, said mortgage being a first lien on said premises; and
Whereas, said last-described mortgage is controlled by William R. Lyon, and the amount required to redeem therefrom June 27, 1899, will be the sum of $2,418.67; and
Whereas, the estate of Rachel Malone, deceased, owns ■a third mortgage on said premises for the principal sum of $600, together with interest thereon:
“ Now, therefore, Erskine Danforth, of Benton Harbor, Michigan, agent for Flora A. Danforth and George J. Malone, of St. Joseph, Michigan, and the Estate of Rachel Malone, deceased, contracts and agrees as follows, to wit: In consideration of Erskine Danforth advancing the money, to wit, $3,322.92, necessary to redeem said lands from said foreclosure sales, the other parties hereto agree that .said Danforth may redeem said lands and become the absolute owner of the fee thereof; and
Whereas, the actual value of said lands is agreed to be in excess of $6,000.00, said Danforth agrees with the other parties hereto, and does hereby covenant, to sell said lands to said parties on the following terms, viz.: The sum of $3,322.92 together with 8 per cent, interest thereon for two years, and in addition to said principal and interest, all expenses of said Danforth in the premises, together with $2.00 per day for the time spent by said Danforth in the care of said premises and this contract; and said Danforth does further agree to execute or cause to be executed and delivered to said other parties, or their purchasers, a good and sufficient deed of said premises upon the payment to him of the sums aforesaid within two years from the date hereof.
“And said George J. Malone agrees with and to said •estate of Rachel Malone, deceased, in consideration of the latter joining in this contract, and the amount due said estate on its said mortgage upon said premises, to pay said third mortgage together with the interest due thereon out of the first moneys realized from a sale of said premises within said two years after the payment of the sums due by the terms of this agreement to Erskine Danforth.
“And said Erskine Danforth is hereby granted the absolute right in his own discretion within two years from, date hereof, to sell said premises for such sum as he sees-fit regardless of the rights of the other parties hereunder, but in the event of a sale of said lands by said Danforth, it is agreed that after the payment of the sums due him by the terms of this agreement he shall account for the-balance, if there be a balance, over and above his claims aforesaid of the purchase price of said lands, as follows: He shall first pay the amount due the estate of Rachel Malone, deceased, and all the remainder after such payment shall be paid to George J. Malone.”

At this time complainant was the owner of the equity of redemption in the land described, which was worth, as the evidence would indicate, about $7,000. He was without other means, and was a profligate and an habitual drunkard. On the 5th of July, 1899, upon no new consideration, complainant made a warranty deed to Flora A. Danforth, subject to the mortgages named in the original agreement. Danforth has also fortified his title by purchasing, in the names of his son and daughter, respectively, certain tax titles and the Malone estate mortgage.

The property not having been sold within the two years named, the defendants insist that complainant’s right to repurchase has lapsed, and that the agreement between the parties was an optional contract only. Complainant files this bill, asking that these conveyances be decreed to constitute an equitable mortgage, and praying that the lands be sold, and any residue over and above the amount due to the defendants be paid over to him.

The questions involved are mainly questions of fact;, the principal question being what the parties intended by the agreement of June 24, 1899. We are convinced that,, so far as complainant was capable of forming any intent,, his purpose was to place this property in Danforth’s hands-as security for the advance made, and that equity should treat the transaction as a mortgage. See Sowles v. Wilcox, 127 Mich. 166 (86 N. W. 689); Carveth v. Winegar, 133 Mich. 34 (94 N. W. 381); Campbell v. Dearborn, 109 Mass. 130 (12 Am. Rep. 671). The court below so decreed, and granted redemption.

The complainant, having appealed, protests against the allowance of interest on the moneys advanced, on the ground that the contract was usurious. This contention, cannot prevail. The contract is not in its terms a mortgage. The complainant seeks to have a court of equity declare it such, and, in asking aid, he should be prepared to do equity. The court below decreed sipaple interest, and this order is affirmed.

