author: Moore, O. J.

text:
    NEELY v. DETROIT SUGAR CO.
    1. Trial—Instructions—Argument.
    An instruction that the jury ought to discard all those statements of counsel that might perhaps result in influencing them, or possibly might have been designed to influence them, held not objectionable when considered with the rest of the charge.
    2. Watercourses—Obstruction—Riparian Rights —Injury to Fee.
    Where plaintiff was in possession under a land contract from W., who more than 30 years before had obtained deeds to the property, and who, with plaintiff, had been in continuous possession for that period, and who had assigned to plaintiff any cause of action he might have, plaintiff was entitled to any damages to the fee by reason of the obstruction of his mill pond and race thereon.
    3. Lands—Sale—Oral Proof,
    Where, in an action for damages to a mill pond and race, defendant’s witness stated that he at one time owned the mill property, a statement elicited on cross-examination that he had sold to a certain party, under whom plaintiff claimed, was not objectionable as an admission of oral proof of sale.
    4. Watercourses—Obstruction—Damages—Instructions.
    In an action for damages to plaintiff’s mill pond and race by obstruction of the steam, an instruction that, if the plaintiff used the creek above the mill in a certain manner, then such, user “ would be an unreasonable use thereof, and would render it liable in this action to the plaintiff for the damages it has occasioned him, if any,” was not, when read with the rest of the charge, subject to the objection that it permitted a recovery for “ all the damages it has occasioned him,” whether or not resulting from an unreasonable use.
    5. Same—Raising Question.
    In an action for damages to mill property by obstructing the creek by depositing refuse therein, in which it was claimed that the injury had continued for three or four years, a witness for plaintiff was asked if he was acquainted with the fair rental value prior to the time suit was instituted, and what that value was. Defendant objected that the question “should be confined to the rental value,during the time that the mill has been shown to have been idle, and this is incompetent and immaterial.” 23eld, that this did not suggest that defendant was claiming that the plaintiff ought, as soon as practicable, to remove the deposit, and that the failure to do so affected the measure of recovery, and therefore the-question could not be raised on appeal.
    Error to Oakland; Smith, J.
    Submitted November 17, 1904.
    (Docket No. 109.)
    Decided December 14, 1904.
    Case by Thomas Neely against the Detroit Sugar Company for damages caused by the obstruction of a mill pond. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      II. II. Hatch, for appellant.

      Davis & Bromley, for appellee.
   Moore, O. J.

This is an action brought by the plaintiff to recover damages. The plaintiff claimed to be in possession of a flouring mill situated in the village of Rochester, on Paint creek. The mill was operated by water power, and connected with it was a raceway and a small pond, of about two acres in extent. Upstream from the plaintiff’s pond, and adjoining his pond, was located a tract of land owned by the defendant, the Detroit Sugar Company. In the year 1899 the defendant erected on its land a factory for the manufacture of sugar from beets. It used the water of Paint creek in the factory, taking the water from a small dam that extended across the creek above the factory. The drainage from the factory led into Paint creek above the pond of the plaintiff.

The claim of the .plaintiff was that the defendant had caused to be discharged into the creek beets, beet tops, and other refuse from its factory, and also mud more or less mixed with lime; that, after the first season’s operation of the defendant’s factory, these beets, beet tops, and other refuse floated downstream and obstructed the flow of water to the plaintiff’s mill wheel; that, after the second season’s operation of the defendant’s factory, plaintiff’s pond and race were partially filled by the discharge of mud and lime therefrom. A season’s operation of the sugar factory is generally referred to as a campaign.”

The defendant’s sugar factory was completed in the fall of 1899, and its first campaign began on the 2d day of November and continued until the 30th day of December of that year. The next campaign began on the 18th day of October, 1900, and ended on the 30th day of December of that year. The next campaign began on the 9th day of October, 1901, and continued until the 28th day of December of that year. This suit was commenced on the 16th day of July, 1902. The case was tried before a jury. Prom a judgment in favor of plaintiff, the case is brought here by writ of error.

The record contains nearly 150 pages. The jury were also taken to view the premises. In the bill of exceptions it is said a large amount of testimony was introduced by both parties not set forth in the bill of exceptions.

A reading of the charge made by the trial judge will greatly aid in understanding the errors which are discussed by counsel. The charge is as follows:

“ Counsel of great ability and learning have spent six hours in arguing this case to you and setting forth the claims of their respective clients, and that makes it unnecessary for me to spend any length of time in reviewing the facts claimed in this case. Briefly stated, Mr. Neely and the Wilsons claim to be in possession of a mill and mill privilege and water power, and that the water privilege has been in use by them and their grantors a long time, and that the sugar-mill factory was built at a comparatively late period (in 1899, if I recollect the date); and it is the claim of the plaintiff that the sugar company have caused or allowed such amounts of dirt, lime, sediment, or lime mud, beets, and beet tops, to be deposited in the creek, and that they have been conveyed by Paint creek to the pond in question in such an unreasonable amount thereof as to have greatly injured the power furnished by the mill pond and Paint creek, and it is his claim that he is entitled by reason thereof to the loss of the rental value that has been occasioned to a large amount, and that he is entitled to recover the costs of removing the deposits .of lime mud, dirt, and sediment, and which he also claims would be very large.

“ The claim on the part of the defendant, briefly stated, is that the pond in question furnishes but very little addition to his water supply; that it has not been filled up to any material or appreciable extent, unless by natural causes, and that there has been no use of the creek as a deposit for sediment, lime, or mud, or the refuse from the factory, to any unreasonable amount, in this creek, at all, and that even if deposits of sediment have been conveyed from the factory to the pond in question, and along the raceway onto the plaintiff’s premises, still that there is a more practical way of removing it than that claimed by the plaintiff. The claim by the plaintiff is that it must be removed by hand power—that is, by shoveling and by use of wheelbarrows—while the claim of the defendant is that, by cutting or making an opening into the dam, it can be flushed out by the force of the stream, by the water itself, at a small expense.

“Now, all of the other claims principally growing out of these circumstances, and all this evidence, tend to support one or the other of these principal claims which are presented to you. Now, to sustain the plaintiff’s claim, he must prove all parts of his claim, or, more correctly speaking, he must prove each one of his various claims that are material to the issue, by a fair preponderance of evidence. It is not for the defendant to disprove the claims of the plaintiff, but it is for the plaintiff to first prove his claim. The burden of proof is upon him to establish the various claims, let me repeat, by a fair preponderance of evidence; and by that term is meant such evidence as, when weighed with that which is offered to oppose it, has more convincing power in the minds of the jury. It is not a technical term at all, but means simply that evidence which outweighs that which is offered to oppose it. It does not mean necessarily that a greater number of witnesses shall be produced on the one side or the other, but that on the whole evidence the jury believe the greater probability of the truth to be on the side of the party having the affirmative of the issue, and in this case the affirmative of the issue is with the plaintiff.

“The legal claims are so thoroughly and completely covered by these requests which have been handed up that it will not be necessary for me to indulge at length in any general charge at all. There is nothing that I can say that would be anything more than a repetition of the language that is contained in these requests; and such of them as I read you, gentlemen, will be considered as good law and the charge of the court, and those that I omit will not have any bearing on the case at all, even if you did hear them read by counsel.

“On the part of the plaintiff I charge you, first, if the jury find from the evidence in this case that at the time of the commencement of this suit the plaintiff, Thomas Neely, was in the open and peaceable possession of the milling property mentioned in the declaration in this case, under a land contract for the purchase of the same from the Wilsons, and that they had, previous to the commencement of this suit, sold, assigned, and transferred to the plaintiff all their right, title, and interest in and to any and all of their claim for damages against the defendant, then such facts would constitute the plaintiff a sufficient owner of the said milling property to commence and maintain this suit.

“Second. If the jury find from the evidence in this case that at the time of the commencement of this suit, and for fifteen years and more prior thereto, there had been kept up and maintained a water power and a dam at a certain height on the property described in the declaration, by the plaintiff or the parties from whom he claims, then the plaintiff would have the right at this time to keep up and maintain the said dam at said height, and would be the owner thereof, the same as though he had a deed or deeds of the same.

Third. If the jury find from the evidence in this case that said dam so maintained backed the waters of Paint creek over and upon the lands of the defendant, or the persons from whom it claims, for fifteen years or more prior to July 16, 1902, then the defendant would have no right to fill up the pond or reservoir so formed, so as to diminish or destroy the capacity thereof, to the injury of the plaintiff. Now, gentlemen, the latter part of this request contains some language that perhaps ought not to be there as a part of the request itself. It does not refer to the merits of this case particularly, but refers to the question of the extent of the dam, and whether or not there should be any deduction from the fact that it is the claim that a part of this waterway and dam extends over onto the premises of the defendant. The charge that will govern the merits of the case is not contained in the latter part of this request, but will be given you later. 9

“The fourth and fifth requests contain what I give you, or that will govern the plaintiff’s case, and what will enable him to recover, if he recovers at all, and those requests are as follows (and I might say that any language that may have been contained in the latter part of the request just read that is in contradiction to this is put there by a mere inadvertence, and will not govern you):

“ If the jury find from the evidence in this case that the defendant, the Detroit Sugar Company, its agents or servants, during the campaigns (so called) of said company from November 1, 1899, to July 16, 1902, have deposited into Paint creek, and from thence into the pond, race, flume, and water wheel, of the water power and mill of the plaintiff, such quantities of beets, tops of beets, beet roots, lime mud, lime, sand, and dirt, and other refuse from its sugar plant, as to materially and unreasonably lessen, diminish, injure, and damage such pond, race, and’ mill property, then such use and such acts of the defendant with the said waters of Paint creek would be an unreasonable use thereof, and would render it liable in this action to the plaintiff for the damages it has occasioned him, if any.

