text:
    CITY OF KALAMAZOO v. MICHIGAN TRACTION CO.
    Street Railways — Construction of Road — Ordinances — Amendments — Character of Rails Used.

       Defendant secured an ordinance from the relator authorizing it to construct and operate an electric street railway within its limits. The ordinance provided, “The track * * * may he of the style known as ‘T rail’ or ‘ girder rail,’ at the option of the grantee.” The city council reserved the right to make such other rules, orders, and requirements as might from time to time' be deemed necessary to protect the interests, safety, welfare, and accommodation of the public, not inconsistent with the provisions of the ordinance, and to require the defendant to use such fixtures and appliances upon its said road, plant, and cars as might be deemed necessary to the public safety in the operation of said road. The council subsequently amended the ordinance by requiring the defendant to put down a girder or grooved rail. This was rendered necessary by the fact that the old T rail is unsuitable in streets paved with brick. Held, that, under the terms of the ordinance, the city retained the power to require the use of the girder or grooved rail.

      Certiorari to Kalamazoo; Adams, J.
    Submitted March 5, 1901.
    Decided. May 7, 1901.

      Mandamus by the city of Kalamazoo to compel the Michigan Traction Company to relay its track in accordance with the requirements of an amended ordinance. From an order granting the writ, respondent brings certiorari.

    Affirmed.
    The following are the stipulated facts in this case:
    1. That the city of Kalamazoo is a municipal corporation, duly organized and existing under and by virtue of certain acts of the legislature of the State of Michigan.
    2. That, under and by virtue of the provisions of its charter and the laws of the State of Michigan, said city has the right and authority, by its council, to grant franchises for the operation of electric and other street railways within the corporate limits of said city, and to pass all ordinances governing the operation of street railways within the city.
    3. That on the 27th day of March, 1893, the city council of said city, upon application of a duly-organized corporation known as the “General Electric Company,” passed an ordinance entitled “Ordinance No. 101, Relative to Electric Street Railway,” section 1 of which said ordinance is as follows, .to wit:
    “Section 1. The City of Kalamazoo Ordains: That permission and authority is hereby given and granted to the General Electric Company, its successors and assigns (successors to the Kalamazoo City and County Street Railway Company), to construct, own, and operate a single or double track electric street railway, with all necessary curves, turntables, switches, Y’s, turnouts, and connecting tracks, in, through; over, upon, and along the streets, avenues, highways, and bridges in said city of Kalamazoo, as hereinafter named, or any portion thereof, subject, however, to all the conditions, specifications, and limitations hereinafter contained.”
    It is provided in section 5 of said ordinance as follows:

      “The gauge of the track shall be four feet eight and one-half inches. All track hereafter laid, either for extensions or for the purpose of relaying present track, may be of the style known as ‘T rail’ or ‘girder rail,’ at the option of said grantee, its successors or assigns; but, whatever style of rail is used, the same shall not weigh less than forty pounds to the yard if ‘ T,’ and not less than fifty-two pounds to the yard if girder, rail.”
    4. That subsequent to the passage of said ordinance, and prior to July ,18, 1898, the Michigan Traction Company, a corporation organized and doing business under the laws of the State of Michigan, became the owner of all the rights and privileges belonging to the said General Electric Company under the aforesaid franchise known as “Ordinance No. 101,” together with the properties owned and used by said General Electric Company in the operation of its street railway in the city of Kalamazoo; and that said Michigan Traction Company was then and there the owner of, and has ever since owned and operated, and still continues to own and operate, the several street-railway lines in the city of Kalamazoo under the authority granted by said ordinance; and that it became and was and is the duty of said Michigan Traction Company to observe, perform, and keep all obligations and requirements devolving upon the grantee named in said ordinance, and to obey the reasonable orders and requirements of the city council in regard to the operation of said street railway as required by the provisions of said ordinance and all lawful amendments made thereto.
    5. That section 23 of said Ordinance No. 101, as originally passed, is as follows:
    “Sec. 23. The said city council hereby reserves the right to make such further rules, orders, and requirements as may from time to time be deemed necessary to protect the interests, safety, welfare, and accommodation of the public in relation to said railway, not inconsistent with the provisions of this ordinance; but they shall not reduce the rate of fare herein provided for, or alter or repeal section one of this act.”

      6. That the rail in use upon the several routes of said street railway in Kalamazoo at the time the Michigan Traction Company became the owner of said property, and on the 18th day of July, 1898, was what is known as a “T” rail, .weighing about 45 pounds to the yard; that, when said ordinance went into operation, the business streets of said city were paved with wooden blocks; that a rail of that weight is unsuitable for use in streets where brick or other substantial pavement is laid, on account of its light weight; that, since said ordinance was passed, the city has repaved several of its principal business streets with brick; that the running of cars over rails of that kind where brick pavement is used causes the brick used for paving purposes to become loose along either side of the rail for the distance of a foot or thereabouts, which causes the surface of the street to become rough and uneven, and to require more frequent repair, and that, in consequence of such rail being used, a street paved with brick becomes unsightly and inconvenient, requiring frequent attention and expense, and also renders it more inconvenient and dangerous for the passage of vehicles across and over the tracks.
    7. That early in the summer of 1898 the city council decided to pave east Main street from the Grand Rapids & Indiana Railroad to Portage street; that notice of said intention to do so was given to the Michigan Traction Company, and said company was requested by the city council to take up the rail then in use on that part of its Main-street line so to be paved, and replace the same with a heavier rail; that said company declined to comply with the request of the council in that regard; that thereupon the city council, on the 26th day of July, 1898, amended section 5 of Ordinance No. 101 so as to read as follows:
    “The gauge of the track shall be four feet eight and one-half inches. All track hereafter laid, either for extensions or for the purpose of relaying present track, may be of the style known as ‘T rail5 or ‘girder rail,5 at the option of the grantor, and shall be of such weight and dimensions as the city council shall prescribe by resolution; and it shall be incumbent on Said street-railway company, its successors and assigns, to replace the rail now in use on any part of its lines by rails of the kind above described whenever pavement is to be laid in any street where said railway is operated, and notice to that *effect is served upon it by said city council.”
    8. That written notice of the introduction of said amend- „ ment, and that it had been presented to the city council, and giving the time when the •same would be acted upon by it, was served upon the Michigan Traction Company five days before the passage of said amendment, but said company did not appear, and did not ask to be heard in relation thereto.
    9. That an amicable adjustment between the Michigan Traction Company and the city council was had regarding the rail to be laid on east Main street in 1898 at the place hereinbefore referred to, and a like arrangement was had in regard to the rail laid at a point farther west on Main street where pavement is laid, the same being put down in the summer of 1899, with the express understanding, however, that the Michigan Traction Company should not, by entering into said amicable arrangement, in any manner waive its right to insist that said amendment to said Ordinance No. 101 was invalid, and that said common council had not authority to enact the same.
    10. That in the spring of 1900 the city council, by resolution, determined to pave certain streets of the city with brick, among them Portage street from Main street to Lovell street; that notice to that effect, by direction of the city council, was served upon the Michigan Traction Company, accompanied with a request that said company should take up the rail now in use on that street (the same being a T rail of the kind hereinbefore described), and replace the same with an 8-inch grooved girder rail, similar to the one laid on Main street in 1899 (meaning the rail laid under said amicable agreement between said company and the city council in 1899, namely, an 8-inch grooved girder rail).
    11. That on the 19th day of March, 1900, the city council of said city amended section 5 of Ordinance No. 101 again, by adding after the words “girder rail” in said section, “or grooved rail,” making the kind of rail permissible to be used on the street-railway lines of said city a T rail, girder, or grooved rail, at the option of the grantor; to be of such weight and dimensions as the city council should prescribe by resolution.
    12. That notice of such proposed amendment was, by direction of the city council, served on the Michigan Traction Company five days before the passage of said amendment, but said company did not appear before the council when said amendment was acted upon, and did not in any way make known to the council, through any official communication, its position or wishes in regard thereto.
    13. That the said amendments to Ordinance No. 101 were regularly and legally passed by the city council if it had the power and authority to make said amendments to said ordinance, and, if said amendments thereto are valid and legal, they are in force and effect.
    14. That the expense to the Michigan Traction Company of complying with the .requirements of said city council, and to lay said grooved girder rail in place of the T rail, which is not half worn out, would be about double that of relaying said T rail.
    15. That the said Michigan Traction Company has neglected and refuses to comply with the order and requirements of the city council in said respect, and has notified it that it does not intend to and will not comply with said order, or make such change of rail, and denies the right of the council to amend its said franchise and said ordinance in said manner without its consent, and that it does not consider itself bound to recognize and respect the said amendments made to said franchise and ordinance, or that they are binding and in force.
    16. That attached hereto is a true copy of Ordinance No. 101, and of the amendments claimed to have been made thereto.
    17. That, if the court finds that the city of Kalamazoo biad lawful authority to enact and pass said amendments to said ordinance without the consent of the Michigan Traction Company, the city of Kalamazoo would be entitled to the writ of mandamus prayed in this proceeding, subject to the right of appeal from the decision of this court to the Supreme Court.
    The original ordinance also required that, whenever the. city council should order a street paved, the street railway should pave between the tracks in like manner as the street was paved.

      L. N. Burke and Dallas Boudeman, for relator.

      James W. Osborn, for respondent.

       Head-note by Grant, J.

   Grant, J.

The sole question arises over the requirement to substitute a grooved rail for a T rail. It is contended on behalf of the relator that the grooved rail is essential to the maintenance of a substantial pavement; that the requirement is therefore reasonable, is within the reservation of the ordinance itself, and incident to the powers and duties of the municipality pertaining to its streets. It is contended on behalf of respondent that the substitution of the grooved rail is inconsistent with the original ordinance, and in violation of its contract with the city. It admits the duty to repave whenever the city does, but maintains the right to use its own option, during the life of its franchise, as to the bind of rails to be used.