We think the amount fixed by the circuit judge by way of allowances for services was just and fair, and his computation is in all respects approved, with the exception of an error in computation of interest on the principal item. As we compute the interest, the total due on this item as of date May 24, 1903, is $4,103.80, instead of $4,-080.29, as stated in the decree, and the total due at that-date is $4,958.39, instead of $4,934.78, as decreed.

As so modified, the decree will stand affirmed. No costs will be awarded in this court.

The other Justices concurred.


text:
    THURSTON v. DETROIT UNITED RAILWAY.
    1. Carriers — Injury to Passengers — Burden of Proof.
    In an action by a passenger against a carrier for personal injuries, tbe burden of proof rests upon plaintiff to show-negligence.
    2. Same — Negligence of Railway — Negligence of Third Person.
    In an action by a passenger against a street-railway company, Áor personal injuries received in a collision between the defendant’s car and a wagon, the plaintiff is entitled to recover if the motorman was negligent, although the driver of the wagon was also negligent.

      3. Same — Negligence—Motorman—Control of Car.
    Where; in an action by a passenger against a street-railway company for injuries received in a collision between defendant’s car and a wagon, the evidence showed that the car was going down grade at a high rate of speed, that the horses and wagon approached the track when the car was about 300 feet distant, and that the horses were on the track when the car was 40 feet distant, the question of whether the motorman used due care in bringing his car under control, after seeing the wagon approaching the track, was one of fact.
    Error to Wayne; Donovan, J.
    Submitted April 7, 1904.
    (Docket No. 18.)
    Decided July 16, 1904.
    Case by Douglas A. Thurston against the Detroit United Railway for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      Tarsney & Fitzpatrick (R. I. Lawson, of counsel), for appellant.
    Corliss, Andrus, Leete & Joslyn (Paul B. Moody, of counsel), for appellee.
   Montgomery, J.

This action was brought to recover for injuries sustained by plaintiff while a passenger in one of defendant’s cars. The injury resulted from a collision of the car with a heavy ice wagon at the intersection of Beaubien and Montcalm streets. The negligence counted on was running the car at too high a speed, and failure to have or bring the car under control, so as to prevent the collision. The circuit judge, at the close of the plaintiff’s testimony, on motion of defendant, directed a verdict in its favor. The plaintiff brings error.

It is contended that the law requires of carriers of passengers a high degree of care, and that the presumption of negligence obtains in case of an injury to a passenger. The two propositions are not dependent. In this State the rule has long been settled that, even in an action by a passenger, the burden of proof rests upon the plaintiff to show negligence. Mitchell v. Railway Co., 51 Mich. 236 (16 N. W. 388, 47 Am. Rep. 566); Werbowlsky v. Railway Co., 86 Mich. 236 (48 N. W. 1097, 24 Am. St. Rep. 120); Bradley v. Railway Co., 94 Mich. 35 (53 N. W. 915); Gardner v. Railway Co., 99 Mich. 182 (58 N. W. 49).

The case of Stoody v. Railway Co., 124 Mich. 420 (83 N. W. 26), goes no further than to lay down the rule that an inference of negligence may be drawn from the fact of an injury, and other facts out of the ordinary, in a given case.

The question in the present case is whether there was evidence from which the jury might infer that the motorman was negligent in failing to bring his car under control, so as to prevent a collision. It is not such a case as would be presented if the driver of the ice wagon had tried to recover for inj uries received. In such a case there would be no difficulty in saying, on this record, that such recovery would be barred by the contributory negligence of the driver. In the present case, however, the plaintiff establishes a right to recover if the motorman was negligent, even though the driver of the ice wagon (a stranger to plaintiff in every sense) was also negligent. In determining the question whether there was evidence of negligence for the jury to consider, we must accept the version most strongly tending to support plaintiff’s claim. There was testimony given by a witness who was at Columbia street at the time of the collision. Columbia street is next below Montcalm, and High street next above. There is a slight down grade from High street to Montcalm. The witness in question testified that the distance from High street to Montcalm is about 225 to 230 feet; that his attention was first attracted to the car when at High street; that the horses attached to the ice wagon had not then appeared, but that as the car was just past High street the horses appeared in the street and approached the track on a trot; that when the horses were on the track the car was still about 40 feet away, and that the car struck the front wheels of the ice wagon in the collision; that the car wasp running very fast. Under this testimony, we are of the opinion that it was competent for the jury to decide whether the motorman used due and proper effort to bring his car under control after seeing the driver approaching the track.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


author: Grant, J. Per Curiam.