“ The court instructs the jury that the plaintiff, Thomas Neely, at the time of the commencement of this suit, and from November 1, 1899, was entitled to the use of the old pond (so called) and his race in the same manner as before November 1, 1899, and was entitled thereto free from any material amount of refuse and pollution therein, except the amount that would naturally come therein; and if the defendant, its' agents or servants, during said time, in the conduct of business, so used the waters of Paint creek as to deposit therein at or near its sugar plant, and the flow of said creek carried into the old pond and race of the plaintiff, such quantities of beets, tops of beets, beet roots, lime mud, sand, and dirt, and other refuse, as to materially and unreasonably lessen and diminish the quantity of water therein, and thereby injure, lessen, diminish, and damage the capacity, power, and operation of plaintiff’s flour and feed mill, then such acts of depositing into and such user of said, stream by the defendant was and would be an unreasonable use and user thereof, and would render it liable in this action to the plaintiff for the damages it has occasioned him, if any.

“ I charge you further, that, in estimating the damage of the plaintiff, the jury are not to consider the question of whether the defendant company are making money or not, or the result upon the company—whether they will remove their plant, or not, if a judgment is rendered against them. I have already indicated to you, in accordance with the statement of counsel, that that question has no place whatever in the case.

“ On the part of the defendant I give you a portion of the requests. The first eight requests, relating to the various technical questions, to my mind do not affect the real merits of this controversy, and so they are for that reason refused.

‘ ‘ I give you the requests as follows, beginning with the ninth: That the defendant, as a riparian proprietor upon Paint creek, has an equal right with all other riparian proprietors on said stream in the use of the waters thereof, and such right of the defendant may operate to qualify the rights of all such other riparian proprietors on said stream. And by ‘riparian proprietors,’ gentlemen, is meant other owners o.f property along the stream which require the use of the waters thereof. A fair participation in and a reasonable use by each riparian proprietor on the said Paint creek of the waters thereof is what the law seeks to protect, and an injury that is incidental to a reasonable enjoyment by one of such riparian proprietors of the right common to all cannot be complained of, or made the foundation of recovery.

“The question of what is a reasonable use of Paint creek by the defendant is one which is to be determined by the jury; and, as between the plaintiff and the defend- ■ ant, the jury, in determining that question, are to consider the character of the stream, the necessities’ and character of the defendant’s business and situation, and also the necessity, character, and situation of the plaintiff’s business, and must endeavor so to decide the case as to protect the rights of both parties.

“ It is for the jury to determine whether the drainage of the defendant’s sugar factory and the defendant’s lime pond into Paint creek, in the manner in which the evidence shows that it was done, was a reasonable use of the said creek by the defendant; and in determining that question the jury are to consider the circumstances of the case, including the size and character of the stream, the nature and importance of such drainage to the defendant, together with the inconvenience and injury to which the plaintiff was thereby subjected. In determining the reasonable use made of Paint creek, the jury must take into consideration the fact that the plaintiff did not require in his business the use of pure or clear water, but used the water only for the purpose of a motive power.

“In one of the plaintiff’s requests, counsel used the word ‘pollute,’ but I do not understand that by the use of that word plaintiff’s counsel meant to maintain that the mere roiling up of the water, if no sediment were deposited, would be any injury to the plaintiff. Any discoloration of the water, where it is used solely for motive power, would be of no importance to the case at all.

“That any use which the defendant may make of Paint creek is to be regarded as reasonable if such use imposes upon the plaintiff only a burden against which the plaintiff can protect himself by a reasonable effort, and at a reasonable expense, and by the exercise of reasonable care. That, in the use of a water power such as the evidence shows was possessed and operated by the plaintiff, prudence required. that he should protect his water wheels and gates immediately connected with the water wheels, by a suitable rack, against substances floating in the creek. The evidence shows that a rack is not suitable if the openings between the slats exceed one inch. I give you that as a good law, gentlemen, unless— Yes; I give it to you as good law, as applicable to this case, or in similar cases, unless the circumstances were such that a rack of that width slats—openings in the slats—would retard unreasonably the flow of water.

“The evidence shows that the Detroit Sugar Company during a campaign at its factory takes from Paint creek about three million gallons of water per day. That is such a quantity of water that it must be all substantially returned to Paint creek above the plaintiff’s dam. It is therefore impracticable for the defendant to discharge the water which must be delivered from the defendant’s factory through a sewer below the plaintiff’s dam.

“I give you that request, gentlemen, provided you find that, in order to carry refuse below the plaintiff’s dam, it would be necessary to use any material share of this large volume of water. That request is presented here, gentlemen, because of the evidence introduced on the part of the plaintiff tending to show that it was practicable to construct a sewer from the company’s plant to a point lower down in Paint creek than the plaintiff’s property. If any appreciable, material amount of water were diverted from Paint creek at the sugar company’s plant, and not returned' thereto, then, if it did in fact diminish the plaintiff’s water power, or lessen it, he would have a right of action for that reason. And this request is meant to enlighten you on that particular subject—whether it is practicable to construct a sewer as was claimed.

‘ ‘ Now, gentlemen, that constitutes all the requests I care to give you, except those relating to the question of damages. And this part of my charge you will consider carefully before you consider the question of damages at all, in order to determine whether or not, under the charge of the court, and the evidence as presented, there is any liability at all on the part of the defendant to the plaintiff.

1 ‘ If you shall conclude that the plaintiff has established a liability of the defendant, by a fair preponderance of evidence, to pay damages, then you will consider the question of damages, and on that subject I give you the requests of the plaintiff as follows: That, if the jury determine that damages should be assessed in favor of the plaintiff, the damage will be as follows, to wit:

“The reasonable cost and expenses on July 16, 1902, at the time this suit was commenced, of cleaning out and removing the lime deposit and other refuse, if any, that came from the sugar company’s plant into the old pond and the mill race of the plaintiff in this suit; also such sum or sums of money as you shall find, from the evidence in this case, the fair rental value of the mill property of the plaintiff from November 1, 1899, to July 16, 1902, was diminished or lessened by the wrongful acts of the defendant company.

“The plaintiff is under no obligation to provide a dumping ground for the refuse now in this pond and race without any compensation therefor, and if the jury believe that, the only practicable, available dumping ground for such refuse is on the land of the plaintiff, then, if the jury find that the placing of such refuse on plaintiff’s land is any injury or damage thereto, such damages ought to be allowed him as will compensate him for such injury.

“ In arriving at the amount of damages in this case, the jury ought not to consider the question whether the defendant would be more likely to pay a judgment if rendered for a smaller amount than for a larger amount, rather than appeal the case to the Supreme Court, as the question of appeal ought not to be considered by the jury in making up their verdict of damages. And it ought not to be considered at any stage of the case.

“ On the part of the defendant, as having a bearing on the same question—upon the question of damages—I give you requests as follows:

‘ ‘ The plaintiff cannot recover for any damages sustained by him by reason of beets or other substances which escaped into Paint creek from the defendant’s premises, and which passed into the flume between the penstock and the water wheels of the plaintiff, and into said water wheels, before he had placed in the raceway a suitable rack, if such rack would have prevented the passage of such beets and substances into said flume and said waterwheels.

“Now, I was asked orally by counsel for plaintiff to modify that or add to it by saying that he could recover nothing for the obstruction to his wheel by beets for a reasonable time, and I am willing to add those words, gentlemen; but I feel obliged to say to you, in that connection, that it does seem to me that a man who was skilled in the operation of the mill, and was familiar with the flowage of water that constitutes mill power, would have known very quickly after he discovered that beets were in his wheel that a rack was essential in order to keep them away, so that if one day if he knew beets were going in there,‘to my mind, would give him notice—any brief time. Perhaps one day might be a little too short a time, but, if he knew that they were passing in and obstructing it, it would, to my mind, oblige him to erect a suitable rack to stop their passage into the wheel. Now, that request has no bearing whatever upon the question of whether the beets were brought down there which obstructed the flow of water at the rack itself. That refers only to the passage of beets into the wheel from the fact that no rack was there.