The question is an important one. The stipulated facts are that the old T rail is unsuitable in streets paved with brick. It renders the surface of the street rough and uneven; requires more frequent repair; causes more espense ; is unsightly, inconvenient, and dangerous for the passage of ve'hicles. Under respondent’s contention, it could practically prevent any improvement in paving, or the adoption of new and better material, unless it could be used in connection with the T rail, which the respondent had the right to lay when the road was constructed, and which it now claims the right to relay and maintain. It could not be compelled to substitute the grooved rail for the T rail even if the city should offer to pay the expense; for it claims that the right to lay the T rail was a part of the contract, which cannot be taken away. The amended ordinance does not impair the franchise conferred upon the respondent. The city recognizes respondent’s right to the use of the street, to run its cars, and to charge the fares fixed by the ordinance. It only claims that conditions have changed, requiring essential changes in the character and manner of paving, and that the respondent must so construct and equip its road as to meet these changed conditions. In other words, the relator only claims that the respondent must lay new and different rails, at greater cost than that of the old ones. The respondent is deprived of none of its property, unless the increase in cost in consequence of the improvement amounts to such deprivation. It is essential that municipalities retain that control over the public streets and highways which is necessary for the protection and proper use of the public. Courts will jealously guard the right of such control. It must be a very plain provision, indeed, in a contract, which will justify the courts in holding that this power has been conveyed away. Where doubt exists, such contracts will be construed against the surrender of such power.

Counsel for respondent cites the following authorities: People v. Railway Co., 118 Ill. 113 (7 N. E. 116); State v. Railway Co., 85 Mo. 263 (55 Am. Rep. 361); City of Binghamton v. Railway Co., 16 N. Y. Supp. 225; Brooklyn Heights R. Co. v. City of Brooklyn, 18 N. Y. Supp. 876; City of Burlington v. Railway Co., 49 Iowa, 144 (31 Am. Rep. 145); Hudson Tel. Co. v. Jersey City, 49 N. J. Law, 303 (8 Atl. 123, 60 Am. Rep. 619); Northwestern Tel. Exch. Co. v. City of Minneapolis, 81 Minn. 140 (83 N. W. 527, 4 Mun. Corp. Cas. 360); Williams v. Railway Co., 130 Ind. 71 (29 N. E. 408, 30 Am. St. Rep. 201); Mayor, etc., of Houston v. Railway Co., 83 Tex. 548 (19 S. W. 127, 29 Am. St. Rep. 679); Easton, etc., R. Co. v. City of Easton, 133 Pa. St. 505 (19 Atl. 486, 19 Am. St. Rep. 658); City of Waterloo v. Railway Co., 71 Iowa, 193 (32 N. W. 329); City of Detroit v. Plank-Road Co., 43 Mich. 140 (5 N. W. 275).

In People v. Railway Co. the question was: Can the municipality, under an authority permitting the construction of a street railway, compel the company to extend its tracks into streets where the road must be run at a loss ? It was held that no such power was reserved. It is there said:

“Doubtless the common council, notwithstanding the grant to the railway company of the right to use the streets, retained full power and authority over the streets to improve them, and use them for all purposes for which they were dedicated to public use. But that reserved power conferred no right on the common council to compel, by ordinance, the construction and operation of a street railway.”

In State v. Railway Co. the charter required the company to keep and maintain the space between its rails n good repair. The council sought to compel the company to put in a new pavement of stone. It was held that the original ordinance gave no such power; that the new ordinance was in violation of the contract; and that, under the pretense of exercising the police power, the duty of paving could not be shifted upon the defendant.

In Brooklyn Heights R. Co. v. City of Brooklyn the company, by its original charter, was granted authority to locate its car house and turnouts at such points as should he approved by the commissioner. Held, that such assent could not be withdrawn after its acceptance •and the construction of the road and buildings.

In City of Burlington v. Railway Co. it was held that, where the charter gave the right to maintain a ■double track, it could not afterwards limit the company to a single track. Such an ordinance was held a violation of the original contract. It was also there attempted to' sustain the ordinance as an exercise of the police power. The court declined to pass upon that question, upon the-ground that the double tracks were not shown to constitute a nuisance.

In Hudson Tel. Co. v. Jersey City it was held that the common council could not revoke the designation of streets for the erection of poles and the stretching of wires, after the ordinance had been accepted and the poles erected.

In Northwestern Tel. Exch. Co. v. City of Minneapolis it was held that the municipality could not arbitrarily order the poles and wires removed, and the wire» placed underground. The case is a well-considered one, and recognizes the reservation of the authority in the common council to require the removal of the poles, if necessary for the protection of the inhabitants and the proper use of the streets. The opinion states:

“ To prevent any misunderstanding, we add that the complaint tenders the issue that the city council arbitrarily,, and without any reasonable necessity, enacted the ordinances complained of. The demurrer admits the allegations of the complaint in this respect, and our conclusion is based upon this admission. If, however, the plaintiff on the trial fails to establish such allegation by competent evidence, it must comply with the ordinance, for it is not to be doubted that the city council has the plenary power to extend the subsurface district wherever, in the exercise' of a fair discretion, it decides that public interests require it to be done; but it cannot do so arbitrarily in the premises, as alleged in the complaint.”

In Williams v. Railway Co. Mr. Williams was restrained by the court from moving a house along a public street, where'it would obstruct the business of the company, and necessitate the cutting of its wires. The moving of a house is not an ordinary use of the street.. In discussing the rights of the railway company the court said:

“■It is undoubtedly true that all such rights are subordinate to the paramount power usually, denominated the ‘police power,’for that power cannot be annihilated by contract.”

See, also, Booth, St. Ry. Law, §§ 39, 40.

In Easton, etc., R. Co. v. City of Easton the ordinance was silent as to the style of rail to be used by the company. It originally adopted a flat rail, but concluded afterwards to substitute a T rail, which created no greater obstruction, and did not increase the cost to the city. Held, that the use of such rail would not be restrained by the courts.

A like state of affairs existed in City of Waterloo v. Railway Co. The court denied the city an injunction, and said:

“The city may require defendant to so exercise the privileges conferred upon it by the grant as that the use of the street for ordinary purposes will not be unreasonably interfered with. It has the power to make all necessary and reasonable regulations as to the manner in which the track shall be constructed, and the condition in which it shall be maintained.”

In City of Detroit v. Plank-Road Co. the sole question was whether a plank-road company could be deprived of its property and its right to take toll by including one of its toll houses and some of its road within the limits of the municipality.

Counsel cites other authorities, but they are all of the same import. The cases cited may.be thus classified: (1) Those which absolutely take away some right expressly conferred, and which does not conflict with the rights of the public; (3) those which impose new burdens not contemplated by the ordinances; (3) those which arbitrarily impose conditions without any showing that they are necessary for the protection and safety of the public. They do not,- in our judgment, control the present case.

It is too late now to question the rule that these corporations may obtain contractual rights in streets and public highways, which the municipality cannot repudiate or annul, when such rights are not inconsistent with the ordinary uses of streets and highways. That rule is settled. The authorities do not, however, go so far as to hold that the grant of a right to use a certain rkind of rail is irrevocable. On the contrary, the conclusion seems to be that, when the use of another kind of rail becomes necessary for the protection and safety of the public, the right to use the specified article must give way to the necessities and requirements'of the public. Such contracts must be liberally construed in favor of the municipalities. Where the ordinance required that a street-railroad company should keep the parts of the streets used by it “in as good repair and condition as the city keeps the balance of its streets, and of even grade with the streets, so that carriages and other vehicles can cross with ordinary ease,’’ it was held that, when the city repaved its streets, it was the duty also of the railroad company to repave. State v. Railroad Co., 29 Fla. 590, 611 (10 South. 590, 595).

The power reserved by section 23 of the ordinance (see paragraph 5 of stipulated facts) was the power “to make such further rules,” etc., “as may from time to time be deemed necessary to protect the interests, safety, welfare, and accommodation of the public;” but it expressly prohibited the reduction of the rate of fare, or the alteration or repeal of section 1. Section 9 also provides:

‘£ The city council may from time to time require the said grantee, its successors and assigns, to use such fixtures and appliances upon its said road, plant, and cars as may be deemed necessary to the public safety in the operation of said road.”

The learned counsel for respondent concedes that, under this reservation and the police power, the city might require respondent to use a heavier rail than a 40-pound T rail, or, at respondent’s option, a girder rail, if necessary to preserve the pavement, and render it reasonably safe for travel. But the stipulated facts show that a brick pavement and the T rail cannot be used together without leaving the surface of the street not only rough, uneven, and inconvenient, but dangerous. If respondent’s contention be the law, the singular result would follow that respondent could not, with safety to the public, pave between the tracks with brick, as by the ordinance it is required to do, and that the city could adopt only such pavement as could be used with safety in connection with the T rail.

We must give the words “fixtures and appliances,” as used in section 9, some force. The right to compel their use is clearly reserved. The term “fixtures” does not refer to movable things; it refers to things that are fixed. Trolley poles, overhead wires, rails, and ties are fixtures. This ordinance, fairly construed, cannot be held to mean that the respondent, in the construction of its roadbed in accordance with the provisions of the ordinance, obtained the right, during the existence of its franchise, to maintain its roadbed and rails in the same condition as when laid. The ordinance contemplated improvements which experience might show to be essential, in the growth of the city, for the convenience, welfare, and safety of travelers upon its streets, and the right to compel such improvements was reserved.

This court held, in an able opinion by Justice McG-rath, that the city of Detroit could compel a street railway to remove all that portion of its railway ties outside of the stringers on which the rails were placed, so that the street might be paved with a concrete foundation. The change involved great expense. The railroad bed had been constructed in accordance with the requirements of the ordinance less than two years before the change was ordered. The reservation in that case was the same as in this. The •only essential difference between the two ordinances is that the one in that case did not expressly provide for laying the ties beyond the girders, while the one in this ■case expressly provides for the kind of rail. But the one in that case did provide that “the rails of said street railway shall be laid on a foundation equal to that of Woodward avenue, or any other first-class railroad.” It complied with the ordinance, and laid the track in the manner authorized by the city. The right to extend its ties-beyond the girders was implied. It had been the ordinary way of constructing street railways. The foundation was equal to that of any other first-class railroad. City of Detroit v. Railway Co., 90 Mich. 646 (51 N. W. 688).. Would the rule have been different if the ordinance had expressly provided that the ties might extend beyond the girders, — then the customary method of constructing-roads? Would the court have said that the pavement could not be laid unless the railway company would consent to make the change necessary for the pavement?' We think not. We think this case is within the principle there established. The common council did not act arbitrarily, but reasonably.