text:
    BROWN v. KNOP.
    1. Justices of the Peace — Summons—Joint Defendants — Alias. Writs.
    Under 1 Comp. Laws, § 730, providing that when suit is brought upon contract against two or more joint defendants, one of whom shall not be found in the county where suit is brought, the justice shall, within four days from the return day of the writ, issue one or more alias writs of summons, it is not necessary that the officer’s return should state that he. had used due diligence to obtain personal service, and that, being unable to find the defendant, he had left a copy of the summons at his last place of abode.
    3. Same — Adjournments—Jurisdiction.
    A plaintiff in justice’s court may adjourn the case without, waiting an hour for the defendant to appear.
    3. Same — Jurisdiction—Authority of Agent — Presumptions— Certiorari.
    On certiorari to a justice’s court, it will be presumed that the agent of the plaintiff, in the absence of the defendant, proved his authority to appear, if there is no showing in-plaintiff’s application or in the return of the justice to the contrary.
    4. Time — Computation.
    It is a general rule that when an act is to be done within a. certain number of days from a day, the day of the date is excluded.
    5. Same — Alias Writs — Justices’ Courts.
    1 Comp. Laws, § 720, providing for the issuing of alias writs of summons in certain cases in justices’ courts, “within four days from the return of the writ,” authorizes an alias to issue on the return day of the writ. Reed v. Parker, 134 Mich. 68 (95 N. W. 979), distinguished.
    Error to Charlevoix; Mayne, J.
    Submitted April 12, 1904.
    (Docket No. 33.)
    Decided July 16, 1904;
    motion for rehearing submitted September 21, 1904; denied November 9, 1904.
    Assumpsit in justice’s court by Frank E. Brown and John Sehler, copartners as Brown & Sehler, against William Knop and Lewis Martin on promissory notes. There, was judgment for plaintiffs, and defendants brought certiorari in the circuit court. There was judgment for defendants at the circuit, and plaintiffs bring error.
    Reversed.
    This case was commenced in a, justice’s court for the county of Charlevoix, at the request of one Merriman, agent for plaintiffs. The summons directed the defendants to appear before said justice at his office in the township of Boyne Valley on May 20, 1902, at 2 o’clock in the afternoon. The deputy sheriff made return of the summons that he had served it personally on defendant Knop, and that ‘ ‘ Lewis Martin, the defendant, not being found, the within summons was not served on him.” On the return day Merriman appeared as agent for the plaintiffs. Defendants did not appear, and the justice, at request of plaintiffs, adjourned the case to May 28th, at 2 o’clock p. m., for the purpose of issuing an alias summons: The justice then issued an alias summons against both defendants, requiring them to appear before him May 28, 1902. Upon the back of this alias the justice indorsed that the defendant Knop had been served with process. The officer returned this summons with the indorsement that, defendant Martin not being found in the county, it was not served. Plaintiffs appeared upon the return day by their agent, Merriman, at the appointed time, and declared orally upon all the common counts in assumpsit, and especially upon six promissory notes, describing them, executed by the defendants. The defendants did not appear, and, after waiting an hour, plaintiffs introduced their evidence through their agent, Merriman, and the justice rendered a judgment of $300. The defendants removed the case by certiorari to the circuit court for the county of Charlevoix, insisting that the justice had no jurisdiction to render judgment.
    The defects alleged are:
    (1) That the officer did not return to the original sum- ■ mons that he used due diligence to obtain personal service upon defendant Martin, or that said Martin had no last place of abode within said county, or that he left a copy of said summons at his last place of abode.
    (2) That the justice lost jurisdiction by adjourning the case from the 20th to the 28th of May.
    (3) That the agent, Merriman, did not prove his authority to act for the plaintiffs.
    (4) That the justice did not wait an hour on the return day of the summons before adjourning the case.
    The circuit court reversed the judgment of the justice, and the case is now before us for review.

