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    BEAN v. BEAN.
    1. Parties — Equity—Misjoinder—Pleading—Waiver.
    The claim that complainants having similar rights are improperly joined in a suit to restrain defendants from using a right of way over complainants’ lands, is waived by the filing of a cross-bill in which defendants pray for relief against both complainants.
    2. Adverse Possession — Evidence—Easements.
    Evidence examined and held to show that complainants’ grantor was the owner by adverse possession of a driveway 14 feet in width connecting his homestead with a farm held by him and afterwards conveyed by complainant to one of the defendants.
    3. Same — Beal Ppoperty — Color op Title.
    Entry upon and possession of lands by a person as his own, even without color of right, is sufficient to start adverse possession.
    4. Same — Statute op Limitations — Prescription.
    The right to and the use of a right of way may be acquired by adverse possession or prescription the same as title to the fee of the land.
    5. Same.
    Possession and use of the strip of land, connecting two farms, without any permission from the owner, and sufficiently visible or notorious to raise the presumption of notice, is evidence of an adverse claim' of title, although the driveway was never used for crops.
    6. Parties — Easements—Judgments.
    A decree in a suit to enjoin a trespass ¡¡wherein defendants claim a right of way by prescription and ask affirmative relief by cross-bill, cannot affect rights of an adjoining proprietor who is not a party.
    7. Adverse Possession — License—Bight op Way.
    Testimony showing that the owner of the land so used was unfriendly to the one using it, that the strip was fenced off and used exclusively by him for more than 15 years, and no one ever questioned his right to it, sufficiently shows a right by prescription, in the absence of evidence that the use was permissive or licensed.

      8. Same — Requirements.
    Adverse possession must continue for the entire statutory-period, and have been actual, open, visible, notorious, continuous, and hostile.
    9. Easements — Wav oe Necessity — Appurtenances.
    Where the grantor of lands, which have no access to a highway, owns the intervening realty, over which a right of way has existed to the highway, a way of necessity along the existing route, passes to the grantee.
    10. Same — Voluntary Grant.
    An easement or way of necessity will pass by implication as well where the severance of dominant and servient estates is effected by legal proceedings as where the grant is voluntary, and it passes with each successive transfer of title.
    11. Same.
    When the owner of an entire estate makes one part of it visibly dependent for the means of access upon another, and creates a way for its benefit over the other, and then grants the dependent part, the other part becomes subservient thereto, and the way constitutes an easement appurtenant to the estate granted, and passes to the grantee as accessorial to the beneficial use and enjoyment of the granted premises.
    12. Same — Easements and Servitudes.
    Whether the grantor of the premises owns the passageway or has a right to its use by prescription, as an appurtenance to the dominant estate, the right passes with the grant.
    18. Same — Way oe Necessity — Termination.
    An attempt to secure a passageway to the highway in another direction by agreement with an adjacent proprietor, does not defeat the way by necessity where the proposed new route proves to be impassable and worthless.
    14. Same — Pleading—Amendments.
    A prayer in defendants’ cross-bill that the deoree declare an easement to exist along the east side of complainants’ property may be considered as amended so as to meet proof that a marsh obstructed the passageway and required that the route pass around it, and a decree may be entered accordingly.
    Appeal from Jackson; Parkinson, J.
    Submitted October 28, 1910.
    (Docket No. 153.)
    Decided November 11, 1910.

      Bill by Elmore J. Bean and others against John C. Bean and others, to enjoin the use of an easement. From a'decree for complainants, defendants appeal.
    Reversed.

      Nathan E. Bailey (Wilson & Gobb, of counsel), for complainants.

      Richard Price, for defendants.
   Stone, J.

The bill of complaint in this cause was filed solely to restrain the defendants from passing over the lands of complainants, owned by them in severalty, against the will of complainants, under a claim of right of way.

Complainant Elmore J. Bean is the owner in fee of the E. -J of the S. E. i of section 12, in town 3 S., range 2 W., being in the township of Spring Arbor. Complainant Leander McCain is the owner of the 80 acres of land immediately east of, and adjoining the complainant Bean’s land, above described, to wit, the W. i of the S. W. J of section 7, in town 3 S., range 1 W., being in Summit township. The defendants are owners of, or interested in, 66 acres of land in said township of Summit, directly south of, and adjoining, the 80 acres owned by complainant Leander McCain, which is described as the N. f of the W. of the N. W. J of section 18, in town 3 S., range 1 W. This 66 acres is often referred to by the witnesses as the “Benair Farm,” or “Benair 66 acres,” having been formerly owned by one Benair Bean. The land adjoining the land of complainant Elmore J. Bean on the south, and adjoining the defendants on the west, is owned by one Urania Bean, who is not a party to this suit.

As is not unusual, the section corners in the two townships do not correspond. The east and west section line in the township of Summit, between the lands of the complainant McCain and the defendants, is between 27 and 28 feet farther south than the section line in Spring Arbor, between the lines of the complainant Elmore J. Bean and Urania Bean, so that the homestead, the land of Elmore J. Bean, is not at any point nearer than 27 and a fraction feet to the lands of defendants. A plat attached to the answer of defendants is shown in the record, and hereto attached.

Many years ago the said homestead of complainant Elmore J. Bean, with other lands in Spring Arbor, was owned by John Bean, grandfather of Elmore J. Bean, the north half of which was in 1848 conveyed to John H. Bean, the father of complainant Elmore J. Bean, and occupied by said John H. Bean as a homestead, and the south of said 80 was occupied by said John H. Bean as tenant until his father’s death, in 1871, when he obtained

title thereto by the will of his father, and was by said John H. Bean owned and occupied to the time of his death, in 1901, when the complainant Elmore J. Bean acquired title by the will of his father. Complainant Elmore J. Bean has continued to own and occupy said 80 acres to the present time. The land now owned by complainant Leander McCain was wild land, and was at an early date owned by one Moses Bean, brother of John H. .Bean, until 1879, when he sold it to his son, Ambrose Bean, one of the witnesses in this suit; who, in 1900, sold it to the complainant Leander McCain, who went into possession and has so continued to the present time. In the year 1853, John H. Bean acquired title to the 66 acres of land now owned by the defendants, which he continued to own and occupy to the time of his death, complainant Elmore J. Bean acquiring title thereto by the will of his father, and occupying the same, until, in the settlement of certain litigation growing out of the contest of the will of John H. Bean, who was also the father of defendant John C. Bean, on the 14th of March, 1907, he, Elmore J. Bean, conveyed said 66 acres to the defendant John 0. Bean by ordinary warranty deed. As the 80 acres now owned by complainant Elmore J. Bean, and then occupied by John H..Bean as tenant, did not adjoin the said 66 acres, John H. Bean could not pass from one parcel to the other without passing over the land now owned by complainant McCain, or the land now owned by Urania Bean, or partially over both for a distance of nearly 28 feet.

The defendants answered the bill, admitting that they claimed the right to go across the premises of complainants, as alleged in the bill of complaint, and in that part of their answer in the nature of a cross-bill they set up a claim of ownership in fee, or to a right of way from the 66 acres through the narrow strip of land across the corner of complainant’s land and Urania Bean’s land, and along the east line of the land of complainant Elmore J. Bean to the highway, which runs east and west upon the north side of complainant’s land. This they claim by adverse use and possession; and they claim that the same was passed as appurtenant to the 66 acres conveyed by the deed from complainant Elmore J. Bean to the defendant John C. Bean; and they set up the further claim that it was a way of necessity because of the conveyance of the 66 acres by Elmore J. Bean to the defendant John C. Bean in the settlement of said litigation.

Upon the hearing of this cause, some objection was made by the defendants to the alleged misjoinder of the complainants in this suit; but as the defendants in their answer have claimed the benefit of a cross-bill, and have asked for affirmative relief against both complainants, this objection was not seriously urged at the hearing in this court, and will not be considered. A large amount of testimony was taken in this cause before the circuit judge. We have examined this record with a great deal of care to endeavor to ascertain the true history of the matter involved. There appears to be some [conflict in the testimony, but a careful examination shows that this conflict is more apparent than real. The circuit judge filed a written opinion in the case, and granted a decree to complainants in accordance with the prayer of the bill cf complaint. The defendants have appealed.

