text:
    BOCKES v. A. McAFEE & SON CO.
    1. Damages — Trespass—Standing Timber — Logs and Logging.
    In trespass for cutting growing timber, that was in part too small to have a market value, the damages were properly-determined by the trial court hearing the cause without a jury, on the basis of the damage to the freehold, taking into consideration the value of the merchantable timber cut and the decrease in value caused by cutting the small timber.
    2. Same — Treble Damages — Statutes.
    On a record showing that trespassers on timber lands went over the land three years previously, and that the evidence was conflicting as to their intent and want of care in determining the correct boundaries, the trial court was justified in trebling the damages under 3 Comp. Laws, §§ 11204, 11205.
    Error to Kalkaska; Lamb, J.
    Submitted January 18, 1911.
    (Docket No. 105.)
    Decided March 13, 1911.
    Trespass guare clausum fregit by William H. Bockes and Charles E. Mahan against A. McAfee & Son Co. Judgment for plaintiffs. Defendant brings error.
    Affirmed.

      I. C. Wheeler, for appellant.

      Chauncey C. Jencks, for appellees.
   Moore, J.

This is an action of trespass guare clausum fregit brought by the plaintiffs. The attached plat will aid in understanding the situation.

The declaration contained two counts. One was the ordinary count in trespass, and the other count under the statute. The plea was the general issue. This case was tried by the court without a jury. The findings of the trial judge important to mention are as follows:

“ (2) Some time during the fall or summer of 1908, the defendant, A. McAfee & Son Company, a corporation, by its agents and employés, and without any right, title, or interest in said land, and without leave or license, and without the knowledge or consent of the plaintiffs, entered upon the aforesaid land and cut and removed therefrom
from 223 to 240 thrifty young growing trees, principally tamarack and cedar, with a smaller quantity of other varieties-pine, black ash, balsam, etc. About 200 ofsaid trees ranged in size from 4 inches to 14 inches (averaging about 7 or 8 inches) in diameter, at the butt, while the remainder were from 2 inches to 4 inches in diameter.
“(3) I find the actual stumpage value of the timber cut and removed from said land, which was large enough to be of any value for logs, to be the sum of $12.69, being $5 per 1,000 feet for 2,538 feet.
“ (4) The plaintiffs are now, and for many years last past have been, engaged in the business of buying, selling, and handling timber and timber lands, and have invested to some extent in lands upon which there is thrifty young timber growing, for the purpose of holding the same for future profits from the growth and advance in price of such timber. The land in question here was purchased by them and held for this purpose, and is of no great value for any other purpose. I find the damage to the freehold, independent of the value of the timber cut, to be the sum of $25. * ' * *
“ (9) I find the damage to the freehold by reason of the cutting of said timber and the removal of the same to be the sum of $37.69, including the value of the timber cut and removed.
“(10) I find that the trespass in question was due to the failure on the part of the defendant to take proper measures to guard the rights of the plaintiffs. The testimony fails to show that the defendant made any effort to correctly determine the boundary lines in question until after its attention had been called to the trespass. Its action in deliberately going upon the land in question, without knowledge or having good reason for believing it was on its own land, indicates a wanton disregard for the rights of the plaintiffs. The trespass was not casual and involuntary.”
“ Conclusions of Law.
“1. Under the statute on which this suit is brought, the measure of damages is the injury to the freehold, and that injury is not determined alone by the value of the timber cut and removed.
“2. Where a trespass is committed by the subordinate employés of a corporation, the doctrine of respondeat superior applies to the corporation.
“3. The burden of proof to show that the trespass was casual and involuntary is upon the defendant, and it has not been sustained in this case.”

Counsel say this case presents to the court for determination two questions:

“(1) The legality of the rule adopted by the plaintiffs in fixing the amount of damage sustained by them by reason of defendant’s trespass, viz.: They claim they were entitled to damages based upon future profits which might accrue by holding the land and timber for a supposed increase in the growth and value of the timber, without regard to its present value.
“(2) Whether or not the trespass was casual and involuntary, and whether or not the damages should be trebled.”

Did the court err in reaching the amount of actual damages found by him? It was conceded that defendant had committed the trespass. There was testimony as to the number of trees which were cut and their sizes, and the stumpage value of those trees which were large enough to have stumpage value. The testimony disclosed that many of the trees were so small as to have no stump-age value, but they were young and thrifty. There was testimony to the effect that plaintiffs bought the land because of this young growing timber, to hold the land as an investment. There was testimony to the effect that the land was damaged, to one who was holding it as an investment, to the the extent of $50 to $75 by reason of the cutting of the young trees.

In 4 Sutherland on Damages (3d Ed.), p. 2980, in discussing the liability for cutting trees, the author says:

"The plaintiff may adopt the value of the timber as the measure of his damages, but is not obliged to do so; if the injury to the land exceeds the value of the timber, or, in other words, if the trees were worth more standing, he may recover their value as part of the land. Hogeboom,, J., forcibly said:
“ ‘Surely the damage would not be in all cases accurately measured by the market value of the wood or timber when cut. The , trees might be a highly valuable appendage to the farm for pur-1 poses of shade or ornament; there might be a very scanty supply for a farm of that size; or for other reasons they might have a special value as connected with the farm, altogether independent of, and superior to, their intrinsic value for purposes of building or fuel. As well might you remove the columns which supported the roof or some part of the superstructure of a splendid mansion, and limit the owner in damages to the value of these columns as timber or cord wood, as to adopt the parallel rule in this case.’
"The damages for the loss of trees are not to be estimated solely with reference to the tract of land on which they were growing, that being a part of the farm of the plaintiff, though the tract was separated from the remainder of the farm by a railroad. It was observed by the writer of the opinion that each part of the farm appears to have sustained some relation to the other part. The grove, doubtless, was designed to make the farm more habitable. If it had any value, we infer it consisted principally in the fact that it furnished shade and was a windbreak, and perhaps was ornamental, and so added somewhat to the value of the farm in its entirety.”

In Isle Royale Mining Co. v. Hertin, 37 Mich. 332, on page 337 (26 Am. Rep. 520), Justice Cooley, who delivered the opinion, said:

The trees are not only susceptible of being traced and identified in the wood, but the difference in value between the two is not so great but that it is conceivable the owner may have preferred the trees standing to the wood cut. The cord wood has a higher market value, but the owner may have chosen not to cut it, expecting to make some other use of the trees than for fuel, or anticipating a considerable rise in value, if they were allowed to grow. It cannot be assumed as a rule that a man prefers his trees cut into cord wood rather than left standing, and if his right to leave them uncut is interfered with even by mistake, it is manifestly just that the consequences should fall upon the person committing the mistake, and not upon him.”

In Gates v. Comstock, 113 Mich. 127 (71 N. W. 515), it was held, in a case where testimony had been given of the value of the real estate, both before and after the trespass, that the jury might consider the value of the stumpage as throwing some light upon the injury to the freehold. We think the testimony was admissible as bearing upon the amount of the damages to the freehold., and that there was testimony tending to establish the amount of the actual damages as found by the trial judge.

Did the court err in granting treble damages ? The right to treble damages for the cutting of - the trees is clearly given by section 11204, 3 Comp. Laws. The following section provides that only single damages shall be assessed, if on the trial it shall appear that the trespass was casual and involuntary, or that the defendant had probable cause to believe the land was its own. In this case the trial was in open court. Mr. McAfee, of the defendant company, was a witness. His testimony discloses that he was. over the land three years before the trespass. The plat showing the shape of the land upon which the trespass was committed was before the court. Many witnesses were-sworn as to the line and as to what occurred. We do not think it clear that the court should have determined that defendant brought itself within section 11205, 3 Comp. Laws. See Congdon v. Bailey, 121 Mich. 570 (80 N. W. 369), and the many cases there cited.

Judgment is affirmed.

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


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    DYKSTRA v. GRAND RAPIDS, GRAND HAVEN & MUSKEGON RAILWAY CO.
    1. Carriers — Street Railroads — Alighting prom Car — Negligence — Personal Injuries.
    Where plaintiff’s declaration alleged that she was thrown from the step of defendant’s car while in the act of alighting, before she had sufficient time to alight, by the negligent starting of the car, evidence that the car jerked and threw her to the ground from the first step of the platform on which she was standing preparatory to alighting, was not a material variance.

    2. Same.
    The case is not governed by the rule claimed by defendant’s attorneys to govern, that a sudden jerk of the car while the passenger was on the car or platform is not negligence, unless the movement of the car was unusual.
    8. Appeal and Error — New Trial — Exceptions.'
    A motion for a new trial cannot be relied on to save a point on the trial not covered by an exception; although the circuit judge has discretion to grant the motion on such ground.
    4. Trial — Special Questions — Controlling Character.
    It was not error to refuse to submit to the jury a special question as to whether or not the conductor cautioned plaintiff to wait until the usual stopping place was reached before alighting, since the point was not controlling.
    5. Same — Argument.
    Plaintiff’s attorneys were not in error in commenting during their argument on the failure of defendant to call its timekeeper or other employés to contradict plaintiff’s statement that the car was late.
    6. Evidence — Personal Injuries — Carriers.
    Plaintiff’s testimony that bending over while she was at work or getting out of a natural position induced pain, was competent, in an action for personal injuries.

