author: Hooker, C. J. Montgomery, J.

text:
    AUSTIN v. DETROIT, YPSILANTI & ANN ARBOR RAILWAY.
    X. Highways — Electric Railways — Servitude.
    The use of a township highway for an electric railway is not .an additional servitude.
    2. Same — Change of Grade.
    An electric-railway company may change the grade of a highway so that it can operate its line, without compensating the adjoining proprietors, where it does so with the consent of the highway authorities, and of a plank-road company which maintains the road. Montgomery and Moore, JJ., dissenting.
    3. Same — Location of Tracks.
    A landowner cannot compel an electric road to locate its tracks in the center of the highway.

      Error to Wayne; Hosmer, J.
    Submitted October 8, 1901.
    (Docket No. 10.)
    Beargued January 14, 1903.
    Decided July 14, 1903.
    Case by Hugh Austin against the Detroit, Ypsilanti & Ann Arbor Bailway for damages to plaintiff’s farm caused by grading the highway. From a judgment for plaintiff, defendant brings error.
    Beversed.

      Cutcheon, Stelltvagen & Maclcay, for appellant.

      J. Emmet Sullivan and Edward M. Vining, for appellee.
   Hooker, C. J.

The defendant is the owner of an electric trolley line between Detroit and Ann Arbor, its railroad being laid in the public highway, in accordance with statutory authority, under licenses from the respective municipalities along its routó. The township of Nankin granted the. right to construct the road in the following language, viz., “Grants and conveys unto Thomas D. Kearney, attorney, his associates, successors, and assigns, hereafter to be organized into a corporation under the laws of the State of Michigan, exclusive right and privilege of constructing and maintaining perpetually a street railway for the transportation of passengers and light freight along, upon, or adjacent to the highway known as the ‘Chicago Boad,’ * * * with all the necessary and convenient turnouts, switches,” etc., subject to the rights in said highway of the Detroit & Saline Plank-Boad Company. It also provides that “the track or tracks of said railway shall be so laid as to obstruct as little as possible the free passage of vehicles and carriages along said highway, and so as to best accommodate the public traffic. ”

This highway was one maintained by the Detroit & Saline Plank-Boad Company, under the plank-road act (2 Comp. Laws, chap. 173), and the railroad was built with the consent of said company. The plaintiff owned and occupied a farm upon said highway, along the east side of which ran the Mint & Pere Marquette Railroad, which crossed the highway in question a few rods east of the plaintiff’s house. The railroad was about eight feet above the natural surface of the ground bordering the highway, which its trains crossed above grade by means of a bridge, which was 15 feet long. To make room for the passage of teams under the bridge, the highway was .graded down some feet at the intersection of the railroad, the cut extending westerly to a point about 15 feet west of plaintiff’s dwelling. By consent of the plank-road company, the traveled portion of the highway was widened and lowered, by grading, to accommodate the electric road, and a hew bridge, both wider and longer than the old, was built by, and- at the joint expense of, the two railroad companies. The electric line was laid along the north side of the highway, near to the line of the street; nearly the entire width of the roadway, including the bed of the railway track, being cut down to a uniform grade, so that the cut reached the level of the highway, as it theretofore existed, some rods west of the plaintiff’s house, which left plaintiff’s premises some three or four feet higher than the roadway where the cut was deepest; the ground being cut back to within a foot or two of his fence at the surface, and sloping thence to the track. A flight of five or six steps was built by the railroad company from the track up to the level of the land in front of plaintiff’s house. This action was brought to recover damages for an alleged injury to plaintiff’s premises, and defendant has appealed from a judgment of $475 in plaintiff’s favor.

It is the settled law that the public right to the highways goes to the extent of authorizing their use for the general purposes of public travel, and, as conditions change, the way may be adapted to new wants and methods of travel, including the equipment and use of electric railroads. The courts hold with great unanimity that the public right, when acquired, contemplates the use of the way for such purposes, and that the adjoining proprietor must suffer the contingent disadvantages of a change of grade, and that the use of the highway for an electric line is not an additional servitude. See Fuller v. City of Grand Rapids, 105 Mich. 529 (63 N. W. 530); City of Pontiac v. Carter, 32 Mich. 164; Dean v. Railway Co., 93 Mich. 330 (53 N. W. 396); 10 Am. & Eng. Enc. Law (2d Ed.), 1125; Green v. Railway Co., 78 Md. 294 (28 Atl. 626, 44 Am. St. Rep. 288).

The plaintiff’s contention in this case is that the railroad company had no right to cut off or impair his access to the highway from his premises by lowering the grade for its track below the highway as it then existed, and by laying it so close to the line of the highway as to subject his fence and land to the danger of sliding into the highway. The supreme court of the State of Ohio has enunciated the doctrine that an abutting proprietor might recover damages if his access to the highway was impaired (Cincinnati, etc., R. Co. v. Village of Cumminsville, 14 Ohio St. 523), which is consistent with the rule that damages arising from a change of grade are recoverable, which rule we understand to obtain in that State, in opposition to the view generally taken.

Had this railway been laid in the center of the street, without change of grade, and so constructed by filling between the rails as to make it feasible for the public to drive upon and over it at will, no one will claim that it would be an additional servitude; or, had the line as built been so filled as to make it practicable for vehicles to be driven upon it as upon other parts of the way, the same would be true, except for the change of grade. We take judicial notice that in rural districts the traveled portion of the road is but a small part of the land within the limits of the highway. It is manifest that in such places the railway may be more safely operated if built at one side and used separately. It is evident from the franchise that the authorities thought so in this instance, and required it to be kept away from the traveled portion. There was therefore no necessity for making a smooth way between the rails and adjoining the track, and it might have been imprudent to do so, thereby inviting travelers to unnecessarily drive in a place of danger. So long as it does not offer a comparatively insuperable obstacle to the use of the portion of the highway occupied by it for purposes reasonably necessary, and reasonable provisions are made by crossings for ingress and egress over it to and from adjoining premises, the owner of such premises cannot complain, if he could in any case, which we do not decide.

It is said that the grade of the street was made necessary by reason of this railway. It is well settled that an adjoining proprietor cannot complain if the grade of a highway is changed. The authorities may lawfully facilitate travel by such changes. We have held that a street railway is not an additional servitude, and the reason is that it is a provision made by public authority to facilitate public travel. It is the use of the highway, for the original purpose, by modified and changed vehicles and methods. If the public weal requires it, it is as much within the power of the public to lessen the grades for street cars as for wagons or automobiles. To say that the township or company might have changed this grade to improve its wagon road for the latter, without recompense to adjacent proprietors, but that it could not do so for a street railway, or that a street railway is an additional servitude when the authorities permit the highway to be graded down for the purpose, and not when it is made to conform to the pre-existing surface of the highway, is to make a distinction where none should in justice exist.

We are of the opinion that the location of a railway in the center of the highway cannot be required by an abutting proprietor; There is a manifest propriety in separating, so far as possible, this from other uses of the highway. In the present case the franchise required it, and apparently the public authorities acquiesced in its location. The same may be said of the grade, so far as the public had control over it. The authorities authorized the change in the bridge, and the plank-road company, which represented the public, in a sense, in the maintenance of the highway, and might lawfully grade the highway, for its full width, under the statute permitting the organization of plank roads, through its president (who was also president of the defendant), consented to the widening and lowering of its grade, with a view to the improvements authorized by law and the township.

The statute authorizing street and suburban railways, like that providing for steam roads, is predicated upon public necessity. It is not to be assumed that such roads are burdens upon the inhabitants, but that they confer benefits to tho general public. Such companies as are provided for are not created primarily for their own benefit, but for a desirable public purpose. It is not the province of courts to assume that these statutes are to be so strictly and technically construed as to prevent full measure of efficiency. One of these statutes requires the railway to be laid at the same grade as the highway. This is a proper provision, but we disbelieve that it was the intention that where this was not feasible, in-view of existing grades, no railway could be constructed, or that the adjacent proprietors acquired rights to compensation in consequence. It is not unreasonable to suppose that the construction of a safe and satisfactory railroad may require some changes in the grade of the highway as theretofore existing, e. g., by filling or cutting and widening the graded portion, by lessening the grade of hills, adapting the road under bridges to the proper level, etc. The public authorities have the right to do these things when there is no railroad, and to say that they must do it where it is only made imperative by the necessities of the use of the street for a railroad, is too narrow a construction. The law expressly recognizes the desirability of lessening grades for all uses of a highway; but highway improvements are necessarily gradual, owing to the expense. When a railroad is made, it is a substantial, expensive, and permanent improvement. It must not only be laid at grade, but, under any fair construction of the statute, it must be kept at grade. There is a manifest propriety, if not a necessity, that the township authorities provide for such general grades as may be advisable, and cause them to be made at that time; and there is, to our minds, no impropriety in imposing upon the railroad the burden of these changes for the general public good.

It is said that the contract does not include any such provision. An attempt to include specifications of all such changes would be attended with much detail, and perhaps difficulty. We think it not unreasonable or improper to infer that the railroad company would not be allowed to make extensive changes in the grade of highways without the approval and acquiescence of the public authorities, who, as we have shown, have the authority to cut down- the grade, without further compensation to abutting proprietors. So long as the authorities do not object and take steps to prevent such changes as will permit of a proper construction of the road that they have authorized, we must assume consent, and the abutting proprietors cannot complain.