Much weight should ordinarily be given to the opinion of the circuit judge, reached under such circumstances as here appear. It appears, however, from the opinion of the circuit judge, that his findings as to the facts were based largely upon notes taken by him at the hearing. We have examined the entire printed record. It is the claim of the defendants that the circuit judge misapprehended or misunderstood some of the testimony in the case. The vital question in this case is, in our judgment, that of adverse possession or prescriptive right. In his written opinion the circuit judge uses the following language referring to the testimony particularly of Ambrose Bean, who was the son of Moses Bean, and the grantor of complainant McCain:

“ Ambrose says this north and south fence was straight, :and he does not believe it swervéd over at all on his father’s side, although it might have done so a little. I think perhaps it did. But John H. Bean was not claiming the line between him and Moses, or between Urania and Moses, was crooked, and he may have deflected the fence a little to permit a more easy passage. But I feel quite confident he was not setting up any adverse claim, since after the death of Moses he intended to run his stone fence along the north line of the 66 acres to the quarter post, and move the stone on Urania’s so as to afford room to drive, when Ambrose, who then owned the 80 to the east, came along and advised John H. to build the fence over to the east on him, and save moving the stone pile, refusing to sell the corner, but giving John H. the use of it, if he would fence it up, until he, Ambrose, should want to use it. He says he was to have the right to close it up any time he saw fit. He told John H. where to run the fence, and to keep it up and he might use the corner. At that time John H. made no sort of claim that he had already acquired a part of the corner on the 80 of Ambrose. He assented to the latter’s proposition, and there is no evidence the parties considered anything else than the whole triangular parcel in the corner. I think John H. then recognized Ambrose as sole owner; and, if he had deflected the line fence at this end a little onto Ambrose, it was for his own convenience, without any design to claim a right or the ownership, or to deprive his brother Moses of any of his land. And, had Moses understood that John H. was actually encroaching for the purpose of appropriating land not his own, their relations were such that it may, perhaps, be inferred that Moses would have promptly interfered.”

Counsel for defendants concedes that if the evidence in the case shows that John H. Bean, after the death of Moses, intended to run his stone fence along the north line of the 66 acres to the quarter post, as stated by the circuit judge in his opinion, that the decree of the circuit court upon the question of adverse possession was correct, but he insists that there is no testimony in the case to this effect, and that the circuit judge must have misunderstood the testimony when it was given, or that in the interim which elapsed between the hearing and the filing of the opinion he forgot it. We cannot undertake to quote all of the testimony in this case, but we do here refer to the testimony of Nolan S. Bean, a son of John H. Bean, who refers to the conversation between his father and Ambrose Bean, which is said to have occurred in the year 1884, as follows:

“ I was 48 years old the 2d day of last September. I know where this property is that’s in dispute here; have known it ever since I was old enough to recognize anything. I was born and raised there on the old homestead, the 80 acres. I was over 21 years old before I left home. * * * I know where this driveway is along the east side of the homestead 80. It has been there ever since I can remember. I know where the passageway is, going from the 80 into the Benair farm; that has always been there as far as I know. I remember at one time building a stone wall on the east and west line between the Benair farm and what is now the farm of Leander McCain adjoining the passageway. That was years ago this last June. I was working by the day at whatever I could get the most money at for my work. I built that wall for father. He came around by spells where I was working.
“Q. What was the surroundings of this neck going from the 80 into the Benair farm up to that time, what was there ? What was there in the nature of a fence or stone wall, or anything of that kind ?
“A. On the east side there was — from where this neck began to the north of the gate, there was a rail fence. My recollection is it was straight, made with posts and rails, straight as you could get a fence. On the west side of Urania Bean’s there was a pile of stone in the corner next to the section, and as it went around further it was rails— as it went around further to the south towards the gate. That fence there on the east side of the passageway had been there several years. I couldn’t tell how long.
“Q. Who used that passageway, who used and controlled it, and had apparent ownership of it ?
“A. Father did.
“Q. State whether or not there was any difference in his use of that passageway from his use of the rest of his land.
“A. I never had any reason to think there was.
“Q. It was fenced off and he used it ?
“A. Yes, sir.
“Q. On this day, or any time when you were building that stone wall, you may state whether or not you overheard any conversation, or had any conversation, between your father and Ambrose Bean, whether you overheard any between those two, or had any with Ambrose yourself concerning that piece of land and the fence there.
“A. I guess you would have to call it overheard.
“Q. All right, call it anything you please.
“A. Ambrose made the suggestion to move the fence from where it was — it was getting pretty poor — to a tree that was there that set on Ambrose’s line, near the line, run it south and come out — my recollection — about eight feet east of the gate where the old fence was.
“Q. (Showing witness paper): Whereabouts was this tree that Ambrose suggested you run the fence to, whether it was to the north end or south end ?
“A. North end.
Q. Of the passageway ?
“A. Yes.
Q. There was a tree there, and he suggested to run the fence from that, south so it came about eight feet east of where the old fence was ?
"A. Yes, sir.
Q. What was said ? Just tell us what was said there.
A. I couldn’t do it.
“ Q. Tell us as near as you can what Ambrose said, and how he came to say it.
“ A. How he came to say it I don’t know. I was at work there at the wall — building the wall — and was calculating to run it up to the end of the gate.
Q. Run it around to the end of the gate ?
“A. Yes, east to where the old fence is. I was nearly there at that time, nearly up to where this old fence was. What he done it for I don’t know.
. “ Q. Tell us what he said, if you can remember, the substance of it.
“A. The substance was to move it back there and give us a better driveway through, more room.
Q. Was your father there at the time ?
“A. Yes, sir; he was talking to him; probably to both of us.
Q. How wide was that passageway when the old fence was there, how much of a driveway was there through there ?
“A. Well, I should judge there was about 16 feet. I never measured it.
Q. State whether or not there was plenty of room to drive through there before this fence was moved back.
“A. Yes, sir; there was. We were intending to run this stone wall until we came to the east end of the old gate. We moved the fence over east. It would be my judgment we moved it about 8 feet on the south end east of the gate, and about 16 feet on the north. It’s a good while ago. At that time there was a big butt of a tree stood there about the same width from the gate where Urania Bean stopped. I am speaking of the north section corner. This butt of the tree set in there for a post, and the old fence came up to that at that time. I should judge it was probably 16 feet wide, about the width of the gate. I should think the passageway was about 16 feet wide at the north end as well as at the south end; that is according to my judgment.
“Q. This stone wall that runs along the line between Urania Bean and the homestead 80 and then turns around here on the passageway, was that there at that time ?
“A. There was no stone wall, just stone drawed in there in a big pile and throwed in there.
“Q. Did they extend around as it does now ?
‘A. I don’t know how it extends now.
“Q. You can see it on the map here.
“A. It came around a pace, and then I should say there was three or four lengths, maybe five lengths of rails to finish it up on the east and west wall between the Benair place — the north and south wall between the Benair place and Urania Bean’s.
“Q. Was there anything said in that conversation, Mr. Bean, about your father buying that corner from Ambrose, or Ambrose selling it to him, or anything of that kind ?
“A. I didn’t hear anything. They weren’t with me all the time. They went away after awhile. I couldn’t say that they went away together."
“Q. Was there anything said about Ambrose moving that fence back if you didn’t keep the fence up, or whenever he wanted to, or anything of that kind ?
“A. Not that I heard.
“Q. Did your father make any request of him to give him any more land, or to sell him any more land at all in your presence at that time ?
“A. Nothing that I heard. I would have heard it if he had. When I first saw this old fence on the east side of the passageway, it extended down south, and also over to the north, clear to the highway. It was woods on Ambrose’s side. Father had cleared the timber and pastured. After father acquired the Benair farm, he tilled it the same as he did the rest of his place. I don’t remember whether there was any of it cleared when he first bought it. I should think there must have been. There was a house on it at least, in my first remembrance. At the time I was building this stone wall some of the Benair farm was cleared and under tillage. Father owned it and was tilling it, and he had been going back and forth in there, tilling that farm, either he or his men, ever since I could remember.”