      Error to Muskegon; Sessions, J.
    Submitted February 14, 1911.
    (Docket No. 53.)
    Decided March 13, 1911.
    Case by Mary Dykstra against the Grand Rapids, Grand Haven & Muskegon Railway Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Carroll, Kirwin & Hollway, for appellant.

      Cross, Vanderwerp, Foote & Ross, for appellee.

       Starting street car before passenger has alighted, see note in 4 L. R. A. (N. S.) 140; and note in 11 L. R. A. (N. S.) 140.

   Hooker, J.

Mary Dykstra, the plaintiff, recovered a judgment against the defendant, a suburban railway company, in an action for negligence in starting its car, whereby she was thrown to the pavement and injured. The declaration alleges that:

“And plaintiff avers that, when said car arrived and stopped at Washington avenue, said plaintiff arose from her seat, carrying her purse in her left hand, and walked to the rear end of said car for the purpose of alighting therefrom, and, while in the act of alighting from the rear platform of said car as aforesaid, without any fault or negligence on her part, and while standing upon the steps thereof, and while in the act of alighting therefrom, the said company, by its agents, servants, and employés, carelessly and negligently started said car before this plaintiff had sufficient time to alight, and by means thereof plaintiff was jerked and thrown violently to the ground, and she was greatly injured thereby.”

Plaintiff testified that:

“The car stopped before I left my seat, and I went to the back end of the car to get off. When I got to the back door, he told me he could not help me off, so I went on myself, and got to the first step, and he rung the bell as I was on the first step, and he motioned for me to get off and with the back of his hand, and I was shoved off the car, and that is what made me fall that way and hurt me and injured my spine. The car stopped before I started to leave the car, and the conductor was standing on the back platform of the car. I noticed his hands. They were black with dirt and grease, and he said, I can’t help you because my hands are dirty,’and he showed me his hands. At that time the car was standing still. I carried my coat and hand bag, which is about so large (indicating), and it had a handle to it. If I am not mistaken, there were three steps to that car. After the car was stopped, while he stood there, I got off. Yes, that is, I was on the first step; I didn’t walk the rest of the steps, I fell off. When he spoke to me I walked right off on the step. I took hold of the bar on the car or the handle which was located on both sides of the car and is a part of the car. I got off the side of the car which is toward Peck street, which was the right side of the car coming towards the city. I used my right hand to take hold of the handle or bar, and after I stepped down on the first step the conductor did not say anything more to me. I saw him at that time put his hand to the bell rope, and I heard the bell ring. By the first step, I mean the one next to the top, the one below the platform. The car started right after he rung the bell. I could not keep myself from being jerked out there.”

Also:

“After the car stopped, the car was 8 or 10 feet past the corner, and then I left my seat. I did not leave the car until it stopped, and I did not leave my seat before the car came to a full stop, and then I started for the rear platform. I noticed several passengers as I passed them in reaching the rear platform, but I can’t tell who they were. The conductor was on the rear platform facing the interior of the car and the motorman was in the vestibule in the front of the car. I went out on the back platform, and the conductor says: ‘ Now, I won’t be able to help you because my hands are dirty,’ which is the first thing he said. He showed me his hands as I approached the rear platform down the aisle of the car, and then I went down the steps, took one step. While I was taking that step he rang the bell, and the jerk of the car threw me to the pavement. The bell must have been somewhere near the platform; I don’t know just where, but I think it was over his head. It must have been there. I will swear I heard a bell over his head on the rear end of the car.”

Also:

“ The hind steps of the car stopped at the same place where I fell, and the car did not move 8 or 10 feet from the point where I fell. I did not step further down the steps than the first step, but just took one step. I had a hold of the rear handle of the car when it was. moving. I fell while I was standing there. I wasn’t turned at all when I fell; I was just as if I was sitting here. I had a hold of the car that way, and it jerked me that way, pushing me forwards, causing me to fall off on my left side. When I was standing there, the car was moving, and it stopped just about the same place where I fell. It had stopped when I fell. It did not stop after I fell; it went right on.”

The trial judge refused to direct a verdict for defendant at the close of plaintiff’s proofs, and error is assigned upon this refusal.

It is contended that there was a variance between the declaration and proofs for the reason that:

“Starting a car while the passenger is in the act of alighting, without allowing sufficient time to alight, is a different.cause of action from that of causing a jerk of the car while the passenger is aboard the car or platform thereof and in a place of safety, and the injury would not have occurred had it not been for such movement of the car.”

We are of the opinion that the declaration justified the proof offered, and that the contention that:

“But if the variance was not sufficient to justify the court in granting said motion, and even if plaintiff’s theory of this accident be adopted, then we submit that the general rule that a carrier must allow a sufficient time for a passenger to get on or off a car before starting or stopping has no application whatever to the facts of this case, but rather that this case is governed by an equally well-established rule that the mere fact that the car started with a sudden movement or jerk, and that a passenger while on the car or platform was hurt by reason of such, does not make out a case of negligence in the manner of starting the car, but the proofs must go further and show that the start was unusually sudden or violent, which was not done in the case at bar ” — should not be sustained.

Her declaration indicates that, the car being at rest, she started to alight, hut that the car was started when it ought not to have been, and the effect was to throw her or jerk her from the car. Her testimony tends to sustain this combination of circumstances: Neither the declaration nor the proof asserts that the accident was due solely to a premature starting of the car or to an improper method of starting. The plaintiff’s testimony was disputed, and the jury might have found from the testimony that she was not jerked from the car; but the testimony to that effect was not so overwhelming as to warrant the granting of a new trial on that ground.

Five questions were presented to the court with a request that they be submitted to the jury for special findings, among them the following:

“ (8) Was the plaintiff before she alighted cautioned by the conductor, or in substance told to wait till the car stopped or until the usual stopping place was reached?”

The following were submitted and answered:

“(1) Did the plaintiff get off the car before it stopped ? No.
“ (2) Was the car at a full stop before the plaintiff stepped or fell from the car ? Yes.
“(4) Was the car in motion the instant the plaintiff attempted to alight from the car ? Yes.
“(9) Could the plaintiff have fallen or been thrown from the step on which she was standing solely by reason of a jolt or jerk of the car forward ? Yes.”

We do not discover that it is claimed that any exception was taken to the refusal to submit question 8. A motion for new trial cannot be relied on to save a point on the trial not covered by an exception taken during the trial, as we held in the case of Conger v. Hall, 158 Mich. 448 (122 N. W. 1073). It is doubtless within the discretion of the circuit judge to grant a new trial on such a ground. We do not rest the decision of this point upon the foregoing reason. We think the learned circuit judge was right in saying that this question was not a controlling one, and refusing to submit it for that reason.

The remark in the argument of the plaintiff’s counsel that defendant had omitted to call its timekeeper or other witnesses to- contradict the plaintiff’s statement that the car was late was not error: (1) Because it is proper in a civil case to comment on the omission of an adverse party to call witnesses in its employ upon a subject peculiarly within their knowledge; and (2) because the question whether the train was late was of no importance in the case.

It was not error to allow plaintiff to testify that “bending over while at work or getting out of a natural position induced pain and suffering.”

The cause was well and fairly tried, and we have found nothing of which defendant has cause to complain.

The judgment is affirmed.

Moore, MoAlvay, Brooke, and Blair, JJ., concurred.


author: Brooke, J.

text:
    ALLEN v. PATRONS’ MUTUAL FIRE INSURANCE COMPANY OF MICHIGAN, LIMITED.
    1. Insurance — Mutual Fire Insurance Associations — Benefit Policy — Conditions Precedent to Action.
    Insured, under the provisions of a mutual policy, of which the articles of association of the company were a part, requiring the insured to refer the matter to a board of arbitration within the society, must, as a condition precedent to his right of action, exhaust the remedies within the order.

      2. Same — Canceled Policy — Liability for Loss.
    In an action brought on a policy of insurance issued under insured’s first application, but succeeded by a second policy, issued by the association in pursuance of his second application, on the day before the fire, when the first policy was canceled on the books of the association, the second not being received by the insured until several weeks after, his remedy is on the second policy, not on the first, under which he had not exhausted his remedies within the order.
    3. Same — Judgment—Costs.
    A judgment conditioned upon plaintiff’s acceptance is ordered to be entered for plaintiff for the amount of loss under the second policy, whereon defendant admitted liability; but costs of both courts are awarded to defendant.
    Error to Arenac; Sharpe, J.
    Submitted February 6, 1911.
    (Docket No. 131.)
    Decided March 13, 1911.
    Assumpsit by George Allen against the Patrons’ Mutual Fire Insurance Company of Michigan, Limited, on a policy of insurance. A judgment for plaintiff on a verdict directed by the court is reviewed by defendant on writ of error.
    Reversed and judgment reduced.