Judgment affirmed.

Montgomery, C. J., Hooker and Moore, JJ., concurred. Long, J., did not sit.


source: Caselaw Access Project

author: Long, J.

license: Public Domain

text:
    SINSABAUGH v. BROWN.
    1. Negligence — Sufficiency op Declaration. '
    A declaration alleging that defendant negligently, wrongfully,, and recklessly left his horse on a public street “ insecurely fastened,” knowing the horse to be of a wild and vicious disposition, sufficiently apprises defendant of the negligence-claimed against him.
    2. Pleading — Demurrer—Waiver.
    Where defendant demurred to a declaration in justice’s court,, and, the same being overruled, pleaded issuably and went to trial, and then took a general appeal to the circuit court, where he went to trial on the pleadings as they stood in the court below, he cannot object to the introduction of evidence on the ground of the insufficiency of the declaration.

      3. Negligence — Vicious Horse — Question for Jury.
    Defendant tied his horse on a public street with an ordinary strap three-fourths of an inch wide, which was snapped into the ring of the bit. While the horse was so standing, a paper blew under his feet, whereupon he jumped, broke the bit, and ran into plaintiff's buggy, breaking it and injuring plaintiff. The horse had run away on several prior occasions, to defendant’s knowledge, once under circumstances almost identical with those of the case in question. Held, that the question of defendant’s negligence was properly left to the jury.
    Error to Berrien; Coolidge, J.
    Submitted March 5, 1901.
    Decided May 7, 1901.
    Case by Richard C. Sinsabaugh against Hiram M. Brown for damages caused by the running away of defendant’s horse. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Gore & Harvey, for appellant.

      Graves & Wilson, for appellee.
   Long, J.

This action was commenced in justice’s court to recover damages claimed to have been caused by the negligence of the defendant in leaving his horse insecurely fastened on a public street in the city of Benton Harbor, the defendant well knowing that the horse was wild, vicious, unsafe, and unmanageable, and of dangerous disposition. On the trial in justice’s court plaintiff had judgment. Defendant appealed to the circuit court, where plaintiff again had judgment. Defendant brings error.

At the commencement of the trial, defendant’s counsel objected to the introduction of any evidence on the ground that the declaration did not state a cause of action. This was overruled. Defendant assigns error on this ruling. We think the court properly overruled the objection. The allegation in the declaration that the defendant negligently, wrongfully, and recklessly left his horse on a public street insecurely fastened, knowing that the horse was of wild and vicious disposition, is a sufficient statement to apprise the defendant of the claimed negligence. As was said in Lucas v. Wattles, 49 Mich. 380 (13 N. W. 782):

“It is always necessary that the plaintiff should count on the negligence he relies upon; but, when he properly avers the negligence, it is not essential that he should set out the facts which go to establish it. Neither is it usual to do so, nor would it commonly be prudent.”

But it may be added that the defendant demurred to the declaration in justice’s court. That demurrer was overruled. Defendant then pleaded issuably, and went to trial. He took a general appeal to the circuit court, and went to trial on the pleadings as they stood in justice’s court. Having done this, we think he cannot be permitted to again raise the question of the sufficiency of the declaration. Ashton v. Railway Co., 78 Mich. 587 (44 N. W. 141); Kraatz v. Electric Light Co., 82 Mich. 457 (46 N. W. 787).

At the close of the testimony "the defendant asked the court to direct the verdict in his favor on the ground that plaintiff had failed to establish his case. This was denied, and error is assigned thereon. • The testimony tended to show that the defendant drove his horse, which was attached to a buggy, into Benton Harbor, and hitched him with an ordinary strap, three-quarters to an inch wide; that this strap was fastened into the ring in the bit of the bridle, and tied to a hitching post; that, while the horse was standing there with his head down, a paper whirled by the wind blew under his forward feet; that he gave a' jump, broke the bit, and ran with great speed down the street, and jumped onto the plaintiff’s buggy, in which he was riding, breaking it, and injuring the plaintiff. The testimony also tended to show that, some time before this accident, the horse was hitched in front of a church in the city; that a paper was there blown towards him, and that at that time he broke away, with the buggy to which he was attached; and that after this the defendant on several occasions unhitched him from the buggy during service. There was also some testimony given tending to show that the bit had been broken before the accident to plaintiff; that is, that it had an old break in it about two-thirds through, and that on the occurrence of the injury it had broken off there, letting the bridle slip from the horse’s head.

The defendant testified that he knew of one occasion when the horse was frightened and ran away with a carriage, but claimed that on that occasion he was not hitched; that he had heard that the horse ran away with some parties stopping at his house, and that he knew of the breaking away at the church; and that, since the injury to the plaintiff, he had fastened the horse by a strap going around his neck, but that before that time he had not done so. The defendant also gave testimony tending to show that the horse was gentle; that he had many times hitched him on the street with the kind of strap with which he was tied on the day of. the accident; that the bit was almost new, and he had never noticed any imperfection in it; that he had had no trouble with the horse except when he ran away at the church and at the time of this accident.

The charge of the court is not set out in the record, and presumably the whole .question was left for the determination of the jury, who returned a verdict in favor of the plaintiff for $35.

We think it cannot be said that there was no testimony in the case tending to show negligence on the part of the defendant. The horse was large and powerful. On two or three other occasions he had run away. He had broken a strap of like character once before, and dashed down the street, tearing the buggy in pieces. The defendant knew of this, and took the precaution afterwards to unhitch him from the buggy during church services. We are unable to say as a matter of law that under such circumstances the defendant would be justified in hitching him with that kind of strap on a public street, among other teams, where papers were liable to be blown about at any time. That was a question properly left to the determination of the jury.

The judgment must be affirmed.

The other Justices concurred.


author: Grant, J.

text:
    SEXTON v. PERRIGO.
    Action on Note — Certificate of Notary — Evidence.

       Section 3635, 1 Comp. Laws 1897, providing that the certificate of a notary public of official acts done by him shall not be evidence of notice of nonpayment or nonacceptance in any case in which a defendant shall annex to his plea an affidavit denying the fact of having received such notice, excludes the admission of such certificate as secondary evidence when the notary is dead.
    Error to Allegan; Padgham, J.
    Submitted March 6, 1901.
    Decided May 7, 1901.

      Assumpsit by Pliny T. Sexton against Luther Perrigo and Charles Perrigo, impleaded with Charles P. Moody, upon a promissory note. From a judgment for defendants, plaintiff brings error.
    Affirmed.
    The defendants Perrigo were sued as accommodation indorsers upon a promissory note owned by the plaintiff. The court made the following finding of facts:
    “1. The action is assumpsit against indorsers of a promissory note. Copy of note is set up in declaration. Plea of general issue, with affidavit annexed to plea denying the fact of having received notice of nonpayment.

      “2. In December, 1893, the following note was executed and delivered:

      ■“ ‘§1,000.00. Palmyra, N. Y., Dec. 28, 1892.
    ‘ ‘ ‘ One month after date we promise to pay to the order of L. Perrigo and Charles Perrigo one thousand dollars in United States gold coin of present lawful standard, weight, and fineness, at the First .National Bank of Palmyra, N. Y. Yalue received.
    [Signed] “ ‘ J. B. Harden.
    “ ‘M. B. Sweeting.’
    1 ‘ Indorsed: ‘ L. Perrigo.
    ‘“C. Perrigo.
    “ ■ Oh as. P. Moody.’
    “3. Harden & Sweeting obtained the loan from the bank, and L. Perrigo and Charles Perrigo and Charles P. Moody were accommodation indorsers.
    “4. The note was presented at the bank, and payment demanded of the cashier, on the last day of grace, viz., January 31, 1893. Payment refused, and the note protested for nonpayment on that day by Stephen P. Seymour, a notary public for "Wayne county, N. Y.
    “5. Before the note became due, it was transferred to the plaintiff, and was his individual property at the time it became due and at the commencement of this suit.
    “6. Notary attached his certificate of protest January, 31, 1893. Notary died April 24, 1897. Certificate of protest offered in evidence with note. Nothing has ever been paid on the note.
    “7. There was no evidence of the service of the notice of protest on either L. Perrigo or Charles Perrigo at any time before suit.
    “8. There was evidence on the part of the defendants that they never received any notice of protest of any kind at anytime; that they had resided in Allegan, Mich., prior to and ever since the 28th day of December, 1892.
    “9. On the 31st day of January, 1893, the said notary, Stephen P. Seymour, made and attached to the note in question a certificate of protest, certifying, among other things, that on the 31st day of January, 1893, he mailed notices of such protest, duly signed by him (partly printed and partly written), to the several indorsers by depositing notices in the post-office at Palmyra, N. Y., postage paid, directed as follows: One for Luther Perrigo, directed to him at Allegan, Mich.; and one for Charles Perrigo, directed to him at Allegan, Mich. This appeared from the certificate of protest offered in evidence. And the written portions of the certificate of protest, including the statement of mailing the notices of protest to the indorsers, are in the handwriting of the said Stephen P. Seymour, and the signature thereto is genuine.
    “10. I do further find that the certificate of protest, including the statement of mailing the notices of protest to the indorsers, had a notarial seal impressed thereon, and that the same was the notarial seal of said Stephen P. Seymour.”
    Upon the foregoing findings of fact the court entered a judgment for the defendants.

      Wilkes & Hoffman, for appellant.

      Pope & Cross, for appellees.

       Head-note by Grant, J.

   Grant, J.

The principal question is this: Was the court in error in holding that there was no evidence on the part of the plaintiff of the service of the notice of protest on the defendants Perrigo ? The statute upon this, subject is as follows:

“In all the courts of this State, the certificate of a notary public, under his hand and seal of office, of official acts done by him as such notary, shall be received as presumptive evidence of the facts contained in such certificate; but such certificate shall not be evidence of notice of nonacceptance or nonpayment in any case in which a defendant shall annex to his plea an affidavit denying the fact, of having received such notice.” Section 2635, 1 Comp. Laws 1897.