It is inferable from the proof in this case that the steam railroad would have been an insuperable obstacle to laying this road at the pre-existing grade, as there was not room for the passage of the cars beneath it without lowering the highway at the bridge, and it seems to have been necessary to widen the highway at that point. At all events it was done, and the trolley company paid one-half of the cost of an expensive bridge to accomplish crossing below the steam-road grade. The township authorities had the power to consent to the construction of this road, and this necessarily implies consent to a readjustment of highway grades, within reasonable limits, with the sanction of those having authority under the law to make them. The consent to construct this road, and the acquiescence of all concerned in the change of grade, is a sufficient consent. The public cannot question it; and the plaintiff has no right of action in consequence.

The case differs materially from that of Nichols v. Railway Co., 87 Mich. 361 (49 N. W. 538, 16 L. R. A. 371), for there the road was not made to conform to the grade of the highway. Here it is required. 2 Comp. Laws, § 6450.

The cases of Green v. Railway Co., 78 Md. 294 (28 Atl. 626, 44 Am. St. Rep. 288), Briggs v. Railroad Co., 79 Me. 363 (10 Atl. 47, 1 Am. St. Rep. 316), and Peddicord v. Railway Co., 34 Md. 464, sustain the authority of a plank-road company to change its grade without subjecting itself to liability, and, if it may do this, no good reason is suggested for holding defendant liable for doing the same, with the assent of the plank-road company, in a project for the benefit of the highway authorized by law. The case of Uline v. Railroad Co., 101 N. Y. 98 (4 N. E. 536, 54 Am. Rep. 661), is analogous upon the question of the authority of the railroad company to act under a delegated power.

There are many assignments of error in this case, but we think the more important questions are the following:

1. Is the construction and operation of this railroad an additional servitude?

3. Has an abutting owner a right to compensation by reason of the lowering of the grade of the highway ?

3. Was it unlawful to place the railroad to the side of the highway, in proximity to plaintiff’s premises, and is he entitled to compensation therefor ?

4. Does the fact that the highway in question was owned by a plank-road company, or the changing of the grade of the highway to accommodate the railroad, affect the question ?

We think all of these questions are answered by our discussion of the subject. The jury should not have been allowed to infer that the construction of the railroad constituted an additional servitude because of its location, or by reason of the excavation made for it, or for the impairment of access to plaintiff’s premises by reason thereof.

The court did not err in instructing the jury that damages were not recoverable because of the prevention of the hitching of teams in front of plaintiff’s premises, under the declaration. Hobart v. Railroad Co., 27 Wis. 200 (9 Am. Rep. 461).

We think it unnecessary to discuss other questions.

The judgment is reversed, and a new trial ordered.

Carpenter and Grant, JJ., concurred with Hooker, C. J.

Montgomery, J.

(dissenting). The defendant is the. owner of an electric trolley line between Detroit and Ann Arbor, its railroad being laid in the public highway, in accordance with statutory authority, under licenses from the respective municipalities along its route. The township of Nankin granted the right to construct the road in the following language, viz., “Grants and conveys unto Thomas D. Kearney, attorney, his associates, successors, and assigns, hereafter to be organized into a corporation under the laws pf the State of Michigan, exclusive right and privilege of constructing and maintaining perpetuálly a street railway for the transportation of passengers and light freight along, upon, or adjacent to the highway known as the ‘ Chicago Road, ’ ” etc., subject to the rights in said highway of the Detroit & Saline Plank-Road Company. It also provides that ‘ ‘ the track or tracks of said railway shall be so laid as to obstruct as little as possible the free passage of vehicles and carriages along said highway, and so as to best accommodate the public traffic.”

This highway was one maintained by the Detroit & Saline Plank-Road Company, under the plank-road act (2 Comp. Laws, chap. 173), and the railroad was built with the consent of said company. The plaintiff owned and occupied a farm upon said highway, along the east side, of which ran the Flint & Pere Marquette Railroad, which crossed the highway in question a few rods east of the plaintiff’s house. The railroad was about eight feet above the natural surface of the ground bordering the highway, which its trains crossed above grade by means of a bridge, which was 15 feet long. To make room for the passage of teams under the bridge, the highway was graded down some feet at the intersection of the railroad, the cut extending westerly to a point about 15 feet west of plaintiff’s dwelling. By consent of the plank-road company, the highway was widened and lowered, by grading, to accommodate the electric road, and a new bridge, both wider and longer than the old, was built, by, and at the joint expense of, the two railroad companies. The electric line was laid along the north side of the highway, near to the line of the street; nearly the entire width of the roadway, including the bed of the railway track, being cut down to a uniform grade, so that the cut reached the level of the highway, as it theretofore existed, some rods west of the plaintiff’s house, which left plaintiff’s premises some three or four feet higher than the roadway where the cut was deepest; the ground being cut back to within a foot or two of his fence at the surface, and sloping thence to the track. A flight of five or six steps was built by the railroad company from the track up to the level of the land in front of plaintiff’s house. This action was brought to recover damages for an alleged injury to plaintiff’s premises, and the defendant has appealed from a judgment of $475 in plaintiff’s favor.

The plaintiff’s contention in this case is that the railroad company had no right to cut off or impair his access to the highway from his premises by lowering the grade for its track below the highway as it then existed, and by laying it so close to the line of the highway as to subject his fence and land to the danger of sliding into the highway. The defendant contends, on the contrary, that the plaintiff’s property has been subjected to no additional servitude. In the case of Detroit City Railway v. Mills, 85 Mich. 634 (48 N. W. 1007), the court held that the construction of an ordinary electric railway in the streets of a city, corresponding to the grade of the street, was not an additional servitude. But in Nichols v. Railway Co., 87 Mich. 361 (49 N. W. 538, 16 L. R. A. 371), it was held that the street-railway act confers no power upon a railway company to construct a road along the line'of a highway within two or three feet of the side of the road, where the roadbed does not conform to the grade of the street, but is built upon a grade with cuts and fills, — in that case the cuts and fills being two feet or thereabouts. It is sought to distinguish that case from the present in this: It is said that, while defendant’s road does not conform to the grade as it existed when the contract with the township was made, the grade has since been changed by defendant with the consent of the plank-road authorities, so that now the track is laid at grade. This is in effect saying that, while the defendant is not authorized to build a roadbed for its own use not conforming to the general grade, it may change the grade of the entire road with the track, without regard to its effect upon adjacent owners, if it can get authority from the plank-road company to’ do so.

A reference to the statutes may throw light upon this question. Section 6446 provides that a company may construct, use, maintain, and own a street railway for the transportation of passengers in and upon the streets and highways of any township, upon such terms and conditions as may be agreed upon by the company and the township board. Does this statute contemplate that the township authorities may turn over to the street-railway company the authority to wholly change the grade of its streets ? I apprehend that no one will assert this authority without at least some misgivings. But, even if this power be deemed to be granted to the township board by the section in question, it is sufficient for the purpose of this case to say that the township authorities never exercised that power, and never assumed to confer upon the defendant railway the right to change the grade of this street. The grant is set out above. It is simply a grant of the privilege of constructing and maintaining a street railway along the line of, upon, or adjacent to the highway known as the “ Chicago Road,” subject to the rights in said highway of the Detroit & Saline Plank-Road Company, and contains a provision that the track or tracks shall be so laid as to obstruct as little as possible the free passage of carriages and vehicles along said highway, and so as best to accommodate public travel. One might look long and earnestly, but in vain, to find within the four corners of this contract any suggestion of a right in the company to wholly change the grade of this highway.

But it is said that the plank-road company might change the grade for its own purposes, and that it has granted the right to the defendant company to change the grade, and that therefore the injury to plaintiff’s property is damnum absque, injuria. Here, again, a reference to the statute is not unprofitable. The legislature has provided, by sections 6470, 6471, that a street or electric railway may agree with a toll-road company for a purchase of all or any portion of the rights and franchises of such company, and, in case of failure to agree, there máy be a condemnation ; but the statute contains the express provision that the provisions of this act shall not be so construed as to affect the rights of abutting property owners or the rights of the public in such highways. In view of this provision, can it be said that the plank-road company may agree with the street-railway company that, for its own purposes, it may r.egrade a portion of the highway in a manner which injuriously affects the adjacent owner, and this without authority from the township board? We think it clear that no such right exists.

Independent of this statutory provision, the difficulty to my mind is as obvious. The right of the plank-road company is a special privilege and right, it terminates with its charter, its use of the highway is limited to such use as is essential for the purposes indicated by its charter, and it is reasoning in a circle to say that it may, under cover or pretense of enlarging its own uses of the power, evade the requirement of the statute which limits the use of a street railway to such as is agreed upon with the township board, and confer authority upon the street railway which the township board withholds.

For the reasons stated, I think it clear that the plaintiff was entitled to recover such damages as he sustained.

Other questions are raised by counsel, which may be briefly considered. The declaration claimed damages to the plaintiff’s land by reason of the excavation of that portion of the highway adjacent to his premises. Complaint is made that the circuit judge, in his charge, stated that this railway track, constructed as it was, constituted an additional servitude, and that evidence was given that the fence and soil would prbbably fall because of the excavation, and also as to the inconvenience in going up the steps onto the plaintiff’s land. We think it may be said of this testimony that it did no more than describe the situation, and was not intended to afford a basis for damages. In fact, an inspection of the photograph of the premises, which was introduced in evidence, would of necessity exhibit these conditions and authorize the inferences drawn by the witnesses.