      J. M. Harris, for appellants.

      A. B. Nicholas and E. N. Clink, for appellees.
   Grant, J.

(after stating the facts). It was not essential to the jurisdiction of the justice that the officer’s return should state that he had used due diligence to obtain personal service, and that, being unable to find the defendant Martin, he had left a copy of the summons at his last place of abode. The statute (section 720,1 Comp. Laws) provides that when suit is brought upon contract or obligation against two or more joint defendants, one of whom shall not be found in the county where suit is brought, the justice may at any time within four days from the return day of the writ by which such action was commenced, issue one or more alias writs of summons,” etc. The statute will be found in full in Reed v. Parker, 134 Mich. 68 (95 N. W. 979). This statute does not require a copy of the writ to be left at the defendant’s place of abode if he is not found within the county. Those cases based upon statutes. containing such requirements do not apply. Such are Segar v. Lumber Co., 81 Mich. 344 (45 N. W. 982); Adams v. Abram, 38 Mich. 302.

In Brooks v. McIntyre, 4 Mich. 316, under a statute similar to section 720, the return of the officer was the same as in this case, non est inventus, and was held to authorize a judgment joint in form against all the defendants. See, also, Gunzberg v. Miller, 39 Mich. 80; Fogg v. Child, 13 Barb. 246.

The justice was under no obligation to wait an hour for the appearance of the defendant before adjourning the case for the purpose of issuing an alias summons. The statute (section 836, 1 Comp. Laws) providing for a judgment of nonsuit in case the plaintiff shall fail to appear within an hour after the process was returnable, and the extension of that statute, by judicial construction, to a defendant (Talbot v. Kuhn, 89 Mich. 30 [50 N. W. 791, 28 Am. St. Rep. 273]), does not apply to cases of adjournment, but only when final judgment is to be taken.

The justice made no return as to whether Mr. Merriman gave evidence of his authority to appear as the agent for the plaintiffs. It was incumbent upon the defendants, in applying for the writ of certiorari, to show that no evidence of such authority was produced, and to require a return of the justice thereon. In the absence of such showing and a return, it will be presumed that authority was proved. Marquette, etc., Rolling Mill Co. v. Morgan, 41 Mich. 296 (1 N. W. 1045); Township of Fruitport v. Muskegon Circuit Judge, 90 Mich. 20 (51 N. W. 109).

No error was committed by the justice in issuing an alias summons upon the return day of the writ. Counsel for the defendants insist that the alias summons must be issued within four days before the return day of the writ, excluding the day specified for the return. Whether the statute means four days before the return or four days thereafter, it is unnecessary to decide. The return was made upon the hour and day named — the usual practice— and the request for an alias summons and for the adjournment of the cause and the issuing of the summons were simultaneous acts. It is the general rule that when an act is to be done within a certain number of days from a day, the day of the date is excluded. Inhabitants of Seekonk v. Inhabitants of Rehoboth, 8 Cush. 371. It was said in Cornell v. Moulton, 3 Denio, 12, that when the question had arisen under rules of practice, the first day was generally excluded; but that in the construction of statutes the decisions had not been uniform either in England or America. It was said in Cromelien v. Brink, 29 Pa. St. 522: “ The man who undertakes to reconcile the English decisions on the legal computation of time will find himself employed in an arduous work.” This remark is quoted by the federal court in Merritt v. Ona, 44 Fed. 369 (11 L. R. A. 724), and the federal court say, “ The remark may be applied with equal truth to the American decisions.” It was said in Lester v. Garland, 15 Ves. 248, that there is no settled general rule as applied to statutes, and that the day of the event in a given case must be excluded or included, as may be most conducive to the beneficial operation of the act. 1 Wood on Lim. § 54. The purpose of this statute was to facilitate actions against joint defendants. The judgment is not conclusive against one not served. At the common law all defendants must be served. The execution issued under this statute must show the names of the defendants who were not served and do not appear. Their property cannot be seized under the writ. If the plaintiff desires to secure a service upon the other joint defendants, he must procure an adjournment under this statute, and have am alias summons issued. The defendant served might naturally desire to have his codefendant brought in, and he has the right to appear at any time before judgment is rendered. Ralston v. Chapin, 49 Mich. 274 (13 N. W. 588). There is no reason in taking ■out an alias summons until it is determined whether the ■defendant not served will appear. We think the fair ■construction of this act is that the plaintiffs were entitled -to an alias summons on the return day of the writ, and -that that day should be counted as one of the four within which it might issue.