The learned counsel for plaintiff contend for the admissibility of the notary’s certificate as secondary evidence of the service of notice of protest upon the defendants, although admitting that it is not presumptive evidence under the statute, because of the affidavits of defendants denying the receipt of notice. They invoke the rule, as stated by Daniel, “ that entries and memoranda made in the usual course of business by notaries, clerks, and other persons may be received in evidence after the death of the persons who made them.” 2 Daniel, Neg. Inst. § 1057. They also cite 4 Am. & Eng. Enc. Law (2d Ed.), 394; 1 Greenl. Ev. § 116; Abb. Tr. Ev. 429; Nieholls v. Webb 8 Wheat. 329; Dobson v. Laval, 4 McCord, 57; Barnard v. Bank, 4 How. (Miss.) 98.

These authorities state the common-law rule, and in Nicholls v. Webb the reasons for the rule are forcibly and concisely stated. The rule stated in these authorities is not disputed. The question is, Do they control in this case ? Or, in other words, is the certificate admissible as secondary evidence of the facts essential to fasten liability upon indorsers ? None of the cases cited involve a statute similar to that of this State. In Barnard v. Bank, 4 How. (Miss.) 98, the law of Mississippi provided that, when a notary public should protest any bill or note, he should make and certify on oath a full and true record of what had been done thereon by him in relation thereto. The certificate in that case was not made on oath. The notary had died, and the question arose whether the record was evidence under the common law. The court said:

“The record of the notary is thus admissible where his personal attendance cannot be procured, or when the parties in the suit think proper to dispense with it. It is only conclusive evidence in the absence of the officer. The difference of the rule thus created by the statute from that of the common law is that the record is conclusive evidence in the lifetime of the notary under the statute, whereas it is only evidence after his death by the common law.”

The record was held admissible, notwithstanding it was not under oath. The statute in that case contained no provision like the concluding sentence of the statute of Michigan.

In Dobson v. Laval, 4 McCord, 57, the question arose upon a statute expressly making the protests of notaries, who are dead, evidence. None of the other cases cited appear to involve the construction of any statute.

Our statute is adopted verbatim from that of New York. It is significant that a subsequent statute was adopted in New York, providing:

“ In case of the death or insanity of a notary public of the State, or of his absence or removal, so that his personal attendance or his testimony cannot be procured in any mode prescribed by law, his original protest, under his hand and official seal, the genuineness thereof being first duly proved, is presumptive evidence of a demand of acceptance or of payment therein stated; and a note or memorandum personally made or signed by him at the foot of a protest, or in a regular register of official acts kept by him, is presumptive evidence that a notice of nonacceptance or nonpayment was sent or delivered at the time and in the manner stated in the note or memorandum.” Section 924, N. Y. Code Civ. Proc. 1877.

It is a reasonable inference that the legislature of New York did not consider that the first statute would permit the introduction in'evidence of the certificate as secondary evidence in case of the death of the notary. No case is cited in the New York Reports decisive of this question, or in which it was directly raised, nor have we been able to find one. The language of the court in Seneca County Bank v. Neass, 3 N. Y. 442, is significant:

“ The only remaining question relates to the sufficiency of the notice of protest. Only one of the objections made at the circuit in that respect was discussed upon the argument, viz., that the certificate of service of notice did not set out a copy of the notice or show its contents. That is not required in terms by the act of 1833, nor do I find any adjudication requiring it. Laws N. Y. 1833, p. 395, § 8. Previous to the passage of that act, the memorandum of a deceased notary was often received as evidence of service of notice, but it was not required in such cases that the memorandum should state the contents of the notice. In Nichols v. Goldsmith, 7 Wend. 160, there was a memorandum on the back of the note in the handwriting of the notary, who was deceased, in these words, ‘ Noticed indorser by mail, July, 1824,’ and it was held prima facie sufficient. See, also, Halliday v. Martinet, 20 Johns. 172 (11 Am. Dec. 262); Butler v. Wright, 2 Wend. 369; Hart v. Wilson, Id. 513.
“The act of 1833 provides that, where notice has not been received, the indorser against whom a suit is commenced may accompany his plea with an affidavit that no notice has been received, and in that case the certificate ceases to be any evidence whatever; and under no circumstances is it any more than prima facie evidence.' The indorser, therefore, has it in his power, in all cases when insufficient notice has been given, to compel the holder tc prove demand and notice by common-law evidence.”

Although this' statute has been in force in this State for nearly 60 years, this is the first time the question has been raised in this court. We think it would be judicial legislation to hold that this statute was limited to cases where the notary was living. The language of the statute clearly includes every case where the certificate of the notary is relied upon as evidence of notice.

It follows that the holding of the court below was correct, and the judgment is affirmed.

Montgomery, C. J., Hooker and Moore, JJ., concurred. Long, J., did not sit.


author: Hooker, J.

text:
    CHURCH v. NESTER.
    1. Tax Sales — Notice—Designation oe Newspaper.
    A tax sale is not void because the newspaper in which notice thereof was published was designated by the auditor gen eral for that purpose prior to the filing of his petition for the sale.

    3. Same — Proof of Publication — Sufficiency.
    Nor is it void because of the insufficiency of the affidavit of publication of the petition and order on file with the court on the day fixed for the hearing, where another affidavit was filed before decree was entered, and the two, taken together show a compliance with the statute.
    3. Same — Designation of Taxes in Petition.
    Nor is it void because a portion of the taxes were grouped in the petition under the heading “Other Taxes,” without further description.

      4. Same — Report of Sale — Presumptions.

      It seems that the failure of the county treasurer to make a report of a tax sale to the auditor general, as required by 1 Comp. Laws 1897, § 3893, is a mere irregularity, not invalidat ing the sale; but, in any event, under section 3922 the presumption is that such report was made, notwithstanding it • ' cannot be found among the files of the auditor’s office.
    Error to Houghton; Steere, J., presiding.
    Submitted March 7, 1901.
    Decided May 7, 1901.
    Replevin by Frank E. Church against George Nester and others. From a judgment for plaintiff on verdict directed by the court, defendants bring error.
    Affirmed.

      Tarsney, Hayes, Lawson & Fitzpatrick, for appellants.

      Frank E. Eobson and W. S. Hill,-for appellee. -

       See Wilkin v. Keith, 121 Mich. 66 (79 N. W. 887).

   Hooker, J.

The defendants claim to have inherited certain lands from their ancestor, and to own the same in fee. The plaintiff claims title to the same lands under a tax deed, and replevied from the defendants certain logs cut thereon by them. The circuit judge directed a verdict for the plaintiff for six cents damages, and, judgment being duly entered thereon, the defendants have brought the case here upon writ of error.

The case turns upon the validity or invalidity of the plaintiff’s tax title. It is urged that the court of chancery had no jurisdiction to render a decree in the tax proceeding, for the reasons — First, that the designation by the auditor general of the newspaper in which the notice of the proceeding was published was prematurely made; and, second, that, upon the day named in the order of publication for the appearance of the tax delinquents, no sufficient affidavit of publication had been filed; and, third, that in the petition a portion of the taxes were grouped under no definite description, being denominated, Other Taxes, $4.42.”

The case of Nester v. Church, 121 Mich. 81 (79 N. W. 893), arose upon a petition to set aside this tax sale filed by these defendants in the original tax proceedings soon after the tax deed was issued, and the prayer of the petition was denied. Some of the questions raised here were passed upon in that case, and, if not res adjudícala, as claimed by the plaintiff (which we do not decide), we are satisfied with the disposition of them.

The designation of the newspaper was not premature, and did not invalidate the proceedings.

The two affidavits filed before decree sufficiently complied with the statute, and showed a proper publication of a proper notice, and therefore showed jurisdiction. Had the defendants gone to the clerk’s office in response to the published notice, they would have found a pending proceeding instituted to obtain a decree against them for taxes. If they did not choose to appear and contest them, preferring to rely on the absence of proof of publication, or of proper proof thereof, they took the chance of proof being filed later, which they were bound to know might be permitted.

The question raised upon the petition does not go to the jurisdiction of the court. If the alleged defect was one which should have precluded the court from rendering a decree for the $4.42, had the same been brought to his attention, it does not follow that his decree is void. Had the defendants appeared and raised the question, the most that they would have been entitled to would have been a reduction of the amount claimed. They would not have been entitled to a dismissal of the proceeding for want of jurisdiction.

It is also contended that the deed made by the auditor general was unauthorized and void because there is an absence of proof that the treasurer made to the auditor general the report of sale required by the statute. A report was made to the county clerk, and thereupon the sale was confirmed, and the plaintiff became entitled to a deed from the State. If the report was not made, it was an irregularity. But, whether fatal or not, had none been made, the presumption of the law is that there was such report. 1 Comp. Laws 1897, § 3922.

We think that there is evidence of the sale.

The instruction of the learned circuit judge was correct, and his judgment is affirmed.

Montgomery, C. J., and Moore, J., concurred. Long and Grant, JJ., did not sit.

         Copies of these affidavits will be found on pp. 83, 84, 121 Mich.


text:
    NORTHRUP v. MANEKA.
    1. Tax Deeds — Certificate op Error — Authority op Auditor General — Constitutional Law — Judicial Power.
    Under section 98 of the tax law (1 Comp. Laws 1897, § 3921, as amended), authorizing the auditor general to issue a certificate of error setting aside a tax deed on finding that the tax was paid to the proper officer within the time provided by law, the auditor, in passing upon an application for such certificate, acts ministerially, rather than judicially, and hence the statute does not contravene section 1, art. 6, of the. Constitution, vesting the judicial power in the courts.
    '2. Same — Attempted Payment op Tax.
    Under the statute cited, such certificate may issue on a finding that the landowner attempted to pay the tax, but was prevented by the act of the collecting officer.
    Error to Mecosta; Palmer, J.
    Submitted March 8, 1901.
    Decided May 7, 1901.
    Ejectment by William D. Northrup against Albert C. Maneka. Prom a judgment for defendant, plaintiff brings error.
    Affirmed.

      M. Brown, for appellant.

      Frank Dumon (A. B. Cogger, of counsel), for appellee.
   Long, J.