      G. C. Leibrand and E. C. Chapin, for appellant.

      B. J. Henderson, for appellee.
    On October 16, 1908, plaintiff made application for insurance in defendant company, and on October 19, 1908, policy No. 9,747 was issued and delivered to him. By the terms of this policy the value of plaintiff’s bam was fixed at $800, and the amount of the insurance thereon at $500. The insurance upon the contents thereof was fixed at $200. On July 31, 1909, the property of the plaintiff was reinspected by the defendant, and plaintiff made a second application. In this application the value of the bam was placed at $550, and insurance thereon was requested in the sum of $250. Insurance upon the contents of the barn was asked in the sum of $400. A second policy (No. 12,276) was written on this application, in which the values and insurance of the barn and contents conform to the application. This policy bears date August 19, 1909, and the books of defendant company show a cancellation of the former policy upon that day. The record does not disclose upon what day the new policy was mailed to plaintiff, but he admits having received it on September 10, 1909. In the meantime and on August 20th, plaintiff’s barn and the contents thereof were destroyed by fire. Within two or three days after the fire, plaintiff notified John Donnelly, local director of the grange, of his loss. On September 23, 1909, plaintiff signed and swore to a notice of loss addressed to defendant, in which appears the following:
    “You are hereby notified of loss by fire, lightning, of the property hereinafter described, and insured in your company under policy No. 12276, said loss occurring- on the 20th day of August, 1909.”
    Upon the same day, the adjusting board made the following report:
    “Blank for Adjusting Loss.
    “ Sterling, Mich., September 23, 1909.
    “The undersigned members of adjusting board appointed to adjust the loss of George Allen insured in the Patrons’ Mutual Fire Insurance Company of Michigan, Limited, under policy No. 12276 submit the following statement of same:
    “ Cause of loss, unknown.
    “Date of loss, August 20, 1909.
    “The property destroyed was owned as follows: By George Allen. There was no other insurance, except— none.
    “The property destroyed was insured in the Patrons’ Mutual Fire Insurance Company of Michigan, Limited, as follows: Barn No. 1, $250. Contents, $400.
    “The loser’s dues were paid in Melita Grange, No. 1096, at time of loss to the 31st day of December, 1909.
    "The property loss was situate on Sec. 29, township of Clayton, county of Arenac.
    Loss on real........$650 00 Liability of company.-$250 00
    Loss on personal... 263 90 Liability of company.. 197 92
    Total loss.......... 813 90 Liability of company.. 447 92

      “Remarks: We think the barn was worth $550 and believe that Bro. Beaver gave $350 as the amount insured by him to Bro. Allen.
    “ This adjustment is subject to modification by the Secretary to make it conform to the rules and practices of the Company.
    [Signed] “Adjusting Board,
    “Peter Gilbert,
    “Albert Christie,
    “John Donnelly.
    “I hereby accept this adjustment as satisfactory to me.
    “........................, Loser.”
    Plaintiff refused to accept this adjustment, for the reason that it was claimed by him that his application should have been (and when he signed it he believed it was) for $350, instead of $250, insurance upon the barn. He was satisfied with the adjustment so far as it related to personal property. No claim was ever made by the plaintiff against defendant for9Ioss under the old policy (No. 9,747), though this suit is based upon an alleged liability thereunder.
    The policy contract provides that the articles of association of defendant are a part of the contract of insurance. Those articles contain the following:
    “In case of a loss the president and the secretary shall select three persons to serve as an adjusting board, one member of which shall be from the grange to which the losing member belongs, and one from the board of directors, and the other one from an adjoining or nearby grange; the duties of which board shall be to adjust the loss, except as hereinafter provided. In case the loser of the property is not satisfied with the amounts or valuations, in whole or in part, fixed by said adjusting board, he shall appeal to the board of arbitration, which board shall consist of the president and secretary and a member of the local grange to be selected by them. Said board shall try, hear and decide upon the justice and validity of such claim, and such decision shall be final and binding upon such claimant and such company, and no suit at law or equity shall be commenced or maintained by any such loser or beneficiary to fix such amounts or valuations. The expense of such appeal and of the arbitration board shall be borne equally by the party appealing and the company.”
    After plaintiff had been sworn and it became apparent that no claim had been made under the policy sued upon, and no adjustment made thereunder nor appeal taken therefrom, as provided by the articles of association, defendant moved for a directed verdict, because plaintiff had failed to comply with the rules laid down by the articles of association, which motion was denied. At the close of the testimony, a second motion was made by defendant, upon the ground that, at the time of the fire, the second policy was in force and the first canceled. This motion was likewise denied. The court held, as a matter of law, that the first policy was in force and permitted the jury to fix the amount of plaintiff’s loss upon the barn thereunder. This loss was fixed by the jury at $500, which, together with the conceded loss upon personal property, $197.92, made up the verdict of $697.92. Defendant has removed the case to this court for review.

      Arbitration as condition precedent to action on insurance policy, see note in 15 L. R. A. (N. S.) 1055.

   Brooke, J.

(after stating the facts). Can plaintiff maintain his action upon a policy without first complying with the rules of the defendant association, of which he was a member ? Those regulations are plain and specific, and the right of the parties to contract with reference thereto is undoubted. The reasons which impel members of a mutual company to make such a contract with each other are obvious. It may be supposed that by reason thereof losses are settled more equitably and expeditiously and needless litigation avoided. Such contracts have been frequently upheld by this court. Van Poucke v. St. Vincent de Paul Society, 63 Mich. 378 (29 N. W. 863); Canfield v. Great Camp K. O. T. M., 87 Mich. 626 (49 N. W. 875, 13 L. R. A. 625, 24 Am. St. Rep. 186); Hembeau v. Great Camp K. O. T. M., 101 Mich. 161 (59 N. W. 417, 49 L. R. A. 592, 45 Am. St. Rep. 400); Fillmore v. Great Camp K. O. T. M., 103 Mich. 437 (61 N. W. 785); Raymond v. Insurance Co., 114 Mich. 386 (72 N. W. 254); Russell v. Benefit Association, 116 Mich. 699 (75 N. W. 137); Harris v. Typographical Union, 144 Mich. 422 (108 N. W. 362); Conley v. Supreme Court I. O. F., 158 Mich. 190 (122 N. W. 567); Larkin v. Modern Woodmen of America, 163 Mich. 670 (127 N. W. 786). If plaintiff had made his claim under policy No. 9747 (the policy under which he brought suit), an adjustment might have been reached satisfactory to both parties. At any rate, he cannot avail himself of his legal remedy until he has exhausted the remedy provided by the reasonable rules and regulations of his society.

Was policy No. 12,276 in force at the time of the fire ? The by-laws of defendant provide:

“Sec. 22. All policies shall be signed by the president and the secretary, and shall take effect at twelve o’clock noon on the day of the date of the issue of the policy.”

There is no dispute upon this record that the policy No. 12,276 was dated and signed August 19, 1909, the day before the fire. The records of the society, and they are not questioned, likewise show that the earlier policy was canceled on that day and the new policy put in force. This new policy was written and issued exactly in accordance with the terms of plaintiff’s application, dated July 31, 1909. Under these circumstances, and in the absence of any evidence of fraud or bad faith on the part of defendant, we think it is immaterial that plaintiff was not notified of the issuance of the new policy before the fire occurred and did not receive it until some three weeks after that event. If the second were the only policy, it could scarcely be contended by the company that it was not liable thereunder, because it had not reached the hands of the insured before the fire. It must be borne in mind that the defendant company has patrons in many widely separated localities, at a considerable distance' from the home office, which is located in Lansing. The rights of the parties cannot be made to depend upon the speed or sloth with which clerical work is performed in the home office, nor upon the frequency or infrequency of mail delivery. We conclude, therefore, that at the time of the fire the second policy was in force. Upon this point the,following authorities may be consulted: Dibble v. Assurance Co., 70 Mich. 1 (37 N. W. 704, 14 Am. St. Rep. 470); Mallory v. Insurance Co., 90 Mich. 112 (51 N. W. 188); Michigan Pipe Co. v. Insurance Co., 92 Mich. 482 (52 N. W. 1070, 20 L. R. A. 277), and cases cited; Lum v. Insurance Co., 104 Mich. 397 (62 N. W. 562).

Defendant does not deny its liability under the second policy. The loss under either policy, as to personal property, is the same and is agreed upon at $197.92. The liability of defendant under the second policy for loss upon the barn was limited to $250. These two sums aggregate $447.92. If plaintiff chooses to remit all in excess of this amount, judgment may be entered therefor; otherwise the judgment will be reversed, and a new trial ordered. In any event, defendant will recover costs of both courts.

Ostrander, C. J., and Bird, Blair, and Stone, JJ., concurred.


text:
    CHAMBERLAIN MEDICINE CO. v. VANDER VEEN.
    Justices of the Peace — Adjournments—Continuance without Showing of Cause.
    A justice of the peace loses jurisdiction of a case which he adjourns without a showing of cause on the part of the one moving for the adjournment, as required by 1 Comp. Laws, §791.

      Error to Ottawa; Padgham, J.
    Submitted February 8, 1911.
    (Docket No. 197.)
    Decided March 13, 1911.
    Assumpsit in justice’s court by the Chamberlain Medicine Company against Jacob Vander Veen and Claude E. Vander Veen. Plaintiff obtained a judgment, from which defendants appealed specially to the circuit court. A judgment for defendants is reviewed by plaintiff on writ of error.
    Affirmed.

      Peter J. Danhof and James J. Danhof, for appellant.

      Daniel F. Pagelsen, for appellees.
   Brooke, J.