Being further interrogated, on cross-examination, this witness said:

“My idea was to leave the old fence next to Ambrose as it was, and then widen it out on the west side. That was father’s idea.”

Defendants’ counsel contends that the above-quoted testimony corresponds with the testimony of John C. Bean, Sinkler Bean, and every other witness in the case who gave any testimony touching this point. He further claims it is not contradicted in the least, but rather corroborated by Ambrose Bean, the main witness for complainants, who testified that, prior to the time the fence was moved over to the east, John H. Bean had a passageway there which “he took.” This same witness testified as follows:

“Q. I want to get the whole thing. This passageway you say Mr. John H. Bean took—
“A. (Interrupting). That I gave him ?
“Q. You didn’t give him anything before the time you are talking about ?
“A. No.
“Q. He took it?
“A. Yes.
“ Q. That’s the idea. That passageway which he took and which he had before you gave him anything, was the passageway running between the stone pile you are talking about and the fence on the east side ?
“A. Yes, sir. You have got me.
“Q. And the passageway was how wide, do you think ?
“A. I should say it was nearly a rod.
“Q. When you came along there, Nolan was building this fence, and his father was there, they were also going to repair this old fence ?
“A. I could not tell you that.
“Q. Was there room between the fence and the stone pile (next to Urania Bean’s) to drive through ?
“A. Before I gave him this piece ?
“Q. Yes.
“A. He did drive through there.
Q. Are you sure that old fence as it came up on the section line continued straight north to the other — I should say straight south — or did it swerve over some ?
A. I couldn’t tell you.
Q. It might have swerved over some ?
“A. It might a trifle; yes.
Q. So he would have room between this stone pile ?
A. He might have laid it over there.
Q. That is what he took before that ?
“A. Yes.”

It is the further claim of defendants’ counsel that it appears by the testimony of the witnesses on both sides of the case that a fence had been maintained on the east side of this passageway for years before this shift was made in 1884. John Gh Bean, a son of Urania Bean, testified that he lived in Spring Arbor most of his life, about 26 years. He testified as follows:

“ I know where this driveway is in question between the Benair farm and the old homestead at the southeast corner. I couldn’t tell how long that has been there. It has been there as long as I can remember.
Q. Who has used that driveway and had possession of it, and control of it as long as you can remember?
“A. I suppose Uncle John and the rest of them there have used it. The people on the place, his estate has, and him, I think. I have been around my mother’s farm a good share of the time ever since I was born. During all that time this passageway between the two farms has been fenced on each side. There has been a gate going into the Benair farm.
“Q. Who had control of that all of this time?
“A. Uncle John did, I suppose, and the people that ran it.
“Q. Has anybody else, at anytime, to your knowledge, made claim to that passageway until this suit was begun ?
“A. Not that I know of.
Q. State whether or not John H. Bean used it and exercised dominion over it the same as he did the rest of his farm, so far as anybody could observe.
“A. I think he did to all appearances.
“Q. State whether or not it was plain to any one who had occasion to inquire into, or got over there into that vicinity at all, to see that John H. Bean was using and possessing that neck of land in connection with the rest of his farm.
“A. Yes, sir; I think it was.”

The witness Ambrose Bean was one of the main witnesses for complainants, and had at one time been the owner of the McCain farm. -What he says, therefore, upon this subject of the old way having been there, is somewhat significant, and we quote a little further from his testimony:

“Q. At the time you came along there and found Nolan building this stone wall, there was then and had been before this a fence running along the east side of that neck of land separating it from this 80, was there not ?
“A. Between John Bean and me ?
“Q. Yes.
‘‘A. Yes, sir; clear through. * * *
“Q. As it went south, did it go clear up to the point where this stone wall was between the Benair property and yours ?
“A. That was the calculation. He might have throwed it off a little there.
The Court: It did go up to there?
“A. That’s what I suppose.
“Q. There was an old fence there ?
“A. Yes, sir.
“Q. Running clear up to the point of the old wall ?
“A. Yes, sir. * * *
“Q. How wide a passageway was there in which to drive through from the homestead 80 — you know what I mean?
“A. Yes, sir.
“Q. Over onto the 66 acres, how much of a passageway was there before he moved that fence ?
“A. There was no particular passageway only as he took it.
“Q. That may be. I am not finding fault with that. How much of a passageway did he take there ?
“A. It might have been two rods, and it might not have been two rods. * * *
“Q. I want to get the whole thing. This passageway you say Mr. John H. Bean took—
“A. (Interrupting). That I gave him ?
“Q. You didn’t give him anything before the time you are talking about ?
“A. No.
“Q. He took it?
“A. Yes.
“ Q. That’s the idea. That passageway which he took, and which he had before you gave him anything, was a-passageway running between this stone pile you are talking about and the fence on the east side ?
“A. Yes, sir. You have got me.
“Q. And that passageway was how wide, do you think ?
“A. I should say it was nearly a rod * * * It was wide enough for a load of hay to go through. That is pretty near 16 feet. * * *
“‘Q. So your father and John H. Bean were not on the very best of terms ?
‘ ‘A. They were not.
”Q. It ain’t very likely your father would make any concessions to him, or John would make any concessions-to him ?
“A. No; he wouldn’t. * * *
“Q. On the east side of that stone pile — the stone pile next to Urania Bean — he had room enough to get out with a load of hay ?
“A. Yes, sir.
“Q. You have no idea he ever did that with your father’s permission ?
“A. I know well enough he didn’t. * * *
“Q. Did you regard the old fence that was there as the-line fence ?
“A. It was all the fence there was there.
“Q. You regarded it as the line?
“A. Yes, sir.
“Q. John H. Bean regarded it as the line, too ?
“A. Yes, sir.
“Q. He drove along up side of that on the west side and went in between that and the stone pile with a load of hay ?
“A. There was a little hole in there. He could, in that-shape, right through that little hole. Call it what you are a mind to. * * *
“Q. You didn’t tell John H. Bean, at that time when you went up there and found this fence was moved, he was occupying any of your land ?
“A. I did not.
“Q. He didn’t tell you he was ?
“A. He did not.
Q. Whatever land he had there at that time he had used it as his own just the same as he did anything else ?
“A. He did.
“Q. Anybody could see, who was at all interested, up to that time, that John H. Bean was in possession of that land ?
“A. The hole he went through.
“Q. Drove right through ?
“A. Yes.
“Q. There was no concealment about it ?
“A. No concealment whatever.
“Q. He had used that for years and years ?
“A. He must have went through the place ever since, he bought the place until that time.
“Q. That was in 1853 ?
“A. I don’t know when that was.”

Fred R. Bean, another son of Urania, 40 years of age,, who had always lived on the farm with his mother, testified that a driveway had been there as long as he could, remember.

The defendant John C. Bean testified that he helped, draw the rails. He and Sinkler and their father, John H. Bean, laid the fence up on the east side of the passageway about 45 years ago; that this was done the time the fence’ was built along the township line. He testifies that he should think there were about 12 feet of passageway along the north end of the quarter, and about the same at the south.