Action of ejectment for the S. W. £ of the N. W. £, section 10, township 15 N., of range 8 W., Mecosta county. In March, 1897, this land was owned by Douglas Roben. He conveyed it during that month to the defendant, who went into immediate possession, and was in possession at the time of the commencement of this suit, in April, 1897, claiming title in fee. The plaintiff claims title through a certain tax deed issued by the auditor general to Ira Scott and William O’Connor, dated April 6, 1894, and recorded March 21, 1896. This tax deed was given on a sale for taxes delinquent for 1889. Scott and O’Connor deeded to the plaintiff by quitclaim in 1895.

This case came on for hearing in 1898, and was decided in favor of the plaintiff. That judgment was subsequently set aside, and a new trial granted, in 1899. At the first trial the defense set up was that Roben, the owner of the premises at the time the tax deed was issued, attempted to redeem the land from the tax sale within the time provided by law for that purpose. No proceedings had been had at that time by the defendant or his grantor to have this tax deed set aside by the auditor general. It appeared during the last trial that on November 5, 1899, Roben, who had given a warranty deed to the defendant, made an application in writing to the auditor general to cancel the sale of the land for the tax of 1889, and to issue a certificate of error thereon. It appears from the certificate made by the auditor general on the 17th of November, 1899, “that on April 26, 1893, application was made to the county treasurer’s office to pay all taxes against said lands, which was within the time limited by law for redemption thereof.” The auditor general issued the certificate of error. It appears further that on November 5, 1899, Mr. Roben paid to the State treasurer all the taxes for the year 1889, the same being received as of April 26, 1893.

In November, 1899, the court below granted leave to the defendant to amend.his pleadings by adding a notice in the nature of a plea puis darrein continuance, for the purpose of placing the defendant in a position to put his certificate of error in evidence at the trial of the cause. The trial came on in February, 1900, and resulted in a judgment for the defendant. The case was tried before the court without a jury, and findings of fact and law made. No exceptions were taken to the findings of fact, but exceptions were taken to the findings of law, for the reasons (1) that the judgment, upon the facts, should have been for plaintiff; (3) that the court held that the auditor general had jurisdiction to issue the certificate of error; (3) that, upon the whole record embraced in said findings, a judgment for the defendant was not warranted by law.

The principal question argued in the brief of counsel for plaintiff is that, under the Constitution of this State, the auditor general cannot try and determine the questions necessarily raised when application is made for certificates of error setting aside tax deeds, where there is a conflict of evidence, as that would be an exercise of judicial power, and that by section 1, art. 6, of the Constitution of this State, such judicial power is vested in the courts of this State, and not in ministerial officers. '

The auditor general’s proceeding in issuing the certificate of error for the cancellation of the tax deed was had under section 98, Act No. 262, Pub. Acts 1899. This section is substantially the same as section 98 of Act No. 306, Pub. Acts 1893. Several cases have been presented here where certificates of error were issued by the auditor general under the law of 1893, and in each case the authority of the auditor general has been recognized and upheld. In the case of Wood v. Bigelow, 115 Mich. 123 (73 N. W. 129), it was said:

“Under section 98, Act No. 306, Pub. Acts 1893, the auditor general, upon finding that the tax has been paid to the proper officer within the time limited by law for the payment or redemption thereof, is empowered, even after a deed has been executed and delivered, to give to the owner a certificate of error in proper form for record; and the deed, if-not recorded, shall be surrendered when the purchase money is refunded.”

It was held in Hand v. Auditor General, 112 Mich. 597 (71 N. W. 160), that the auditor general might withhold a deed for lands previously sold for taxes, where he discovered that the landowner, in good faith, had attempted to pay his taxes within the time provided by law. This same rule was laid down in Kneeland v. Auditor General, 113 Mich. 63 (71 N. W. 477), and Kneeland v. Wood, 117 Mich. 174 (75 N. W. 461). In Mann v. Carson, 120 Mich. 631 (79 N. W. 941), the issuance of a writ of assistance was stayed for 90 days to enable the owner of the land to apply to the auditor general to have a certain tax deed canceled.

In all of these cases the power of the auditor general has been recognized to issue certificates of error. The acts of the auditor general in issuing such certificates are ministerial, rather than judicial, and therefore not in conflict with the provision of the State Constitution before cited. It is a common condition of ministerial duty that the officer who performs it must satisfy himself, from proofs, that the facts exist which authorize him to act. Thus, in Hartford Fire Ins. Co. v. Raymond, 70 Mich. 485 (38 N. W. 474), the statute vested in the commissioner of insurance the power to- revoke the certificate granted to any insurance company to do business within this State when the company had violated certain provisions of the statute. In that case it was insisted that the commissioner in so acting had attempted to exercise judicial power, and it was held that the power exercised to grant or revoke the license was but ministerial, and not judicial. Counsel for defendant, in their brief, cite many other cases where persons exercising functions of ministerial offices are empowered by the statute to exercise -duties requiring judgment and determination, which certainly could not be held judicial in their nature, — such as boards of review in the equalization of assessments, commissioners on claims against estates of deceased persons* referees in causes in the circuit courts, etc.

We think it cannot be said, under section 98, above cited, that the auditor general, in passing upon the question of fact presented to him upon the application, exercised any more than ministerial powers conferred upon him by the statute, and that his act was not in any manner in contravention of the Constitution of this State.

The other questions presented by counsel, we think* have no force, as, under the findings of fact made by the court below, the judgment was properly found in favor of the defendant.

The' judgment must he affirmed.

The other Justices concurred.


text:
    DETROIT CITIZENS’ STREET-RAILWAY CO. v. BOARD OF PUBLIC WORKS OF DETROIT.
    Municipal Corporations — Street Railways — Turnouts — Authority of Board of Publio Works.

      1. A municipal ordinance authorizing a street-railway company “to construct, use, and operate all necessary and convenient tracks for turnouts,” etc., “wherever the same ' might be necessary,” and accepted by the company, does not limit the company to the use of such turnouts, etc., as were, necessary at the time the track was laid,, but such as the necessities of the public travel should afterwards require.
    2. Where the legislative control of the streets is vested in the common council, and the administrative control in a board of public works, held, that the board of public works was. authorized to permit the railway company to put in such turnouts as were necessary.

      Certiorari to Wayne; Carpenter, Frazer, Rohnert, Donovan, and Hosmer, JJ.
    Submitted March 21, 1901.
    Decided May 7, 1901.

      Mandamus by the Detroit Citizens’ Street-Railway Company to compel the board of public works of the city of Detroit to grant relator a permit to put in certain switches. From an order granting the writ, respondent brings certiorari.

    Affirmed.
    The Detroit City Railway was organized under chapter 167, 2 Comp. Laws 1897. In January, 1889, it was duly authorized by the city by ordinance to construct and maintain a single-track street railway along Chene and other streets. ' The ordinance authorized it “to construct, use, and operate all necessary and convenient tracks for turnouts, side tracks, curves, and switches, wherever the same might be necessary,” the same to be constructed and in operation within one year from the date of the passage of the ordinance. It was constructed within the time. The relator is the successor by purchase of said railway, and operates it. On June 13, 1900, it presented a written application to the board of public works to put in four additional switches on Chene street, north of Gratiot avenue, to be placed exactly half way between the present switches. The application was denied solely for the reason that the authority of .the board of public works to grant such permits was questioned by the common council. Thereupon relator filed a petition in the circuit court for the writ of mandamus to compel the board to grant its application. The writ was granted, and the case is now before this court for review.

      Brennan, Donnelly & Van De Mark, for relator.

      Timothy E. Tarsney, for respondent.

       Head-notes by Grant, J.

   Grant, J.

{after stating the facts). The sole power to convey authority to construct street railways is by the statute of the State vested in the municipal authorities; the authority in this case being the common council. Counsel for the city cites section 18 of the original ordinance, which reads:

‘ ‘ If said grantees or their assigns shall fail to complete any of the aforesaid railways within the time prescribed, then the rights and privileges herein granted shall be forfeited as to any and every route therein established.”

He then argues that this provision, and the requirement to construct the road within one year, “would seem to he conclusive upon the right of the grantee or its successors to make any other constructions or use any other portion of the street than that which they actually utilized within the time limited.”

The charter provides that the common council “shall have power * * * to control, prescribe, and regulate the manner in which the highways, streets, avenues, lanes, alleys, and public grounds and spaces within said city shall be used and enjoyed.” Charter, § 122. By the charter all the legislative power over the streets is vested in the common council. The administrative power over them is placed in the board of public works. The council is authorized to legislate, and the board is authorized to execute what the council enacts. Charter, §§ 316, 317, 324. The common council had exercised its legislative function, and thereby defined the streets which relator might occupy, and the character of the track to be placed and maintained thereon. The contract between relator and the city was that relator might construct and maintain a single track, with such turnouts as should be made necessary by the increase of travel. No further legislative act was necessary to confer this right. This right was not limited to those needed at the time the road was constructed. Both parties contemplated that travel might-increase, and thereby more cars and more turnouts would be rendered necessary. It is apparently conceded by counsel for the city — or, at least, it is not disputed — that these turnouts are essential for the accommodation of the public travel. Nor is any objection made to the places designated. The sole contention is that the power to act lies in the common council, and not in the board of public works. If a new grant of power from the common council were required, it would follow that the roadbed as originally constructed must remain so during the life of the relator, unless amicably changed; for a contract cannot be changed except by mutual consent. As held in the able opinion of the court below, the relator’s right at the time of construction to lay switches, etc., was limited by public convenience, and it would not then have been permitted to lay more than the then traffic demanded; and that, when public travel demanded more, relator could be compelled to lay them. Upon the construction to be placed upon these contracts, see City of Kalamazoo v. Michigan Traction Co., ante, 525 (85 N. W. 1067).

We approve the conclusion and the reasoning of the opinion of the court below, and affirm the judgment.

The other Justices concurred.


text:
    NORRIS v. SARGEANT.
    Deeds — Mistake—Reformation.
    Evidence reviewed, and held to warrant a decree reforming the description in a deed on the ground of mutual mistake.
    Appeal from Wayne; Frazer, J.
    Submitted April 2, 1901.
    Decided May 7, 1901.
    Bill by Arthur F. Norris against Thomas B. Sargeant and Cyrus Johnston for the reformation of a deed. From a decree for complainant, defendant Sargeant appeals.
    Affirmed.

      Sidney T. Miller and James Cosslett Smith, for complainant.