This case was commenced in justice’s court by summons. The proceedings had on and after the return day are set out in the return of the justice as follows:

“ The cause was commenced by summons issued on the 11th day of April, A. D. 1910, returnable at my office in the city of Grand Haven, in said county, on the 19th day of April, 1910, aforesaid, at 8 o’clock in the forenoon, parties present in court by their respective attorneys. The plaintiff declared orally on the common counts in assumpsit, claiming damages in the sum of three hundred dollars, and filed order and bill as evidence under the statute, and declares also specially upon the order. The defendant appeared specially and moved to dismiss, because the plaintiff being a nonresident plaintiff, and no security for costs had been given at the time of the issuance of the summons. This motion was overruled by the court. Defendant then demanded security for costs. Pleaded the general issue, and gave notice of set-off. Plaintiff moved for an adjournment for one week, to which defendant objected, and stated that he was ready for trial. The motion of the plaintiff was granted by the court, and said cause was adjourned until the 26th day of April, 1910, at the same time and place. Peter J. Danhof was duly sworn as to his authority to appear on the behalf of the plaintiff in this cause. On the 26th day of April the said cause was called at 8 o’clock in the morning. Plaintiff was present by his attorney, Peter J. Danhof, who moved to have the cause adjourned one week, as the plaintiff had been absent and had not returned in time to get security for costs. Daniel F. Pagelsen, attorney for the defendant, present in court, and objected to the adjournment. The court sustained the motion of the plaintiff and adjourned the cause to the 3d day of May, A. D. 1910, at the same time and place. On the third day of May, 1910, the said cause was called at 8 o’clock in the forenoon. Plaintiff was present by his attorney, Peter J. Danhof. After waiting one hour and the defendant not appearing, I proceeded to trial. Peter J. Danhof being first duly sworn, testified on the behalf of the plaintiff and demanded a judgment in favor of the plaintiff and against the defendant in the sum of twenty-five dollars damages and costs of suit. After hearing all of the evidence, I forthwith rendered a judgment in favor of the plaintiff and against the defendant in the sum of twenty-five dollars damages and costs of suit, taxed at two and dollars; total, $27.90. And as to the matters and alleged errors stated and set forth in the affidavit to appeal in said cause hereunto annexed, I do further return that I did overrule a motion made by the attorney for the defendant to dismiss the said cause, because no security for costs had been given at the time of the issuance of the summons in this cause.
‘‘(2) That I granted to the plaintiff on a motion made by its attorney an adjornment for one week over the objections of the defendant.
“(3) That I refused to proceed to trial as demanded by the defendant.
“(4) That I granted an adjournment for one week on the application of the plaintiff without any showing on oath having been made by the plaintiff therefor, as required by the statute.
“(5) That I continued to exercise jurisdiction of said cause on the date to which said cause had been adjourned.
“(6) That I granted to the plaintiff a further adjournment of one week, over the objections of the defendant.
“(7) That I granted to the plaintiff an adjournment after the first adjournment, over the objections of the defendant, without any showing being made on oath by the plaintiff, as required by the statute.
“(8) That I did assume jurisdiction of the said cause and granted an adjournment to the plaintiff on the adjourned day.
“(9) That I claimed to have jurisdiction, received testimony, and rendered judgment after the cause had been twice adjourned, without any showing' on oath having been made at either time, to warrant such adjournment.
“(10) That I rendered a final judgment in said cause and entered the said judgment on my docket, but neither admit nor deny that I had no jurisdiction so to do.”

Defendants removed the case to the circuit court by special appeal, where the judgment of the justice’s court was reversed. Plaintiff has now, by writ of error, brought the case to this court for review.

There is but one question involved. Did the justice lose jurisdiction of the case by reason of the alleged irregularities of the adjournments of April 19 and 26, 1910 ? The law governing adjournments in justices’ courts will be found in section 791, 1 Comp. Laws.

The return of the justice shows conclusively that both adjournments were granted over the objections of defendants, and in the absence of any showing of necessity therefor, under oath, as required by statute. The unauthorized acts were sufficient to oust the justice of jurisdiction. Adams & Ford Co. v. Cullen, 159 Mich. 669 (124 N. W. 549), and cases there cited.

The judgment is affirmed.

Ostrander, C. J., and Bird, Blair, and Stone,.JJ., concurred.


author: Hooker, J. Blair, J.

text:
    TOWNSHIP OF ROSS v. MICHIGAN UNITED RAILWAYS CO.
    1. Mandamus — Railroads—Franchise—Municipal Corporations —Townships.
    Mandamus lies to compel an electric interurban railway corporation to conform to the provisions of its franchise in a township which imposed conditions relative to the rate of fares to be oharged. Hooker, Moore, Brooke, and Stone, JJ., dissenting.

    2. Same.
    That portion of the order of the circuit court commanding the company to stop its cars anywhere in a certain township on signal, where it appeared that eleven cars each way, called local cars, were accustomed to stop as required, but limited cars took on passengers at certain stations only, is vacated on the ground that the limitations of the franchise were not intended to apply to such limited service, which was not contemplated by the original franchise, and which was carried on by through cars to cities to which respondent had extended the line of railway built by the original grantee of the franchise rights.
    3. Same — Adequate Remedy — Railroad Commission.
    Whether or not the relator has a remedy before the railroad commission, it may enforce respondent’s legal duty by mandamus. Hooker, Moore, Brooke, and Stone, JJ., dissenting.
    4. Same — Injunction.
    And the relief granted does not operate solely as injunctive relief since it compels the respondent to observe the conditions of its franchise limiting the rate of fare. Hooker, Moore, Brooke, and Stone, JJ., dissenting.
    Certiorari to Kalamazoo; Smith (Clement), J., presiding.
    Submitted June 14, 1910.
    (Calendar No. 33,490.)
    Decided March 13, 1911.
    Mandamus by the township of Ross to compel the Michigan United Railways Company to observe the provisions of a franchise. An -order granting the writ is reviewed by respondent on certiorari.
    Modified.

      Samuel H. Van Horn (Boudeman, Adams & Weston, of counsel), for relator.

      Sanford W. Ladd (Alfred J. Mills, of counsel), for respondent.

       Right to enforce by mandamus duty of public-service corporation arising wholly from contract, see note in 13 L. R. A. (N. S.) 1084.

   Hooker, J.

The Michigan United Railways Company is a Michigan corporation. .It operates an electric railway and runs cars between Jackson and Kalamazoo. The relator is a township in Kalamazoo county through which respondent’s line passes. The village of Augusta is within the confines of said township territorially, but as we understand it is in no way governed by the township, nor is it any part of the township for political or municipal purposes. The railway occupies portions of the highway in said township and village, and of respondent’s cars there were 22 daily that were local cars, stopping at all points in the highway to take or leave passengers. The track through the township of Ross is a line built some years ago from Battle Creek to Kalamazoo by the Michigan Traetion Company, a corporation organized in and under the laws of the State in January, 1897. Its right to lay its track in and through Ross township and the village of Augusta and other townships along the highways and streets was acquired by obtaining the consent of the township and village boards to the building of the same. This consent was evidenced in each instance by a writing. Such writing contained the consent to the construction of the road through said township or village, and also the conditions upon which the consent was given.

The parties proceeded under the provisions of 2 Comp. Laws, § 6446:

“Any street railway corporation organized under the provisions of this act, may, with the consent of the corporate authorities of any city or village, given in and by an ordinance or ordinances duly enacted for that purpose, and under such rules, regulations, and conditions as in and by such ordinance or ordinances shall be prescribed, construct, use, maintain and own a street railway for the transportation of passengers, in and upon the lines of such streets and ways, in said city or village, as shall be designated and granted from time to time for that purpose, in the ordinance or ordinances granting such consent; but no such railway company shall construct any railway in the streets of any city or village until the company shall have accepted in writing the terms and conditions upon which they are permitted to use said streets; and any such company may extend, construct, use and maintain their road, in and along the streets or highways of any township adjacent to said city or village, upon such terms and conditions as may be agreed upon by the company and the township board of the township, which agreement and the acceptance by the company of the terms thereof, shall be recorded by the township clerk, in the records of his township. Any company organized under the provisions of this act may construct, use, maintain and own a street railway for the transportation of passengers, in and along the streets and highways of any township, upon such terms and conditions as may be agreed upon by the company and the township board of the township, which agreement and the acceptance by the company of the terms thereof, shall be recorded by the township clerk in the records of the township.”

This road became the property of respondent, which now operates a continuous line from Jackson to Kalamazoo, of which this road in the township and village aforesaid is a part. In its schedule it has provided for 11 cars each way between Jackson and Kalamazoo. These are local cars, stopping at any point upon a hail or request, and we understand that no complaint is made that in running these the respondent does not conform to the letter of the conditions imposed by the board of the township of Ross, the relator. In addition to these 11 local cars the respondent has provided for and has scheduled and runs five cars each way, called limited cars, which stop only at points designated by the respondent, either to receive or discharge passengers. All these cars run through between Jackson and Kalamazoo.