Sinkler Bean, another son of John H. Bean, remembers helping John draw the rails to fence on the east side of this passageway along the town line. This he testifies was built at the time that Moses and John H. Bean had', divided the line fence between the two 80’s, John H. taking the south end, and Moses the north. He testified that the fence was built with rails, an ordinary worm fence, until they got near a post standing opposite the northeast; corner of Urania Bean’s property, and that then they-went east of this post, and then swerved off to the east until, they got up to the section line between the Benair farm, and Moses Bean’s farm, that there was stone and a rail, fence on the west side at that time, and that they first, used a pair of bars to go into the Benair farm, and subsequently a gate was built. He also testified that the fence remained there in the same condition until about the year 1883, when the rail fence was taken down and a barb-wire fence was substituted for it á few feet farther east. The following questions and answers are pertinent:

Q. When you fenced this neck of land at the time you have spoken of first, how wide a passageway was there through there between this fence and the east side of that neck of land ?
“A. Well, sir, I should have to approximate it. I know we drew hay and wheat in the bundle through there, and went through with everything of machines about, on our 'farm at least. I should think it was anywhere from 14 to 16 feet, possibly more.
“The Court: At the time you helped build the fence there, your father built that and you drew the stuff. When you reached that first section post, then you swerved a little onto Moses F ' “A. Yes, sir.
“Q. How did you come to do that ?
“A. I don’t know. We done it, that’s all I know about it.
“Q. Was there any talk between your father and Moses that he might do it, that you heard ?
“A. I don’t think Moses was there at all. I never heard any reference.
“Mr. Price: That post he is referring to there, the court called it a section post, and so did Mr. Wilson, but neither of them have called it a section post. Tell us about it.
“A. That post I think was set east of the town line, a little, and directly east from the section line — Urania’s north line * * *
“Q. From that time to the present, down to the time this litigation was commenced, who controlled, owned, operated, and exercised dominion over this driveway and neck of land F
“A. I should consider father did. I never heard anybody else make any claim about it. I never heard any remark about ownership or any other — or any disputed right to it at all, or any discussion from anybody. * * * I looked upon it as a right of way belonging to father; had no thought of anything else except it was our own right of way to go between these pieces of land. It never was called to my mind at all. * * * The last time I was there I could see no difference, no change of the wagon tracks from what they had always been.”

The undisputed evidence of the witnesses is that the wagon tracks straddled, as they say, the south section corner, about as the wagon tracks or wheel tracks are indicated upon the diagram.

Upon examining the mass of testimony in the case, we are impressed with the claim of the defendants that by a clear preponderance of the evidence it appears that at least 14 feet in width of the neck of land constituting the driveway connecting the homestead 80 with the Benair farm was owned absolutely by John H. Bean at the time of his death. This excludes the 4 or 5 feet in width on the east side, which, under the testimony of Nolan and Ambrose Bean, might be said to be held by John H. Bean under a license, or permission, given at the time the fence-on the eastern side was shifted over. We are of opinion that this claim of defendants is supported by a preponderance of the evidence, and that John H. Bean was the owner of the same by adverse possession of more than 15 years. It is true he had never cultivated this strip, but he had used it as a passageway between the homestead 80, all of which he had owned since 1871 ( and the north half of which he had owned since 1848, and the south half of which he had cultivated as a tenant during the intervening years ) and the Benair farm which he had owned since 1853. He had no color of right there, but the entry upon and possession of lands by a person as his own are enough to start adverse possession. He “took it,” as Ambrose testified, and that without any permission from him or any one.

The right to and the use of the right of way may be acquired by adverse possession or prescription the same as title to the fee of the land. In Tiedeman on Real Property, at section 497, it is said:

“As a general proposition, any acts of ownership, exercised by the wrongdoer which would make his possession sufficiently visible and notorious, as to raise the presumption of notice to the owner of such adverse holding, will be ample evidence of the adverse claim of title, and actual notice to the owner or any express claim or affirmation of such claim of title is not required-to establish its existence.”

Applying that rule to this case, it must be said that the possession of John H. Bean of the neck of land connecting the two farms was adverse to all the world, and had ripened into a title before the fence was shifted to the east, as explained in the testimony referred to. The possession of a lane thus connecting two pieces of land, used as a passageway, may ripen into title, the same as though it had been cropped. We are unable to find any evidence in the record that John H. Bean ever asked or obtained permission from anybody to thus appropriate the strip of land.

As to that portion of this strip of land which is taken from the premises of Urania Bean, she not being a party here, her rights cannot be affected by the decree in this case. It will be borne in mind that complainants in their bill of complaint allege than John H. Bean during his lifetime passed and repassed over this strip of land, but they claim it was under a license of the owner. We think they have failed to prove this, and that the contrary appears. It appears that John H. Bean and Moses Bean were not on friendly terms. It is shown that more than 45 years ago the fence was built, and this neck of land passed into the possession of John H. Bean, who continued to use it exclusively, and no one ever questioned his right to it in any way. Sanscrainte v. Torongo, 87 Mich. 69-83 (49 N. W. 497); Ward v. Nestell, 113 Mich. 185-189 (71 N. W. 593); Greene v. Anglemire, 77 Mich. 168-171 (43 N. W. 772). All of the authorities agree that the adverse possession must have been for the whole period prescribed by statute, actual, open, visible, notorious, continuous, and hostile. We think that the evidence brings the case within that rule.

It appearing that when on March 14, 1907, complainant Elmore J. Bean conveyed the 66 acres to John C. Bean, said Elmore J. Bean was the owner through the will of his father of the homestead and the 66 acres, and also of the said strip of land, the defendants are in a position to claim said strip of land both as a way of necessity, and as appurtenant to the 66 acres. The rule that an easement or way by necessity will pass,by implication, as well where the severance of the dominant and servient estates is effected by legal proceedings, as where the grant is voluntary, is generally recognized. The way of necessity passes with each successive transfer of the title, whether voluntary or involuntary. Proudfoot v. Saffle, 62 W. Va. 51 (57 S. E. 256, 12 L. R. A. [N. S.] 482); Morgan v. Meuth, 60 Mich. 238 (27 N. W. 509); Lathrop v. Elsner, 93 Mich. 599 (53 N. W. 791); Ann Arbor Fruit, etc., Co. v. Railroad Co., 136 Mich. 599 (99 N. W. 869, 66 L. R. A. 431). When the owner of an entire estate makes one part of it visibly dependent for the means of access upon another, and creates a way for its benefit over the other, and then grants the dependent part, the other part becomes subservient thereto, and the way constitutes an easement appurtenant to the estate granted, and passes to the grantee as accessorial to the beneficial use and enjoyment of the granted premises. National Exchange Bank v. Cunningham, 46 Ohio St. 575 (22 N. E. 924).

Complainants’ counsel contend, however, that:

“As there never was any unity of ownership of the McCain strip and the other land, it cannot be burdened with the way of necessity by any act of complainant Bean.”

But we have shown that there was unity of ownership in John H. Bean. This strip of land between the two farms became the absolute property of John H. Bean by adverse possession. And this is virtually conceded by complainants’ counsel, unless the evidence shows' that John H. Bean’s possession of this land was by permission or license. It should be borne in mind that by this record complainant Elmore J. Bean took all this property, including this strip, under his father’s will, as residuary legatee. He owned whatever his father, John H. Bean, owned, that had not been otherwise disposed of. But, if we were to hold that there was no unity of title, it would not follow that a way of necessity would not arise. A right of way can be acquired by prescription, or adverse possession, the same as title to the fee. If John H. Bean did not absolutely own this passageway between the two farms, he at least had acquired a right of way over it, which became appurtenant to the 66 acres, and all belonging to Elmore J. Bean, it passed with the deed from Elmore to John. In fact, it appears from the testimony of Elmore that it was not until after the making of the deed to John that he made up his mind to exclude him from this means of getting to his farm.

We cannot agree with complainants’ counsel that the right of way by necessity ceased when John C. Bean made his agreement with McGonegal. The testimony shows that McGonegal’s land is. impassable, and, as a passageway, was worthless to the defendant John 0. Bean. True, he acquired a right to go south over McGonegal’s land, but he found it marshy and impassable.

In their prayer for relief in their cross-bill, defendants pray that the court decree that they have a right to an easement and right of way along the east side of said 80-acre farm owned by said Elmore J. Bean to the highway on the north, and through said neck of land to get to, and from, the said 66-acre farm, and as appurtenant thereto. From the evidence it appears that a marsh prevents passage along the entire east side of said farm, but that the usual traveled route is around said marsh. We think that the answer should be treated as amended to correspond with the evidence in that regard, and, as so amended, that the defendants should have the relief prayed for in their cross-bill, the width of such passageway to be 14 feet over said south section corner, the center of the wheel track over said strip to be the center of said route.