The court charged the jury that the occupation and excavation of that portion of the road was unlawful, and that the plaintiff was entitled to recover such damages as would compensate him, limiting the damages to the amount which the land actually depreciated in value on account of the peculiar construction of the road, and distinctly stated to the jury: ■ “It is the damages for the excavation, and not for the operation of the road.” He also instructed the jury that the plaintiff was not entitled to recover any damages because of the fact that teams could not be hitched in front of his house, as that claim was not covered by the pleadings. We think this instruction fully protected the defendant’s rights, and that it was not error to permit the jury, in determining the damages caused by the excavation, to take into account the fact that plaintiff’s fence would be more likely to fall by reason of such excavation.

We think that no error was committed to the prejudice of the defendant, and the judgment should be affirmed, with costs.

Moore, J., concurred with Montgomery, J,


source: Caselaw Access Project

author: Hooker, C. J.

license: Public Domain

text:
    HODGES v. BUELL.
    1. Deeds — Reservation—Standing Timber — Removal—Title.
    Where a person conveyed land by a deed dated October 11, 1899, and delivered November 11, 1901, reserving “all saw timber on said land, with the right to enter upon and remove same within two years, also right to build roads across and cross said land within'two years from date,’’all timber standing November 11, 1901, belonged to the purchaser, and all timber cut or severed from the realty prior to October 11,1901, to the vendor.
    2. Same — Equity—Forfeiture. '
    As equity will not render aid to enforce forfeitures, but will interpose to relieve from them, an injunction will not be granted to restrain a vendor of land from cutting standing timber, which he reserved, after the time limited in the reservation for its removal.
    Appeal from Cheboygan; Shepherd, J.
    Submitted February 18, 1903.
    (Docket No. 155.)
    Decided July 14, 1903.
    Bill by James L. Hodges against Frank Buell and Henry Fler to restrain the removal of certain timber. From a decree for complainant, defendants appeal.
    Reversed.

      Frost & Sprague, for complainant.

      W. L. Townsend, for defendants.
   Hooker, C. J.

This is an injunction bill filed to restrain the defendants from removing certain timber, cut and uncut, from a parcel of land which they had sold and deeded to the complainant. The complainant’s deed was dated October 11, 1899, and was delivered November 11, 1901. It contained a reservation as follows:

“First party reserves all saw timber on said land, with right to enter upon and remove same within two years, also right to build roads across and cross said land within two years from date.”

On or after November 12, 1901, the defendants cut-and manufactured sawlogs from standing and down timber, some of the latter being windfalls, and some being timber previously felled and stripped of its bark by them. Complainant notified defendants’ foreman to desist on November 15th, and filed this bill on November 27th, when further cutting and removal was stopped by a preliminary injunction.

Upon the hearing, the circuit judge determined that all of the rights of the defendants in the timber then being a part of the realty ceased on October 11, 1901, but that 68 hemlock logs, which had been manufactured by the defendants previous to said 11th day of October, 1901, had become their personal property, which they had a right to remove, and that the remainder of the timber, down as well as uncut, belonged to the complainant; and, as defendants had been permitted to remove and dispose of such of said timber as was down, upon giving a bond to pay for the same should it be adjudged to belong to the complainant, the decree determined the quantities as follows: Hemlock, 29,800 feet; maple, 3,000 feet; beech, 700 feet, — all merchantable; and the prices were to be fixed by a circuit court commissioner, as provided in the interlocutory order under which defendants received the same. Defendants were allowed $5 for extra expense caused by delay in removing the timber to which they were adjudged entitled, and the preliminary injunction was made perpetual, except as to the 68 hemlock logs. Complainant was given costs provided by rule. The defendants have appealed.

Similar contracts to this have been before this court several times.

The case of Green v. Bennett, 23 Mich. 468, arose upon a written contract whereby the owner of *the fee of a parcel of land, for a consideration of $600, bargained, sold, granted, and conveyed to one, his administrators, etc., “all the wood and timber,” etc.; “eight acres of said wood and timber to be taken off by May 1st next,” “ten more by September 1st next,” the remainder “within one year from September 1st next;” and the grantee was to pile the brush in good order. Both parties signed this contract. The timber was not taken off within the time provided, but was afterwards removed by the grantor. The purchaser sued the grantor in trover for the timber so taken. Mr. Justice Christiancy delivered the opinion of the court, and it seems to have been thought that this contract was open to two constructions: (1) That it was an absolute sale of an interest in land, with a covenant to remove within a fixed time, in which case there was a wrongful conversion by the defendant, because the property belonged to the purchaser, though he might be liable for the breach of his covenant. (2) That the. sale was one upon condition, and that in such case the vendee would lose all timber not removed within the period fixed. The court did not determine the question, because it was able to find that, upon the latter theory, there had been a waiver of the condition, and therefore plaintiff rightly recovered, whatever the construction. Here was an apparent recognition of the rule that, unless the sale was conditional, the title was not devested by reason of the expiration or revocation of the license.

The next case was Monroe v. Bowen, 26 Mich. 524, and this was clearly a reservation upon condition. It read as follows:

‘ ‘And the sa w timber on said land is to be the property of the party of the first part [the plaintiff], if he shall remove the same on or before the first day of April, in the year eighteen hundred and seventy.”
“This is the only allusion to the timber to be found in the deed, which is in the ordinary form of a full covenant warranty deed.” Manifestly it throws no light upon the construction to be given to a writing where a condition can rest merely upon inference, as it was plainly made conditional, as shown by the use' of the word “if,” upon which the right to remove timber depended.

Richards v. Tozer, 27 Mich. 451: From the opinion in this case, it is uncertain what the words of reservation were. The court said:

“His right to recover at all, or,, which is the same thing, his right to the logs, was rested by him on the passage in the quitclaim deed; and it is very clear that,. under and by force of that, he was only entitled to take logs from the land before the year 1868, and by virtue of it could invest himself with no right to any by taking later.”

The original bill of exceptions states the reservation in the following language, viz., “ Reserving to Richards one undivided half of the pine timber, with the right to enter upon, cut, and take away the same at any time before the year 1868, for the consideration of fifty dollars.” It was held that he could not maintain trover without proof that the logs were taken away by him before the time limited. The logs were cut and taken by defendant after the expiration of the time limited. We see no way of distinguishing the reservation in the present case from the foregoing.

In Johnson v. Moore, 28 Mich. 3, a reservation providing that ‘ ‘ all the sawing pine and whitewood timber that is now upon the above-described tracts of land belongs to” the grantor named in such deed, “who is sole owner thereof,” and that he “has, by agreement, thirty months from this date to remove the same,” was under discussion. It was claimed to be a bare license, revocable at pleasure. The court refused to place such a construction upon it, and held that, whatever it might be called, it conveyed the right to take the timber within 30 months. It is obvious that this case does not imply that such right terminated on the expiration of 30 months, as that question was not considered, nor was it in any way involved.

Haskell v. Ayres, 32 Mich. 93, follows Richards v. Tozer and Johnson v. Moore. The contract was as follows:

“They [plaintiffs] shall have peaceable possession of the aforesaid premises for three years from this date, for all the purposes of removing the aforesaid pine from the aforesaid land. Said Ayres, Larned, and Wiswall, for and in consideration of the agreement aforesaid, agree * * * that they will remove the aforesaid timber within the next three years.”

Whether this was a conveyance upon condition or not, there was a clear covenant, and it was so urged by counsel; citing Clemens v. Conrad, 19 Mich. 170, where it was held that a failure to remove stone from a quarry, reserved, but to be taken within three months, did not operate as a forfeiture of the stone reserved. The case is not discussed. It is based on the two cases cited, and really rests on the Tozer Case, as the other is plainly distinguishable, and it is perhaps true that the Tozer Case is also.

In Utley v. Lumber Co., 59 Mich. 263 (26 N. W. 488), the court said:

“Utley agreed to cut and put in all the logs upon the land, of 12 inches in diameter and upwards, in time for the drive of 1879, and Wilcox is to retain, out of the purchase price of the logs sold to Torrent & Ducey, ‘fifteen hundred dollars, in full payment for all such pine sawlogs as he may cut and remove from said land within one year from this date,’ i. e., from November 14, 1878. From all the contracts and acts of the parties in connection therewith, the intention clearly appears to limit the time in which the timber on the sections named should be cut and removed, and that the sale was confined to such timber as should be cut and removed within the specified time.”

This contract is clearly and expressly limited to logs which should be seasonably cut and removed.

In the case of Wait v. Baldwin, 60 Mich. 626 (27 N. W. 697, 1 Am. St. Rep. 551), no period was fixed for the removal of the timber reserved, and the grantor’s title was sustained. The case contains a dictum that, in cases where the timber sold is to be removed within a fixed time, “the limitation of time enters into the contract of sale, and the reservation or sale applies to such timber only as is removed within the time limited, and that no title is retained in the one case, or passes in the other, to any timber which remains upon the land after the time agreed upon for its removal has expired.” Morse, J., concurred with Champlin, J., while Campbell and Sherwood, JJ., concurred in the result.