As we have already indicated, the village of Augusta is situate within the township of Ross, and the Michigan Traction Company laid its tracks through this village under the consent of the village board, and not under a consent given by the township board of Ross, which consent was expressly limited to lands within the said township outside of the village. This is perhaps unimportant, however. Bedford township lies east of and contiguous to the township of Ross, and its west line is about three miles east of the village of Augusta, and respondent’s line goes through this township. We understand that each of said townships and said village consented that a minimum fare of 5 cents might be charged by the traction company, and a fare not exceeding 2 cents a mile. It is upon the conditions imposed by the township of Ross that this case is planted. The respondent has been charging a 10-cent fare to passengers taking the. car in Bedford township and riding into the village of Augusta, although the distance is not four miles.

The writing evidencing the agreement between the township board of Ross township and the Michigan Traction Company contains the following provisions, which we state in substance:

(1) Permission to the Michigan Traction Company, its successors and assigns, to construct and use an electric street railway through and over certain designated highways in the township; the streets and highways within the limits of the village of Augusta not being included.

(2) “Seo. 14. Cars shall be operated on said road as the traffic demands and the business warrants, in case said company, its successors and assigns, should cease to operate cars on its said railway at any time after the same is constructed and should fail to so run said cars in the usual course of business fora period of fourteen (14) consecutive months, then this franchise hereby granted shall be null and void and said company, its successors and assigns shall forfeit all its rights hereunder. * * *

(3) “Seo 16. * * * The cars of said railway shall be ran as often as traffic demands and business warrants and said cars shall stop at any point along such line where they are hailed by people who desire to get on. * * *

(4) “Sec. 20. Said company, its successors and assigns, shall not charge more than two (2) cents per mile for each passenger carried, provided, however, that no single fare shall be less than five (5) cents.”

There are many other provisions in relation to the character, construction, location, and management of the road, and the condition in which the highways should be left and kept, which it is unnecessary to discuss.

There is no evidence deducible from the record in the case that the schedule of local trains did not reasonably comply with the provision of the writing, i. e., “ The cars of said railway shall be ran as often as traffic demands and business warrants.”

Application was made by the township board to the circuit court of Kalamazoo county for a mandamus:

(1) To compel the stopping of all cars on signal or request by passengers desiring to take or alight from cars.

(2) To restrain the charging of, i. e., commanding defendant to cease charging more than 2 cents a mile to passengers, where the sum charged equals or exceeds 5 cents, to cease operating said cars in Ross township at the rate of speed dangerous to the public, persons, teams, and stock, and to persons traveling in the defendant’s passenger cars within said township, and for further relief.

Counsel for respondent appear to have contended that:

(1) The court had no jurisdiction of the subject-matter, for the reason that the questions involved are within the jurisdiction of the railroad commissioners.

(2) If the court had jurisdiction, mandamus should be refused for the reasons: {a) That it is not a proper remedy; (&) being a discretionary remedy, it should not be applied in this case, because it would work an injustice.

(3) Upon the merits it was said that the writing does not by its terms preclude the running of the limited cars, or the right to charge a 10-cent fare to passengers boarding the car in Bedford and residing in Augusta.

The learned circuit judge held in substance:

(1) That if the Railroad Commission might act in such a case as this, the court also has jurisdiction to give relief or deny it in such cases as this.

(2) That mandamus is a proper remedy.

(3) That the agreement between the traction company and the relator was a contract, and the terms are plain and mean that all cars run “shall be stopped at any point along the line, where they are hailed by people who want to get on.”

(4) That any passenger taking a car in Ross township is entitled to ride as far as he chooses at a 2-cent rate with a 5-cent minimum.

The writ was granted:

(1) Compelling respondent to stop all cars on signal in Ross township.

(2) Compelling the stopping of all cars at any point in Ross township when a passenger should request it for the purpose of alighting.

(3) Commanding respondent not to charge residents of Ross township more than a rate of 2 cents per mile with a minimum fare of 5 cents.

The respondent has brought the proceeding here by writ of certiorari under our rules-, and the same questions are raised here.

There are two questions that can be said to be the merits of this case:

(1) Whether the relator should be permitted to compel the stopping of all cars upon signal or request.

(2) Whether the railroad company should charge more than 2 cents a mile, with one 5-cent minimum to passengers riding in parts of two townships.

Stopping Oars. There is no express provision of the accepted conditions, which requires the stopping of cars at all points along the line to let off passengers. There is an express provision that:

“The cars of said railway shall stop when hailed by people who desire to get on.”

Therefore, if we are to sustain the order of the circuit court in its entirety, we must hold that the obligation to stop for passengers desiring to alight must be inferred from the provision requiring a stop for passengers to board the car. Whatever the relations are between the township and company under the statute and the writing, and whether the latter constitutes a contract between them or not, and what remedies are open to individuals, the township, or the State, for noncompliance with the conditions, and whether the conditions should receive the construction claimed, need not be considered upon this question, for the reason that the remedy invoked here, i. e., mandamus, will not be granted where it will do an injustice.

It is fairly inferable from this record that the running 'of limited cars is in furtherance of a service demanded by, and convenient to, the general public and injurious to no one, and it not appearing that the 11 local cars each way were inadequate to supply the demands of traffic, there is little reason for compelling the crippling or destroying the limited service, if, indeed, it were necessary to hold that the strict terms of the writing require that all cars be stopped. Were the local service inadequate to comply with the condition, we might be called upon to deal with some of the questions indicated. But where, as in this case, the effort is made to enforce a condition strictly, and unnecessarily, and against the public interests, there is little reason for departing from the general rule that a mandamus being a discretionary writ, will be denied in such cases. We cite some of the cases supporting this rule: People v. City of East Saginaw, 33 Mich. 164; People v. Board of State Auditors, 42 Mich. 422 (4 N. W. 274); Lamphere v. A. O. U. W., 47 Mich. 429 (11 N. W. 268); Hale v. Risley, 69 Mich. 596 (37 N. W. 570); Durand v. Saginaw Circuit Judge, 76 Mich. 624 (43 N. W. 583); Tennant v. Crocker, 85 Mich. 328 (48 N. W. 577); MacKinnon v. Auditor General, 130 Mich. 552 (90 N. W. 329). In the latter case we held that:

“Mandamus is a discretionary writ, and will not issue unless it be made to appear that justice requires it.” Per . Moore, J.

In O’Brien v. Wayne Circuit Judge, 131 Mich. 67 (90 N. W. 680), we said the well-settled rule is that mandamus is a discretionary writ, and will not be granted where abstract justice does not require it. See, also, George N. Fletcher & Sons v. Alpena Circuit Judge, 136 Mich. 511 (99 N. W. 748); Board of Road Com’rs of Wayne County v. Board of Auditors, 148 Mich. 255 (111 N. W. 901). In New York Mortgage Co. v. Secretary of State, 150 Mich. 197 (114 N. W. 82), it was said:

“Mandamus is a discretionary writ which will not be awarded in all cases in which a prima facie legal right is shown, but will be withheld whenever the public interest would be injuriously affected by its issuance, or there is a doubt of its propriety.” Per McAlvay, J.

See cases there cited. Electric Park Amusement Co. v. Wayne Circuit Judge, 155 Mich. 640 (119 N. W. 1095). See Village of Excelsior v. Railway Co., 108 Minn. 407 (122 N. W. 486, 24 L. R. A. [N. S.] 1035), cited by counsel.

Fares. We are asked to issue a writ of mandamus “commanding respondent to cease charging” the people of Ross township, in excess of 2 cents per mile, with a 5-cent .minimum rate for each passenger carried by defendant on its passenger cars. If the statute, or the conditions under which the road from Battle Creek to Kalamazoo was built, are such as to require the respondent to furnish to its passengers over the Michigan Traction Company’s line, or those from the township of Ross, a 2-cent rate with a 5-cent minimum charge — and it is not improbable that such might be held a reasonable construction— a greater charge is unlawful, and every passenger is entitled to ride at the lawful rate. In several cases private persons have been permitted, by an action in justice’s court, to recover back money paid in excess of lawful fares, while in the case of People v. Railway, 162 Mich. 460, 463 (125 N. W. 700, 127 N. W. 748), prosecutions and convictions under an ordinance of the city of Detroit have been affirmed, and we have reason to believe that a final affirmance of such cases has been followed by an observance by the respective defendants of the rule laid down in such actions as to rates. Kissane v. Railway, 121 Mich. 175 (79 N. W. 1104); Rice v. Railway, 122 Mich. 677 (81 N. W. 927, 48 L. R. A. 84); Coy v. Railway, 125 Mich. 616 (85 N. W. 6); Vining v. Railway, 133 Mich. 539 (95 N. W. 542); Zagelmeyer v. Railroad Co., 102 Mich. 214 (60 N. W. 436, 47 Am. St. Rep. 514); People v. Railway, 162 Mich. 460, 463 (125 N. W. 700, 127 N. W. 748).

Mandamus is not well adapted to enforce the right of a citizen to a given rate, for if a man desires to travel he cannot usually, conveniently, defer his trip until a controversy about rates can be settled. It is easier to pay the rate and sue, or refuse to pay and be put off from the train, and sue for damages, and quite as effective. In some cases mandamus has been used on application by the city authorities to compel the putting on sale of tickets in compliance with ordinances of such cities; and in one case this was done at the instance of a township board, no question being raised or discussed as to the right of the board to ask a mandamus to the end that the condition as to rates be complied with. Township of West Bloomfield v. Railway, 146 Mich. 198 (109 N. W. 258, 117 Am. St. Rep. 628). Other conditions were involved in this case.

