author: Steere, C. J.

text:
    MOORE v. CURRY.
    1. Covenants — Enforcement—Equity—Injunction.
    Equitable jurisdiction to enforce covenants is not absolute, but is governed by the same general rules which control equitable relief by specific enforcement: if the restrictive covenants in a deed were made with evident reference to the continuance of the existing general condition of the property and its surroundings, but in the lapse of time there has been a complete change in the character of the neighborhood, so as to defeat the purposes of the covenants and to render their enforcement an inequitable and unjust burden on the owner of the lots, the equitable relief will be denied and complainant left to his legal remedy.

    2. Same — Injunction—Restrictive Covenants — Residence Property.
    In a suit to enjoin defendants from erecting a store building on Woodward avenue, in the village of Highland Park, in violation of restrictions imposed when the property was placed upon the market, evidence held, to sustain a decree enforcing the restrictive covenants in the several conveyances, on the ground that the character of ■ the district had not so materially changed as to make it inequitable to enjoin a breach of the restrictions.
    Appeal from Wayne; Donovan, J.
    Submitted April 22, 1913.
    (Docket No. 135.)
    Decided July 18, 1913.
    Bill by Charles T. Moore and others against John Curry and others for an injunction and other relief. From a decree for complainants, defendants appeal.
    Affirmed.

      Lodge & Brown, for complainants.

      Friedman, Smilansky & Blumrosen, for defendants.

       On the question of injunction against sale of, or proposal to sell, real property to person, or for purpose regarded as undesirable, see note in 44 L. R. A. (N. S.) 228.

   Steere, C. J.

The bill in this case was filed to enforce certain building restrictions and restrain the erection of a certain store building for business purposes, as proposed by defendants, on property situated at the northeast corner of Woodward and Curry-stone (or Grand) avenues in the village of Highland Park, a suburb adjoining the city of Detroit on the north. The property in question is part of a subdivision laid out by defendants Curry in 1905; the same being platted and many lots in said subdivision sold before the plat was placed on record.

The bill is filed by 48 owners of lots in this subdivision, each of whom owns one or more lots which were purchased from defendants Curry or their agents, and most of whom have built homes and reside upon their lots. The substantial allegations in their bill, supported by abundance of uncontroverted testimony, are that they were led to purchase because Highland Park was and is pre-eminently a suburban village of homes, free from noise, bustle, dirt, business confusion, saloons, and other deteriorating influences detrimental to home life; that said subdivision was put upon the market as a strictly residential district, large signs being placed upon the land stating that the lots were to be sold under such restrictions; that circulars and other special advertising matter were brought to their attention emphasizing this and announcing that the vendors when conveying would embody proper limitations to that effect in the instruments given; that agents of the owners, when showing complainants the property, dwelt upon the fact that it was particularly desirable for, and would be restricted to, residences, and therefore be entirely free from business houses, saloons, double houses, flats, public places, and anything which would be detrimental to home surroundings, it being the intention of the owners to require that only private dwellings should be erected upon any of the lots contained in said subdivision; that attention was also called by said agents to large stone pillars erected, or to be erected? at the entrances of two streets of the subdivision leading from Woodward avenue, which is the main thoroughfare running northerly through the city of Detroit and continuing on through Highland Park, and it was stated that fine residences would be erected upon this subdivision entirely across the front on said avenue, 12 of the 812 lots in said subdivision being situated on the east side thereof, and the attention of some of complainants was particularly called to the lots now in question, upon which it was stated there would be a $6,000 residence erected fronting on Woodward avenue, áccording to restrictions; that all of said complainants purchased the lots now owned by them relying upon such inducements and promises made by defendants Curry and their agents that all lots in said subdivision would be so restricted and kept under such restrictions, and that in reliance thereon complainants built homes upon their lots, ornamenting and beautifying their grounds, and have established their residences there at large expense; that they were induced to make such investments by reason of the environments and representations so made that it would be a restricted, quiet, suburban district, free from factories, saloons, and other things detrimental to home making.