The decree below will be reversed, and a decree entered here in accordance with this opinion, said defendants to recover their costs in both courts.

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


source: Caselaw Access Project

author: Bird, C. J. Ostrander, J. Hooker, J.

license: Public Domain

text:
    DESPRES, BRIDGES & NOEL v. ZIERLEYN.
    1. Constitutional Law — Commerce — Interstate Commerce — Foreign Corporations.
    A foreign corporation is entitled to recover, without showing that it has complied with the statute regulating local business, for goods sent into the State upon orders given by mail at its business office located in the State of its residence, since they constituted interstate commerce. Act No. 206, Pub. Acts 1901; Act No. 34, Pub. Acts 1903; Act No. 310, Pub. Acts 1907.
    2. Same — Foreign Corporations — Interstate Commerce.
    The selling of jewelry by salesmen of a foreign corporation, who carry goods in trunks, and exhibit them to customers that select the goods from the stock carried, is not interstate commerce.
    3. Same — Statutes.
    Contracts so made are unenforceable under Act No. 34, Pub. Acts 1903, unless such corporation has complied with the regulations of the statute.
    4. Same — Repeal oe Statute — Contracts of Foreign Corporations.
    Nor did the amendment of the statute by Act No. 310, Pub. Acts 1907, so repeal the prohibition that contracts made during the time when the act of 1903 was in force could be enforced after the amendment; as the amendment is not a ourative act, containing no repealing clause, and the provision in question was not in the nature of a penalty. Bird, C. J., and Hooker and Brooke, JJ., dissenting.
    5. Same.
    While contracts made in violation of law are void, where the legislature has imposed a penalty for the infraction of it, the penalty excludes any implication of an additional penalty.
    6. Pleading — Defenses—Notice—Unlawful Contracts.
    The defense that a contract was in violation of the statute (2 Comp. Laws, § 5324) prohibiting the sale of goods by peddlers without a license, must be pleaded by a special notice under •the general issue.
    "Error to the superior court of Grand Rapids; Stuart, J.
    ¡Submitted June 23, 1910.
    (Docket No. 69.)
    Decided .December 7, 1910.
    Assumpsit by Despres, Bridges & Noel, a foreign corporation, against Antoni Zierleyn and Anthony B. Zierleyn for goods sold. Judgment for plaintiff and defendants bring error.
    Reversed.

      Dunham & Phelps, for appellants.

      Bundy, Travis & Merrick, for appellee.
   Bird, C. J.

Plaintiff brought this suit in assumpsit, against the defendants, to recover upon a promissory note and an open account. The jury awarded plaintiff the full amount of its claim, and the defendants assign error.

The plaintiff is a foreign corporation and is engaged in the wholesale jewelry business in the city of Chicago. The defendants are retail dealers, doing business in the city of Grand Rapids, in this State. The defendants have been customers of the plaintiff for several years. Plaintiff’s usual method of calling on its customers in Michigan, including the defendants, was for its agents to carry their stock in trunks and to allow their customers to select therefrom such goods as they desired, and deliver them from the trunks. In case the customers desired any goods not carried in the trunks, their orders were taken and forwarded to the Chicago house, and the goods were sent from there direct to the customers. At the time suit was begun, defendants were owing plaintiff for 28 separate invoices of goods, aggregating the sum of $473.19. These invoices were furnished to the defendants between the 10th day of July and the 25th day of November, 1907, and it was claimed by plaintiff that all of the invoices, save one of $360.79, were mail orders. On February 17, 1908, a 30-day promissory note of $148.28 was given by the defendants to apply on the invoices. When the note became due, suit was begun on it and on the open account. A bill of particulars was filed showing the said invoices and the date of each item.

The defense made to this action was that the plaintiff was a foreign corporation and that in disposing of these goods it was doing business within the State of Michigan in violation of Act No. 34, Pub. Acts 1903, which required foreign corporations, as a condition precedent to maintaining any >action in this State, upon any contract, to file its articles of association with the secretary of State and pay its franchise fee. And also that the plaintiff was doing business in violation of Act No. 310, Public Acts 1907, which superseded Act No. 34 and declared void all contracts of a foreign corporation which were made prior to a compliance therewith. The jury found for the plaintiff in the sum of $473.19; the same being the amount of its entire claim.

Most of the assignments of error are based upon the following instructions to the jury:

“ I instruct you that you may give a verdict for all of the sales and amounts in the bill of particulars found to be due up to September 28, 1907, which plaintiff claims amounts to $412.81, and I do not recall that the items of that bill of particulars were disputed, but that is a question of fact for you to determine. Now, after that date, .September 28th, there were a few other sales; little items of |2, $3, $5, and $9, up to the last of November, amounting to some $60.38, that they would be entitled to recover for if they were orders sent to Chicago from home and the orders filled by sending the goods back from Chicago. That is what is called interstate commerce.”

The court was right in charging the jury that the plaintiff would be entitled to recover for all goods that were ordered from the Chicago house, and sent from there to the defendants at Grand Rapids. That was clearly interstate commerce. Coit & Co. v. Sutton, 102 Mich. 324 (60 N. W. 690, 25 L. R. A. 819).

The court held that the balance of the bill, $412.81, which was contracted while Act No. 34 was in effect, was in violation of that act, but that a recovery could now be had because that act had been repealed and ceased to have any effect on the 28th day of September, 1907. We agree with the trial court in his view of the law that selling and delivering goods from trunks in the manner disclosed in this case was not interstate commerce. The selling of goods, as conducted by the plaintiff, was not the doing of a single act of business by a foreign corporation in the domestic State, because plaintiff was not only selling goods to defendants, but to other customers, and not once but several times a year. It was not the case of a foreign corporation shipping goods in an original package to the domestic State, because these goods were brought into the State in bulk, to be sold by its agents, in such quantities as the purchaser desired. It was not the case of a sale of goods by sample, in the domestic State, by a foreign corporation, through itinerant salesmen, because the goods were not only sold, but were delivered at the same time. It was not the case of a foreign corporation placing its goods in the hands of a local merchant, to be sold on commission; but it was a case of a foreign corporation coming into this State, by its agents, who brought with them a small stock of goods, with the expectation that their customers would purchase them. The goods were brought into the State in bulk and became a part of the mass of the property of this State as soon as they arrived and were offered for sale. The exhibition of them, the offer to sell, the sale, and the delivery of the goods, all took place within this State. Tested by the rules by which it is usually determined whether commerce is interstate, none of them brings plaintiff’s methods of selling goods within the protection of interstate commerce. Emert v. Missouri, 156 U. S. 296 (15 Sup. Ct. 367); City of Muskegon v. Hanes, 149 Mich. 460 (112 N. W. 1077); People v. Smith, 147 Mich. 391 (110 N. W. 1102); City of Muskegon v. Zeeryp, 134 Mich. 181 (96 N. W. 502).

Was plaintiff entitled to recover for goods sold in violation of Act No. 34, after that act was repealed? This depends upon the construction of the act. Act No. 34, Pub. Acts 1903, provided in part:

“No foreign corporation, subject to the provisions of this act, shall maintain any action in this State, upon any contract made by it in this State, after the taking effect of this act, until it shall have fully complied with the requirements of this act, and procured a certificate to that effect from the secretary of State.”

Act No. 310, Pub. Acts 1907, provides, in part, as follows:

“No foreign corporation subject to the provisions of this act shall be capable of making a valid contract in this State until it shall have fully complied with the requirements of this act, and at the time hold an unrevoked certificate to that effect from the secretary of State.”