The case of Williams v. Flood, 63 Mich. 487 (30 N. W. 93), arose over a sealed writing, selling “all the standing timber from and over the size of nine inches in diameter on the stump, situated, standing, or being ” upon the land in question, and “ giving and granting the said Henry W. Williams the undisputed right, for two years from this date, to enter upon the said premises and remove the said timber, the same as if he, the said Henry W. Williams, was the owner in fee of said lands.” Before the two years expired, a verbal extension of the time was made, and others followed. A purchaser with notice forbade further cutting, and the plaintiff desisted, and brought trover to recover the value of the timber, both standing and severed, left on the land. A verdict was directed for the plaintiff. Champlin, J., in discussing this subject, said:

“One of the principal questions presented for consideration is whether the limitation of time for the removal of the timber from the land is a covenant that the purchaser will remove the timber in two years, or a condition subsequent of the contract of sale, which, upon default, would terminate the right of removal, and revest the title to such timber as remained upon the land in the vendor. The question was raised, but not decided, in Green v. Bennett, 23 Mich. 464.”

In his opinion, the terms of the writing expressed—

‘ ‘ The intention to sell and convey the standing timber as timber attached to and a part of the freehold, by which a present title was to pass, and cannot be construed into an executory agreement to sell and convey the timber when it should be thereafter severed. The agreement conveyed an interest in the land, and was such as the statute of frauds required to be in writing to be valid [citing cases]. When conveyed, it was an interest in lands, and did not cease to be such thereafter until severanee. If the limitation as to time of removal should be construed as a covenant on the part of the purchaser that he would remove the timber in the time specified, the title to the timber would remain in the purchaser after the time limited had expired, and he could still enter upon the premises and remove the same at his pleasure, being liable to the vendor for such damages as he. should cause in so doing. The vendor would also have a right of action against his vendee for a breach of the covenant in not performing the covenant as agreed.”

He was unable to find an express or implied covenant in the language used, and indicated the following as his view of the rule:

“It appears to me that the parties intended, the one to sell, and the other to purchase, the standing timber, upon condition that it should be removed from the land within the time specified, and that the title to such as should remain upon the land at the expiration of the time should revest in the vendor; the effect of the whole transaction being a sale of so much of the timber as the vendee should remove from the land within the time limited in the agreement for its removal. That this was the intention of the parties as expressed by the contract is borne out by the conduct of the parties, who appear to have placed this construction upon it. The vendee asked for and obtained a verbal extension of the time upon two different occasions, and it is upon this extension of the time that the rights of the parties depend in this controversy. The breach of the condition worked a forfeiture of the plaintiff’s right and title to the remaining timber.”

It is noticeable that no authorities are cited in support of the conclusion that the parties intended a sale upon condition subsequent, and that the title should revest. In thiscase, as in Wait v. Baldwin, supra, Morse, J., concurred with Champlin, while two judges did not concur, although they reached the same result. It is to be noted, however, that all appear to have considered the deprivation of a right to take the timber, by reason of lapse of time, as a forfeiture.

The case of Gamble v. Gates, 92 Mich. 510 (52 N. W. 941), involved a contract wherein it was expressly stipulated that whatever timber remained upon the land after the expiration of five years should revert and become the property of the vendor. It was held that title was in the vendor. The action was replevin.

The next case reported is Macomber v. Railroad Co., 108 Mich. 491 (66 N. W. 376, 32 L. R. A. 102, 62 Am. St. Rep. 713). There a writing “sold * * * all of the timber * * *, the purchaser to remove the same in two years from date,” and, if the land should be sold at any time, then the timber was to be removed at once, on the purchaser’s being notified of the sale. A sale was made, but no notice given. All of the pine was cut into logs within two years, but was not removed within that time. The grantee of the land removed the timber, and replevin was brought by the assignee of the purchaser. It was held that the severance of the timber and its manufacture into logs was a “removal,” within the terms of the provision (of the contract) “ for forfeiture.” Mr. Justice Montgomery, in discussing the case, said:

“Contracts containing similar provisions have been construed in -the courts in a number of the States, and the weight of authority supports the defendant’s contention that, as to timber remaining uncut at the expiration of the time limited under a contract such as this, the title reverts to the owner of the realty. ”

Taking this as a correct statement of the law, it would seem to be finally settled in this State that, where one acquires title to. standing timber, the same to be removed within a time stated, he cannot be devested of his title to such as he severs from the soil during the period, whether he takes it away from the premises within such period or not (except where, as in Gamble v. Gates, supra, it is expressly provided that such timber should revert); but that he is devested, by lapse of time, of the title to such as was not severed. It goes without saying that this must have been based upon the meaning given to the word “removed,” for, had the language been “cut,” or “severed,” and “removed” from the land, it would have been difficult to give that language such a construction as to the timber severed, and not as to standing timber.

The word “removed,” in the contract in this case, is susceptible of the same construction, and, under the rule as above stated, we must hold, as an abstract proposition, that the title to the timber standing was in the complainant after the expiration of the period fixed by the contract, which, in our opinion, should be held to be two years from the date of the deed, viz., October 11, 1901. It is equally clear that all of the timber severed from the soil by the defendants was removed, though still upon the premises, and belonged to them, for we think no distinction should be drawn as to such timber before and after it was cut up into sawlogs. It was enough if the defendants severed standing timber from the soil, or put work upon down timber, thereby taking it into their possession. Indeed, we see no reason for saying that they were not entitled to treat all down timber severed from the soil as removed, whether they had put work upon it or not.

It follows from the foregoing that the defendants have title to all but the timber standing at the expiration of the time fixed, and that the complainant cannot expect a court of equity to* aid him in withholding it. On the other hand, these cases show that the defendants have no further right or title in the standing timber, or such as they cut after the expiration of such period, if complainant insists on a forfeiture, and they should be restrained from removing such timber, unless heed should, be given to. defendants’ contention that equitable interposition cannot be invoked to enforce a forfeiture. That this is a forfeiture seems to be indicated by all of the cases cited in which the subject has been alluded to, — all of which, by the way, are actions at law. It is no less a forfeiture than is a provision of a land contract giving a right to terminate the contract for nonpayment of the purchase price. Indeed, in such case a legal title has not vested, but merely an equity, while here the legal title has vested, and is devested by breach of condition, although the timber has been fully paid for. We have repeatedly held that equity will not render aid in enforcing forfeitures, but will interpose to relieve from them. See Crane v. Dwyer, 9 Mich. 350 (80 Am. Dec. 87); White v. Railway Co., 13 Mich. 356; Sandford v. Flint, 24 Mich. 26; Fitzhugh v. Maxwell, 34 Mich. 138; Miller v. Havens, 51 Mich. 485 (16 N. W. 865); Lyon v. Insurance Co., 55 Mich. 146 (20 N. W. 829, 54 Am. Rep. 354); Watrous v. Allen, 57 Mich. 367 (24 N. W. 104, 58 Am. Rep. 363); Field v. Ashley, 79 Mich. 235 (44 N. W. 602).

“ Courts of equity will never aid in the devesting of an estate for a breach of a covenant on a condition subsequent, although they will often interfere to prevent the devesting of an estate for a breach of a covenant or condition.” 2 Story, Eq. Jur. § 1319.

We are of the opinion that the bill should be dismissed, with costs of both courts.

The other Justices concurred.


author: Grant, J.

text:
    CHRISTIAN v. MICHIGAN DEBENTURE CO.
    Debenture Companies — Lotteries—Fraud—Equity—Parties.
    A corporation, organized in Ohio under the laws of West Virginia for the purpose of selling debentures, transferred its office to Michigan. Its authorized capital was $250,000, only a small part of which was ever paid in, though a large amount of stock was issued as fully paid. In order to enable the company to sell its debentures, its president deposited in a bank $50,000 to its credit, which was held out to investors as the property of the company, though deposited under a secret agreement with the officers of the company by which he agreed to guarantee a credit of $50,000 for one year. At the end of the year he attempted to withdraw $15,000 from the bank. The company falsely advertised that prominent men had bought debentures. After doing business eight months, it was refused the use of the mails, because its scheme was fraudulent and a lottery, and thereafter no new contracts were made. Held:

      (1) .That the transaction was fraudulent as to investors.