“ I charge you further on the question of damages, for the defendant, as follows: That the plaintiff cannot recover any damages sustained by him resulting, directly or indirectly, from beets or other substances which escaped into the waters of Paint creek from the premises of defendant, and which passed into the water wheels of the plaintiff, or the gates immediately connected therewith, and which would not have passed into such water wheels and gates if the plaintiff’s race had been provided with a suitable rack. That is practically a repetition of the other request. The plaintiff cannot recover damages for the deposit of any material outside of his raceway and pond as they existed prior to the commencement of this suit, viz., July 16, 1902.

“ The evidence shows that the freshet of July 3, 1902, carried away all of the sediment from the channel— Notice the language, gentlemen: From the channel of Paint creek above his pond as it existed immediately prior to July 3, 1902. Therefore the plaintiff cannot recover any damages based upon the cost of removing such deposit. Now, that request as originally drawn, gentlemen, read that he could not recover anything because the evidence shows that all the deposit was carried away from the pond as well; but I modified it, gentlemen, so as to make it read ‘channel,’ instead of ‘pond,’ to that portion of Paint creek above the dam, because there is a dispute in the evidence on that between the witnesses as to whether the freshet did carry away the sediment from the pond itself. One witness, or perhaps more, on the part of the defendant, claimed that the freshet carried out all the sediment above the dam, which would include not only the channel of the stream itself, but the pond or reservoir, while Mr. Neely himself, and perhaps others on his side (I have forgotten whether there was any more or not), said that it did not remove any sediment, except from the channel itself, leaving the sides and main body of the pond with the sediment remaining; and the.modification of that request, gentlemen, is made because of the dispute in the evidence. If you should find from the evidence that the freshet did actually remove all the sediment at that time, not only from the channel of the creek, but also from the pond, so that it was all removed above the dam of the plaintiff, then the request would be good law, because it would be an absurdity to allow him for wheeling out per cubic yards that sediment and refuse, if in truth and in fact it was all washed out on July 3, 1902, and carried out of the pond by the freshet.

“ This case has taken a long time to try, and it is regarded as important by the parties to this case. I have already said to you, and I repeat it to you in conclusion, that you ought not to consider the question of whether Mr. Neely is a poor man and needy; that you ought not to render him a verdict because you think he is needy, or, if you do, it ought not to be a dollar larger on that account. His claim includes, by assignment, something more than his own contract interest. It includes the injury, if any, to the owners of the property, namely, Wilson Bros. So that, while Mr. Neely is nominally the plaintiff, yet in truth and in fact the Wilsons and Mr. Neely are joint plaintiffs, so far as the jury are to consider the case.

“ On the other hand, you ought not to render a verdict against the defendant simply because you think it is a large corporation, with a large plant, and that because you might think on that account it is well able to pay; and, while I give you that, I just as cheerfully say to you that the statement of Mr. Holman’s as to whether or not the company had made money has no business in this case. Even if it had, and the evidence disclosed that they were not making money, still that ought not to influence your verdict at all, any more than it ought to influence your verdict that Mr. Neely is a poor man.

“ I have said to you that you ought not to render a verdict for Mr. Neely, and, if you do, for any large amount, because he is poor; and the same argument and reason would apply to the company if Mr. Holman’s statement should happen to be true—of its losing money. It would not render the defendant any less liable to Mr. Neely, nor any less under obligation on their part to recompense him for the injury, if he did receive an injury, because the company are not making money or are poor.

“In other words, gentlemen, you ought to discard from the case all those statements of counsel that might, perhaps, result in influencing you, or possibly might have been designed to influence you, in the case, and considér only the evidence in the case, and the law as given to you by the court, and render such a verdict, if you can, as shall represent your best collective judgment, and as shall hereafter satisfy your individual consciences as jurors, no matter what the verdict may be. If you find a verdict for the plaintiff, you will simply announce that you find for the plaintiff, and name the damages in a gross sum. If the verdict is for the defendant, you will simply announce, through your foreman, no cause of action or not guilty.”

Counsel discusses the assignments of error under six heads:

1. Measure of damages.

2. The relative rights of the plaintiff and defendant as riparian proprietors.

3. The admission of oral proof of the sale of lands.

4. The right to recover for damages to the fee.

5. The identity of the lands.

6. The right of the jury to consider remarks of counsel.

We will consider them in the inverse order:

(6) This is based on the following portion of the charge:

“In other words, gentlemen, you ought to discard from the casé all those statements of counsel that might, perhaps, result in influencing you, or possibly might have been designed to influence you, in the case.”

Counsel says:

“We submit that that was error. Counsel for the parties have the right by fair argument to influence the minds of the jury, and the jury should consider such arguments. Such arguments consist in part of statements of fact, and in part of inferences drawn from them. If a statement of fact is made by counsel which is warranted by the evidence, or if a statement is made by counsel which is a fair inference from the matter in evidence, the jury should consider it. They are not bound by it, but they should consider it. The untruthful or unwarranted statements of counsel are, of course, to be disregarded by the jury. But this does not mean that all statements of counsel are to be disregarded by the jury.”

If what counsel has quoted, from the charge is read in connection with what precedes and follows it, we think it was entirely unobjectionable.

(5) It is claimed the proofs do not show injury was done to the lands described in the declaration. An examination of the record discloses there was testimony bearing upon that subject.

(4) It is urged that, under the record as made, plaintiff was not entitled to damages to the fee of the land. The record discloses that plaintiff was in possession under a land contract from the Wilsons, who, the testimony tends to show, more than 30 years ago obtained deeds to the property, and who, with plaintiff, had been in continuous possession. It also shows that the Wilsons had assigned to the plaintiff any cause of action they had before the suit was brought. We do not think this assignment of error was well taken.

(3) The defendant produced Samuel Barnes as a witness, and, in answer to a question put by its counsel, stated he at one time owned the mill property. On the cross-examination he stated he sold to the Wilsons. We do not think this assignment of error is well taken.

(3) The relative rights of the plaintiff and defendant as riparian proprietors:

Counsel says:

“We submit that there are many inconveniences and damages which the upper riparian proprietor may inflict on the lower riparian proprietor for which the lower- riparian proprietor cannot recover. He can recover only for the damages resulting from the ‘unreasonable’ use of the stream by the upper proprietor.”

He complains of the following in the charge:

“If the jury find from the evidence in this case that the defendant, the Detroit Sugar Company, its agents or servants, during the campaigns (so called) of said company from November 1, 1899, to July 16, 1903, have deposited into Paint creek, and from thence into the pond, race, flume, and water wheel of the water power and mill of the plaintiff, such quantities of beets, tops of beets, beet roots, lime mud, lime, sand, and dirt, and other refuse from its sugar plant, as to materially and unreasonably lessen, diminish, injure, and damage such pond, race, and mill property, then such user and such acts of the defendant with the said waters of Paint creek would be an unreasonable use thereof, and would render it liable in this action to the plaintiff for the damages it has occasioned him, if any,”—

And says:

“The evil of that request lies in the last two lines above quoted, viz., ‘and would render it liable in this action to the plaintiff for the damages it has occasioned him, if any.’ Not ‘for the damages it has occasioned him, resulting from unreasonable acts.’ No; the clause is not so limited. The language is ‘the damage it has occasioned him.’ That is equivalent to saying ‘all the damage it has occasioned him,’ whether resulting from ‘unreasonable’ acts or any other acts, ‘reasonable or otherwise.’ ”

We think counsel drew a conclusion from this portion of the charge which the jury would not, especially when taken in connection with the rest of the charge.

(1) Measure of damage: Counsel says:

“We submit that the true measure of plaintiff’s damages was the depreciation in rental value for such time only as elapsed after the deposit began, down to the time when, by the exercise of due diligence, the plaintiff could have removed the same, and that such loss in rental value can be recovered only for the time during which the deposits in the race and pond of the plaintiff, brought about by the acts of the defendant, actually affected or impaired the usefulness of the plaintiff’s mill and property.”

Counsel for the plaintiff say:

“We respectfully submit that if there is anything in the point that it was the duty of the plaintiff to have cleared out this deposit in the pond and face soon after the end of each campaign of the company—a proposition which we do not believe the law warrants or contemplates —then it was the duty of the defendant to have raised the question in the court below, which was not done either at the time the evidence was introduced, or in any of the re«uests presented by the defendant.”

Counsel for defendant says:

“The question was raised on the trial in various ways, and was the subject-matter of several assignments of error.”

The most marked instance of where counsel says the question was raised is as follows:

Q. Now, Doctor, are you acquainted with the fair rental value of this mill and mill property before the month of July, 1902 ? A. What is the question ?

lLQ. I asked you whether or not you were acquainted with the fair rental value of this mill July, 1902? A. Yes, I was acquainted with its value and rental purposes.

Q. And what would you say for three years previous to July, 1902, would he a fair rental value of this property ?

“Counsel for defendant: We object to that.

‘ The Court: Same objection to the other witness, I suppose.

Counsel for defendant: Same objection as to the other testimony. The question should be confined to the rental value during the time that the mill has been shown to have been idle here, and we object to this as incompetent and immaterial.

The Court: Same ruling. (To which said ruling counsel for defendant did then and there except.)

Q. (Question repeated.) A. Without any obstructions to the race ?

Counsel for defendant: Same objection.