      William B. Jackson, for appellant.
   Long, J.

One Philetus W. Norris in his lifetime was the owner of certain lots in the village of Norris, this State, among which were lots 4, 5, 25, and 26, block 31. November 4, 1874, he conveyed to defendant Sargeant lots 25 and 26. Norris afterwards died, and the complainant is his heir at law. This bill was filed to correct a claimed mistake in the deed of the lots conveyed. The complainant’s claim is that his father intended to convey lots 4 and 5, whereas in fact the deed conveyed lots 25 and 26. The court below, on a hearing in.open court, entered a decree reforming the deed as of the date it was given, as prayed in the bill. The defendant Sargeant has appealed.

It appears from the proofs that defendant Sargeant gave no attention to his lots from the time the deed was given, and has never paid taxes on them. The complainant and his father, from whom he derived title, paid taxes on lots 25 and 26, supposing the deed conveyed lots 4 and 5. They did not pay taxes on lots 4 and 5, and those lots were sold for taxes, and ‘bid in by defendant Johnston. The court found from the testimony in the case that there was a mutual mistake, and that the lots intended to be conveyed were 4 and 5. The court also found from the testimony that all these lots were about equal in value. We think there was sufficient evidence to show a mutual mistake, and that this is corroborated by the conduct of the complainant and his grantor in paying taxes all these years upon lots 25 and 26, instead of upon lots 4 and 5, which were the lots intended to be conveyed.

We think the court below made a proper disposition of the case, and the decree is affirmed, with costs to the complainant.

The other Justices concurred.


text:
    SCHULWITZ v. DELTA LUMBER CO.
    Negligence of Servant — Liability of Master — Scope of Employment.
    A master is not liable for the negligence of his servant in permitting a boy, contrary to the master’s orders, to ride upon a wagon provided for the servant’s use in hauling lumber, such act not being within the scope of the servant’s employment.
    Error to Wayne; Lillibridge, J.
    Submitted April 3, 1901.
    Decided May 7, 1901.
    Case by Cordy Schulwitz, by next friend, against the Delta Lumber Company, for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Edward 8. Grece and Franklin P. Monfort, for appellant:
    In support of the liability of defendant, counsel cited: Schulte v. Holliday, 54 Mich. 73 (19 N. W. 752); Hughes v. Railway Co., 78 Mich. 399 (44 N. W. 396); Jackson v. Railway Co., 74 Minn. 48 (76 N. W. 956, 5 Am. Neg. Rep. 47); Railway Co. v. Rodgers, (Tex. Civ. App.) 39 S. W. 383, 1 Am. Neg. Rep. 708; Biggs v. Barb-Wire Co., 60 Kan. 217 (56 Pac. 4, 5 Am. Neg. Rep. 335); Price v. Water Co., 58 Kan. 551 (50 Pac. 450, 62 Am. St. Rep. 625, 3 Am. Neg. Rep. 392); Geraty v. Ice Co., 44 N. Y. Supp. 659, 2 Am. Neg. Rep. 624; McCauley v. Hutkoff, 45 N. Y. Supp. 85, 2 Am. Neg. Rep. 772; McCann v. Traction Co., 59 N. J. Law, 481 (36 Atl. 888, 1 Am. Neg. Rep. 478); Gahagan v. Aermotor Co., 67 Minn. 252 (69 N. W. 914, 1 Am. Neg. Rep. 92); Keep v. Walsh, 44 N. Y. Supp. 944, 2 Am. Neg. Rep. 763; Camp v. Hall, 39 Fla. 535 (22 South. 792, 3 Am. Neg. Rep. 351).

      Geer & Williams, for appellee:

      Counsel cited, to the contrary: Snyder v. Railroad Co., 60 Mo. 413; Flower v. Railroad Co., 69 Pa. St. 210 (8 Am. Rep. 251); Stone v. Hills, 45 Conn. 47 (29 Am. Rep. 635); Railway Co. v. Bolling, 59 Ark. 395 (27 S. W. 492, 43 Am. St. Rep. 38); Bowler v. O’ Connell, 162 Mass. 319 (38 N. E. 498, 44 Am. St. Rep. 359); Driscoll v. Scanlon, 165 Mass. 348 (43 N. E. 100, 52 Am. St. Rep. 523); Eaton v. Railroad Co., 57 N. Y. 382 (15 Am. Rep. 513); Wilton v. Railroad Co., 107 Mass. 108 (9 Am. Rep. 11); Rowers v. Railroad Co., 153 Mass. 188 (26 N. E. 446).
   Long, J.

This action is brought to recover damages for an injury which it is claimed was caused by the negligence of the defendant company. It appears that in September, 1894, a teamster of defendant was hauling a load for defendant on the Gratiot road, in Macomb county. When near the plaintiff’s home, he saw plaintiff, a boy about 7 years old, and inquired of him where the Mills place was. Mills place was where the lumber was to be delivered. The boy showed the driver the place, which was about 80 rods from plaintiff’s home. When opposite the place of delivery, the driver placed some rails in a. ditch over which he was to drive to enter the place, and drove across. After unloading the lumber he turned his team about, and stopped just inside the ditch, and went back where he had left the lumber. In the meantime the plaintiff had climbed upon the wagon, and sat upon the-bolster, with his back towards the horses, and his arm around a stake which was at the end of the bolster. The driver returned and seated himself upon the hounds of the-wagon, near the boy, and spoke to his team to get up, when they gave a jump as they crossed the ditch, jolting' the wagon and loosening the stake to which the plaintiff was holding. His leg became entangled in the spokes of the wheel, severely injuring and breaking it. The action is brought against the defendant company to-recover damages, claiming that the negligence of the teamster in permitting the boy to ride upon the wagon may be imputed to the company. It is conceded by counsel for plaintiff that the teamster had been told by the defendant company not to allow children to ride upon his wagon, whether loaded or unloaded. The court below directed a verdict in favor of the defendant. Plaintiff brings error.

We think the court below was not in error in so directing the verdict. Even if the driver had' invited the boy to ride, the defendant could not be made liable. The case falls directly within the rule laid down by this court in Keating v. Railroad Co., 97 Mich. 154 (56 N. W. 346, 37 Am. St. Rep. 328).

The judgment is affirmed.

The other Justices concurred.


author: Moore, J.

text:
    SHERMAN v. SPALDING.
    1. Landlord and Tenant — Estoppel—Extinguishment or Landlord’s Title.
    While a tenant is in general estopped to dispute his landlord’s title, he may show that such title has become extinguished since the contract relation was established between them.
    2. Same.
    Thus: Plaintiff and W. each claiming the right to the possession of certain premises, the tenant thereof attorned to defendant, W.’s attorney, who agreed to hold him harmless as against plaintiff’s claim. Plaintiff prevailed at law as against W., and the tenant assigned to plaintiff his claim for rent paid to defendant. Held, in an action for such rent, that defendant might show that plaintiff’s title had been cut off, prior to the time such rent accrued, by certain city tax leases issued to defendant.
    Error to Wayne; Donovan, J.
    Submitted April 3, 1901.
    Decided May 7, 1901.

      Assumpsit by Mary Sherman against Hinton E. Spalding for money had and received. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Reversed.

      Walker & Spalding, for appellant.

      Charles C. Stewart, for appellee.
   Moore, J.

A reference to the case of Walker v. Fisher, 117 Mich. 72 (75 N. W. 144), will-aid in the understanding of this case. The defendant in this case is a member of the law firm of Walker & Spalding, who were the attorneys for the plaintiff in Walker v. Fisher. After Mr. Walker obtained a judgment against Mr. Fisher in the circuit court, and while the case was pending in this court, a demand was made upon Mr. Fisher for rent, and the following agreement was entered into:

“Agreed by and between H. E. Spalding, of the first part, and Truman S. Fisher, of the second part, that second party hereby rents of the first party the premises No. 578 Lincoln avenue, Detroit, from date to May 1, 1898, the rent being paid in advance to,March 1st, at $12.00 per month; and second party also to pay the water tax frorp.Nov. 1st, ’97, to May 1st, ’98. First party guarantees to save second party harmless from any loss or damage on account of the claim for possession set up by Mary Sherman, or any other persons claiming under the title set up by her.
“Dated Feb. 7, 1898. H. E. Spalding.
“T. S. Fisher.”

Mr. Fisher paid Mr. Spalding, in all, $84.

The case of Walker v. Fisher was decided in this court May 17, 1898. In that case it was held, upon the record as then made, that Mrs. Sherman was entitled to the rent from Mr. Fisher, instead of Mr. Walker. After the decision in that case was handed down, Mr. Fisher assigned his claim against Mr. Spalding, for the $84 that he had paid to him for the rent, to Mrs. Sherman. She sued the defendant for that amount, and obtained judgment against him; the trial judge directing a verdict in her favor. The defendant has brought the ease here by writ of error.

In the trial in the circuit court the defendant interposed, by way of defense, leases made to him by the city of Detroit, dated November 6, 1897, which had been obtained by the city in pursuance of sales made for the nonpayment of the taxes for the years 1893, 1894, and 1895. It is insisted by the defendant that the court should have directed a verdict in his favor:

“ 1. Because plaintiff has shown no title to the premises, nr right of possession thereof, during the time covered by the bill of particulars.
“2. Because title to said premises at the time aforesaid, and the right of possession thereof, was either in defendant or in the city of Detroit.”

Upon the part of the plaintiff it was claimed that Mr. Fisher was her tenant, and could not change that relationship without first yielding to her the possession of the premises. The circuit judge thought the following language should control the case, citing Bertram v. Cook, 32 Mich. 518:

“One who has taken possession under a lease cannot dispute his landlord’s title, or make a valid attornment to a third person; nor during his tenancy can he buy in an outstanding title without his landlord’s consent.”