While no building restrictions are contained in the recorded plat of this subdivision, all contracts of sale and deeds of lots given by the platters contained restrictions in harmony with the foregoing representations. It is undisputed that all lots sold in said subdivision by defendants Curry, including the lots upon which defendants contemplate erecting a store building, were sold subject to residential restrictions. The contract under which defendants Kobinson, Levin, and Wetsman hold the corner upon which they contemplate and began the erection of the structure objected to by complainants is dated December 29, 1910, and contains the following language:

“That no business house, saloon, public schools, churches, store houses, manufactories, apartment houses, double houses, flats, or public places of any sort shall be erected on said lot that may be considered an annoyance on a private residence street; it being the intention that only one private dwelling shall be erected on or occupy each lot herein described. That, as a part and further consideration of the sale as hereby made, the parties of the second part shall erect on said lot a suitable private dwelling at least two stories high, to cost not less than $4,000; said dwelling to be not less than 40 feet from the front line of said lot and not less than 10 feet from the southerly line of said lot 10. No barn or outbuilding to be erected nearer to the said lot line than 60 feet and shall not build any building for the purpose of carrying on business thereon.”

The testimony shows clearly that these restrictions were familiar to the defendants who propose erecting the store, and that they had tentative plans prepared and started the work by digging a small trench outlining the limits of the proposed building, to test the attitude of residents in the district and in anticipation of possible litigation. Defendant Robinson testifies:

“When we got this contract, we saw that the restrictions were there and we spoke to Mr. Potter (Curry’s agent) about it. * * * I said, ‘Being as I want to put up some stores, I want to see if there is anything to prevent it.’ * * * Mr. Potter said he would put out the sign there that there would be stores.^ * * :t: That was done simply as a matter of business, that we were putting up stores there. We dug a trench about a foot wide and a foot or fifteen inches deep. We began that about four months ago and I understand the suit followed. * * * I have not exactly bought any material for it.”

Witness further testifies:

“Mr. Charles F. Curry was the man I talked with. I asked about putting up more stores. * * * He said, ‘You know it has restrictions;’ and he says that ‘there might be some trouble;’ that is all he said.”

As late as July 22, 1910, defendant Charles F. Curry filed a bill of complaint in the Wayne circuit court in chancery against certain parties to restrain them from erecting a two-family flat upon lots 138-139 of said subdivision, alleging the same was in violation of the building restrictions; that he was bound to enforce the same for the protection of himself and others to whom he had sold lots; and that the erection of said flat would result in irreparable damage to himself and all resident owners on Currystone avenue.

It is conclusively shown and practically conceded that the subdivision has been built up, developed, and improved as a strictly residential district; that the restrictions have been generally observed; and the erection upon said property of such a building as defendants propose would be a palpable violation of the restrictions found in their contract and imposed upon all purchasers in the subdivision unless changed, and unusual conditions render such restrictions no longer operative.

In the final analysis counsel for defendants raise for consideration and discuss but the one proposition that the environments and character of the locality, and especially that portion fronting on Woodward avenue, have so changed since the platting of this property that equity ought not to enforce this restriction. In support of this a rapid and phenomenal growth of the city of Detroit and its suburbs is shown, especially extending out Woodward avenue and into Highland Park in and around this subdivision. Testimony was introduced showing that Woodward avenue frontage in that locality is not . desired or in demand for residence purposes; that it has become a business street and property on it only in demand for business purposes; that unrestricted land fronting on it sells; much higher than that restricted; that 16 stores have been erected on said avenue within a block of Curry-stone ; that most of them were erected since 1906; and that various kinds of merchandising, such as are usually conducted in the business part of a municipality, are conducted in said stores.

The trial judge, before whom the witnesses were produced and testified, personally inspected the. premises in controversy for a better understanding of their testimony and made a finding of facts in connection with his opinion. As to the physical conditions of the property found by him after an inspection, in the light of the testimony given, he says:

“The court has made a personal inspection of the premises in controversy and of the property on both sides of Woodward avenue from the southerly limits of Highland Park village to the northerly limits thereof. From the testimony in this case, which has been verified by said inspection, the court finds that there is much vacant property on both sides of Woodward avenue throughout its entire length within said village; that there is apparently abundant room along the course thereof for the erection of such business places as may be necessary for the comfort and convenience of said section for many years to come; and that neither the comfort nor convenience of said section nor the inhabitants thereof nor of said neighborhood will be promoted or increased by the erection of a business house upon the premises in controversy. The entire section is new. There are but two houses upon Woodward avenue in Highland Park village that can lay claim to very great age, and those are two residences. * * * What store buildings and business houses do exist upon Woodward avenue are all evidently of recent erection. * * * New residences in the immediate vicinity of the property in question have recently been finished on Woodward avenue. The subdivision itself is only about six years old. What store buildings have been erected in the neighborhood are only two or three years old.”