“A. That is, when it is clear?

Q. Yes.

Counsel for defendant: Same objection.

The Court: Take it.

“A. It ought to be five or six hundred dollars.

It will be observed this objection did not suggest to the court or to counsel that it was claimed the plaintiff, as soon as practicable, must remove the deposit, and, as he had not done so, he could not recover.

Our attention has not been called to a case where the courts have said that where, at yearly intervals, large deposits are unlawfully made in a mill pond and race, each spring thereafter the mill owner must proceed to remove them, and, if he did not, could not recover damages. The question might be pertinent, Where would he put the deposits ? He could not carry them back from whence they came. Must he take them out of the pond and race and put them upon arable land? Suppose the pond, race, and buildings substantially cover the mill property; What then will he do with them ? As the record is made, however, we do not deem it necessary to determine these questions. The court met the issue fairly as it was presented to him. He gave the substance of nearly all of the requests of the defendant bearing upon the question of damages. His charge was a fair, full, and impartial statement of the law as applicable to the case as presented. See the following cases: Dumont v. Kellogg, 29 Mich. 420; Thunder Bay River Booming Co. v. Speechly, 31 Mich. 336; Buchanan v. Log Running Co., 48 Mich. 367; Woodin v. Wentworth, 57 Mich. 278; Wooden v. Manufacturing Co., 106 Mich. 412; Stock v. Township of Jefferson, 114 Mich. 357; People v. Hulbert, 131 Mich. 156, and the many cases cited therein.

Judgment is affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    PLATZ v. ENGLEHARDT.
    1. Taxation—Tax Sales—Premature Decree.
    A decree for the sale of land for taxes, rendered before the expiration of the five days’ notice provided by the statute (1 Comp. Laws, §3889), is premature, and therefore void.
    Ü. Same—Abandoned Lands—Title oe State.
    The State gets no title to lands deeded by the auditor general to the State as abandoned lands, under section 127 of the general tax law of 1893 (Act No. 206) and Act No. 154 of the Public Acts of 1895, as limited by 1 Comp. Laws, § 3949, where the tax sales on which the proceeding is based are void.

      3. Ejectment—Claim for Improvements—Election by Owner— Application to Tax Homestead Lands.
    A defendant in ejectment, holding under a State homestead certificate, who makes a claim for his improvements and has their value determined, cannot, after plaintiff elects to take the value of the land, first claim on appeal that the statute (3 Comp. Laws, §§ 10995-10997) allowing plaintiffs in ejectment to so elect does not apply to controversies arising over State tax lands. Act No. 206, Pub. Acts 1893.
    Error to Presque Isle; Emerick, J.
    Submitted November 17, 1904.
    (Docket No. 196.)
    Decided December 14, 1904.
    Ejectment by Henry Platz against Arthur Englehardt and Jessie Englehardt. There was judgment for plaintiff on a verdict directed by the court, and defendants bring error.
    Affirmed.

      Charles A. Blair, Attorney General (Charles W. McGill and E. Stenberg, of counsel), for appellants.

      Henry K. Gustin and Dayton W. Glosser, for appellee.
   Hooker, J.

The plaintiff brought ejectment to recover the possession of certain premises, which he claims to own in fee simple through one or more quitclaim deeds from the grantees of the owner of the original title under a United States patent. The defendants who were in possession at the time that the action was begun occupied under a certificate issued by the commissioner of the State land office to him as a homesteader, under the provisions of the State tax homestead law. They filed a plea of the general issue, and gave notice of a claim for improvements, whereupon counsel for the plaintiff made a request for a verdict or finding as to what the value of the premises would have been had no improvements been made under the statute permitting it in certain cases. A verdict was directed for the plaintiff, and the jury found the increased value by reason of defendants’ improvements to be $250, and the value of the land, had no improvements been made, to be $300, whereupon the plaintiff recorded his election to abandon the premises to the defendants at the value fixed by the verdict, and judgment was entered for him accordingly for $30.0 and costs, which judgment was declared to be a lien upon the premises. The defendants have appealed.

The record shows that to establish his case plaintiff introduced: (1) A Federal patent to Peter Livingston, dated July 27, 1885. (2) A quitclaim deed from Peter Livingston to Augusta Larke, dated December 23, 1889. (3) A quitclaim deed from Augusta Larke to the plaintiff, dated June 17, 1902. (4) Oral testimony of the plaintiff that he owned the land; that it was, in his opinion, worth $200; that he knew that defendants Englehardt were living upon the land, and had done so since May 16,1902; that he had several times conversed with Englehardt, and knew that he held it as a homestead; and also that when he bought the land from Augusta Larke he knew that Englehardt then held it under a homestead certificate. This was all of the plaintiff’s proof in making his case.

The defendants then introduced a deed issued by the auditor general, dated September 19, 1896, under the provisions of section 127 of Act No. 206, Pub. Acts 1893, and Act No. 154, Pub. Acts 1895, conveying the premises to the State. Also a tax homestead certificate issued by the commissioner of the State land office to the defendant, authorizing him to enter upon and improve said land, and agreeing to deed the same to him if he should live upon and improve the same as required by law for the period of five years. Also petitions filed by the plaintiff in the original proceedings of the auditor general affecting the lands to set aside the sales and decrees under which the lands were held by the State, and the proceedings taken by the auditor general in deeding them to the State. These petitions were filed February 10,1903, and attacked the decrees and sales, for the years from 1884 to 1893 in-elusive. Also the sworn answer of the auditor general and land commissioner, and a record of the proceedings whereby it appeared that “in the above-entitled cause, by consent of parties made in open court, all of said causes are discontinued, without costs.” This was a voluntary discontinuance by the plaintiff before hearing of his petitions, and was consented to by the defendant. Evidence was also given of the nature and value of defendants’ improvements.

On rebuttal it was admitted that the decrees and sales were void as to all taxes except those for 1892 and 1893. As to these it was shown that the court convened October 8, 1894, and adjourned sine die October 12, 1894. The date Set for hearing the auditor general’s petition was October 8th, and the decree was made and filed October 12th. The date of hearing in 1895 was October 15th, and the decree was entered October 18th, on which day the court adjourned sine die.

Counsel for the defendants asked the court to charge:

1. That the plaintiff had not made a prima facie case, in that he had offered no testimony tending to show that the lands had not been abandoned by the owner.

2. That the lands had been abandoned by the owner; and that, having been so abandoned, and so found by the examiner, and deeded to the State as such, plaintiff could not now claim any title to them.

The questions before us are:

1. Can title to land pass to the State through abandonment by the owner ?

2. Upon whom is the burden of proof as to such abandonment?

3. Has the statute permitting a plaintiff to elect to take a judgment for the value of land to which he may be entitled application to tax homestead lands ?

The statute in question is found first in the general tax law of 1893 (section 127, Act No. 206, Pub. Acts 1893), under the head of “ Inspection and Disposition of State Tax Lands.” 1 Comp. Laws, § 3949, limits the application of its provision to lands which (1) have been bid off to the State for a consecutive period of three years, without application made to redeem or purchase the same; (2) have been the subject of a request from the board of the township where situate to be deeded to the State by the auditor general; (3) ascertained by examination and reported to be either barren, swamp, or worthless, and abandoned by the owner. The same section contains the following provision:

“ Failure to pay the taxes or to redeem or purchase any lands sold for taxes and bid to the State for more than three consecutive years, as aforesaid, shall be in all cases where such lands are not actually occupied, prima facie evidence that such lands are abandoned by the owner.”

All of these things appear in this case. The lands have beeñ bid off for the requisite period, and at the time of the conveyance no application to redeem or purchase had been made., The township board had made the requisite request, and the statutory examination had been made, and the report required had been duly filed showing the lands to be within the statute. This authorized the conveyance to the State as between the departments, and put the lands into the class provided for by the statute, but it did not operate to divest the owner’s title. We must hold upon this record that all of the tax sales were void, and conveyed no title to the State, and that, this being so, defendants’ claim must stand upon the proposition that the. State acquired title through the owner’s abandonment of the premises.

We have no occasion to inquire whether it is within the power of the legislature to provide that lands abandoned by the owner shall escheat, or what shall be prima facie or conclusive evidence of abandonment, for we are not convinced that this statute was so intended. The design appears to have been to subject portions of the State’s domain to the purpose contemplated, not lands which the State did not own; and there is nothing justifying an inference that it sought to adopt a new policy as to divestiture of the titles of private persons to that end. We infer from section 3949, 1 Comp. Laws, that it was not the policy of the legislature to subject all State tax lands to this disposition, and it carefully limited them to barren, swamp, or worthless lands. Again, it sought to exclude from the lists lands upon which there was reason to hope that taxes might be paid, or the lands purchased. Hence the inquiry as to abandonment and the provision as to prima facie evidence, which last cannot be received as sufficient evidence to support a State deed, and a title claimed under it, where the title of the State under the tax proceedings, upon which the whole fabric rests, is shown to be without substance. It follows that the court did not err in sustaining the plaintiff’s title.