      (2) That the debenture holders were jointly interested in preserving the funds of the company, and one or more of them might maintain a bill on behalf of themselves and all investors for that purpose, and to restrain the president from withdrawing the guaranty fund.
    (3) That the bill could be maintained notwithstanding complainants’ debentures were not due, as it appeared that the company was insolvent, and its scheme fraudulent and impossible of performance.
    (4) That, complainants having acted in good faith, they would be protected in equity, though the debentures were illegal and a lottery.
    (5) That the §50,000 deposited by the president, having been advertised with his knowledge to be the property of the company, should be held for the payment of debentures.
    Appeal from Wayne; Donovan, J.
    Submitted April 8, 1903.
    (Docket No. 8.)
    Decided July 14, 1903.
    Bill by Charles E. Christian and others against the Michigan Debenture Company and others for the appointment of a receiver and for an accounting. From a decree for complainants, defendants appeal.
    Affirmed.
    September 8, 1899, the defendant the Michigan Debenture Company was organized at Columbus, Ohio, as a corporation under the laws of West Virginia, and filed its articles of association with the Secretary of State of West Virginia. The business of the corporation was the sale of what is termed “debentures,” under a plan set forth in its prospectus and advertisements. October 14, 1899, its offices were transferred to Detroit, and it began business in the ’ State of Michigan on or about that date. Its authorized capital was $250,000. On its organization, five shares of its capital stock, par value $100 per share, were subscribed for, and $50 was paid in. $147,700 of the capital stock was issued by the company as fully paid. Only $3,724 of its capital stock was ever paid in. This sum was later transferred to the expense fund of said company. Afterwards $2,000 was transferred from the expense fund to the redemption fund, and $4,500 was transferred from the expense fund to the reserve fund. The entire cash capital' of the company was thus wiped out, but was not dissipated, as these amounts were only transferred to other funds of the corporation. The remainder seems to have been issued and given to E. B. Harang in payment for the plan, etc., on which the company did business. On June 30, 1900, the Michigan Debenture Company, acting under the provisions of section 8587 of the Compiled Laws of Michigan, filed with the Secretary of State a certified copy of its articles of association, etc., paid the franchise fee, and was admitted to do business in this State.
    In order to give the Michigan Debenture Company a commercial standing so it could sell its debentures, William A. Pungs, the president of the company, deposited $50,000 to its credit in the Preston National Bank. This fund was deposited in said bank under a secret written agreement between William A. Pungs and the Debenture Company, by which said Pungs agreed to guarantee a credit of $50,000 to the company; and in pursuance of that agreement the deposit was made, and the Preston National Bank issued to the Michigan Debenture Company a receipt for the same, as follows:
    “Guarantee Fund.
    “ The Preston National Bank Capital, $700,000. of Detroit, Mich. October 17, 1899.
    “Received of the Michigan Debenture Company fifty thousand dollars, which amount is held by this bank subject only for the payment of that amount of matured debentures issued by said the Michigan Debenture Company.
    [Signed] “Preston National Bank,
    “F. W. Hayes, President.”
    The $50,000 guaranty fund was held out to investors and others as part of the funds of the company. The Debenture Company, from time to time, advertised largely in .the Detroit newspapers, and sent out a great many circulars and other advertising matter. These advertisements represented the debentures of the company to be a guaranteed investment of at least 8 per cent., protected by a $50,000 guaranty fund in the Preston National Bank. Defendant Pungs knew of these advertisements, and knew that these complainants and others were buying the company’s debentures, believing the $50,000 guaranty fund belonged to the company. Several of the complainants testified to these representations, and that they in good faith purchased the debentures, relying upon them. Prom time to time lists of names of those investing with the company, including the names of many prominent citizens, with a statement of amounts paid in and received by them, were published by the company, for the purpose of getting business. Of these, three of the most prominent never paid in anything on the debentures of the company, and none of them ever received anything from the company. Defendant Pungs took out and paid for their debentures, and received all redemptions on such debentures. Defendant Pungs was the actual manager and head of the company from March, 1900, until this suit was brought. He was practically the only man who was financially interested in the company, or who had anything to gain by its operations.
    In the fall of 1900 the company was denied the use of the United States mails because of lottery features in its debentures, and never sold any new contracts thereafter, but continued to collect dues and lapse contracts until this suit was brought. In December, 1900, the affairs of the company were examined by the State Banking Department, and the company found to be insolvent. When this suit was commenced, the company was insolvent, and its condition was steadily growing worse. Prom the time the company was denied the use of the mails, the income grew less and less each month, and .a finishing point would finally have been reached. The receipts of the company were constantly decreasing, and the value of the remaining coupons, according to the schedule of redemption values issued by the company, was constantly increasing. If the business had been continued, the time would have arrived when the so-called “ guaranty fund” would have been insufficient to pay the matured debentures.
    Under the written contract between the Debenture Company and defendant Pungs, he was to receive $5,000 from| the company for the said guaranty fund of $50,000 for the first year. In fact he received $1,500 more, being 3 per cent, on the deposit paid by the bank. At the end of the first year, defendant Pungs attempted to withdraw $15,000 from the guaranty fund, but the Preston National Bank declined to allow him to do so. Thereupon the Debenture Company paid to defendant Pungs $15,000 from the reserve fund, and substituted $15,000 from the guaranty fund in its place. The company was insolvent at the time, yet the debenture holders were told that, unless they kept up their payments, their contracts would be lapsed. The company had no income except that received from lapses, and interest on its funds in bank.
    Complainants are debenture holders, and filed this bill alleging fraudulent conduct on the part of Pungs and the officers and promoters of the defendant company, its insolvency, and its cessation of all business except to collect on existing debentures; that the business of the'company is fraudulent, its debenture contracts impossible of performance, and that Pungs claims that the $35,000 on deposit with the defendant bank as the guaranty fund belongs to him. The bill pays for the appointment of a receiver; that complainants be relieved from any further payments on said debentures; that an accounting be had; that the complainants recover the amounts paid by them, less the amounts received by them from matured coupons; and that the transfer of the $15,000 to Pungs be declared void. The case was heard upon pleadings and proofs taken in open court, and decree rendered for complainants.

      Edioin E. Oonely and Orla B. Taylor (Haug & Yerkes, of counsel), for complainants.

      Barbour & Bexford, for defendants.
   Grant, J.

(after stating the facts). Is fraud charged in the bill and proven by the evidence against the defendant Pungs and the other directors of said company? The bill sets forth fully the main facts above stated. It charges that the scheme was illegal, a mere lottery, and that the representations made by the defendant officers in their advertisements and literature were false and fraudulent. It sets forth all the circumstances under which Mr. Pungs furnished the $50,000, to be deposited and advertised as a guaranty fund belonging to the company, and that the arrangement between Pungs and the company was concealed. The bare statement of this arrangement stamps it as fraudulent. The United States government investigated the scheme, declared it fraudulent, and prohibited the company the use of the mails. The banking department of this State made a like investigation, and reached the same conclusion. The character of the scheme will in the main appear from an examination of the contract, printed at the end of this opinion. The allegation of fraud is sufficient. The proofs fully sustain the charge. The defendant directors advertised this guaranty fund as the property of the company. It published the receipt of the bank that it was received and held by the bank “only for the payment of that amount of matured debentures issued by said the Michigan Debenture Company.” This was a grossly fraudulent representation, under the present claim of the defendants.

It is urged that the complainants are severally, and not jointly, interested, and therefore cannot maintain the bill as joint complainants. The bill is filed in behalf not only of the complainants, but of all the debenture holders. Complainants are jointly interested to prevent the dissipation of the funds in the treasury of the company, and in preventing Mr. Pungs from obtaining possession of the guaranty fund. Their interests are more closely connected than are taxpayers owning several distinct parcels of land, and who jointly file a bill to restrain the illegal appropriation of public funds or illegally contracting a debt. That taxpayers may so join in a bill of complaint is well established. George v. Electric Light Co., 105 Mich. 1 (62 N. W. 985). The reason for these debenture holders joining is more cogent.

It is next urged that these complainants cannot maintain the bill because these debentures have not matured. Upon being denied the use of the mails, the Compaq' ceased to do any business in this State other than to attempt collections from its then holders of debentures. It is apparent that, the more these holders paid, the worse off they would be. The company was insolvent, its scheme found to be fraudulent and impossible of performance. Its principal manager and promoter was its treasurer, and claimed its indemnity fund. Under these circumstances, the only security the debenture holders had was to stop further expense, and to recover from the company the money in its treasury so far as it would go towards paying back the money they had invested.

It is next contended that, if the scheme under which the debentures were sold is illegal and a lottery, equity will not give complainants relief. If complainants purchased these debentures with knowledge of their illegal and fraudulent character, both law and equity would leave them without remedy. If, on the contrary, they acted in good faith, and were honestly deceived by the representations of the defendant through its officers, and the representations were such as would naturally tend to deceive, they are entitled to relief. The published literature of the company covers many pages of the record, and is so worded that it would naturally deceive the ignorant and the unwary, and as well intelligent persons unfamiliar with business methods. Mr. Pungs secured the names of three prominent citizens of Detroit as purchasers of these debentures, and so advertised them. In fact, they invested no money, but Mr. Pungs himself paid all their dues, and, under a resolution of the directors authorizing a compromise, he at once took advantage of the resolution, and received the money which under it would go to these three holders. This is one of the methods very commonly resorted to to induce others to make investments in such corporations. The scheme appeared plausible upon its face, and the representations made in the company’s publications. No moral turpitude attaches to the complainants. The case falls within the following authorities: Calkins v. Bump, 120 Mich. 335 (79 N. W. 491); State v. Investment Co., 64 Ohio St. 283 (60 N. E. 220, 52 L. R. A. 530, 83 Am. St. Rep. 754).

Even if Mr. Pungs were entirely innocent in making his contract for the deposit of the $50,000, as between him and the debenture-holders, he must suffer the loss. Holcomb v. Noble, 69 Mich. 396 (37 N. W. 497); Peters v. Canfield, 74 Mich. 498 (42 N. W. 125); Condon v. Hughes, 92 Mich. 367 (52 N. W. 638); Stevens v. Ludlum, 46 Minn. 160 (48 N. W. 771, 13 L. R. A. 270, 24 Am. St. Rep. 210). Mr. Pungs knew that this fund was advertised as the property of the company. It was done for the purpose of inducing purchases. It had the desired effect. He is now estopped to claim title to any of this fund until the debenture holders have been made whole.

Decree affirmed.

The other Justices concurred.

Contract.

United States op America.

Certificate No.-.

The Michigan Debenture .Company, Incorporated, Authorized Capital Stock $250,000.00

DOES hereby agrp.e

to pay to - or order, upon maturity or redemption of any of the hereto attached five coupons, a sum equal to all the payments made thereon, together with the respective share of the net surplus earnings as shown oy schedule of redemption values.