It seems to be contended by counsel for the defendants -that the court lost jurisdiction to render judgment against ■the defendant Knop under the recent case of Reed v. Parker, 134 Mich. 68 (95 N. W. 979). The record in that case differs from the one in this in several important particulars. The record in that case did not show that the ■action was upon a joint contract or obligation, while in this it does. In that case the record shows that the defendant not served was out of the county, but did not show in what county such defendant was to be found, or that the alias summons, as required by law, was directed to the sheriff or constable of the county where he might have been found. Neither did it show that the justice indorsed ■on the alias which defendant had been served in the county where the suit was commenced. In this case such indorsement was made upon the alias, and it was issued upon a return non est inventus, and directed to the sheriff of the same county where the suit was commenced, and no service was made of the alias summons for the reason that defendant Martin was not found within that ■county. At the common law in actions ex contractu on joint obligations all the defendants must be served with process. The statute was aimed at two classes of cases— one where one or more of the defendants resided out of -the jurisdiction, and presumably would not be found within it; and, second, where one or more shall not be found within the jurisdiction, though they may reside within it. In the Reed Case the defendant not served resided without the jurisdiction. In this case the defendant-not served was not found by the officer, and he so returned. Upon such a return the justice may issue an alias to the-sheriff or proper officer of the same county, and continue the cause. This was done, as the justice’s docket and return show. This was a full compliance with the statute. The Reed Case has no application to this.

The judgment of the court below is reversed, and that of the justice’s court affirmed, with the costs of all courts to the plaintiffs.

Moore, C. J., Carpenter and Montgomery, JJ., concurred with Grant, J. Hooker, J., concurred in the result.

ON MOTION FOR REHEARING.

Per Curiam.

We are asked to grant a rehearing in this case on the ground that in attempting to distinguish this case from Reed v. Parker, 134 Mich. 68 (95 N. W. 979), we erroneously assumed that the alias summons was-delivered to the sheriff of the county of Charlevoix, whereas it was in fact delivered to the sheriff of the county of Em-met. This error does not affect the reasoning, in our opinion. This case is distinguished from Reed v. Parker, supra, by the circumstance that the trial court, in adjourning the case and in issuing the alias summons, assumed* and had a right to assume, — this is shown by the direction in the alias, not by the return, subsequently indorsed thereon, — that the defendant not served would be found within the county in which the court was held." In other words, the record in the case at bar shows an adjournment to enable service to be made in the home county* while in Reed v. Parker, supra, the record shows an adjournment to enable service tobe made in another county.

Application for rehearing denied.


text:
    RODGERS v. LAMB’S ESTATE.
    1. Limitation on Actions — Estates on Decedents — Work and Labor.
    A claim against an estate for work and labor for a period of ten years, terminating more that six years before the death of the deceased, and not shown to be a mutual, open account, is barred by the statute of limitations.
    2. Same — Subsequent Promise.
    A promise by an employer, after the termination of the service, to convey land at her death in payment of the services, does not interrupt the running of the statute of limitations on the claim for labor.
    3. Statute on Frauds — Oral Agreement to Convey Land.
    A verbal agreement to convey lands in payment for services previously rendered is invalid under the statute of frauds, and void for all purposes.
    Error to Gratiot; Stone, J.
    Submitted April 12, 1904.
    (Docket No. 38.)
    Decided July 16, 1904.
    O. Arthur Rodgers presented a claim against the estate of Caroline R. Lamb, deceased, for services rendered. The claim was allowed in part by the commissioners, and defendant appealed to the circuit court. There was judgment for defendant on a verdict directed by the court, and claimant brings error.
    Affirmed.