The effect of Act No. 34 upon contracts made in violation thereof was considered in Hastings Industrial Co. v. Moran, 143 Mich. 679 (107 N. W. 706), and Neyens v. Worthington, 150 Mich. 580 (114 N. W. 404, 18 L. R. A. [ N. S. ] 142), and it is held in those cases that the contract was not void, but the right of enforcement was suspended until compliance with the act. If we say, as we must under the construction placed upon Act No. 34 by these cases, that the contract was not void, but the right of enforcement merely suspended, I think it follows that, when that act was repealed, the plaintiff would have the same right to enforce the contract that it would have had if no such law had ever been passed. The repeal of the penalty imposed by the statute, pardoned all past offenses against it. Wharton v. State, 45 Tenn. 1 ( 94 Am. Dec. 214). It would be different, however, under Act No. 310, which went into effect on September 38, 1907. Contracts made after that date would never have any validity, and there could be no recovery on them, unless they grew out of transactions which were interstate commerce. The court left it to the jury to determine whether the items which were purchased after Act No. 310 went into effect were mail orders, and, as the jury found for the plaintiff for the full amount of his claim, we must assume they so found. We think the court took the right view of the law, and there was no error in this instruction.

Counsel for appellant contend that, even though the penalty imposed by Act No. 34 has been repealed, the contract in question is void because Acts Nos. 34 and 310 declared unlawful the carrying on of business in this State by noncomplying foreign corporations. This claim is based upon the general rule of law that contracts made in violation of law are void. Counsel overlooks the exception to that rule, which provides that, where the legislature has imposed a penalty for the infraction of a statute, the penalty so provided is exclusive of any other; at least, no other can be implied. 13 Am. & Eng. Enc. Law, p. 876; La France Fire Engine Co. v. Town of Mt. Vernon, 9 Wash. 142 (37 Pac. 287, 38 Pac. 80, 43 Am. St. Rep. 827); Toledo Tie & Lumber Co. v. Thomas, 33 W. Va. 566 (11 S. E. 37, 35 Am. St. Rep. 925); 2 Morawetz on Corporations, §§ 663-666; Clay, etc., Ins. Co. v. Manufacturing Co., 31 Mich. 346.

The trial court instructed the jury that the promissory note sued upon was void, and that no recovery could be had thereon, but that the consideration for the note was valid, and it should be treated as a part of the account, the same as though the note had never been given. We see no error in this instruction. The consideration for the note passed to the defendants while Act No. 34 was in force, which permitted a valid contract to be made, while the note was not executed until after Act No. 310 had taken effect.

Appellants also insist that a verdict should have been directed for the defendants because the plaintiff was doing business contrary to section 5324, 2 Comp. Laws, which is known as the peddlers’ law. The appellee makes the point that no notice of that defense was given in the pleadings. We are unable to find any in the record. That is a defense which would require a special plea or a notice under the general issue before it could be raised in the trial court. This was not given, and we do not think the question is properly before the court, and therefore shall refrain from discussing it.

The judgment of the trial court should be affirmed.

Ostrander, J.

I concur in the opinion of the Chief Justice, except in the conclusion which he reaches with respect to the right of the plaintiff to recover for goods sold in violation of Act No. 206, Pub. Acts 1901, as amended by Act No. 34, Pub. Acts 1903 (later amended by Act No. 310, Pub. Acts 1907). These contracts were not enforceable, not because they were absolutely void, but because they were prohibited, and because the legislature had said they should not be enforced except upon a condition which the plaintiff has never performed. They were void so far as the right of the corporation to enforce them is concerned. Clay, etc., Ins. Co. v. Manufacturing Co., 31 Mich. 346; Showen v. J. L. Owens Co., 158 Mich. 321 (122 N. W. 640, 133 Am. St. Rep. 376); Kuennan v. Fidelity & Guaranty Co., 159 Mich. 122 (123 N. W. 799). They were prohibited when made and are now. They were not enforceable by the offending corporation when made and are not now, unless, as the Chief Justice finds, the act of 1907, which affects only contracts thereafter made, by omitting the provision for enforcement upon condition and supplying something in its place, has validated them. In terms the act of 1907 is clearly not a curative act with respect to existing but prohibited contracts. The act contains no repealing clause. And the denial of the right to enforce contracts contained in the acts of 1901 and 1903 is not a penalty. Each act expressly provides a penalty for its violation, and these penal provisions were considered in People v. Steel Co., 150 Mich. 563 (114 N. W. 350). Treating the disability to enforce as a penalty, there is no reason for saying that it was removed by an amendment, prospective in its operation, which denies the right of nonconforming corporations to make a valid contract in the State.

The court below was in error in permitting a recovery for any goods sold in violation of the statute, and the judgment must be reversed, with the right to a new trial.

Moore, MoAlvay, Blair, and Stone, JJ., concurred with Ostrander, J.

Hooker, J.

I concur with the Chief Justice. Without questioning the general rule that a contract, the making of which is prohibited by law, is void, and cannot be made valid by subsequent legislation merely, I am of the opinion that the rule does not apply to contracts made in violation of the provisions of Act No. 34, Pub. Acts 1903, for the reason that a proper construction of that act justifies the inference that the legislature intended that such contracts should not be void, but only that a right to enforce the same should be suspended, so far as the offending corporation is concerned. This question was discussed, and so held, in Hastings Industrial Co. v. Moran, 143 Mich. 679 (107 N. W. 706). It will be noticed that, under this construction, there is no impediment to an action against a corporation, on such a contract, by the other party, which there would be if such contract were to be held null and void. Such a holding would not only be inconsistent with such a recovery, but it would render the provision against maintaining an action until articles should be filed and the fee paid, etc., superfluous. We must assume that it was intended to give a corporation a right to maintain an action upon such a contract after compliance with the law, and we are convinced that the design was not to embarrass parties who should deal with such corporations in ignorance of their failure to comply with the law, in relation to their right to do business in this State. Any other rule would make it necessary for all persons to ascertain about this, before contracting.

The argument may be made that Act No. 34 prescribed the only condition upon which a corporation may be allowed to recover. This might be true were we to hold the contract void. Under the construction herein adopted, this is not the case. The contract is always valid, and one party is in no way denied relief upon it at any time; the other is until compliance with the conditions imposed. By the amendment (Act No. 310, Pub. Acts 1903) the restriction contained in Act No. 34 was removed; the provision under discussion being omitted from the amended section. There is now no impediment to an action, as the provisions of Act No. 310 cannot apply to pre-existing contracts.

The judgment should be affirmed.

Brooke, J., concurred with Hooker, J.


author: Hooker, J. Blair, J. Hooker, J.

text:
    WEINBERG v. STRATTON.
    1. Assignments — Payment—Debtor and Creditor — Evidence — Hearsay.
    Where a debtor delivered to his creditor an order on his employer to pay his wages to the creditor until further notice, and after the creditor had received a part of his claim, the debtor gave notice that he withdrew the order, and the creditor, learning of the attempted withdrawal of the assignment, notified the employer of the amount of his claim; evidence-was admissible to show conversation constituting the alleged assignment, which, it was claimed, included future earnings-up to the amount of plaintiff’s claim, although the defendant was not present at the time, and received no information concerning it except the notice.
    2. Same.
    While any payments made by the employer to the debtor before the notice were valid, he would be liable for amounts paid after he received notice of the extent of plaintiff’s claim under the assignment.
    Error to Cheboygan; Shepherd, J.
    Submitted June-23, 1910.
    (Docket No. 136.)
    Decided December 7, 1910.
    Assumpsit by Max EL Weinberg against De Forest A. Stratton upon an assignment of indebtedness. Judgment-for defendant and plaintiff brings error.
    Reversed.

      M. W. Benjamin, for appellant.

      Charles R. Henry, for appellee.
   Hooker, J.

Charles Warren was indebted to the plaintiff, and as an inducement for further credit, gave to him an order upon defendant, who was Warren’s employer. It read as follows:

“Tower, March 13, 1908.
“D. A. Stratton:
“Please pay my wages to Max H. Weinberg hereafter until further notice.
“Charles Warren.”

The order was delivered to defendant who accepted it. Defendant has paid to plaintiff all of Warren’s wages up to January 4, 1909, when he was served with the following writing signed by Warren:

“Tower, Mich., Jan. 4th, 1909.
“D. A. Stratton:
“I hereby withdraw any order given by me for my wages which was given prior to January 1st, 1909.
“Charles Warren.”

And this was accepted.