The defendants saw fit to make a claim for improvements, whereupon the plaintiff asked a determination of the value, both of which were found by the jury, and he thereupon elected to take the value, and for this sum the court entered judgment. Section 104 of the tax law (Pub. Acts 1893, Act No. 206) contains provisions allowing purchasers of tax lands to recover for improvements, and gives a lien on the land for them. This may reasonably be held to include homestead purchases. It may be contended that this section gives to defendants holding under tax sales the right to recover for improvements without being subjected to the obligation of taking the land and paying its value, if plaintiff so elect, under 3 Comp. Laws, §§ 10995, 10996, and 10997. In the present case the notice was filed under the latter sections (which, apply to all actions of ejectment), as appears from the notice itself. Both parties so treated it, and we do not discover that any question was raised against the application of the general statute at any stage of the trial. Having seen fit to invoke it, the defendants cannot now attack the judgment under it. As to the impropriety of adjudging a lien against the State, it is sufficient to say that the only lien that the judgment creates is a lien upon the interest of those who are bound by the judgment as parties or privies.

The judgment is affirmed.

The other Justices concurred.

       See Bending v. Auditor General, 137 Mich. 500.—Reporter.


text:
    BOARD OF SUPERVISORS OF ALCONA COUNTY v. AUDITOR GENERAL.
    1. Taxation—State Tax Lands—Title op State—Determination op Auditor General.
    It is the existence of the state of facts enumerated by section 127 of the general tax law as amended by Act No. 107, Pub. Acts 1899, which vests title to such lands in the State, and not the determination thereof by the auditor general.
    2. Same—Appointment op Examiner.
    That the auditor general did not previously make a formal determination regarding the list of lands submitted to the examiner appointed under section 127 of the generel tax law before his appointment is immaterial, he having been furnished with a list showing that the auditor general selected the lands to be considered.
    3. Same—Record op Determination.
    Keeping the record of the determination of the auditor general and land commissioner as to what lands examined under section 127 of the general tax law come within the provisions of that section on the folios or sheets used by the examiner is a sufficient compliance with the direction of the statute that such determination be recorded in a book.
    4. Same—Suppicienoy op Determination.
    A clerical error, by which the determination of the auditor general and land commissioner, made under section 127 of the general tax law, fails to show certain facts required by the statute, and which are admittedly matter of record, may be disregarded.
    5. Same—Examination—Bad Paith op Examiner.
    The finding of the auditor general and land commissioner, based on the report of the examiner under section 127 of the general tax law, forecloses inquiry into whether the examiner faithfully performed his duties as to all of the land.
    6. Same—Intervention by County.
    Whether a county has any interest in the nature of a vested right as against the State to compel State officers to conform to the strict letter of the statute in their disposition of State tax lands within the limits of the county, quaere ?
    7. Same—Mandamus.
    Where all the conditions necessary to action by the auditor general and land commissioner, under section 127 of the general tax law, are present, save, perhaps, the one relating to the pendency of suits, and the answer of the officers to the petition for mandamus signifies an intention not to include lands as to which there are pending suits, if there be any, mandamus will not issue to restrain their action under the statute.
    Mandamus by the board of supervisors of Alcona county to restrain Perry F. Powers, auditor general, and Edwin A. Wildey, commissioner of State land office, from placing certain land on the homestead list.
    Submitted November 17, 1904.
    (Docket No. 197.)
    Writ denied December 14, 1904.

      John H. Killmaster (H. K. Gustin and De Vere JGall, of counsel), for relator.

      Charles■ A. Blair, Attorney General (Charles W. McGill and E. Stenberg, of counsel), for respondents.
   Hooker, J.

The board of supervisors of Alcona county filed the petition in this case, asking a mandamus to restrain the auditor general and commissioner of the State land office from conveying 60,000 acres of land in that county under the provisions of the State tax homestead law, and to treat it as subject to purchase under the general rule applicable to such lands. A deed to the State of a portion of these lands had been made by the auditor general, and the petition alleges an intention to convey the remainder.

This action was taken under the following provisions of the general tax law as amended by Act No. 107, Pub. Acts 1899:

“Sec. 127. Lands delinquent for taxes for any five years, where said lands have been sold and bid off to the State, for the taxes of one or more of the said years, and then so held, and no application having been made to pay, purchase, or redeem the said lands for said taxes, and no action pending to set aside such taxes or to remove the cloud occasioned thereby, shall, within the meaning of this act, be deemed abandoned lands, unless such lands are actually occupied by the person having the record title thereto. Any lands delinquent for taxes for a period of five or more years, and said lands having been sold and bid in by the State and held by the State for the taxes of any of said years, and no application having been made to pay, redeem, or purchase the same, and no suit pending to set aside said taxes or remove the cloud from the title occasioned thereby, shall be subject to the provisions of this section. Whenever it shall appear by the records in the auditor general’s office that any lands are delinquent for taxes for five years or more and that said lands have been bid off to the State one or more times by reason of such delinquent taxes, and that the time of redemption of such sale or sales has expired, and that no application has been made to pay, to redeem or purchase the same, and it shall appear that no action is pending in the circuit court of the county where said lands are situated to set aside the taxes or remove the cloud on the title occasioned thereby, the title to the State shall be deemed absolute in and to said lands; and it shall be the duty of the auditor general and the commissioner of the State land office to cause an examination of such lands to be made as soon as practicable, to ascertain their' value and if abandoned. Upon the examiner filing a certificate as to said examination and the occupancy of said premises, and the certificate of the county clerk of the county where said lands are situated, in the office of the auditor general, showing that no suit is pending in said county to set aside any of said taxes or remove the cloud occasioned thereby, the auditor general and the commissioner of the State land office shall determine what lands so examined come within the provisions of this section, and record their determination in a book to be kept in the office of the auditor general for that purpose. The finding and determination of the auditor general and the commissioner of the State land office shall show:

“First. A description of said lands.

“Second. The years for which they have been returned delinquent for taxes.

Third. The time or times bid off to the State, and the taxes for which said bid was made.

“Fourth. Whether said lands are occupied or abandoned. »

Fifth. Whether or not any suit is pending in the county where said lands are situated to set aside the taxes, or any of them, or to remove the cloud occasioned thereby.

“ The determination of the auditor general and commissioner of the State land office in that regard shall be deemed to be conclusive as to the facts therein stated, unless suit is instituted to vacate the same within six months, as hereinafter provided. Within ninety days after such determination the auditor general shall make a transfer by deed of all lands so determined by the auditor general and said commissioner of the State land office to come within the provisions of this section to the State of Michigan as to an individual, as provided in section seventy-two of this act so far as said section is applicable. Said deed or deeds shall be delivered to the commissioner of the State land office, who, after having said deed or deeds recorded in the register of deeds’ office, of the county where the lands are situated, shall file the same in his office. Upon the execution and delivery of said deed or deeds to the commissioner of the State land office, said commissioner shall hold said lands as State lands, subject to the provisions hereinafter contained. And no suit shall be instituted to vacate, set aside, or annul the said determination of the said auditor general and the commissioner of the State land office made as aforesaid unless instituted within six months after the determination aforesaid. Any person desiring to file a bill or institute a suit to vacate the findings of the auditor general and commissioner of the State land office, as provided in this section, shall first pay to the auditor general all delinquent taxes returned to the auditor general on the lands in question, together with all interests, costs, and charges, and shall purchase and pay for all bids and titles held by the State to such lands by paying therefor the annual bid by the State and all interest and legal charges thereon, as provided in section eighty-four of this act. The money so received by the auditor general shall be paid into the general fund of the State, and in case the determination of the auditor general and commissioner of the State land office should be set aside and held for naught, and the taxes, or any portion thereof, shall be adjudged invalid for any of the reasons set forth in section seventy-six of this act, then in such case the auditor general shall return to the person entitled thereto such taxes, or any portion thereof, as shall be so adjudged invalid for the reasons aforesaid, and in case the title is held valid the money so received shall be divided between the State, county, and township pro rata according to the taxes paid, the same as in other cases. Any suit instituted for the purpose of setting aside the determination aforesaid may be commenced in the circuit court of the county of Ingham. It is hereby made the duty of the county clerks of the several counties of this State, on inquiries by the auditor general, to furnish to said auditor general a certificate showing whether or not any such suit is pending in the circuit court of the counties, as above referred to, relating to any lands described and referred to in the inquiry of the auditor general.”

“Sec. 130. All taxes charged against such lands in the office of the auditor general at the time they are deeded to the State shall be canceled, but no part of such taxes due to the township or county shall be charged to the State, but the State, county, and township respectively shall bear the share of loss on such taxes that properly belongs to each.”

Section 131 provides that all such lands shall be held by the commissioner, subject to entry as homestead lands, unless withheld and reserved for sale in a manner pointed out therein.