We have no doubt that the State has full power, through its attorney general, or, perhaps, other officers, to enforce compliance with the conditions as to rates, by proper proceedings. Whether a township is clothed with such authority is a question upon which much might be said. But whether it is or not, it is clear that the order asked for in this case is the equivalent of an injunction, and a mandamus cannot be used for in j unctive relief. This subject has been considered and authorities cited in the recent case of Attorney General v. Common Council of the City of Detroit, 164 Mich. 369 (129 N. W. 879), and for that reason the subject is not discussed at length here. The effort here is to command the respondent to cease charging a rate which is merely a command to not charge the rate hereafter, and that is clearly injunctive relief, for such is the exact office of an injunction. Either is a restraining order.

The, order should be reversed, and the writ denied.

Moore, Brooke, and Stone, JJ., concurred with Hooker, J.

Blair, J.

I am unable to concur in the opinion of Mr. Justice Hooker, and I therefore proceed to state briefly the grounds of my dissent.

The Remedy. In considering this question, it is to be borne in mind that the application for the writ was not made to this court, but to the .circuit court, which exercised its discretion in favor of granting the writ. We are asked to review the action of the circuit court upon certiorari and are not called upon to exercise our discretion, but, so far as this aspect of the matter is concerned, to determine whether the circuit judge abused his discretion. In my opinion, however, the writ of mandamus was the appropriate and the only adequate remedy. Township of Grosse Pointe v. Railway, 130 Mich. 363 (90 N. W. 42). This case is on all fours with the present case, and the question of the remedy was expressly raised, considered, and determined. The Grosse Pointe Case was followed in Township of West Bloomfield v. Railway, 146 Mich. 198 (109 N. W. 258, 117 Am. St. Rep. 628), a case which is also precisely in point.

It is said, however, that the Grosse Pointe Case is expressly rested upon City of Lansing v. Railway Co., 109 Mich. 123 (66 N. W. 949), which was overruled by Michigan Mut. Fire Ins. Co. v. Wayne Circuit Judge, 112 Mich. 270 (70 N. W. 582). It would seem more logical to hold that when the court followed the Lansing Case it overruled the case in 112 Mich. if the two cases are irreconcilable and cannot stand together. I think, however, that there is no repugnancy between the two cases. In the Lansing Case it was held that a plain legal duty imposed upon a street railway company by law in favor of a municipality is enforceable by mandamus. In the case of Michigan Mut. Fire Ins. Co. v. Wayne Circuit Judge, supra, it was sought to compel a circuit judge to dismiss a suit for want of proper service of a summons. It was held, as fairly stated in the headnote:

“Except in cases where delay is calculated to produce injury, mandamus will not issue to control the action of the circuit judge if the aggrieved party has a remedy by appeal or writ of error.”

The same justices who sat in that case participated in the decision of the Grosse Pointe Case, with the exception of Justice Long. It is apparent, I think, that the court regarded the Lansing Case as stating the law in this State since the adoption of the rule stated in 112 Mich., and as distinguishable from, and in no wise affected by, that case. I therefore regard this question as conclusively settled by our own decisions. See, also, People v. State Treasurer, 24 Mich. 468; Tawas, etc., R. Co. v. Iosco Circuit Judge, 44 Mich. 479 (7 N. W. 65) Sayers v. Auditor General, 124 Mich. 259 (82 N. W. 1045); Merrill on Mandamus, § 27; 26 Cyc. p. 172b.

The Relief. It is established by the pleadings and the stipulation, as to the facts, that the railway through the township of Ross is but a portion of a continuous line between Battle Creek and Kalamazoo.

“That under the franchise, Exhibit A, the Michigan Traction and respondent’s road extended from Kalamazoo, Michigan, through Ross township east as far as Battle Creek,” etc.

“ That during the time that said line of road was operated by said Michigan Traction Company in said township, it stopped the passenger cars which were operated by it at any point within said township which was designated by a sign, and did, when so hailed by said people, permit them to board the ears at said points and in every instance, when requested to do so, permitted people who were on its cars to alight therefrom, and stopped its cars to permit them to do so, at any point in said township.”

“And respondent did likewise up to and including November 21, 1907, when it first commenced to operate limited cars within said township.”

The Rate of Fare. Section 20 of the statutory contract provides:

“Said company, its successors and assigns, shall not charge more than two (2) cents per mile for each passenger carried, provided, however, that no single fare shall be less than five (5) cents.”

The line constructed in the township of Ross under the franchise was not, and never was intended to be, a complete electric line, but only a small portion of a complete line between Battle Creek and Kalamazoo. The franchise granted by every township and village between Battle Creek and Kalamazoo contained the same limitation, as to the charge per mile, and a uniform rate prevailed therefore throughout. The provision is general in its terms; the township had authority to contract for a uniform rate over the entire line; the language of the provision is not limited to the township, but appears to extend to the entire line, and was construed by the Michigan Traction Company and respondent for 10 years to apply to the entire line. The construction which the company itself has placed upon the contract is entitled to weight. Rice v. Railway, 122 Mich. 677 (81 N. W. 927, 48 L. R. A. 84). And “The terms of the franchise must be construed strictly against the respondent.” Township of West Bloomfield v. Railway, 146 Mich. 198 (109 N. W. 258 [117 Am. St. Rep. 628]); People v. Railway, 162 Mich. 463 (127 N. W. 748). I think the circuit judge properly held that the respondent was not entitled to charge a 10-cent fare for the three-mile ride from the waiting room in Bedford township to the village of Augusta in Ross township.

The Stoppage of Oars on Signal. “The cars of said railway shall be run as often as traffic demands and business warrants and said cars shall stop at any point along such line where they are hailed by people who desire to get on.”

I regard the language “as traffic demands and business warrants ” as referring to the traffic and business of the line contemplated when the franchise was granted, viz., between Battle Creek and Kalamazoo. As heretofore remarked, the company was engaged in obtaining a continuous franchise for the purpose of operating a continuous line of railway, as well understood by the municipalities granting the franchises, and such franchises should be construed with reference to that fact. Although this provision is to be strictly construed against respondent and in favor of relator, such construction should be reasonable. In my opinion, the term “the cars of said railway ” refers to the cars performing the usual service contemplated when the contract was entered into, and not to the cars introduced 10 years later to perform a service not contemplated, and which could not be performed at all, if the cars were required to stop wherever hailed. By repeated decisions of this court, it has been held that such public franchises, create relations in the nature of contractual, and that such statutory contracts are enforceable in the courts. City of Detroit v. Railway Co., 95 Mich. 456 (54 N. W. 958, 20 L. R. A. 79, 35 Am. St. Rep. 580); City of Lansing v. Railway Co., 109 Mich. 123 (66 N. W. 949); Kissane v. Railway, 121 Mich. 175 (79 N. W. 1104); Rice v. Railway, 122 Mich. 677 (81 N. W. 927, 48 L. R. A. 84); Coy v. Railway, 125 Mich. 616 (85 N. W. 6); Vining v. Railway, 133 Mich. 539 (95 N. W. 542); Township of Grosse Pointe v. Railway, 130 Mich. 363 (90 N. W. 42); Township of West Bloomfield v. Railway, 146 Mich. 198 (109 N. W. 258, 117 Am. St. Rep. 628); City of Monroe v. Railway, 143 Mich. 315 (106 N. W. 704). The carefully drawn resolution granting the franchise and accepted by respondent, and the effort to enforce it, evidence to my mind a commendable effort on the part of the towhship board to protect the interests of the township in the first instance, and after-wards to protect their rights under the franchise agreement when invaded, in the opinion of the board and their legal advisers.

Since writing the foregoing, the opinion of Mr! Justice Hooker has been revised, and it is now said, among other things, that relator is seeking injunctive relief, which is not permissible in this form of action. I do not regard this objection as tenable. The essence of this proceeding is the compulsion of defendant to observe and comply with the terms of its franchise; to fix rates of fare in accordance with its provisions. In the West Bloomfield Case, supra, the defendant railway was charging 35 cents fare instead of 25 cents as required by its franchise, and the writ was issued to compel it to charge the franchise rate, although this necessarily implied that it should not charge the higher rate.

The writ of mandamus as granted was too far reaching. Applying to the line between Battle Creek and Kalamazoo, as limited by this opinion, the order is affirmed.

Ostrander, C. J., and Bird, and McAlvay, JJ., concurred with Blair, J.


author: Ostrander, C. J.

text:
    HARBAUER-MARLEAU CO. v. THWING.
    Appeal and Error — Specific Performance — Injunction—Preliminary Relief.
    In a suit for specific performance of a contract to sell cucumber pickles to complainant, a preliminary injunction restraining the defendant from disposing of the property pending the final determination of the cause, is not a final order which can be reviewed on appeal upon the denial of a motion to dissolve.
    Appeal from Kent; McDonald, J.
    Submitted January 18, 1911.
    (Docket No. 161.)
    Decided March 13, 1911.
    Bill by the Harbauer-Marleau Company against George S. Thwing for specific performance. From an order granting an interlocutory injunction to restrain defendant from disposing of the property involved in the proceedings, and from the refusal, on motion, to dissolve the injunction, defendant appeals.
    Appeal dismissed.