The terms and conditions printed on the back hereof and in application herefor are a part of this contract as fully as if recited herein.

Signed,-sealed, and delivered at Detroit, Mich., this-day of ■ — ; is — • __

President.

Secretary.

Terms and Conditions.

Payments on this debenture shall be five dollars membership fee ■for the first month, and thereafter an installment of fifty cents per month on each unredeemed coupon until redemption or maturity. The membership fee must accompany the application, and the monthly installments are due without notice at the main office, or some duly authorized depository, on the first day of each month, beginning with the first month after the date of this certificate. Failure to pay on or before the fifteenth day of the month any installment due hereon shall render this contract null and void, and forfeit all payments made on same; but the same may be reinstated at any time within thirty days from lapse, by payment of overdue installment and a fine of ten cents on each unredeemed coupon ; but in no case shall the fine be less than twenty-five cents. No receipt for payment is valid unless it bears thó signature of the secretary or some person acting upon his written authority, and all remittances are made at the sender’s risk.

Apportionment of Receipts. — All money paid to the company on account of debentures (or coupons) shall be divided into three separate funds, which shall be designated and used as follows:

Reserve Fund. This fund shall consist of twenty per cent, of all the monthly installments paid to the company by holders of its debentures, which, together with its-interest increment, shall be invested in such securities as the board of directors may deem advisable.

Expense Fund. This fund shall consist of the purchase price of all debentures (viz., five dollars on each debenture issued), together with fourteen per cent, of all subsequent installments received by the company on account of same; also of all fines, transfer fees, and other extraneous receipts.

Redemption Fund. This fund shall consist of sixty-six per cent, of all the money collected by the company on account of monthly installments on outstanding debentures. It shall be subdivided into two separate funds, designated, respectively, as a “Special Redemption Fund” and the “General Redemption Fund,” each of which shall be applied monthly as collected to the redemption of coupons as hereinafter specified.

Special Redemption. Each month sixteen per cent, of the total redemption fund for that month shall be used as a special redemption fund for that month, to be applied as follows: The lowest numbered coupon of the lowest numbered debenture shall be redeemed ; then the lowest numbered coupon of the next debenture in order, and so on through the list until said fund is disbursed.

General Redemption. Each month eighty-four per cent, of the total redemption fund for that month shall be used as a general redemption fund, to be applied as follows: The coupons to be redeemed each month with this fund are scattered throughout the entire list of coupons eligible for redemption, and cannot be designated in advance of the disbursement of the special redemption fund, nor until the calculation (hereinafter described) has been made for the purpose of determining the number of coupons that must be alternately passed over in the course of redemption. After the number which must intervene between the coupons to be redeemed has been determined as aforesaid, and the special redemption f.or that month has been concluded, a starting point for.the general redemption is given by first redeeming the lowest numbered coupon attached to the debenture next following the last one from which a coupon was redeemed by the special redemption; and then, passing over as many consecutive coupons (of those eligible for redemption) as are equal to the “Redemption Numeral,” redeem another, and so on in like order until the fund is disbursed.

Redemption shall occur regularly on the 25th day of each month; but whenever the 25th shall fall on Sunday or other legal holiday', the redemption shall occur on the next legal day following.

The numeral apart which shall elect the couppns to be redeemed must be determined by dividing the total number of eligible coupons by the number the amount will pay on basis of the average value of such coupons.

The redemption numeral may be changed by order of the board of directors to any fractional part of the numeral obtained by the foregoing calculation.

Surrender Valué. — At any time after thirty-six months from date hereof, provided all payments of installments have been made as same became due and payable, the holder of this debenture may, if he so desires, surrender same to the company, and receive therefor a paid-up certificate for the total sum paid on account of this debenture to that date (less the amount received by the company on account of coupons previously redeemed), together with eight per cent, per annum for the average time; this accrued interest to be added to the principal of the paid-up certificate. All such paid-up certificates will be paid by the company in the order in which the applications for same are filed, and shall bear interest at eight per cent, per annum until paid. For this purpose' an amount not exceeding five per cent, of the general redemption fund for any one month may be used.

Agent’s Authority. — No person has power to alter, waive, or modify in any way the terms and conditions of this contract, and no promises or conditions other than those contained herein shall be binding upon the company.

Transfer. — This debenture is transferable only on the books of the company, for which a fee of twenty cents for each unredeemed coupon is charged; but in no case will the fee be less than fifty cents.

Eligibility and Maturity. — This certificate shall not be eligible for redemption until one monthly payment shall have been made hereon, and will be deemed fully matured at expiration of seventy-two months from date hereof. The money necessary to pay off said matured debentures shall be drawn from the redemption fund most immediately available, and, should that amount be insufficient for the purpose, then the balance shall be drawn from the reserve fund.


author: Moore, J.

text:
    CITY OF MUSKEGON v. ZEERYP.

    I. Municipal Corporations — Peddlers—Licenses.
    A city charter empowering the council to license those engaged in the business of hawking and peddling (directly or by canvassing for subscriptions) authorizes an ordinance requiring a license for soliciting orders for the subsequent delivery of goods.
    '2. Same — Excessive Fees.
    A license fee of $10 for one week and ■ $50 for one year, for hawking and peddling in the streets of the city of Muskegon, is not so excessive as to make the ordinance void.

      3. Same — Interstate Commerce.
    An ordinance requiring a license fee of a peddler does not restrain interstate commerce, where the peddler, a resident of this State, takes subscriptions for the goods of a corporation of another State, but orders them from a general stock, kept in this State, in sufficient quantities to enable him to fill the subscription orders.

    Exceptions before judgment from Muskegon; Russell, J.
    Submitted April 9, 1903.
    (Docket No. 11.)
    Decided July 14, 1903.
    James Zeeryp was convicted of peddling without a license.
    Affirmed.

      W. W. Wicker, for appellant.

      Alex. Sutherland, for appellee.

       Rehearing denied September 22, 1903.

       For peddlers as related to interstate commerce, see- note to He Spain, (C. C. E. D. N. C.) 14 L. R. A. 97.

   Moore, J.

The respondent was convicted of violating an ordinance of the city of Muskegon. He has brought the case here on exceptions before sentence.

The agreed facts are as follows:

“Defendant, James Zeeryp, is a resident of the city of' Muskegon, and for the past nine years has been a local agent of the Grand Union Tea Company, a New Jersey corporation, whose headquarters are at Brooklyn, N. Y. When defendant first started in business, he was furnished with a sample case, and went from door to door in said city of Muskegon, soliciting orders for teas, coffees, spices, baking powders, and flavoring extracts and essences, and in time his business grew, and he had regular customers from whom he received orders and delivered goods. At the present time, and for a number of years past, defendant has been furnished by the Grand Union Tea Company with a covered delivery wagon and horse. On this wagon, in large letters, is written, ‘ Grand Union Tea Company, Tea, Coffee, Baking Powders, and Flavoring Extracts; ’ the said horse and wagon being the property of the Grand Union Tea Company. His custom is to drive his wagon from door to door in said city, and solicit orders from his regular customers for future delivery, and at the same time deliver goods theretofore ordered. These orders he entered in a book that he carried with him, and the goods were delivered at a subsequent time, and once a week or oftener he -sent for enough tea, coffee, spices, baking powder, and flavoring extracts and essences to fill the orders so taken, to the Grand Rapids warehouse of the Grand Union Tea Company, to be filled there. He did not send the names of the persons ordering-goods, or the amount each ordered. On receipt of the packages from Grand Rapids, defendant would deliver said tea, coffee, spices, baking powders, and flavoring extracts and essences, and collect the price. The defendant transacted his entire business with the warehouse of the Grand Union Tea Company at Grand Rapids, and was required to account to the Grand Union Tea Company for all goods received by him.
“ The Grand Rapids agent of the Tea Company shipped the goods to the defendant, and charged the price thereof to him. Defendant received a commission on all goods ordered and delivered by him. The branch store and warehouse for Western Michigan is in Grand Rapids, and goods were sold at retail at said store, and said branch store paid taxes on said stock in Grand Rapids. The branch warehouse received its goods from Brooklyn, N. Y., in the original packages, for the purpose of filling the orders of subagents, and the original packages of goods were shipped to Grand Rapids, and there broken and used solely for the foregoing purposes. That it was for soliciting orders,' delivering goods so ordered, without a license, as required by the ordinance of the city of Muskegon, in said city, in the manner hereinbefore mentioned, and not otherwise, was complaint herein made and warrant issued.
“That all goods sold and delivered by defendant were goods shipped by said Grand Union Tea Company from its headquarters at Brooklyn, N. Y., consigned to themselves at Grand Rapids, Michigan, and by them kept in their warehouse in Grand Rapids until the original packages were there broken and used for the purposes herein-before stated; that said defendant did not own any of the goods for the sale of which he was soliciting orders, but the same were all owned by the said Grand Union Tea Company until the delivery to the respective customers; that defendant has been a resident of the city of Muskegon 10 years and upwards, and now resides at No. 62 Sanford street, and pays taxes on his real estate and personal property to said city. The Grand Union Tea Company does not pay any license or taxes on its horse and wagon, stock, or business in the city of Muskegon, nor does any one in its behalf. Defendant did not have a license, as required by the ordinance of the city of Muskegon, at the time of his arrest and conviction as aforesaid.”