Acting under the provisions mentioned, the auditor general and commissioner selected one Chapin to examine the lands in question, which he did, availing himself of the services and knowledge of one Mr. Chappel, who was county surveyor of Alcona county at the time. They furnished Chapin with a list of the lands, and with blanks with ruled spaces for tabulating the descriptions and notes of the facts required to appear in the examiner’s reports; and on August 13, 1902, Chapin made the report following, which was in writing, and appears on one or more of the sheets or folios mentioned. It is as follows:

“Lansing, Mich., Aug. 13, 1902.

“I hereby certify that I have examined the lands described in the within statement and that the facts stated therein as to the occupancy or abandonment of said lands and as to their value and all other facts stated therein as to the character of said lands and the improvements or timber thereon are true of my own knowledge. I further certify that the within statement as to the title to said lands is made from the best information I could procure from the occupants (where said lands were occupied) or from inquiries in the vicinity.

“C. T. Chapin,

“Examiner.”

Thereupon these folios were sent to the county clerk of Alcona county, who appended his certificate as follows, viz.:

“Harrisville, Mich., Sept. 17, 1902.

“ I, George Rutson, county clerk of the county of Alcona, hereby certify that I have examined the record and files in my office and find that no action is pending to set aside any taxes against any of the land described herein or to remove the cloud occasioned by any of said taxes or by any sale therefor.

“ In testimony whereof, I have hereunto affixed my signature and the seal of the circuit court for said county.

“ George Rutson,

“County Clerk of Alcona County.”

The auditor general indorsed a certificate of which the following is a copy:

“State oe Michigan.

“Auditor General’s Department.

“Lansing, Sept. 23, 1902.

“I hereby certify that the lands herein described are delinquent for taxes for five or more years, as appears by the within statement, and that said lands have been sold and bid off to the State for the taxes of one or more of the said years, as appears by said statement, and are now so held, and that no application has been made to pay said taxes or to purchase or redeem said lands from sale for said taxes. I further certify that the time of redemption from the sale or sales shown in the within statement has expired as to all such sales except such sales as were made for the taxes of-in the year 19—.

“ Perry F. Powers,

“ Auditor General.”

On September 23, 1902, the auditor general and land commissioner appended the following determination, viz.:

“State of Michigan.

“Lansing, Sept. 23, 1902.

“We hereby certify that we have caused an examination to be made of the within described lands by O. T. Ohapin, to ascertain their value and if abandoned, and that said examiner has filed in the office of the auditor general a certificate as to said examination and the occupancy of said premises, and the certificate of the county clerk of the county where said lands were situated, showing that no suit is pending in said county to set aside any of said taxes or remove the cloud occasioned thereby.

“We further certify that having examined and duly considered the report of said examiner, the certificate of said county clerk, and the records of the auditor general’s department, we have determined that said lands herein described come within the provisions of section 127 of Act 206 of the Public Acts of 1893, as amended by Act 107 of the Public Acts of 1899.

“We hereby find and determine that the descriptions of land included in this determination (being the descriptions entered on the preceding pages of this sheet) the years for which said lands have been returned delinquent for taxes, the time or times that said lands were bid off to the State and the taxes for which said bid or bids was or were made, the facts as to whether said lands are. occupied or abandoned and whether or not any suit is pending in the county where said lands are situated to set aside the taxes or any of them or to remove the cloud occasioned thereby, are as appear in the statement to which this certificate is affixed.

“Perry F. Powers,

“Auditor General.

“Edwin A. Wildey,

“Commissioner of State Land Office.”

And later the following formal order of withdrawal of the land was made:

“Lansing, Michigan, January 19, 1903.

“By virtue of the authority conferred upon us by Act No. 141 of the Public Acts of Michigan for the year 1901, we do hereby withdraw from homestead entry the foregoing list of lands recently deeded to the State'of Michigan by the auditor general under the provisions of Act No. 206 of the Public Acts of Michigan for the year 1893, and acts amendatory thereto.

“Perry E. Powers,

“Auditor General.

“ Edwin A. Wildey,

“ Commissioner of the State Land Office.”

The relator’s petition was verified on March 4,1903, and subsequently filed in this court. An issue was framed upon certain questions of fact, reserving the question of materiality. The issue was sent to the circuit court for the county of Ingham, and is returned to us with a stipulation as to some of the questions and findings by the circuit judge upon others.

The relator has discussed the case under the following four heads:

“ 1. The determination of the auditor general made on the 23d day of September, 1902, being Exhibit E of the petition, does not show that no actions were pending in the circuit court to set aside the taxes, or remove the cloud on the title occasioned thereby. Does not show that the lands are delinquent for five or more years, or that they had been bid off to the State one or more times by reason of such delinquent taxes.

“ 2. The determination of the auditor general and commissioner of land office, made on the 23d day of September, 1903, being Exhibit E of the petition, does not show the years for which the lands were returned delinquent for taxes, or the time or times bid off to ,the State, or the taxes for which such bid or bids were made.

“ 3. The determination of the auditor general and commissioner of land office, last above, was not reported in a book kept in the office of the former for that purpose, within the contemplation of said section 127.

“4. The examination made by Examiner Chapin was before any action was taken looking to the transfer of said lands from the State tax to the homestead tax list, and his certificate, made on the 13th day of August, 1902 (being Exhibit D of the petition), refers to conditions of a time other than required by said section 127.”

Relator’s counsel take the position that the first, and a jurisdictional act, is a determination by the auditor general, of the list of lands to be submitted to himself and the land commissioner, which determination, it is said, must be in writing, and show the following facts to be of record in the auditor general’s office: (a) The descriptions; (6) delinquency for five years; (c) bid in by State and held for the taxes of one or more of said years; (d) that no application has been made to redeem or purchase them; (e) that no suit is pending, etc.

As appears from the foregoing quotation of said section 127, lands possessing the aforesaid requisites are made subject to the provisions of said section, which provides further that, whenever the first four of these appear from the records of the auditor general’s office (the other requirement is that if it shall appear that no action is pending, etc.), the title of the Státe to the land shall be deemed absolute. The section is silent as to any determination in writing of these facts by the auditor general. Manifestly he must, in a sense, determine them when the list is made. Said determination is not essential to make the title absolute in the State. If the statute makes any change in the title, it is by operation of law. At one stage of the proceedings the auditor general did make a certificate of these facts, and we understand that there is no dispute over the existence of these records in the auditor general’s office at the time these proceedings were begun, unless it be with relation to the pendency of suits, which, in our view of the case, could not conclusively appear there, as such proceedings are subject to discontinuance at any moment, even if reported to the auditor general. This disposes of the first question raised.

Our conclusion as to the first proposition practically determines the fourth, the point to which seems to be that the appointment of an examiner was not authorized, because of the omission of the auditor general to previously make a formal determination regarding the list submitted to the examiner. The examiner was appointed by the two officers, and by them furnished with a list of the lands, showing that the auditor general had selected the lands to be considered, which, in the nature of things, must have been so.

The third relates to the record of determination in a book. Whatever final determination of facts the law requires is recorded only in the folios. Of this it is sufficient to say that the finding of the circuit judge shows that upon the return of the sheets (folios) the auditor general and commissioner signed the certificates (of determination) on the outside sheet of the roll of lands, and such outside sheet was in all respects treated as the cover to said roll, and said certificate was intended to and did relate to all of the lands described therein. We think that, when this was filed in the office of the auditor general, it was a substantial compliance with the requirement.

The second point relates to the determination. It will be seen that the statute provides that such determination shall show certain facts under five heads. Of these, all but the second and third are clearly included. The second calls for a statement of the years for which the respective lands have been returned delinquent. The third calls for the time or times the land has been bid off to the State, and the taxes for which the bid was made. The record shows a proper certificate in form, and it would be a complete compliance had the folios contained these facts. The certificate of the auditor general does show that the lands were delinquent for more than five years, and that the lands had been bid off by the State for taxes of one or more of said years; that they were so held, and no application to purchase or redeem had been made. Apparently it was expected that the folio would contain the specific information which was admittedly matter of record. This was evidently a clerical omission, and one which could have had no effect upon the determination, and may properly be disregarded, even if we may not say that the entire requirement is directory, which we do not decide.

Counsel discuss another question; e. g., that the examiner did not faithfully perform his duties as to some of the land; (2) that suits were actually pending as to some parcels. A somewhat full consideration was given this statute in the case of Semer v. Auditor General, 133 Mich. 569, where it was held that the finding of facts by the commissioner was final, and the same rule should be applied here.

Again, it must be assumed that these lands belonged to the State, and no one seems to question it. The county intervenes upon the assumption that it has some interest in the nature of vested rights as against the State, temporary at least, under existing laws, and may therefore resort to legal proceedings to compel the State officers to conform to the strict requirements of the law in their disposition of its land. The county is no more than an agency of the State government, and it may be open to serious question whether it has any duty of supervision of State affairs, except as specially conferred; but, however that may be, the record in this case fails to show that it, as a county, has a strict legal right to the relief it asks, which justice requires should be vindicated.

It is clear that in all particulars save one, perhaps, the conditions exist which the statute makes necessary to the setting aside of these State lands for future private sale at such prices as the auditor general and commissioner fix, when it is deemed best to again place them upon the market. The only exception is the lands open to the question of pendency of suits. As to these, the answer signifies an intention not to include such lands, if there be any, and action is therefore unnecessary, if it be competent, so far as such lands are concerned. That being true, we think the writ should not issue, and it will be denied.