The doctrine which is invoked in behalf of defendants is quoted from and clearly stated in 3 Pomeroy’s Equity Jurisprudence (3d Ed.), p. 2596, as follows:

• “The equitable jurisdiction to enforce such covenants is subject to one most important limitation. It is not absolute, but is governed by the same general rules which control the equitable relief of specific performance of contracts. If, therefore, the restrictive covenants in deeds of lots were made with evident reference to the continuance of the existing general condition of the property and its surroundings, but in the lapse of time there has been a complete change in the character of the neighborhood, so as to defeat the purposes of the covenants and to render their enforcement an inequitable and unjust burden on the owner of the lots, then the equitable relief will not be granted, and the plaintiff will be left to his remedy at law. For example, if the covenants restricted the grantees of lots to use for purposes of residence, and since their execution the whole neighborhood had ceased to be used for such purposes, and had been wholly given up to business, manufacturing, and the like.”

This principle has been applied in numerous cases cited by counsel and is recognized by this court in Frink v. Hughes, 133 Mich. 63 (94 N. W. 601), wherein it is said:

“We think the decree of the court below has sufficiently protected the defendant when, by its terms, it has left it open to him to bring to the attention of the court any changed conditions in the property which may take place at a later day.”

In view of the proof of development and changing conditions in the vicinity of the subdivision, we think it would be proper to not foreclose bringing to the attention of the court any marked changed conditions of the property in the future, but at the present time the equities as well as the law are with complainants. At the present time Highland Park, taken as a whole, yet remains distinctively a suburban, residential village built up largely of houses of those whose business and labors are in Detroit. It is growing rapidly and chiefly from the city overflow. The great bulk of its population go there for homes, not for business. To accommodate such population, certain kinds of business have followed, and buildings to accommodate such business have been built in .that locality, along Woodward avenue. The most desirable sites for business will command a better price for such purposes than for residences. This is true of every restricted district which has developed to a point where the population and environments make a local demand for business. Since the construction of a belt line railroad around the city of Detroit, a few large factories, including the Ford automobile works, have been erected in the village on or near said belt line. This has increased the importance and population of said village, but its original distinctive characteristic as a village of suburban homes yet remains. To accommodate the inhabitants of the village as the population increased, the number of business places along Woodward avenue has increased; but it is shown there are sufficient to supply the needs of the community now and unrestricted vacant lots convenient for more when needed, and it is by no means shown that the whole neighborhood has ceased to be adapted to and used for residences and been given over to business. It is shown that it would be an injury to the residents on this subdivision for stores to be erected on the front along Woodward avenue with their rears towards the homes upon the subdivision and cutting off a view of the avenue. By their contracts the purchasers of lots in the subdivision back of Woodward avenue are entitled to have either a view in that direction or a line of appropriate residences fronting upon it. The only equitable consideration for re-fusing this relief, under present conditions, is that the lots on Woodward avenue would sell for more with the restrictions removed. This is not sufficient.

No such radical change has been shown in the environments and character of the neighborhood in which the restricted district is situated as to invoke the limitation contended for and justify the court in refusing at this time the relief asked.

The decree is affirmed, with costs.