On January 15, 1909, plaintiff, having learned that Warren had countermanded the order, caused the following notice to be served on defendant:

“ Tower, Michigan, Jan. 15, 1909.
“ D. A. Stratton,
„ “ Tower, Michigan.
“Dear Sir: Assignment of wages which Charles Warran gave me on you, and which you accepted in writing last summer, was in the following form :
“ ‘D. A. Stratton:
“ ‘Please pay my wages to Max H. Weinberg until otherwise ordered withdrawn by him.
[Signed] “ ‘Charles Warren.’
“Under this order I wish to notify you that I am entitled to all his (Charles Warren’s) wages until my account is fully paid. The.balance he still owes me is $57.00, and I will hold you personally responsible if you turn over that or any other amount to any other person excepting myself, and I hereby notify you to that effect.
Respectfully,
“Max H. Weinberg;”

After the 4th of January, 1909, Charles Warren earned and received checks for his wages as follows:

Jan. 9, 1909 ........................................$20 00
Jan. 23,1909-......................................16 95
Feb. 6, 1909 ........................................ 23 00
Feb. 20, 1909 ......................................14 75
Mar. 6, 1909.............— _......................... 23 40

—no part of which was applied by the said Charles Warren on his (Warren’s) indebtedness to said Max H. Weinberg.

Plaintiff sued and recovered a judgment in justice’s court against defendant for the balance of his claim against Warren, some $57. Defendant appealed to the circuit court where the cause was tried without a jury, and the case is before us on exception to the findings of law. The findings of fact were in substantial harmony with the foregoing statement, and the findings of law were as follows:

“ Conclusions of Law. (1) When Warren, on January 4, 1909, served upon the defendant the withdrawal of the order of date March 13, 1908, the plaintiff had no further claim on defendant for the wages of Warren.
“(2) At the time of the commencement of this suit the defendant was not indebted to the plaintiff in any amount whatever. ®
“(3) The defendant did not undertake and promise said plaintiff as in his declaration alleged.
“(4) That a judgment of no cause of action be entered in favor of the defendant and against the plaintiff, and that defendant recover his costs and charges by him about his suit in this behalf expended.
“ Frank Shepherd, Circuit Judge.”

Plaintiff has appealed from a judgment of no cause of action. Error is assigned upon the foregoing exceptions, and also to the exclusion of certain testimony. Upon the trial the parties presented the following stipulation:

“ It is hereby stipulated and agreed by and between the attorneys for the respective parties in the above-entitled cause, that the foregoing stipulated facts, except as otherwise stated, are the facts in this case. Both the parties, however, reserving the right to produce witnesses for the purpose of showing the conversation between plaintiff and Charles Warren on the 11th day of March, 1908, preceding the giving of the order dated March 13,1908, and that the court shall make a finding of facts as to what that conversation was, which, in addition to the agreed facts herein set forth, shall constitute the facts in this case.”

The following then occurred:

“Max H. Weinberg (sworn), examined by Mr. Benjamin:
“ Q. Yon are the plaintiff in this case ?
“A. Yes, sir.
“■Q. Do you remember about the time that Charles Warren gave you the order on Mr. Stratton, upon which the suit is in this case ?
“A. I do; yes, sir.
“Q. Was there any conversation with Mr. Warren previous to the giving of that order ?
“A. Yes, sir.
”Q. When and where ?
“A. In the store — in my place of business.
“Q. In Tower?
“il. In Tower; yes, sir.
“Q. Who was present besides yourself and Mr. Warren ?
“A. Jonas-.
“ Q. What was the conversation ?
“Mr. Henry: Now, your honor, I desire to object to this. The court has read the facts which have been agreed upon by counsel and myself. We could not agree upon what this conversation was. Therefore the one point upon which we agreed to take testimony is upon that point. But I regard the conversation, whatever it may have been, as wholly immaterial. While the case is being heard before the court, perhaps it might not make so much difference, yet I desire to save the point. Here is a conversation in which Mr. Stratton was not present and not a party to. We maintain that, in so far as the issue is concerned, it is entirely immaterial. Mr. Warren is not the defendant in this case — Mr. Stratton is the defendant; and therefore, to all of this, I desire to interpose our objection.
Mr. Benjamin: We claim that under the stipulation in this case we are entitled to show this conversation.
The Court: Well, suppose you do, what difference does it make, if it is immaterial ?
“ Mr. Benjamin: It is not immaterial. It shows the exact conditions for which this order was given. It is not to vary the terms of the instrument that we put it in, but just to show the purpose for which it was given; and that would be perfectly competent. For instance, your honor, a man giving a deed for a certain piece of property, as a mortgage, as security for an indebtedness, you would have a right to show it was given as security. In the same way, we would have a right in this case to show that this order was given as security for a certain indebtedness.
“ The Court: That is not the point that Mr. Henry makes. The point Mr. Henry makes is that it is a conversation with a person who is a stranger to this suit.
“Mr. Benjamin: Mr. Warren is not a stranger. Mr. Warren, we claim, makes an assignment of his wages— he is working for Mr. Stratton — employed by him. He makes an assignment of his future wages to Mr. Weinberg as security for past indebtedness and also future indebtedness ; and then this order is afterwards taken to Mr. Stratton and is accepted by his agent. Now the fact that a man makes an assignment that, of itself, is complete, without a third party being present.
The Court: Any conversation that Mr. Weinberg may have had with Mr. Warren will not bind Mr. Stratton, except as it was communicated to Mr. Stratton.
“Mr. Benjamin: I am trying to show the assignment of the claim — the whole arrangement. Now, what difference does it make whether Mr. Stratton was there or not ?
“The Court: Because you delivered to Mr. Stratton just what you did deliver, and that is all he is bound by —what he had notice of. If you delivered something that was not an assignment on the face it, and he was not notified any differently, then he is only bound by what he received. Any instrument that was delivered to him, he had a right to believe contained all there was.
“Mr. Benjamin: We have a right, I think, to show the terms of the instrument. It is ambiguous — it simply says: ‘ Pay my future wages to Max H. Weinberg until further notice.’ Now, ‘further notice,’what does that mean ?
“The Court: Well, we are bound by that, I think, in this controversy.
“Mr. Benjamin: A man assigns a claim to another party. Well, the assignor has no further rights as to that claim. He can’t do any act afterwards that will defeat his assignment. Now, you might say, that being so, that ‘ until further notice ’ would mean then the notice by the party who has the assignment. Now, what we want to show by this conversation is as to how long this order was to hold good.
“The Court: The order itself shows that — ‘Until further notice.’
“Mr. Benjamin: I want to show what was meant by that.
“The Court: Why, isn’t that plain enough? Until Mr. Stratton was notified otherwise. I am afraid it would be error to admit it, if the decision should go in your favor. It might be reversed.
“Mr. Benjamin: We will take an exception to the ruling of the court, then, under that view of it.”

We understand plaintiff’s claim to be that this conversation, had it been shown, would have established an oral assignment by Warren to plaintiff of all his wages, earned and to be earned from the defendant under his existing employment, until the amount then owing or that should thereafter accrue to plaintiff should be paid in full. The plaintiff asserts that he had, and offered, testimony that would show that Warren’s agreement amounted to an assignment of his wages to be thereafter earned, until his indebtedness to plaintiff, prospective as well as that already incurred, should be paid. If this is true, plaintiff was entitled to receive the same whether defendant was present or had notice of the assignment or not, for any one may assign a credit without consulting his debtor. 4 Cyc. p. 17, and note; Id. pp. 32, 34. The question involved in this offer was whether a valid assignment of wages was made by Warren to plaintiff; and this might be whether defendant consented or not, and whether he was a party to the talk or not. If is not a question of promise on his part to pay Warren’s debt, but a question as to who was the owner of his obligation to pay. It is possible that he may have had a defense to such claim— i. e., that he had paid in ignorance of the assignment— hut that is another matter. The learned circuit judge should have admitted the testimony in accordance with the stipulation.

Blair, J.