      A. G. Shepard and Searl & Monfort, for appellant.

      O. G. Tuttle, Lewis Severance, and W. A. Norton, for appellee.
   Montgomery, J.

Caroline Lamb died intestate March 24, 1901, leaving an estate consisting of 220 acres of land, which she had occupied with her husband for some years. Claimant is a nephew of deceased, and went to live with her in 1885, when he was 15,years old. During his minority he was clothed and schooled by deceased and her husband, working on the farm during the summer months and whenever he was not in school. After he was 21 he attended school a few months, but, with this exception, continued to work on the farm as theretofore until the summer of 1894, when he went to Missouri, where he worked several months; returning to decedent’s farm in April, 1895. He remained at the farm during the summer of 1895, was married in the fall, and brought his wife to the farm, where she was paid $1 per week for her services. In March, 1896, claimant and his wife left, and engaged in the laundry business. They returned for a visit in 1899, and remained there four months; the claimant working on the farm as usual. At the end of this period they again left to engage in the laundry business.

On the last day for filing claims before commissioners, the claimant filed a claim “for work and labor performed for Caroline Lamb, deceased, from April 1, 1885, to the first day of March, 1895, $2,200.” After an adjournment of the hearing until a later date, the claimant, without any order of court, presented a claim for services in 1899 of $80. Again, on the trial of the appeal in the circuit, claimant asked leave to amend his first claim so as to extend it to April, 1896. This amendment was refused by the circuit judge on the ground that it would' enlarge the claim made before the commissioners to include a period of later service. No error is assigned upon this ruling, and we are unable to see any impropriety in it if it were challenged.

On ‘the hearing before commissioners the claim for ser- • vices in 1899 was wholly disallowed, and claimant took no appeal from this action. It will be seen, therefore, that the only claim that the circuit court had to pass upon is that described in the original claim, i. e., for services between 1885 and March 1,1895. The circuit judge directed a verdict for the estate, mainly on the ground that no contract, express or implied, to pay for the services charged for, had been shown. The counsel for the estate also. made the point in the court below that the claim was barred by the statute of limitations.

The case made by claimant was certainly not very convincing. The testimony resembles very closely in its character that discussed in Decker v. Kanous’ Estate, 129 Mich. 147 (88 N. W. 398). There was no proof of a •direct promise to pay, except as hereinafter referred to. There was testimony that the deceased frequently expressed an intention of doing something for complainant, but never in his presence, except as hereafter stated. These expressions of Mrs. Lamb were all quite as consistent with the purpose of preferring complainant over other heirs, as with the idea that any legal liability rested upon her. Complainant’s wife did, however, testify that, after claimant and herself were married, claimant “wanted to buy this eighty. She [referring to decedent] said: ‘No; you can’t have it now, but you must have it when I am done with it, for your work.’ ” Later in the case witness was recalled, and testified as follows:

“Q. Mrs. Rodgers, you testified about hearing a conversation between yourself and your husband and Mrs. Lamb, wherein Mrs. Lamb told your husband, in substance, if I remember correctly, that she intended to deed this north eighty acres of land of the farm to him to pay for his work ?
“A. Yes, sir.
“Q. When was that conversation ?
“A. It was a little while before we left there, in March.
“Q. Of 1890?
“A. 1896 it would be. We came there in November, 1895, and left in 1896.
“Q. Do you know, of your own knowledge, after that conversation took place, whether Mr. Rodgers did do some work for Mrs. Lamb ?
“A. Yes, sir; he kept right on working up until the time we left.
ltQ. What reply did your husband make to her ?
“A. He said, ‘All right.’”

Passing by the discrepancy between these statements, there may be enough in the latter to indicate an admission on the part of decedent of an obligation to pay. But if we assume that there was a scintilla of evidence to carry the case to the jury, we see no escape from holding that the claim is barred by the statute of limitations. There was no evidence of a mutual, open account. In re Hiscock’s Estate, 79 Mich. 537 (44 N. W. 947).