We think the circuit judge misapprehended the situation. The rule is, as stated, that a tenant is not allowed to deny his landlord’s title, or to do any act inconsistent therewith. But what the defendant was seeking to show was that, after Mr. Fisher became the tenant of Mrs. Sherman, her title in fact to the property ended, and when it ended her right to collect rent ceased, and the right of Mr. Spalding to collect rent commenced. His proposition is:

“Where the lease is made without any stipulation as to the taxes, the landlord himself, and not his tenant, is bound to pay the taxes; and the tenant may show that the title of the landlord has become extinguished by sale for taxes, as well as by the voluntary conveyance of the landlord, or by sale on execution or on the foreclosure of a mortgage. This is settled law in Michigan, as well as in other States. Jenkinson v. Winans, 109 Mich. 524 (67 N. W. 549); Lillie v. Snow, 118 Mich. 611 (77 N. W. 241); 2 Tayl. Landl. & Ten. (8th Ed.) § 708; Keys v. Forrest, 90 Md. 132 (45 Atl. 22).”

These authorities support this contention, and we think the court erred in taking the case from the jury for the reason stated by him.

The plaintiff, in addition to the claim already discussed, says the judgment should not "be disturbed because the questions involved are res adjudicata. This claim is based upon the following facts: After the decision in this court of Walker v. Fisher, Mr. Spalding commenced a suit before the circuit court commissioner to eject Mr. Fisher. The record does not disclose whether it was for failure to pay rent or not. He obtained a judgment before the commissioner. The case was appealed to the circuit court, where the circuit judge directed a verdict in favor of Mr. Fisher. Mr. Spalding did not appeal that case, but paid up the costs. The files and records of that case were not introduced in evidence in this case, but oral testimony was given upon the part of the plaintiff tending to show that Mr. Spalding claimed title under his tax leases, and that Mr. Fisher attacked them all for irregularities, and that Judge Frazer directed a verdict for the defendant on two grounds: First, that titles could not be tried in such proceedings; second, that Mr. Spalding was estopped from leasing to Mary Sherman’s tenant. Testimony was given by defendant tending to show that the verdict was directed by Judge Frazer in the case of Spalding v. Fisher solely upon- the ground that titles could not be tried in such proceedings. He contends that the case went off upon the law question, and was not decided upon the merits. There is a discussion of the rule which should govern in such cases in Bond v. Markstrum, 102 Mich., at page 17 (60 N. W. 283), a reference to which will make further discussion unnecessary here. We are unable to say from the record as we find it whether the case is res adjudicata or not, and for that reason reverse the judgment of the court below and grant a new trial.

The other Justices concurred.


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    FINKBINDER v. ERNST.
    Surface Water — Natural Flowage — Liability for Flooding.
    In an action for the wrongful flooding of lands with surface water, plaintiff claimed that, from time immemorial, a part, at least, of the water from his land had flowed naturally across the land of H., and thence across defendant’s land; and that, owing to the erection of a dam by defendant upon his land, the water was set back upon the land of plaintiff. Defendant contended that the natural flowage of the water was across plaintiff’s land, but that, by reason of the construction of a ditch or embankment by H., the water was diverted from its course, and turned upon the land of defendant; to prevent which he erected the dam in question. Held:

    (1) That, there being evidence to support plaintiff’s theory, a request to direct a verdict for defendant was properly refused.
    (2) That, if defendant’s claim was the true one, he was justified in barricading against the water, and there was no liability, though H.’s conduct was in the course of ordinary husbandry.

    Error to Washtenaw; Kinne, J.
    Submitted April 4, 1901.
    Decided May 7, 1901.
    Case by Charles Einkbinder against Christian Ernst for the wrongful flooding of plaintiff’s lands. Prom a judgment for plaintiff, defendant brings error.
    Reversed.

      A.J. Waters and, Arthur Brown (B. M. Thompson, of counsel), for appellant.

      Lehmann Bros. & Stivers, for appellee.

       For rights as to flow of surface water, see note to Gray v. McWilliams, (Cal.) 21 L. R. A. 593.

   Long, J.

This action is brought to recover damages to plaintiff’s land and certain crops growing thereon, caused by defendant’s erecting a dam upon his own land, which plaintiff claims turned the waters which naturally flowed across defendant’s land upon and across certain lands of plaintiff.

It is claimed in the declaration that prior to June, 1898* the defendant wrongfully, unlawfully, and wantonly, by artificial means, gathered the surface water falling and flowing upon his own lands, and caused the same to flow through such lands onto the land' of one Hotrum, and thence onto and across the land of plaintiff, thus destroying certain crops growing thereon. It is the claim on the part of defendant that these surface waters from time immemorial had flowed in a valley or depression from his lands onto and across Hotrum’s land, and thence across the lands of plaintiff, and that the dam was not the cause of the water’s flowing upon the plaintiff’s land, but that for many years it had flowed across plaintiff’s land, and would have continued to flow in that direction, but that Hotrum, about the year 1891, dug a ditch on his own land from the junction of two water courses, which caused the water to flow on defendant’s land, instead of following its original and natural flow across plaintiff’s land; that there was a natural barrier to the west, which prevented the water from flowing in that direction and across defendant’s land, and that, by Hotrum’s ditch cutting through that natural elevation, the waters were turned upon defendant’s land; that he took counsel upon the matter, and was advised that he had the right to erect the dam to keep the water from his land, and thus turn it back into its original channel.

At the close of the testimony, the defendant asked the court to direct the verdict in his favor. This was refused, and the refusal constitutes the first ground of error.

We think the court very properly left the matters in dispute to the determination of the jury. The plaintiff had introduced some testimony which tended to show that at least a part of the surface water had for many years flowed across defendant’s land. The plaintiff’s claim was that a part of the water had from time immemorial flowed across defendant’s land, and that, by the erection of this dam, the whole of the waters from these lands were turned upon his lands. In addition to this, it does not appear that the record contains all the evidence given on the trial. There is no certificate by the court below that the record contains even the substance of the evidence.

There was some testimony given that Hotrum, in plowing and cultivating his fields, left an embankment, or furrow, which caused the waters to be turned from and across plaintiff’s lands, and turned them in the direction of defendant’s. The court charged the jury upon that subject as follows:

“ If you find from the evidence that, in process of time, those water channels were changed, that, by reason of the natural and ordinary husbandry and tillage of the lands, the surface waters had changed their course, and that, where this dam is erected, the waters from the lands of the plaintiff naturally flowed over and spread upon the lower lands of the defendant, and that this flowage is not due to any other artificial means than ordinary husbandry and to natural causes, then the defendant would have no right to obstruct the flowage of those waters, even though the flowage had existed only for a few years.”

We think this was error. The claim made by the defendant was that all these waters had from time immemorial flowed across the lands of the plaintiff; that none of them flowed across defendant’s land until Hotrum had, by cultivation, made an embankment which prevented the waters from flowing across plaintiff’s land, and precipitated them upon defendant’s lands; and that, in view of that, he had a right to erect his dam to keep the waters from flooding his land. We know of no rule that would allow one to gather even surface water into one channel, and precipitate it even upon lower lands, to the damage of those lands; but here the proposition is laid down to the jury that, though these waters had from time immemorial flowed across plaintiff’s land, yet if Hotrum, in cultivation in ordinary husbandry, caused the waters to be diverted and precipitated upon defendant’s land, he would not have the right to erect a barrier to keep the waters from his land, which had naturally and continuously flowed in another ‘direction. In Leidlein v. Meyer, 95 Mich. 589 (55 N. W. 367), it was said: “It is the settled law of this State that the natural flowage of water from the upper estate is a natural servitude which the owner of the lower estate must bear.” It has several times been held in this State that a landowner has no right, under any circumstances, to transfer his wet and untillable land to his neighbor by the digging of an artificial ditch, and carrying the water upon the neighbor’s land, so that it will not overflow his own land. Yerex v. Eineder, 86 Mich. 24 (48 N. W. 875, 24 Am. St. Rep. 113); Gregory v. Bush, 64 Mich. 42 (31 N. W. 90, 8 Am. St. Rep. 797).

Some other questions are raised which we do not deem it important to discuss.

Judgment was rendered in the court below in favor of the plaintiff. For the error pointed out, that judgment will be reversed, and a new trial ordered.

The other Justices concurred.


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    COLE v. COLE.
    1. Husband and Wife — Homestead—Estates of Entirety.
    A homestead may be claimed in. lands held by husband and wife as tenants by the entirety.
    3. Same — Fraudulent Conveyances — Consideration. v
    A conveyance by a husband to his wife, having been made in payment of money borrowed by him from her, which he had expressly promised to repay, was sustained as against his creditors.
    Appeal from Oakland; Smith, J.
    Submitted.April 4, 1901.
    Decided May 7, 1901.
    Bill by Ransom Cole against Ransom W. Cole, Benjamin F. Sheldon, and Hattie E. Sheldon in aid of execution. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      George 0. Kinsman, for complainant.

      John H. Patterson, for defendants.
   Long, J.

On February 35, 1897, the complainant recovered judgment against Ransom W. Cole and Benjamin F. Sheldon in justice’s court, on a promissory note, for the sum of $113.80. On November 16, 1898, a transcript of the judgment was filed in the circuit court, and execution was issued out of said court November 17th, and placed in the hands of the sheriff, who levied the same on the 19th of that month on the E. -J- of the S. E. i of section 4 of township 4 N., of range 10 E., Oakland county.

Defendant Benjamin F. Sheldon, at the time the note was given, was the owner of an undivided one-fourth interest in certain lands, which he had inherited from his father, who had lately deceased. He, as well as defendant Ransom W. Cole, ■ had certain personal property, which they disposed of about the time the note became due, and were indebted, not only on this note and judgment, but were owing other parties $500 and upwards.. About the time the judgment was rendered on the note, the defendant Benjamin F. Sheldon deeded the land in controversy, which came from his father’s estate, to his. wife, Hattie E. Sheldon. After this deed was given, all the estate of the father was sold to one Lucian B. Kelley to satisfy claims against the estate allowed in favor of defendant’s mother, who thereafter deceased, and an administrator of her estate was appointed. Mr. Kelley thereafter, in order to make a partition of the mother’s, estate, deeded the lands so purchased by him to her heirs, and the land above described was deeded by him to Benjamin F. Sheldon and his wife, Hattie E. Sheldon, as tenants by the entirety. They moved onto the premises. November 18, 1897, and occupied it as a homestead. The execution on the transcript was levied on this land a little over a year after they moved onto it. This bill is filed in aid of that execution. It appears that, at the time the deed was made by Kelley in order to settle the mother’s estate, each of her heirs was entitled to about $800 of it. The lands deeded were subject to a mortgage of $700.