Assuming that plaintiff would have shown, if permitted, an oral assignment by Warren to plaintiff of all his wages, earned and to be earned, from the defendant under his existing employment until the amount then or thereafter owing should be paid, I think the court correctly held that such showing would be immaterial.

The plaintiff notified the defendant, in substance, that the only assignment he had was the written assignment accepted by defendant in writing. This assignment was clearly terminable, in unambiguous terms, by Warren. Defendant, under Weinberg’s notice, had a right to rely upon the written assignment as measuring the rights of the parties, and plaintiff was estopped to claim that there was any different assignment. The plaintiff having assured defendant that the written assignment was the only assignment, and this assignment having been lawfully terminated by Warren, defendant had a right to make the payments to Warren for the recovery of which this suit is brought.

I think the judgment should be affirmed.

Stone, J., concurred Vith Blair, J.

SUPPLEMENTAL OPINION.

Hooker, J.

I agree with Mr. Justice Blair that the plaintiff cannot recover any sum that was paid by defendant in reliance upon the notice given by his debtor, before he was notified that plaintiff claimed to be entitled to his wages up to $5?. Payments made after that, if any, would be at defendant’s own peril. But we do not know that he so paid any, except that due prior to January 15th, on which he knew that plaintiff claimed them. He could not say that he made subsequent payments in ignorance of plaintiff’s claim that he was entitled to them. It was proposed to show that he was so entitled. If he was, they were his, and to say that He lost such ownership because he said he claimed them under the order is not an answer to his claim. Defendant had been served with an order, which this notice showed that plaintiff claimed was intended to give him further rights. Defendant’s duty to pay plaintiff was not limited by the order he accepted if in fact plaintiff bought the claims as he offered to show. If that had been proved, the only defense would have been payment in ignorance of plaintiff’s claim. As I have intimated in this opinion, that would have been a complete defense. If no notice whatever had been served by plaintiff, and defendant still had the money, could he say: It is true I have this money, and it is yours, as between your debtor and yourself, but you made a mistake in the order I accepted, and I am not obliged to pay you. Evidently this would be no answer.

The judgment is reversed, and a new trial ordered.

Bird, C. J., and Ostrander, Moore, McAlvay, and Brooke, JJ., concurred with Hooker, J.


author: Ostrander, J.

text:
    PARSONS v. BILLS.
    1. Boundaries — Line Fenoe — Settlement of Dispute.
    A line fence, maintained for more than forty years as a section line, cannot he held to have been built by agreement, as a boundary line, where there is no evidence that a dispute existed or a disagreement was settled when it was built.
    2. Same — Adverse Possession.

      Held that the facts did not establish adverse possession of the land in dispute.
    3. Same — Surveys—Ancient Monuments.
    A boundary will be considered established by a line fence which remained and was treated as the division fence between two parcels for forty years, by the adjoining proprietors, where the evidence showed that it was so treated by one private survey, and a later survey, showing a different location of the boundary, did not appear from the proofs to have been based on the finding of any original government monuments.

      Appeal from Shiawassee; Miner, J.
    Submitted June 20, 1910.
    (Docket No. 111.)
    Decided December 7, 1910.
    Bill for an injunction by William P. Parsons against Seward A. Bills and Ida May Bills, to restrain trespass. From a decree for complainant, defendants appeal.
    Affirmed.

      Seth B. Terry ( Walsh & Pardee, of counsel), for complainants.

      Hicks & Doty, for defendants.
   Ostrander, J.

This suit was brought to have determined the boundary between sections 4 and 5, in town 5 north, of range 4 east. The jurisdiction of the court, which is not questioned, may be sustained upon the ground that defendants are charged with having by stealth, as well as -by force, attempted to secure possession of a strip of land, and have built some part of a line fence over on the land complainant claims to own and which he has occupied for about 40 years. The decree appealed from establishes the line in accordance with complainant’s contention and theory, and requires defendants to remove the fence built by them to the line so established, and hereafter to maintain the said division fence upon said line. Two surveys of a line are proven and the existence of a division fence, erected and maintained for many years upon a line corresponding with one of said surveys and with complainant’s contention. Complainant, relying upon the survey which is favorable to his contention, also advances the theory that the said division fence was established by agreement of adjoining owners, and the further theory that he has acquired, by adverse possession, the title to all land lying west of said line fence.

The evidence of the establishment of a line by agreement and acquiescence is not sufficient to satisfy the rule laid down in Smith v. Hamilton, 20 Mich. 438 (4 Am. Rep. 398), and approved in Olin v. Henderson, 120 Mich. 149, 158 (79 N. W. 178). See, also, Chapman v. Crooks, 41 Mich. 595 (2 N. W. 924); Manistee Manfg. Co. v. Cogswell, 103 Mich. 602 (61 N. W. 884).

It appears that complainant purchased and received a conveyance of the E. \ of the S. E. \ of section 5 in the year 1870, immediately occupied it, and has ever since been in possession. There was then a fence, log and rail, on the east side of the land, running both from the north and from the south to a swamp, through which there was no fence. Plush with this fence, and in the southeast corner of the land, complainant built his house in 1874. The W. of the S. W. i of section 4 was then occupied by one Charles Jacobs, who purchased in 1870, lived on the land for a year or two, and then sold it to complainant. Complainant sold and conveyed it in May, 1876, to Barnum, Dunn and Lee, who conveyed to Straussine in April, 1877, who reconveyed to complainant in January, 1886. This last deed was executed pursuant to a contract for the purchase of the land, made in 1883, in which complainant and one Robert Craig were named as vendees, Craig having assigned his interest to complainant. Thereafter, in April, 1903, complainant conveyed to defendants, who are husband and wife. -The line fence in question was erected some time between 1864 and 1869. When complainant conveyed to Barnum and others in 1876, he reserved his house, but not the land on which it stood. This was because the purchasers, or one of them, told him he thought the house was on the line. Complainant heard, also, that Straussine proposed to make him move his house, but he says this was not the reason for repurchasing the land on section 4 from Straussine. When complainant conveyed to defendants, he excepted, out of the W. i of the S. W. J of section 4, a strip of land next to his house, the particular description being:

“Commencing at the southwest corner of southwest quarter and running thence east twenty-five feet; thence north thirteen rods and five and one-half feet, thence west twenty-five feet to section line, thence south on section line to place of beginning.”

He learned from Mr. Bills, in the autumn of 1904, that he questioned the line indicated by the old fence, and in 1907 or 1908, perhaps in both years, Bills attempted to build, and did build in 1908, a new fence west of the old line fence, beginning at the north line of the land and running 80 rods to the south. This fence at the north end of it is about a rod and a half west of the old line fence, and at the south end is from eight to ten feet west of the old fence. While the original fence was long maintained as a line fence, there is no evidence of a dispute or disagreement settled when it was built, and, although complainant occupied and cultivated the land west of the fence, claiming to own it, adverse possession is not established by the facts.

We are therefore required to examine the record and other evidence of the surveys. There are two, known, respectively, as the “Huggins” and “Mason” survey. Huggins made a survey in 1851, but it is called and treated as a private survey, not recorded. Ezra Mason made a survey of all of section 9 in 1866. In 1880 Huggins made another survey, and one of the points assumed by him to be correctly established was the southwest corner of section 4, evidenced by a stone found in the road. In 1880 Lyman Mason, then county surveyor, made a survey. He assumed that a corner set or rewitnessed by Ezra Mason was correctly established. All of these surveyors are dead, and it is impossible to tell whether any of them found the original government monuments. The Huggins surveys correspond with the line fence. The Mason survey indicates the true section line as being some 27 feet west of the fence at the north line of the land in question, and about 5 feet and 10 inches west of it at the south line. The trouble about both surveys, as showing the true line, is the absence of any established starting point. The question resolves itself into one of probabilities. We dispose of the matter by saying that it is quite as probable that the old fence was built upon the section line as that it was not, and, having marked a boundary for about 40 years, that boundary ought not to be moved without better evidence than the record affords that it is incorrect.

We affirm the decree below, with costs to appellee.

Bird, C. J., and Hooker and Stone, JJ., concurred. Blair J., concurred in the result.