Moore, McAlvay, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


source: Caselaw Access Project

license: Public Domain

text:
    LeROY v. COLLINS.
    1. Prescription — Private Way — Alley—Ejectment.
    Where a private way is improved by the owner and left open for the convenience of others, their use in common with the owners and those for whose special benefit it was opened is, as a rule, to be regarded as permissive only and under an implied license. As to a defendant who claims that his testatrix had exercised adverse user of a strip belonging to an alley that consisted of land taken from both adjoining owners, the use made of that portion taken from property which she did not own must be treated as permissive, not adverse.
    2. Same — Adverse Usee — Exclusive Possession Necessary.
    Defendant could not obtain title to that part of a vacated alley which belonged to adjoining property owners, under evidence of joint user by decedent with the other proprietors, permissive in its inception and not under color of title, since her alleged occupation under a claim of right which they disputed did not become exclusive, and the possession and user by both parties was of the same character.
    3. Same.
    Neither occupation in common with the public nor possession concurrent with that of the true owner is ever exclusive.
    Error to Kent; Perkins, J.
    Submitted April 16, 1913.
    (Docket No. 72.)
    Decided July 18, 1913.
    Ejectment by Simeon LeRoy and another against Hiram Collins as administrator of'the estate of Margaret Collins, deceased. Judgment for plaintiffs. Defendant brings error.
    Affirmed.

      Grove & Davis, for appellant.

      A. C. Hindman, for appellees.
   Steere, C. J.

This action of ejectment, brought to recover possession of, and incidentally establish title to, a strip of land 8 feet wide east and west and 55 feet long north and south, immediately adjacent to, and claimed to be a part of, lot 14, block 2, of Coit & Co.’s addition to the city of Grand Rapids, is again before us on a voluminous record which, under previous adjudications of this court, only involves the one question of title by adverse possession.

Coit’s addition was platted in 1856, and according to the plat thereof the piece in controversy is the westerly half of that portion of the land adjoining said lot 14 in the rear, laid out- as an alley. Action was taken in 1859 by the common council of the city of Grand Rapids to vacate said alley, and, whether or not said proceedings constitute a legal vacation of the same, it has been held by this court that the action of the common council was sufficient to repudiate and negative any acceptance of dedication tendered by the plat, and the strip, of which the piece in controversy forms a part, did not become a public alley.

This contention has twice before been in this court, the first time in the chancery suit of Le Roy v. Collins, 154 Mich. 77 (117 N. W. 579), wherein it was held the land in question did not constitute a part of a public alley; and again in Le Roy v. Collins, 165 Mich. 380 (130 N. W. 635), involving this same ejectment suit, wherein it was held that the question of title had not been in issue between the litigants, nor decided in the chancery suit; that the record title to the same was in plaintiffs, who owned said lot 14, but the question of whether or not they had lost it through adverse possession was yet open and unadjudicated. The lower court having taken the view that the matter was res judicata, under the decision in the chan-, eery suit, the case was reversed and remanded for a new trial upon the issue of prescription.

Margaret Collins, the original defendant, died during the pendency of this action, and, on suggestion of her death of record, proceedings were continued with her administrator as defendant. The history of the controversy and a sufficient statement of the disputed and undisputed facts involved is found in the two cases cited, and need not be repeated here. At the conclusion of the testimony on a retrial of the case, proceedings were had, which it is not necessary to detail here, resulting in a stipulation presenting, in proper form for review, the action of the court in directing a verdict for plaintiffs. After reviewing the testimony as a whole, the trial court reached the conclusion that defendant had failed to produce any evidence tending to establish his claim of title by prescription, and that there was an absence of such proof of exclusive, open, notorious, hostile, and adverse possession for the statutory period, as is essential to divest plaintiffs of their record title to the fee of the property.

Block 2 of Coit’s addition is bounded on the west by Lafayette street, on the north by Hastings street, on the south by Bridge street, and on the east by what is known as thé Knapp addition. It consists of twelve full length lots, four of which front south on Bridge street, eight west on Lafayette street with the alley in question lying in their rear to the east, and eight short lots adjacent to the alley on its east side, and abutting on the west Knapp’s addition, without any intervening street or alley. The four lots fronting south on Bridge street have an alley running east and west across the addition at their rear, forming an entrance to the north and south alley involved in this controversy, which runs northerly 445 feet through the block to Hastings street. The annexed-diagram, introduced in evidence in the case, shows said block 2 as originally platted in 1856, and the relative position of the lots, streets, and alleys mentioned.