      Colin P. Campbell, for complainant.

      Maher & Barnard (Roger W. Butterfield, of counsel), for defendant.
   Ostrander, C. J.

Complainant asked for a decree requiring specific performance of the following agreement, and, pending final decree, for an injunction restraining the sale or removal of the pickles:

“Chicago, ILL., May 25, 1910.
“Pickle Contract.
“The West Michigan Pickle Works of Grand Rapids, Mich., sells to the Harbauer-Marleau Co., of Toledo, Ohio, the product of their salting station, consisting of about 75 acres of pickles as follows: — Yat Run and Large Pickles. The Yat Run Pickles to measure 4 inches and under in length and count to be 4,500 or better to six bushels. Large Pickles to measure about 4 inches to 5-J-inches in length and count to be 1,200 to 1,500 or better to 6 bushels. Measure to 45 gallons. Pickles to be reasonably free from nubs and stock to be kept in good mercantile condition by seller free of cost to buyer until shipped. Terms, $50.00 to be paid on signing of contract, this payment to apply on last shipment. One-half of the pickles to be taken or paid for by January 1st, and all to be taken or paid for by March 1st. Price to be 95c per bushel f. o. b. Grand Rapids for Yat Runs and 50 per bushel for Large Pickles. Cooperage extra at cost or to be furnished by buyer. Pickles to be inspected and approved October 1st. Terms: — Net cash 10 days after arrival.
“West Michigan Pickle Works,
“ George S. Thwing, Seller.
“The Harbauer-Marleau Co.,
“Per J. W. Harbauer, President, Buyer.
“ W. R. Eley, Broker.”

On filing the bill of complaint (October 1, 1910), a temporary injunction was issued. Motion to dissolve the injunction was made October 3, 1910, which was based upon the record and the affidavit of defendant Thwing. A demurrer and plea were filed November 12, 1910, and on November 23, 1910, a motion to dissolve the injunction was filed, which motion is based upon the record and files and an affidavit of defendant Thwing. The motions were denied. It appears from the brief of appellant — not from the record — that by consent some modification of the injunction was made. It is also stated in the brief that the first motion to dissolve was heard October 17th; the last motion to dissolve was heard November 28th. Defendant has appealed from the orders granting and refusing to dissolve the injunction.

In this court a motion to dismiss the appeal was entered and brought on to be heard. It appeared that the record on appeal was returned and printed, and the motion to dismiss was denied, and the cause was advanced upon the docket for hearing. Whatever doubts then existed concerning the. right of defendant to appeal from the orders granting and refusing to dissolve the injunction were removed at the hearing. The orders were in no sense final. It is said the injunction restrains defendant from disposing of his own property. Such is the effect of every injunction which prevents the selling or incumbering of property if it turns out that the defendant owns the property. The bill avers that the cucumbers, or pickles, in question were sold to complainant; that they are especially desirable; that complainant has contracted to sell and deliver some of them to customers; that they cannot secure or purchase pickles like them; that defendant Thwing is financially irresponsible, is engaged in processing some of the pickles, had declared he would not deliver any of them to complainant and would process and dispose of them. We do not consider whether performance of the contract set out in the bill of complaint may be specifically enforced. If the defendant is in fact owner of the pickles, the contract can be in fact performed if there is disposition to perform it. No facts are set out in the affidavits filed with the motions to dissolve the injunction which are not available to defendant upon proper pleadings and proof. The possession of defendant is not disturbed. The order granting the injunction does not, in terms or in effect, dispose of the merits of the controversy or lay down a rule by which the rights of the parties are to be finally determined. It prevents defendant’s disposing of the particular property until the merits of the controversy are determined. Numerous decisions of this court which consider the right of appeal from orders in form interlocutory, but in substance and effect final, are mentioned in Toledo, etc., R. Co. v. Railroad Co., 61 Mich. 9 (27 N. W. 715), in Webber v. Randall, 89 Mich. 531 (50 N. W. 877), and in Schmelzer v. Illuminating Co., 142 Mich. 133 (105 N. W. 129). None of them supports appellant’s contention.

The appeal is dismissed. Appellee will recover costs of printing and a solicitor’s fee of $20.

Bird, Hooker, Moore, and McAlvay, JJ., concurred.


text:
    BONZ v. BONZ.
    Fraud — Contracts—Evidence—Concealment.
    A decree canceling a contract and deed on the ground of fraud is " warranted by evidence tending to show that defendant, as a part of the consideration for the contract, agreed to contribute a specified sum to the support of his mother during her life, that complainant, his brother, did not know that, in fact, the mother was dangerously ill with blood poisoning at the time, and although defendant knew of her illness, he con- . cealed the circumstance; and while the evidence as to active fraud was contradictory, the decree of the circuit court, whose opportunity to see and hear the witnesses testify afforded it a peculiar advantage, is affirmed.
    Appeal from Emmet; Shepherd, J.
    Submitted February 15, 1911.
    (Docket No. 104.)
    Decided March 13, 1911
    Bill by Charles Emil Bonz and Nellie Bonz against Milton M. Bonz for the cancellation of a contract. From a decree for complainants, defendant appeals.
    Affirmed.

      Frost & Sprague (Halstead & Halstead, of counsel), for complainants.

      Pailthorp & Hackney (Wade B. Smith, of counsel), for defendant.
   Hooker, J.

George August Bonz died, leaving a will which gave and devised to his wife $300 per year, to be paid annually by the executors during her life, with the use of the homestead and furniture. His son Frederick was given a parcel of land, and the remainder of the estate was given to his three sons, Milton, Frederick, and Charles Emil, share and share alike, Frederick and Milton were named therein as executors, and they were appointed and qualified. Negotiations were had between Milton and Emil, which culminated in an arrangement by which Milton was to purchase Emil’s interest in the property upon a valuation, less his share of the amount required for the support of his mother, which Milton was to undertake, and was to secure by mortgage to his mother, viz., the payment by him of $25 a month during her life. A meeting was had on October 12th to arrange the deal, and a substantial agreement was reached, excepting as to the amount that Emil should allow for his mother’s protection, which seems to have been understood to depend upon her expectancy. This was arranged later between counsel, and on October 22d complainants’ counsel went to Petoskey, where the matter was closed up and the papers were delivered. The mother died on October 25th, three days after the delivery of the papers. The bill in this case is filed by Emil for cancellation of the contract and deed, upon the ground of fraud on the part of Milton, in concealing, if not misrepresenting, the condition of the mother; and defendant has appealed from a decree in accordance with the prayer of the bill.

It is claimed that the expectancy agreed upon was about 13 years, while at the time of the negotiations the mother was seriously ill, and complainants charge that her condition was misrepresented on October 12th and concealed at the time the transaction was closed. There are circumstances in the case which are consistent with the charge complainants make, while it is evident that the agreement to care for the mother was a most profitable venture, to say the least, in view of her almost immediate death. This is one of those cases where the opportunity of seeing and hearing the witnesses testify is an important consideration. There is a contradiction by the witnesses as to the representations; but we think that the circuit judge might well find that the'defendant must have known that his mother was unlikely to recover at the time the transaction was closed, and that he should have made the fact known.

The decree is therefore affirmed, with costs.

Moore, McAlvay, Brooke, and Blair, JJ., concurred.


author: Stone, J.

text:
    RIPLEY v. MILLER.
    1. Vendor and Purchaser — Foreclosure of Land Contract-Adverse Possession.
    Equitable considerations do not demand the granting of relief, in a suit to foreclose a land contract which was made 17 years before the institution of suit, and on which no subsequent- ' payments were made, the vendee having conveyed the land through several successors in title to the defendant, who knew nothing of the original unrecorded land contract, and who with her grantors maintained continuous and hostile possession for the statutory period, and made valuable improvements on the premises.
    2. Same — Adverse Possession — Hostile Nature.
    The vendee in the land contract in actual possession under a tax deed from the State was entitled to purchase the outstanding claim of the vendor without impairing his own rights or acknowledging the validity of the title bought.
    3. Same.
    And the vendor was bound to take notice that the vendee was in possession under the adverse claim.
    4. Adverse Possession — Color of Title — Waiver.
    Adverse possession is not broken by negotiating with other claimants if there is no waiver or nonclaim on the claimant’s part.
    Appeal from Muskegon; Sessions, J.
    Submitted February 10, 1911.
    (Docket No. 56.)
    Decided March 13, 1911.
    Bill by William J. Ripley, trustee, against Clara Miller, Horace Brown, and Otto Meeske to foreclose a land contract. From a decree for complainant, defendant Miller appeals.
    Reversed.

      John A. McLaughlin (Cross, Vanderwerp, Foote & Ross, of counsel), for complainant.

      R. J. Macdonald (Philip W. Kniskern, of counsel), for defendant Miller.
   Stone, J.

This is a bill filed to foreclose a vendor’s lien upon certain lands in Muskegon county under a land contract. The bill of complaint sets forth that complainant’s predecessor in trust was the owner of the land in question; that, on December 30, 1889, he entered into a contract with one Theodore Johnson to sell and convey to him the land; and that Johnson agreed to purchase the same for the sum of $320, $50 of which was paid down, and the remainder was to be paid in three equal payments, with interest at 7 per cent. It is pertinent that we allude more specifically to certain allegations of the bill.