The material portions of the ordinance read as follows:

“No person or persons shall engage in the business of hawking, pack or other peddling, in the streets or other public, places, or from door to door, or in selling any article of trade or commerce whatsoever from a stand, stall, cart, wagon, pack, basket, or in any manner, or on any of the public streets, parks, grounds, alleys, or places in the city of Muskegon, without first having obtained a license therefor.”
“ The amount to be paid for the license provided for in this ordinance shall be as follows, viz.: For huckstering, hawking, peddling * * * spices, teas, coffees, baking powders, flavoring extracts and essences, $10.00 for one week and $50.00 for one year; * * * for groceries not herein otherwise enumerated or especially provided for, $2.00 for one week, $5.00 for one month, and $25.00 for one year; * * * for jewelry, watches, clocks, silverware, watch chains and charms, chains, spectacles, eyeglasses, and optical instruments, $3.00 for one day and $15.00 for one week; * * * for all other articles of trade or commerce not herein enumerated or specially provided for, $1.00 for one day, $3.00 for one week, and $10.00 for one month, and $25.00 for one year: Provided, that no license shall be issued for any greater length of time than one year.”

Section 5 provides that the ordinance shall not apply to any farmer or gardener selling or offering for sale the product of his own farm or garden.

Section 6 provides:

“Any person or persons who shall go about from house to house or place to place, and sell or offer to sell any article of trade or commerce, to be delivered then or in the future, shall be deemed to be a hawker and peddler, within the meaning of this ordinance.”

The city of Muskegon has a special charter, conferring upon the common council, among other things, the following powers:

“ In addition to the other powers and duties herein conferred upon it, the council shall have power to enact, make, continue, establish, modify, amend, and repeal such ordinances, by-laws, and regulations as it may deem advisable within said city for the following purposes: * * * To license hucksters, peddlers, * * * in the business of hawking and peddling, and to regulate and license the sale of [ by] peddling (directly or by canvassing for subscription ) of goods, wares, merchandise, refreshments, or any'kind of property or thing, by persons going about from place to place in the city for that purpose, or from any stand, cart, vehicle, or other device in the streets, highways, or in and upon the wharves, open places or spaces, stores, offices, and business blocks and places, public grounds or buildings in said city.” Act No. 469, Local Acts 1895, tit. 7, § 24.

The objections presented to the validity of this ordinance, as stated by counsel, are:

“1. The common council has no authority to license the soliciting of orders for future delivery of goods, wares, and merchandise, or the subsequent delivery of goods, etc., so ordered.
‘ ‘ 2. The license fee fixed by the ordinance for spices, teas, coffees, baking powders, flavoring extracts and essences is excessive, unjust, oppressive, and in restraint of trade. It amounts to a tax, and not a license fee.
“3. The ordinance as a whole is unreasonable, and not uniform.
“4. The license fees as fixed by the ordinance discriminate between trades and between the same general class of goods, and is void for such discrimination.
“5. As applied to the case at bar, the ordinance, even if valid, is inoperative, being in restraint of interstate commerce.”

Counsel cites a great many cases in support of these objections. It must be conceded that the authorities are not uniform, but the questions involved are not new in this State. The validity of an ordinance much like this is sustained in People v. Sawyer, 106 Mich. 428 (64 N. W. 333), and the cases therein cited. The following Michigan cases are also in point: City of Grand Rapids v. Braudy, 105 Mich. 670 (64 N. W. 29, 32 L. R. A. 116, 55 Am. St. Rep. 472); City of Grand Rapids v. Norman, 110 Mich. 544 (68 N. W. 269); People v. Baker, 115 Mich. 199 (73 N. W. 115); People v. Hotchkiss, 118 Mich. 59 (76 N. W. 142); People v. Blom, 120 Mich. 45 (78 N. W. 1015); Spanish Fork City v. Mortensen, 7 Utah, 33 (24 Pac. 620). See, also, Saulsbury v. State, 43 Tex. Cr. Rep. 90 (63 S. W. 568), for an instructive discussion.

Counsel says this court has held such an ordinance invalid, as in contravention of interstate commerce; citing People v. Bunker, 128 Mich. 160 (87 N. W. 90). We think the cases quite unlike. In the case cited, Mr. Bunker solicited orders for knives, which orders he forwarded to his employer in another State, and the employer made the delivery to the customer. In the case at bar the orders were taken by respondent. They were not sent out of the State, and they were not in fact filled by any one except the respondent. The house at Grand Rapids did not know what customers respondent had, or their names. The respondent ordered sufficient goods to fill his orders, and then filled them himself. This would also differentiate the case from the ordinary drummer or traveling man who takes orders and forwards them to the firm or employer he represents, and the employer causes , the goods to be delivered to the customer.

The verdict is affirmed, and the case will be remanded for sentence.

The other J ustices concurred.


author: Montgomery, J.

text:
    NEAL v. MORSE.
    Game and Pish Laws — Destruction of Nets.
    A docket entry by a justice, showing that a defendant pleaded guilty to a charge of violating a statute in fishing in a certain river, but which does not show any trial of the question as to whether certain nets seized were in unlawful use, and should be destroyed, in compliance with the provisions of 2 Comp. Laws, §§ 5754, 5755, does not authorize an order confiscating the nets.
    Error to Bay; Shepard, J.
    Submitted April 9, 1903.
    (Docket No. 12.)
    Decided July 14, 1903.
    Case by John Neal against Grant M. Morse, State game and fish warden, and Theodore Trudell, deputy warden, for the illegal destruction of certain nets. From a judgment for plaintiff, defendants bring error.
    Affirmed.

      Horace M. Oren, Attorney General (George 8. Laiv, of counsel), for appellants.

      Porter & Haffey (John E. Simonson, of counsel), for appellee.
   Montgomery, J.

The defendants are respectively State game and fish warden and deputy. The deputy seized certain pound nets in possession of the plaintiff, and, by direction of the warden, destroyed tbe same. This action is brought to recover the value of these nets. The plaintiff recovered, and the defendants bring error.

The question presented is whether a judgment had passed authorizing the defendants to destroy these nets. If any such judgment was passed by a court having jurisdiction of the matter, appellants’ counsel are entirely right in their contention that such j udgment cannot be attacked collaterally. The statute in question is Act No. 28 of the Public Acts of 1887, as amended by Act No. 110 of the Public Acts of 1893, being sections 5754 and 5755 of the Compiled Laws of 1897. These sections were before the court for construction in Osborn v. Charlevoix Circuit Judge, 114 Mich. 655 (72 N. W. 982). We held in that case that the act in question authorizes the seizure of the nets in unlawful use, and contemplates a trial of the question as to whether they have been taken in unlawful use, and as to whether they should be condemned, in the same proceeding in which the offender is tried for an infraction of the law. We held also that the law does not declare that property found in illegal use shall be forfeited, but that it does authorize destruction of such property within the discretion of the justice who tries the offender, and that this manifestly requires a judicial determination by the justice of the illegal use, and a discretion as to the disposition of the property.

In the present case the docket entry of the justice reads as follows:

The People of the State of Michigan vs. John Neal. Offense, violation of fish and game laws. Complaint in writing made October 17th, A. D. 1901, by Theodore Trudell, on oath, and warrant issued returnable forthwith. Warrant returned October 18th, A. D. 1901, duly served, by Joseph W. Hutchinson, constable, and defendant in court. Defendant, John Neal, arraigned in open court, pleaded guilty to the charge set forth in said complaint as recited in said warrant of arrest, which was read to him by me, the said justice, Charles P. Craw. On which day, after hearing the evidence, the court finds that the said John Neal was guilty as charged in said complaint, and I did therefore adjudge and determine that the said John Neal should pay a fine of $8.00 and costs, and pound nets seized from said John Neal by said Theodore Trudell be condemned and confiscated, and ordered disposed of by the game and fish warden of this State. Fined $8.00. Constable’s costs, $9.00. Court costs, $3.00. Total, $20.00.”

It appears in evidence that there was a written complaint made against Neal charging him with a violation of the statute in fishing in the Quanicassee river, and a warrant issued upon that complaint; that there was also on the day previous a so-called complaint for seizure, in which the complainant prayed that the pound nets be condemned and confiscated, but, so far as appears, no warrant was issued upon this complaint for seizure. There was an independent order of condemnation, not entered upon the docket, which, aside from certain technical defects, appears to have been based upon an ex parte examination under oath of the complainant, and does not indicate that any trial of the questions involved was had in any form; so that the only judgment upon which defendants can rely as a justification is that embodied in the docket entry. -

It may be further stated that this docket entry is not aided by proof of independent facts. On the contrary, the evidence indicates that no information was afforded the defendant that the question whether these nets should be condemned was being tried; although, as before stated, if the docket entry shows a valid judgment, that judgment may afford protection to the defendants in this collateral proceeding. But we are constrained to hold that, so far as the docket entry shows a condemnation and confiscation of the nets in question, the judgment is coram non judice. The judgment recital is that the defendant, Neal, was arraigned in open court, and pleaded guilty to the charge set forth in the complaint and warrant of arrest; that on the same day, after hearing the evidence, the court finds that the said John Neal is guilty as charged in said complaint; and proceeds:

“I did therefore adjudge and determine that the said John Neal should pay a fine of $8.00 and costs, and pound nets seized from said John Neal by said Theodore Trudell be condemned and confiscated, and ordered disposed of by the game and fish warden of this State.”