The account of claimant was not for continuous services, as there was an interruption in 1895, and again in 1896. It is contended, however, that where services are rendered, with an agreement to compensate them out of the employer’s estate, the statute of limitations will not begin to run until the death of the employer. This is clearly so, and is no more than saying that a demand may not be sued upon until due, but this does not aid the claimant in the present case. When the conversation above detailed occurred, the services had been fully performed ; and, if they were rendered upon a mutual understanding that they were to be paid for, the claimant was then entitled to bring suit to recover for them. The proposition which Mrs. Lamb then made, according to the revised testimony of Mrs. Rodgers, was to deed the north 80 to him. This is the one proposition to which he assented, so far as the testimony shows, and this did not constitute an agreement to postpone his claim until her death, nor for any definite time. More than this, it was a contract not valid under the statute of frauds, and void for all purposes. Scott v. Bush, 26 Mich. 418 (12 Am. Rep. 311).

Judgment will be affirmed, with costs.

Moore, C. J., Carpenter and Hooker, JJ., concurred. Grant, J., did not sit.


author: 'Montgomery, J.

text:
    BOARD OF WATER COMMISSIONERS OF DETROIT v. BOARD OF EDUCATION OF DETROIT.
    Municipal Corporations — Municipal Boards — Water.
    The board of water commissioners of the city of Detroit, required by the charter of the city to ‘ ‘ furnish a full supply of water for public and private use in said city,” is entitled to receive pay for furnishing water to the board of education of Detroit, as the latter is a distinct entity although coextensive with the city. Act No. 90, Laws 1853.
    Error to Wayne; Rohnert, J.
    Submitted April 12, 1904.
    (Docket No. 47.)
    Decided July 16, 1904.
    Assumpsit by the board of water commissioners of the city of Detroit against the board of education of the city of Detroit for water furnished. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      John W. McGrath, for appellant.
    P. J. M. Hally, for appellee.
   'Montgomery, J.

The question in this case is whether, under the act of 1853 (Laws 1853, Act No. 90), establishing a water board, and.under the amendments to that act, the plaintiff is entitled to receive pay for water furnished to the school board. The circuit judge, while of the opinion that, as a matter of right and justice, this question should be answered in the affirmative, concluded that this court had, in effect, decided the question the other way in Board of Water Com’rs of Detroit v. Railway Co., 131 Mich. 1 (90 N. W. 657, 91 N. W. 171), and directed a ■verdict for the defendant. The case cited above was construed by the circuit judge as holding that the board of water commissioners was not authorized to exact pay for water used for public purposes of any kind. So construed, the case would be inconsistent with City of Detroit v. Board of Water Com’rs, 108 Mich. 496 (66 N. W. 377, 31 L. R. A. 463), and Board of Water Com’rs of Detroit v. Commissioners of Parks and Boulevards, 126 Mich. 459 (85 N. W. 1132). The authority of each of these cases was recognized in Board of Water Com’rs of Detroit v. Railway Co. That case was determined, under the view that the terms of section 8 of the act in question plainly implied that water used for street sprinkling purposes should be supplied by the water board.

It was stated by Chief Justice Hooker :

“From the reading of section 8 we may reasonably understand that the water board, and not the council, is charged with the duty of locating fire hydrants and jets for public purposes. The council cannot control this. The same may be said of the hydrants for public use. These are evidently intended for the use of the individual as contradistinguished from the jets or fire hydrants, which are for the corporate use for general public purposes, such, as fire, flushing sewers, street washing and sprinkling. A limitation is put upon the power of the water board as. to hydrants for public use, and the board is not given power to erect fountains, except with the consent of the council. It would seem that the responsibility for the erection and maintenance of all of these things is wholly upon the board, except as limited by the requirement as to fountains. It is discretionary with them when and where these things shall be, and when they shall be discontinued or removed, but, while continued, the expense falls upon, the board.”

It will be seen that this comes far short of holding that any board of the city, or even the common council, may demand free water for any public use desired. The defendant, while coextensive with the city, is a distinct entity,, •and stands, with reference to free water, on no better ground than the house of correction. The case is ruled by City of Detroit v. Board of Water Com’rs, 108 Mich. 494 (66 N. W. 377, 31 L. R. A. 463).

Judgment reversed, and a new trial ordered.

The other Justices concurred.