Paragraph 1 of said bill states that the former trustee, John R. Wilson, during his lifetime, had title in fee simple to the said premises, consisting of 40 acres on section 16 in township 10 north, range 17 west. After alleging the making of the contract and setting forth its provisions, the bill proceeds to state, in paragraph 5, as follows:

“That while said Johnson held said land under said contract as aforesaid he sold and assigned his interest therein, and in said contract, to Amelia Miller, of Muskegon, Michigan, by quitclaim deed bearing date September 3, A. D. 1895, which deed appears of record in the office of the register of deeds for said county of Muskegon, March 30, A. D. 1898, in Liber 96 of Deeds, at page 468; that said Amelia Miller conveyed and assigned the interest which she had acquired in said land and in said contract to her husband, Frederick W. Miller, of Muskegon, Michigan, by warranty deed, dated March 30, A. D. 1900, and recorded in said register’s office April 26, A. D. 1904, in Liber 118 of Deeds, at page 619; that the said Frederick W. Miller conveyed and assigned his interest in said land and in said contract to Frank A. Anderson, by quitclaim deed dated April 7, A. D. 1900, and recorded in said register’s office April 19, A. D. 1900, in Liber 102 of Deeds, at page 495; that said Frank A. Anderson conveyed and assigned the interest which he had thereby acquired in said land and in said contract to Clara Miller, by quitclaim deed, duly executed, bearing date May 5, A. D. 1900, and recorded in said registry April 26, A. D. 1904, in Liber 120 of Deeds, at page 34.”

The answer of the defendant Clara Miller, she being the only defendant who answered, does not specifically deny in terms that complainant’s predecessor had title to said premises in fee simple. The answer is inartificially drawn. It does allege, however, in the first paragraph of the answer, that said defendant is the owner in fee simple of the lands described in said bill of complaint as purchaser thereof from Theodore Johnson, the owner thereof, by quitclaim deed conveying to Amelia Miller, on September 3, 1895, said premises. It then proceeds to state in the second paragraph that Theodore Johnson became the owner of the lands in the month of March, 1889, from Charles Williams and wife, by quitclaim deed, which was duly recorded on the 23d of March, 1889; that the title of the said Charles Williams consisted of an auditor general’s deed, bearing date the 17th of January, 1889, which was duly recorded on the 23d of March, 1889. In the fourth paragraph thereof the answer states as follows:

“ That this defendant became the owner of the fee simple of the said lands as recited in paragraph 5 of the bill of complaint in this cause.”

The answer then states that the defendant Clara Miller, and the other owners of the said lands and premises under the conveyance from the auditor general of the State of Michigan, paid the full value and consideration for the said land, entered into possession of the same, improved it, and paid the taxes thereon assessed by the authority of law; that the first time the said defendant Clara Miller ever heard or learned of the pretended contract sought to - be foreclosed in this cause, was about two years before the filing of the bill, when complainant applied to her to pay.the same; that the said land contract has never been recorded, and that she had no knowledge of its existence other than as above stated; that the several owners of the said lands, including the owner, through whom the said defendant derives her title, had been in possession of said lands, improved the same, and were all without knowledge of the pretended land contract of the complainant; and that said defendant has been in possession since she purchased the same, and has made valuable improvements thereon.

It is the claim of complainant that, in and by her answer, the said defendant, by admitting that she became the owner as recited in the fifth paragraph of the bill, has admitted that she had knowledge of the land contract, and that she and her grantors purchased under the land contract. In view of the other allegations of the answer, and of the testimony at the hearing, we doubt if it would be just for us to apply so strict a rule of interpretation to this answer. While it is carelessly drawn in the instance noted, yet the answer proceeds to state entire ignorance of the land contract at the time of the different purchases stated.

The undisputed evidence in the cause shows that Johnson went into possession of this 40 acres of land at the time he purchased it from Williams in March, 1889; that he commenced to improve the same and remained in possession over six years, when he sold it to Amelia Miller on September 3, 1895; that he was in possession under said tax deed by his purchase from Williams at the time he entered into the contract with the complainant’s predecessor trustee on December 30, 1889; that from the time he took possession down to the time of the filing of this bill there had been continuous possession and occupancy of the premises by the different parties named in these deeds. There is no evidence of any demand made, either upon Johnson or any of his grantees, for payment of the moneys remaining unpaid on the land contract down to about two years prior to the filing of the bill, when demand seems to have been made upon the defendant Miller. There had been continuous occupancy and possession of these premises by the defendant Miller and her immediate grantors for nearly 17 years prior to the filing of the bill of complaint, in this cause. Here, again, the language of the answer is open to criticism, as to the nature and character of this possession, as to whether the same was adverse or otherwise; yet the testimony tends to show that such possession was continuous and hostile to any claim of the complainant or his predecessor in trust. Johnson had been in possession under his tax deed over six years when he sold to Amelia Miller.

It seemed to be the view of the circuit judge that the purchase under the land contract was the recognition of a superior title on the part of Johnson, and that this is binding upon the defendant. The evidence is undisputed that at the time Johnson sold and conveyed the premises to Amelia Miller he did not disclose to her, or to her agent, any information or knowledge of the land contract, but he gave the parties to understand that he claimed under the Williams deed. The circuit judge, upon the hearing, entered a decree for the complainant for the full amount remaining unpaid under the land contract, and ordered a foreclosure sale of the premises to satisfy the amount due under the decree. Defendants have appealed.

It is significant here that Johnson was in possession of the premises, claiming to own the same, at the time he entered into the land contract, and that the land contract did not expressly give him the right of possession. The doctrine is well established that one in possession of land, claiming to own it, may buy in outstanding claims of title without abandoning or impairing his own, or acknowledging the validity of the title bought.

In Donahue v. Klassner, 22 Mich. 252, it was held that a vendee in a contract for the purchase of land of which he was already in possession, under an adverse title, is not estopped by his contract, in the absence of any special covenant standing as a sufficient foundation for it, to deny the title of the vendor. The complainant’s predecessor was bound to take notice that Johnson was in possession under a tax deed, claiming adversely, when the land contract was made. That tax deed is not shown to be invalid.

In volume 1, Am. & Eng. Enc. Law (2d Ed.), at page 839, the doctrine is stated in this language:

“Neither the purchase nor the attempt to purchase outstanding claims or an ostensible title on the part of one in the adverse possession of the property will necessarily amount to a waiver or nonclaim on his part, or interrupt the adverse holding.”

Many cases are cited in the note, including Johnstone v. Scott, 11 Mich. 246; Chapin v. Hunt, 40 Mich. 595. These cases, with many others that might be cited in other States, are to the effect that one in possession of land, claiming it as his own under color of' title, may take a deed from a hostile claimant for the mere purpose of quieting the title without abandoning the character of an adverse possessor. A very well considered case upon this subject is that of Meyer v. Hope, 101 Wis. 123 (77 N. W. 720), where many of the authorities are reviewed and referred to, including the Michigan cases above cited. To the same effect is Oldig v. Fisk, 53 Neb. 156 (73 N. W. 661).

In 1 Cyc. p. 1016, occurs this language:

“With the exception of at least one decision, in which it has been broadly ruled that the purchase of an outstanding title or interest by the adverse claimant interrupts the continuity of his possession, it seems to be very generally conceded that an adverse occupant may purchase an outstanding title without thereby interrupting the continuity of his possession. A party, it is said, may very well deny the validity of an adverse claim of title, and yet choose to buy his peace at a smaller price than be at great expense and annoyance in litigating it ”— citing many cases, including the two Michigan cases above referred to.

See, also, Elder v. McClaskey, 70 Fed. 529-547 (17 C. C. A. 251).

Adverse possession is not broken by negotiating with other claimants, if there is no waiver or nonclaim on the occupant’s part. The tax deed is not before us. We must presume that it was color of title. It will be noted that Johnson is not made a party defendant to this suit. The complainant is attempting to pursue his alleged lien upon the premises.

It was urged at the oral argument before us, on the part of the appellant, that the bill having alleged that the said land contract was forfeited, and had been so declared, complainant should be left to his remedy at law, and has no right to attempt to now affirm the contract and collect the amount unpaid thereon; that the claim of the complainant is the collection of the ordinary money debt secured by the contract (see Walker v. Casgrain, 101 Mich. 604-608 [60 N. W. 291]), and that his position is inconsistent with the claimed notice of forfeiture. We gather from the record that this point was hot urged by defendant in the court below, and we are not disposed to consider it here. We think, however, notwithstanding -the nature of the conveyances noted, that from this record it appears that the defendant Miller may well claim that she and her grantors have been in adverse possession of these premises for the statutory period. The defendant Miller being in possession, claiming to hold the premises adversely, and having been permitted to make valuable improvements in good faith thereon, we are of opinion that complainant in his bill does not present a case for equitable relief; that he does not show that he has any title to, or interest in, said lands.

.The case will therefore be reversed, and the bill dismissed. Defendant Miller should recover her costs to be taxed.

Ostrander, C. J., and Bird, Brooke, and Blair, JJ., concurred.