Margaret Collins and husband owned the eight short or fractional lots which form the entire eastern boundary of the alley, and her husband, Joel Collins, owns lots 18 and 19 on Bridge street. Lot 15, the most southerly of those facing on Lafayette street, is owned by plaintiff Simeon Le Roy, and lot 14, lying imme-

diately to the north and at the rear of which is the piece in dispute, is jointly owned by both plaintiffs.

On the trial of this action 46 witnesses were sworn. Their testimony was necessarily for the purpose of establishing or refuting exclusive adverse possession by Margaret Collins of the strip in question for the statutory period before the commencement of this case. The record title being in plaintiffs, the burden of establishing title by prescription rests on the defense. It is undisputed that a strip of land 16 feet in width, originally platted as an alley, of which this small piece in dispute forms a part, has been devoted to alley purposes for many years. There are not, and never have been, any buildings upon the same, or other improvements except such as were designed for, and appropriate to, its use as an alley, thoroughfare, way of travel, or means of ingress and egress to and from adjacent property. It has an improved driveway in the center, on the west side of which a few shade trees have been planted, and along its east side, upon the adjoining lots, runs a three-foot cement walk, built by deceased’s husband primarily for convenience of occupants of some tenement houses constructed by him upon said lots, there being a two-family flat on lots 1 and 4, which faces north on Hastings street, and nine houses on the east side of the alley facing to the west.

Joel Collins, husband and agent of deceased, became interested in said block 2 as early as 1867, when few, if any, improvements had been made in that locality. He then purchased lots 18 and 19, which he yet owns. In 1873 he secured for deceased lots 8, 9, 12, 13, and 16. In 1885 he purchased from Daniel W. Coit and wife, the then owners, lots 1 and 4, upon which he erected the two-family flat, and at the same time obtained from them a quitclaim deed of the east half of the north end of the platted alley to the depth of 110 feet south from Hastings street, and the west half of said north end south 70 feet, and he later secured by tax title lot 5. At the time he obtained the quitclaim deed of 70 feet of the west half of the north end of the alley the Coits had previously sold the adjacent lots on the west by metes and bounds. The deed from the Coits to deceased in 1873 described the property conveyed as “fractional lots 8, 9, 12, 13, and 16 of block 2 of Coit & Co.’s addition, according to the recorded plat.” The recorded plat showed the alley, although the same was not then a public alley, as already indicated.

When Collins bought lots 18 and 19 the land was broken and rough, so that in its then condition it was not possible to drive through the alley with a load. There was a ravine extending over those lots and to the northwest, along a portion of the alley and across the lots on the west, its deepest portion being on lot 16. Collins built a barn on lot 19 in 1872, and made a driveway along the east side of 19, which connected with the south end of the alley, and gradually improved the alley, working north from lot 19 until he opened a way of travel its entire length and over said lot 19, connecting Hastings and Bridge streets. In 1874 he and his brother had a contract for grading College avenue, in which they had to remove a large amount of dirt, and they used the low parts of the alley and their adjacent lots as a dumping ground; a large amount of dirt being required to fill lot 16. This filling served a double purpose. They had a convenient dumping ground for the dirt required to be moved under their contract, and they also, at the same time, leveled up and improved their lots and the adjacent alley. Collins testifies:

“After we had acquired all of the property on the east side of this property, which is now ‘Collins Place’ (the name given by him to the property he and wife owned there) * * * we laid out the alley the entire length to Hastings street 20 feet wide from the rear of lots 18 and 19 and built houses on the east side of it; there are more houses than there are lots; the idea was to get all the houses in there we could. * * * I set those poplar trees out about ’80, six or seven of them; * * * they were set along that line and kept for shade trees to accommodate my tenants. At the time I commenced the improvements the Keatings lived on lot 6 or 7; then there was no one until you come to about 14 — a man by the name of Schmidt lived there; people could not very well get out of 7, 14, or 15 until I graded it up; most all the wood, coal, and such things were drawn from Lafayette street frontage.”