The other Justices concurred.


author: Carpenter, J.

text:
    MILLER v. SADOWSKY.
    1. Assault and Battery—Damages—Instructions.
    In an action for an assault and battery, prosecuted by the administratrix of plaintiff, after his death, a statement by the court in his charge that plaintiff claimed that she was entitled to recover damages for the death of her husband was not erroneous, where there was nothing in that portion of the charge which inf ormed the jury what damages should be recovered, and that question was covered by a subsequent portion of the charge.
    2. Same — Computation of Damages — Present Worth of Wages.
    In an action for an assault and battery, an instruction that plaintiff is entitled to recover as damages whatever he might have lost in wages by the injury is erroneous, since the damages should be limited to the present worth of his wages.
    3. Same—Assault Committed in Reclaiming Property — Force Justified.
    In an action for an assault and battery in attempting to take from plaintiff a piece of board belonging to defendant that plaintiff was carrying away, an instruction that the jury should determine whether defendant used' more than sufficient force for the purpose of reclaiming his property was sufficiently liberal to defendant; there being no merit in an invocation of the rule that one may use such force as seems to him necessary to repel an assault.
    Error to Wayne; Frazer, J.
    Submitted November 18,. 1904.
    (Docket No. 116.)
    Decided December 14, 1904.
    Trespass vi et armis by Paul Miller against John. Sadowsky. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      William Van Dyke, for appellant.

      Adam JE. Bloom, for appellee.
   Carpenter, J.

Paul Miller commenced this suit in his lifetime to recover damages for injuries resulting from an assault and battery alleged to have been committed by defendant. The evidence indicates that, when Miller was passing by defendant’s place of business, he picked up and started to carry away a piece of board belonging to defendant. It is claimed by plaintiff’s witnesses and denied by defendant that defendant thereupon struck plaintiff and seriously injured him. After suit was commenced, plaintiff died, and his widow, as administratrix, was substituted as plaintiff, and prosecuted the suit in his stead.

In charging the jury, the court said:

“The plaintiff in this suit sues the defendant, claiming that' she is entitled to recover damages for the death of her husband. ”

It is urged that this was error, because plaintiff is not suing for damages for the death of her husband, but is suing as administratrix to recover the damages which he could have recovered had he lived. This point is without merit. There is nothing in this portion of the charge which informs the jury what damages shall be recovered. That was covered by a subsequent portion of the charge, and the question of its correctness will receive our attention later. .

On the question of damages the court charged:

“ If this man was working for a living and getting wages, he would be entitled to receive from your hands whatever you thought he was able to earn during the time that a man of his age would probably live. * * * You take the pain and suffering that this man endured up to the time of his death, and whatever he may have lost in wages by injury, that you should find to be permanent, from the time he was injured up to the time he would probably have died in the ordinary natural course of events; taking into consideration the man’s age, the probability of disease, and all that kind of thing.”

This language authorizes the jury to give as damages all the wages that deceased might have earned during his lifetime. This is not correct. As the wages are to be earned in the future, and the damages are payable at once, the jury should have been instructed to allow only the present worth of the wages. See Balch v. Railroad Co., 67 Mich. 394. While we have no doubt that the trial judge would have cured this error, had his attention been called to it by counsel, the statute which permits the defeated party to assign error to the charge without exception compels us to reverse the judgment.

In charging the jury, the court said:

‘ ‘ The only question for you to determine is whether this man did or did not use more than sufficient force for the purpose of reclaiming his property.”

In support of his claim that this language was erroneous, appellant’s counsel invokes the rule that one may use such force as seems to him necessary to repel an assault. See Pond v. People, 8 Mich. 150; Patten v. People, 18 Mich. 314. That rule has no application, for the reason that defendant was not seeking to repel an assault. He was only seeking to reclaim his property. And in such a case the rule laid down by the learned trial judge was sufficiently liberal. See Pollock on Torts (Webb’s Am. Ed.), pp. 203, 210; Cooley on Torts, p. 50.

Eor the error pointed out, the judgment must be reversed, with costs, and a new trial granted.

The other Justices concurred.


author: Grant, J.

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      GROVER v. BISHOP.
    Mortgage Foreclosure—Deficiency Judgment — Liability of Subsequent Grantee—Sufficiency of Evidence.
    On a bill to foreclose a mortgage against the mortgagor and his subsequent grantee, evidence examined and held insufficient to show that the grantee assumed and agreed to pay the mortgage debt, so as to entitle the mortgagee to a decree for deficiency against the grantee.
    Appeal from Oakland; Smith, J.
    Submitted November 18, 1904.
    (Docket No. 113.)
    Decided December 14, 1904.
    Bill by Melita 0. Grover against Frank P. Bishop and others for the foreclosure of certain mortgages. From a decree for complainant but denying a personal deficiency decree against defendant Bishop, complainant appeals.
    Affirmed.
    This is a suit in chancery to foreclose two mortgages given by defendants Miller to complainant. The only question in the case is whether complainant is entitled to a personal decree for the deficiency against the defendant Bishop. The amounts due upon the mortgages exceed by considerable the value of the land. The Millers were evidently insolvent. On August, 1898, the Millers executed to complainant a quitclaim deed of the land covered by the mortgages, with the agreement that the deed should not be recorded for several months, and that the Millers could redeem at any time before it was recorded. Defendant Bishop knew of this deed, and of the condition under which it was made. Unless redeemed, the understanding was that complainant should take the land and discharge the debt.
    The Millers also had a contract for the purchase of other lands, which were not worth the amounts due upon the contracts. They had some personal property, which was also mortgaged, but which did not exceed in value the amount secured thereby. They also owned a small unincumbered piece of land, worth about $500, and a small amount of unincumbered personal property. On August 10th the Millers executed to Bishop a quitclaim deed of all these lands, and a bill of sale of the personal property. The Millers had abandoned any idea of redeeming, and therefore sold the land to Mr. Bishop. Soon thereafter complainant filed this bill of foreclosure, and prayed for a decree against Bishop for any deficiency that should occur upon the sale. The court held that Bishop was not liable, and refused a decree against him for the deficiency.

      George O. Kinsman and William T. Hosner, for complainant.

      Geer, Williams & Halpin ( T. O. Taylor, of counsel), for defendant Bishop.
   Grant, J.

(after stating the facts). Complainant claims that there was a parol agreement between the defendants Miller and Bishop that he (Bishop) should pay complainant the amount due upon her mortgages, and that that agreement, under Crawford v. Edwards, 33 Mich. 359; Higman v. Stewart, 38 Mich. 522; Winans v. Wilkie, 41 Mich. 264, and other cases, entitled her to a decree for a deficiency against Bishop.

The principal question is one of fact: Did Bishop make such an agreement with the Millers ? No witness for the complainant testifies that Mr. Bishop said he would pay these mortgages, but only that he said he would settle with complainant. Bishop denies any such contract. There certainly was no reason why he should agree to pay. If we take into account the value of all the property transferred to Bishop' by the Millers, we do not think it equal to the amount of the liens thereon. The evident arrangement was that Bishop should purchase the equity of redemption, and, if he could make a satisfactory compromise with complainant, so as to justify him in redeeming, he might do so. Under the situation as it then was, complainant had agreed, in consideration of the deed, to take the lands and discharge the debt, if paid within a certain time. We think that the complainant failed to prove any contract on the part of Bishop to pay the mortgages in consideration of the transfer of the deeds to him. This conclusion renders it unnecessary to determine other questions that are raised.

Decree affirmed, with costs. '

The other Justices concurred.


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    TURNER v. BRADFIELD.