Without pausing to discuss the form of this judgment as to the order of disposal, the infirmity — which is manifest at a glance — is that there is nothing to indicate that the defendant in that proceeding had his day in court upon the question of whether these nets should be condemned. There is no pleading in the case, no complaint read to him, involving the question, he is not called upon to give evidence upon it, nor, so far as the record shows, was any evidence adduced by the people upon that subject.

We think that, upon the face of the judgment entry, the justice was without jurisdiction to render such a judgment. It follows that the judgment below should be affirmed, with costs.

The other Justices concurred.


text:
    GILSON v. CITY OF CADILLAC.
    1. Municipal Corporations — Defective Sidewalks — Instructions — Harmless Error.
    While an instruction that a city is bound to use all reasonable care and caution and supervision to keep its sidewalks in safe condition for travel is erroneous, the case will not be reversed where it appears that the jury were also told that the city was only required to keep its sidewalks in a condition reasonably safe for public travel, and not absolutely safe from accident.
    2. Personal Injuries — Measure of Damages — Married Women.
    A charge that a married woman may recover damages for all the consequences of a personal injury sustained by her, future as well as past, — bodily pain, nursing and medical attendance, personal inconvenience, sickness, mental suffering, disfigurement, and loss of time in the transaction of her own individual business, — is not open to the objection that it permits her to recover for loss of services which belong to her husband.
    8. Same — Medical Attendance.
    In an action by a married woman for personal injuries, she cannot recover for the services of a physician whom she did not employ.
    Error to Wexford; Chittenden, J.
    Submitted April 10, 1903.
    (Docket No. 16.)
    Decided July 14, 1903.
    Case by Lillie Gilson against the city of Cadillac for' personal injuries caused by a defective sidewalk. From a judgment for plaintiff, defendant brings error.
    Affirmed conditionally.

      Fred S. Lamb (E. Eugene Haskins, of counsel), for appellant.

      Sawyer & Bishop, for appellee.
   Moore, J.

This action was brought by the plaintiff, a married woman, to recover for personal injuries alleged to have been received by her on the 15th day of September, 1901, by reason of a defective sidewalk in the city of Cadillac. The case was tried by a jury, who gave her a substantial verdict. The case is brought here by writ of error.

There are many assignments of error, all of which have had our attention, but we deem it unnecessary to discuss all of them. Complaint is made of that portion’of the general charge reading as follows:

“The court instructs you further that the defendant corporation, the city of Cadillac, is bound by law to use all reasonable care and caution and supervision to keep its streets and sidewalks in safe condition for travel in the ordinary modes of traveling by night as well as by day, and, if it fails to do so, it is liable for injuries sustained in consequence of said failure, providing the party injured is herself exercising reasonable care and caution.”

This is not a correct statement of the law, but the judge gave other instructions in relation to that feature of the case. Among other things, he said:

“ If the jury believe from the evidence that the plaintiff was injured by reason of the defendant’s negligence in failing to keep its sidewalks in reasonably good repair, or negligently allowing the same to remain in an unsafe condition, as explained in these instructions, and without fault on her part that she has sustained damage, then the jury have a right to find for her.”
‘ The defendant requests the court to charge, and I do charge you, that the law only imposes upon the city the " duty to keep its sidewalks in a condition reasonably safe for public travel. The city is not an insurer against accident, nor is it required to make its walks absolutely safe from accident; and the fact of an injury to a person passing upon the walk is not, in and of itself, evidence that the walk was not reasonably safe and fit for public travel.”

We do not think the jury could have labored under any misapprehension as to the duty of the city.

Complaint is made of the following portion of the charge:

“I further instruct you that, in estimating the compensatory damages in cases of this character, all the consequences of the injury, future as well as past, are to be taken into consideration, including the bodily pain which is shown by the proofs to be reasonably certain to have naturally resulted from the injury.”

It is said the labor of the plaintiff belongs to her husband, that inability to labor was a consequence of the -injury, and for this the plaintiff was not entitled to recover damages. To understand the effect of the charge, more than a few isolated sentences should be read. Immediately following the excerpt given above, and as part thereof, the court said:

‘ ‘The injured party, when entitled to recover, should be awarded compensation for all the injuries, past and prospective. These are intended to include and embrace indemnity for actual nursing and medical expenses which were paid by the plaintiff. The elements of damages which the jury are entitled to take into account consist of all the effects of the injury complained of, consisting of personal inconvenience, the sickness which the plaintiff has endured, all bodily and mental suffering, the disfigurement or permanent annoyance which is liable to be caused by the deformity resulting from the injury; and, in considering what would be a just sum in compensation for the suffering from the injury, the jury are not only at liberty to consider the bodily pain, but the mental suffering, anxiety, and suspense, which may be treated as elements of the injury, for which damages, by way of compensation, should be allowed. And all these last-mentioned elements of damage are, in their very nature, not susceptible of any precise or exact computation. The determination of the amount is committed to the judgment and good sense of the jury, and, if you find for the plaintiff, such sum should be awarded as will fairly and fully compensate her for all damages which she has sustained, consisting of the elements referred to, and not exceeding in amount the sum claimed in the declaration.”

The judge also charged the jury, after instructing them as to the circumstances which would entitle the plaintiff to recover:

“Then the jury have a right to find for her in such an amount of damage as they believe, from the evidence, will compensate her for the personal injury she has sustained, and for her loss of time in the transaction of her own individual business, and in endeavoring to be cured of her injury, so far as that expense has been borne by Her individually, and any such loss and expense as has been sustained and paid by her or incurred by her, for all pain and suffering which she has already endured, and which she may endure hereafter, and for any permanent injury that is sustained, if the proofs are sufficient to convince this jury that her injury is permanent.”

"We think the jury were given to understand very clearly that it was only for loss of time in connection with her own business she was entitled to recover.

The husband, after the injury, called a Dr. Ralston, ' who later called in a Dr. McMullen, who procured a brace for the plaintiff, and who charged her, for the brace and his treatment, $50. It is said this is an improper charge, as the plaintiff is a married woman living with her husband. The plaintiff testified, among other things:

“ I was perfectly sound before I was hurt. I hád no malady or disease. My ankle was perfectly well. I am a housekeeper. I do most of my own work, though I never have to fetch any wood or anything of that kind. I have two little girls. I kept a hired girl four weeks after the accident. I paid for it. It was my money. Dr. McMullen got the brace on my limb for me. I haven’t got it paid for. I purchased the brace. I ordered the brace. It cost $10.”

The doctor testified about his being called into the case, and the treatment he gave her, and further testified:

“I believe the injury is permanent, so far as present conditions are concerned. I believe it is a condition that will always exist. I had a bill for my services. I charged it to Mrs. Gilson. The treatment and brace I got for her was $50.”

Upon cross-examination by defendant’s counsel, witness testified as follows:

4 ‘ Q. How did you come to charge it to her ?
“A. Well, she was the only one I met over there, and I naturally concluded, after I heard her statement, that the city, in all probability, would have to pay that bill, and therefore I charged it to her.
44 Q. Has she paid it ?
“A. No, sir.
41 Q. Has she paid any part of it ?
“A. No, sir.
44 Q. Now, was that the only reason that you know of why you charged it to her ?
A. That is the only reason I had.”

In Campbell v. White, 22 Mich. 178, it was held that a wife living with her husband could be held liable for necessaries used by the members of the husband’s family. To the same effect is Howe v. North, 69 Mich. 272 (37 N. W. 213). In Fafeyta v. McGoldrick, 79 Mich. 360 (44 N. W. 617), it was held that a married woman residing with her husband may make herself liable for a suit of clothes purchased for her minor son. To the same effect are Hirshfield v. Waldron, 83 Mich. 116 (47 N. W. 239); First Commercial Bank of Pontiac v. Newton, 117 Mich. 433 (75 N. W. 934). In Wolcott v. Patterson, 100 Mich. 227 (58 N. W. 1006, 24 L. R. A. 629, 43 Am. St. Rep. 456), it was held that a married woman may make herself chargeable with the value of the services rendered by an attorney in a divorce suit brought by her. The court said, among other things:

“It has also been held in this State that a married woman is competent to assert her rights either as plaintiff or defendant, and, where a suit is brought against her as defendant, is bound to do so. Wilson v. Coolidge, 42 Mich. 112 (3 N. W. 285). It would seem to follow logically that, having the power to bring suit, and being in such suit responsible for costs, she must be held competent to contract for the services of an attorney to represent her rights. We think the right to contract for such services is necessarily incident to and included in her right to bring suit.”

In Goodman v. Shipley, 105 Mich. 439 (63 N. W. 412), it was held that a married woman may make herself liable for services and medicines furnished to her and her minor daughter by a physician. See Lammiman v. Railway Co., 112 Mich. 602 (71 N. W. 153).

In cases of this character the authorities are uniform that the wife may recover for any illness which follows as the result of such injury. It would be strange indeed if she might not employ a physician to shorten the term of such illness.

In this case, while the record discloses that the plaintiff purchased the brace, it does not show that she employed the physician and agreed to pay him. Had she done so, we think it would have been a proper item for which she could have recovered damages. From the charge of $50, made by the doctor for the brace he furnished and his services, should be deducted the purchase price of the brace, $10, leaving $40, which is improperly included in the judgment. In case the plaintiff, within 20 days, remits the $40, the judgment as to the balance will be affirmed; otherwise the judgment will be reversed, and a new trial ordered. Neither party will recover costs.

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