While there is much testimony, more or less conflicting, as to the kind and extent of use made of the alley by the owners and occupants of lots abutting it on the west and fronting on Lafayette street, together with their understanding and claim of right in that connection, in disposing of the question before us we must be governed by the undisputed facts and defendant’s testimony taken as true. The conclusion of a witness, however, or a general and sweeping assertion inconsistent with admitted facts, or specific facts testified to by the same witness do not control. Although Collins testified that he had exclusive possession of this alley, his testimony in detail and the admitted facts negative this conclusion.

While an alley at the rear of their property was of interest and value to the owners of lots at the west fronting on Lafayette avenue, their use of and interest in it was relatively small compared with Collins’. The improvement and use of the alley was of vital importance to his project for developing the property on the east, which had no other outlet. He took the burden of improving the alley and did improve it. This was naturally agreeable to all adjacent owners, so long as they were not excluded from it. While the testimony discloses that it was believed by some, if not all, of the abutting owners, other than Collins, to be a public alley, the truth was that he improved and opened this alley on private property, owning but little of it when he began. He never had any title to any of the lots on the west side, or to the piece now in dispute, and no claim to it except that of possession.

According to his own testimony Collins never objected to the use of the alley in connection with the lots on the west side, or to its use by any one who desired, except, as he states it, “they were damaging something.” It was an improved way of travel along lines shown on the plat, was so opened and connected that it furnished a passage from one street to another, and all were free to use it as a thoroughfare, so long as they used it properly and did no damage.

It is undoubtedly the law that where a private way is improved by the owner and left open convenient for others, their use of it in common with the owners and those for whose special benefit it was opened is, as a rule, to be regarded as permissive only, and under an implied license. Conceding this true as to defendant, the rule only applies to land defendant owned. The implied license or permission to use the land on the west half of the alley was from those who owned it, not from him.

Collins shows that he exercised vigilance in insisting on proper use of the way and forbade improper uses, such as throwing rubbish upon it, leaving conveyances standing there overnight, or stable cleanings lying adjacent, and cutting it up in hauling dirt upon an adjoining lot. He did this, as he testified, under a claim of ownership. He admits this claim was denied by certain of the occupants of adjoining property, who insisted on equal rights to use the alley, and continued its use without objection from him, so long as they used it properly. In building the cement walk on the east side, Collins placed it on the line of the alley as designated on the plat, leaving the alley 16 feet wide. He says he knew it so appeared “as a vacant alley” on the plat.

It stands in this case undisputed that no signs or notices were ever put up that this was private property; that defendant never inclosed it; that after it was made passable as a way of travel it always remained open, in general use, free to all who desired to use it and used it properly; the only objections ever made to its use by Collins being to an improper use which damaged something.

All this has materiality only as it bears on defendant’s claim to exclusive possession of the eight feet along the rear of lot 14. This lot was partitioned to John Clancy, one of the platters of the property, by deed, before the time of the proceedings to vacate the alley. He sold it in 1872. It was early built upon and occupied. In its natural condition the rear was lower than the front, and coal, wood, etc., were hauled in from Lafayette street. As early as 1878 there was a barn on the back end of the lot. A man named Schmidt bought the lot in 1883 and lived there several years. He filled up the rear of the lot in 1883, making it level with the front and the alley. He used about 600 loads of earth for this filling taken from Hastings street. He used the alley for this purpose, believing it a public alley, and asked permission from no one. As to this Collins testifies:

“Mr. Schmidt never asked me any permission that I know of. I never saw him use the alley in connection with the rear of this lot, except when he moved that dirt. I never told him not to use it.”

A man named Hawkins, who purchased the lot from Schmidt, used the alley. He built a fence at the rear, putting a gate in it. When building the fence he proposed to cut down a certain tree standing near the line and Collins forbade it, claiming to own the alley. This Hawkins disputed. They were friendly, Collins says, and he did not forbid him using the alley. Hawkins did not cut the tree but continued to use the alley, hauling over it wood, coal, etc., as he desired, and moved his household goods that way when he left. A tenant on the property named Mohrhardt, using the alley, drove over Collins’ walk on the east side and damaged it. Hot words were exchanged, and Collins, asserting ownership, threatened to shut him out from its use. Collins testified Mohrhardt asked permission to use the alley, and Collins said he had no objection so long as he did no damage. In cross-examination he testifies:

“Q. Is it not correct that, when you told him you would shut him out of there, he told you in substance that you could not do it?
“A. That was about what took place.”