It is the claim of complainant:

1. That the deed was made to Hattie El Sheldon from her husband for the purpose of covering up the interest the husband had in the estate of his father, and placing it beyond the reach of creditors.
2. That the conveyance was without consideration.
3. That the conveyance from Mr. Kelley to the husband and wife by the entirety was for the purpose of placing the property beyond the reach of creditors.
4. That the property is worth an amount over the mortgage and homestead interest sufficient to pay this judgment.

It is admitted, and, if it were not, it is shown, that the parties have a homestead interest in the land. It is settled in this State that parties may have a homestead interest in lands held by the entirety. Lozo v. Sutherland, 38 Mich. 168.

It is the claim of the defendants:

1. That Benjamin F. Sheldon had no notice that the note was not paid at the time of the deed made to his wife, in December, 1896.
2. That the deed was so made by him for the purpose of paying his wife a valid, existing debt due from him to her for moneys borrowed by him from her which he had1 agreed to repay, and, further, for the purpose of securing to her a homestead.
3. That the subsequent taking of the joint deed in furtherance of such purpose, and for the purpose of procuring a home for her, and her husband in case of her death, done at her request, does not change the character of the transaction.
4. That the entire 80 acres of land does not exceed in value $1,700 or $1,800, and is incumbered by a mortgage of $700.

It appears that the buildings are on the north 40 acres, which is claimed as the homestead. The testimony shows, clearly that this north 40 is only of the value of from $1,200 to $1,300; and it is therefore apparent that this 40 acres need not be taken into further consideration. The mortgage covers the entire 80 acres.

The only question that need be considered is whether the defendant Hattie E. Sheldon is entitled to hold the remaining 40 acres under her deed from her husband made in 1896. The proofs show that this 40 acres is of the value of about $500. The court below found that there was no intent on the part of Sheldon and his wife to defraud creditors. It was shown that the note was past due at the time the deed was made by Sheldon to his wife, and he testified that he supposed it had been paid by Cole. The court below found that the value of both 40’s together was not greatly in excess of the homestead exemption added to the $700 mortgage. The testimony introduced by defendants tended to show — and the court so found — that Mrs. Sheldon loaned her husband the sum of $325, which he agreed to pay back; that this money so loaned to the husband was derived by the wife, as she claims, by the raising of poultry, together with 135 she received from her grandmother’s estate. She claims .that this money was paid to her, and she loaned it to her husband upon his express promise to repay it. She testified: “ It was money I had from raising poultry. Icon-ducted the business myself, and the arrangement was that I should have the entire proceeds.” The husband corroborated this testimony. It is 'satisfactorily shown that there existed an honest debt between the husband and wife, and the transfer was made not only to secure a homestead to the family, but to pay that debt. The case falls squarely within the rule in Brigham v. Fawcett, 42 Mich. 542 (4 N. W. 272); Hicks v. McLachlan, 94 Mich. 278 (53 N. W. 1107).

The decree below must be affirmed, with costs.

The other Justices concurred.


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    MAHNKE v. FREER.
    Highways — Accident to Bicyclist — Collision—Contributory Negligence.
    Where, in an* action for injuries to a bicyclist by being run down on a dark night by defendants, who were alleged to have been racing their horses, there was testimony that plaintiff was himself riding at a high rate of speed, and did not see the horses until it was too late to avoid them, his right to recover was properly made dependent on a finding that he was in the exercise of due care; the case not being one for the application of the rule of gross negligence.
    Error to Wayne; Hosmer, J.
    Submitted April 5, 1901.
    Decided May 7, 1901.

      Case by Max Mahnke against Edgar A. Freer, Richard H. Phillips, and Jacob E. Goldberg for injuries caused by a collision on the highway. From a judgment for defendants, plaintiff brings error.
    Affirmed.

      Edwin C. Bolton and Moore & Moore, for appellant.

      Tarsney, Hayes, Lawson & Fitzpatrick, for appellee Goldberg.
   Long, J.

This action is brought to recover damages for injuries sustained by the plaintiff in being run over by the defendants while they were driving on the Boulevard in Detroit, the plaintiff at the time .riding his bicycle on said Boulevard. The first count of the declaration charges that:

‘ ‘At about half-past 7 in the evening, when it was quite dark, said plaintiff was traveling on a bicycle in an easterly direction on the south track of the Boulevard in said city of Detroit, and when at or near the point where the said Boulevard intersects Second street, in said city, said defendants and one other party, whose name is unknown to said plaintiff, were carelessly and negligently driving their horses and buggies, four abreast, with great speed, to wit, at the rate of 20 milés an hour, in a westerly direction along said south track, and came suddenly upon said plaintiff, and carelessly and negligently, and without giving said plaintiff any warning of their approach, and without any fault or negligence on his part, carelessly and negligently ran over said plaintiff, knocked him down, broke and destroyed his bicycle, broke his left leg, dislocated his shoulder, severely shocked and injured his back, head, shoulders, and nervous system,” etc.

The second count charges that:

“Said defendants and another, with four horses and four buggies, drove along said Boulevard in a westerly direction in a reckless manner, at a very high rate of speed, and willfully and recklessly ran over said plaintiff, knocked him down,” etc.

The plaintiff gave testimony tending to show that he was 26 years of age and accustomed to ride a wheel; that, about 7:30 in tbe evening of that day, he and one Rolls were riding east on the Boulevard; that it was so dark he could see only about 100 feet ahead; that Rolls was ahead, and plaintiff 3 feet behind him, riding along slowly; that the Boulevard at this point is from 45 to 50 feet wide; that the first thing he heard was the defendants “yelling and hollering ” at the horses; that he saw the shadows coming, but could not tell what it was, when Rolls said: ‘ ‘ Look out; there are four rigs coming; ” that Rolls turned to the right, close to the curb, and got through. The plaintiff then testified:

“I was in the center of the street. I saw I could not turn. I saw a passage open in the center, and I tried to get through. I saw four rigs, with horses, coming. They were coming at full speed. They were three abreast, and one a little behind, — about 8 or 10 feet behind. The horses took up the whole roadway. They were in a bunch, wheel to wheel. There was a passage of 2 or 3 feet between two of the three rigs. I tried to go through there. I got through till I came to the buggy that was behind. The forward wheel of that buggy struck the handle bar of my wheel. I got my leg into the buggy wheel, and it threw me into the air. My leg was broken. I did not know the men who were driving the rigs. I did not follow Rolls to the curb, because I did not have time. If I had followed him, I would have run into the horses. I went into the open space between the rigs because I thought , I could get through there, and because I could not go any other wheres. The horses were going just as fast as they could pull out.”

Mr. Rolls was sworn, and gave testimony which substantially corroborated that of plaintiff. The witness testified that he and plaintiff “just jogged along there” that evening.

Mr. Henry Kern was sworn in behalf of plaintiff, and testified that he was present and saw the four horses start on the Boulevard; that they turned around and started west; that each horse was driven before a light buggy; that defendant Goldberg drove one, defendant Phillips another, defendant Freer another, and that the other was ■driven by a man by name of Yawkey; that these parties were talking about the speed of their horses; and that 'Phillips was evidently trying to catch up with Goldberg, 'and the others started as if they were also trying to keep up. Witness says: “They increased their speed after they passed me, as I could tell by the sound, but were out ■of sight when I heard the crash of the accident.”

Defendant Goldberg testified that he did not know of the accident until he had- gone through to Twelfth street, -and then came back to where it occurred; that he was not driving to exceed from 4 to 6 miles an hour; that defendant Phillips was a short distance behind him, but that he did not see where Freer and Yawkey were.

Defendant Phillips testified that they were driving not to exceed 6 miles an hour; that Freer and Yawkey were behind, and that he (witness) did not know of the accident until he turned and came back.

Defendant Freer testified that Goldberg and Phillips were also speeding their horses; that Yawkey joined in with them, and they all started, and at about Second street he (witness) collided with this bicycle.

Policeman Scott, who was there, testified that the parties were driving not to exceed 6 miles an hour, but that the men on the bicycles were going at a high rate of speed, — 10 or 12 miles an hour; that the horses were not abreast of each other; that two of them were quite a little distance behind the others.

Policeman Parker testified that the horses were going not to exceed 6 miles an hour, and that the wheelmen were going 10 or 12 miles an hour.

Sergeant Yeager, of the police force, made a report to the police department at that time in which he stated:

“Max Mahnke, 790 Rivard street, had his leg broken by being run over by a horse driven by Ed. Freer. Mahnke was on a bicycle at the corner of Second and Boulevard. Four or five men were running their horses, and he didn’t have time to get out of the way before being knocked over.”

He testified that this was the substance of what was told him by policemen Scott and Parker at the time of the accident, and from which he made this report.

Upon this testimony the court charged the jury, substantially, that: If, at the time, the plaintiff was in the exercise of due care, and there was a concert of action on the part of the defendants to race their horses, the plaintiff could recover against all the defendants; but, before he could recover against any of them, the jury must find that their negligence was the proximate cause of the injury. If, however, they found that such negligence did not extend to all the defendants, then the verdict might be rendered against such defendant as was in fault, if the plaintiff himself was using due care. The jury returned a verdict in favor of defendants. Plaintiff brings error.

Counsel for plaintiff claim that the facts show that the defendants were guilty of gross negligence, and that all of them would be liable, regardless of the conduct of plaintiff. It is their claim that the case falls within the rule laid down in Schindler v. Railway Co., 87 Mich. 411 (49 N. W. 670); Bouwmeester v. Railroad Co., 63 Mich. 557 (30 N. W. 337). We think the case made by the testimony cannot be said to fall within the rule stated in those cases. All the parties had the right to ride and drive on the Boulevard. If the plaintiff and his companion were riding at a high and dangerous rate of speed, and by their own careless and reckless conduct put themselves in a position where it was impossible to avoid collision with the carriages being driven there, the plaintiff could not recover. There is some testimony showing that they were riding 10 or 12 miles an hour. It was so dark that they could not see to exceed 100 feet, as plaintiff himself confesses. We think, under the testimony, the court’s charge very fairly submitted the question for the determination of the jury.

In view of this, the question raised by counsel in reference to the measure of damages is not of importance.

The judgment must be affirmed.

The other Justices concurred.