    Specific Performance—Contract to Convey—Evidence—Sufficiency.
    On a bill for specific performance of an alleged agreement by defendant’s decedent to convey land to plaintiff if he and his wife would live with decedent and attend to her business, evidence examined and held sufficient to sustain a finding establishing the agreement alleged.
    Appeal from Kent; Perkins, J.
    Submitted October 19, 1904.
    (Docket No. 55.)
    Decided December 14, 1904.
    Bill by Charles W. Turner against Thomas D. Brad-field and John E. Botsford, executors of the last will and testament of Sarah C. Turner, deceased, and others, for the specific performance of a land contract. From a decree for complainant, defendants appeal.
    Affirmed.
    The complainant by this suit seeks the specific performance of a land contract alleged to have been made with his aunt Sarah C. Turner, now deceased. Defendant Salem T. Turner was the husband of Sarah. Defendants Burr and McKown are the nieces of said Sarah, and legatees under her will. Mrs. Turner died December 16, 1901. She had been married three times, but had no children. She married her cousin, defendant Salem, when she was 80 years of age and he was 70. Their marriage evidently was one of business rather than of sentiment. Mrs. Turner had a number of houses in the city of Grand Rapids to rent and look after. She was a shrewd, careful business woman; and, while she was in good health for a woman of her age, she undoubtedly realized that she needed some one to look after her business. Soon after the marriage she and her husband had trouble. She alleged that he was insane, and he was so adjudged, and sent to the asylum for a short time. On his discharge from the asylum he returned to Grand Rapids, but did not live with his wife. After their marriage he took charge to a considerable extent of her business affairs, until he was sent to the asylum. She desired to make arrangements with some one to live with and take care of her, and manage her affairs. Complainant, the son of her brother, was then living in Equality, 111. She made a proposition to a man named Parker similar to that now claimed by the complainant, but he refused. Her niece also lived with her for a while, and left. Correspondence passed between complainant and Mrs. Turner, in pursuance of which he came to Grand Rapids. He alleges that a contract was made by which it was agreed that he should live with, care for, and help her in her business affairs as long as she lived, and that in consideration thereof she should deed to him the house and lot where Mrs. Turner then lived, and where it was contemplated that the three should live together. Subsequently, and for reasons unnecessary to state, the house and lot now in controversy were substituted for those originally agreed upon. Complainant was then a single man, but was about to be married, and it was a part of the agreement that he should bring his wife with him, and the two live with and take care of Mrs. Turner. The bill is long, and sets forth minutely the alleged circumstances of the complainant and Mrs. Turner, and the details of the arrangement, and what was done in pursuance thereof. Answers and replications were duly filed, the case heard upon pleadings and proofs taken in open court, and a decree entered for the complainant.

      Charles Chandler {Francis A. Stace, of counsel), for complainant.

      Frank L. Carpenter, for defendants Burr and Mc-Kown.

      Burlingame, Belden & Orton, for defendant Salem T. Turner.

       Rehearing denied May 12, 1905.

   Grant, J.

{after stating the facts). It is established by the evidence and conceded by defendants that the complainant and his wife did, under some agreement, live with Mrs. Turner from November, 1900, until her death, as above stated. The questions are those of fact. The record is replete with evidence of an agreement on the part of Mrs. Turner to deed complainant the land in consideration for the services of himself and wife in caring for her and attending to her business affairs. Whatever the agreement was, it is fully established that he carried it out. She lived in contentment and happiness with the complainant and his wife, and she so expressed herself to her neighbors and friends and in letters. In one letter, written in February, 1901, to a friend, she refolded to Mr. Turner’s dissatisfaction if she should deed the property to her nephew, meaning the property first agreed upon. Dr. Bradfield, her neighbor, friend, and one of her executors, and a witness for defendants, testified that Mrs. Turner frequently spoke to him about a deed to complainant, and on only one occasion spoke of any conditions. To others she stated that she had made a deed. When she was taken ill, she sent for a scrivener to draw a deed. The deed was drawn. After it was drawn she told the scrivener that she wanted to leave it with her papers, so that complainant would get it when she died. Upon being informed that delivery was necessary, and it being suggested that she deliver it in escrow to some third party, she said she would wait until a Mr. Botsford came, and would consult with him about it. She soon after became unconscious, and died without delivering the deed.

Counsel for defendants rely mainly upon a contract dated May 22, 1901, and to continue for one year, between Mrs. Turner and the complainant, in which it was agreed that complainant and his wife should make their homes with Mrs. Turner, and he should collect the rents, use the same in making repairs, expenses of household, etc. Complainant drew this contract, and, at his own suggestion, made a duplicate. Both were retained by Mrs. Turner. The terms of this contract are inconsistent with those now claimed by complainant. There is testimony to show, which the court below evidently believed, that this contract was executed for a particular purpose, and not to interfere in any way with the other contract. The attorney who drew it so testified. Defendant Salem had then returned from the asylum, and was making trouble for his wife. He desired to collect the rents and have a hand in her business affairs. There is testimony to show that this contract was made so that Mrs. Turner might show it to her husband, and relieve her from his annoyances by informing him that she had arrangements made with complainant. The conduct of Mrs. Turner, and the statements she made after this alleged contract, as well as before, are not consistent with the claim now made that this contract of May 23d represented the actual arrangement between the parties. It was perfectly legitimate for them to execute that contract to show to Mr. Turner, without in any manner changing the other. The court found that that was its purpose, and we think the evidence is sufficient to sustain the finding.

As above stated, tbe questions are those purely of fact, namely: (1) Was a contract made between complainant and Mrs. Turner for the conveyance of this land to him ? And (2) was that contract carried out by him ? The casé is similar to Lamb v. Hinman, 46 Mich. 112.

The briefs cover 202 pages, taken up almost entirely with analyzing the testimony of the witnesses, and attempting upon the one side to show their discrepancies and unreliability, and upon the other to reconcile and explain them. To make a statement of the testimony of the witnesses, and the conclusions to be drawn therefrom, would make this opinion long and tedious, without benefit to any •one but the parties interested. It is sufficient to say that we entirely agree with the conclusion reached by the court below.

The decree is affirmed, with costs.

The other Justices concurred.


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    SMITH v. TOWNSHIP OF EATON.
    1. Surface Waters—Diversion by Highway Commissioners.
    Township highway officers have no right to divert the natural course of surface water so as to impose upon the land of one person the servitude which naturally belongs upon the land of another.
    2. Same—Injunction.
    Where township highway officers wrongfully diverted surface water onto plaintiff’s land on July 20th, it was no defense to a bill for injunction brought September 29th that defendants did not intend to leave the water on plaintiff’s land, but to carry it farther along into a public drain, as complainant could not be expected to delay longer.
    3. Same.
    A landowner is entitled to an injunction to restrain township officers from diverting the natural course of surface waters so as to cast them upon his land to his injury.

      Appeal from Eaton; Smith, J.
    Submitted October 20, 1904.
    (Docket No. 69.)
    Decided December 14, 1904.
    Bill by Edgar M. Smith against the township of Eaton and others to restrain the casting of drainage water upon complainant’s land. Prom a decree for complainant, defendants appeal.
    Modified and affirmed.

      Garry O. Fox and J. M. G. Smith, for complainant.

      J. M. & J. L. Powers (Frank A. Dean, of counsel), for defendants.
   Carpenter, J.

Complainant and defendant Puffenberger are adjacent owners of land in Eaton county. Complainant’s land lies to the north of Puffenberger’s land, said tracts being separated by an east and west highway. • Lying east of Puffenberger’s land, and separated therefrom by a north and south highway, is a tract of land belonging to one Gibbs. The natural slope of this last tract is towards the west, and therefore all the surface water from said Gibbs’ land is carried down onto the highway, and formerly, through a sluice under the north and south highway, upon and over Puffenberger’s land,- Lying to the north of this sluice, and between it and complainant’s land, is a natural rise in the surface. This rise extends across the north, and south highway, and thereby confines the surface water from Gibbs’ land to the highway and Puffenberger’s land. Said sluice across the highway became closed, and quantities of water accumulated along the highway, and flowed across it and onto Puffenberger’s land. The township officers, defendants herein, in order to relieve this condition, turnpiked said north and south highway, and made a ditqh along the east side of said turnpike. By means of this ditch said water passed through the divide; it then passed through a sluice under said highway, across the northeast corner of Puffenberger’s land, and, through another sluice under the east and west highway (as more clearly shown by the accompanying diagram which, is substantially accurate), it flowed onto complainant’s land.

After complainant had suffered from this nuisance from July 20 to September 29, 1902, he filled said ditch, and commenced this suit, seeking to enjoin the diversion of said water from Gibbs’ land onto his own. From a decree for complainant, defendants appeal to this court.

The principal question in controversy is whether, for the purpose of improving a highway, public authorities have a right to divert the natural course of surface water so as to impose upon the land of one person the servitude which naturally belongs upon the land of another. This question is answered in the negative by our own decisions. See Cubit v. O'Dett, 51 Mich. 347; Breen v. Hyde, 130 Mich. 2.

It is contended that it was defendants’ plan and purpose not to leave this water on complainant’s land, but to carry it farther along into a public sewer called “Beaver Dam Drain.” If that was their purpose, the record shows no sufficient excuse for so long a delay—from July 20 to September 29,1902—in executing it. As the learned trial judge said, “The complainant was as patient as could have been expected, and waited as long for them to proceed with the contemplated highway improvements as in reason could have been asked.”

It is also urged that the water which was cast and which would have been cast upon complainant’s land was so inconsiderable in quantity that he was not entitled to an injunction. We think otherwise. We think the water was sufficient in quantity to occasion serious injury, and that complainant was entitled to an injunction. See Bruggink v. Thomas, 125 Mich. 9; Davis v. Township of Frankenlust, 118 Mich. 494.

It is also urged that the decree appealed from is so broad that defendants are enjoined from making certain proper highway improvements, though the same will not have the effect of casting water upon complainant’s land. It is doubtful if the decree is susceptible of this construction. If it is, it goes too far, and farther than the parties contemplated or the trial court intended. To avoid all possibility of misunderstanding, we will, in affirming the decree, so modify it that it will not be open to the objection in question.

As so modified, the decree will be affirmed, with costs of this court.

The other Justices concurred.