Mohrhardt used the alley after the trouble as before.

After plaintiffs procured the property in May, 1906, being owners and occupants of adjacent property, they had made but little use of the alley, except to take some wagons over it and through the gate to store them in the barn, when defendant proceeded to assert his claim to this eight-foot strip at the rear of their lot by planting a row of small elm trees upon it, one of the trees being directly opposite plaintiffs’ barn door and another opposite the middle of their gate, and to build a fence along the east side of the trees, entirely shutting them off from the use of the alley in connection with lot 14. This declaration of war was followed by the chancery suit heretofore referred to, filed on the theory that the strip was part of a public alley, and seeking to restrain defendant from interfering with complainants’ use and enjoyment of the same. No claim of ownership or right to exclusive possession of the strip now in dispute was then made by plaintiffs. This court having held that the strip was not a public alley, that title to the same was in the adjacent owners, and that complainants had not sufficiently shown acquisition of an easement in the entire alley by adverse user, their bill was dismissed. Defendant’s title and right of possession to the eight feet of the alley on her side of the line having been established, she proceeded, through her husband as agent, to maintain, under claim of ownership by adverse possession, the eight feet on complainants’ side, not only cutting them off from the use of the alley but from possession of the eight feet they had record title to, at the rear of lot 14.

The infirmity in defendant’s contention for exclusive adverse possession is it stands undisputed that the only possession she ever had of this eight-foot strip was for improvements as a thoroughfare, and its use as such in connection with others. It was only improved by Joel Collins for that purpose. He had no title to it. The improvements he made and his use of it as an alley were unquestionably permissive, in their inception. He then certainly had no claim of right or color of title to this strip. The alley has ever since been open and used by adjoining owners on both sides and by the public, as occasion demanded, as a thoroughfare and way of ingress and egress. When and how, according to defendant’s evidence, did this permissive and concurrent possession become exclusive and adverse? Collins testified to making a claim of ownership, which was denied by adjacent owners and users of the alley; they continuing the use of the alley for the purpose to which it was devoted, as before, under a claim of right on their part.

So far as possession and use are involved, that of plaintiffs and defendant were the same in kind, varying only in degree. Each was only using the other’s land for alley purposes. The presumptions as to permissive use apply alike to each party when, without objection, using the land of another in connection with his own for a way of travel. Occupation in common with the public is not exclusive possession, neither is possession concurrent with that of the true owner ever exclusive. Marble v. Price, 54 Mich. 466 (20 N. W. 531); Hittinger v. Eames, 121 Mass. 539; 1 Cyc. p. 1025. Defendant’s possession is not shown, prima facie, to have been hostile in its inception nor exclusive during its continuance. The only evidence in the case from which could be found distinct exclusion of plaintiffs from this eight-foot strip, and a hostile possession against them is at the time of planting the small elm trees and building the fence in 1906, thus entirely shutting them off from both the use of the alley and the strip in question to which they held the legal title.

We think the trial court correctly held that there was no issue of fact for the jury on the one open question of adverse possession.

The ruling of the court in directing a verdict for plaintiffs is sustained, and the judgment affirmed.

Moore, McAlvay, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


author: McAlvay, J.

text:
    PRIEBISCH v. OTTENWESS.
    1. Fraud — Evidence—Admissions.
    Evidence that defendant admitted charges of false representation in the presence of plaintiff and his attorney, who was sworn as a witness, was competent and admissible; testimony concerning other admissions made in plaintiff’s absence, not being privileged, were properly admitted, in an action on the case for fraud, whereby defendant Induced plaintiff to withhold from record a chattel mortgage on property that defendant conveyed away.
    2. Same — Compromise and Settlement — Evidence.
    Admissions made to plaintiff and his attorney during an attempt to collect the money which defendant owed, were not governed by the rule that negotiations for settlement are privileged; no dispute as to the indebtedness existing at the time of the conversations.

      3. Same — Negotiable Instruments.
    Nor was it error to admit in evidence a dishonored check for the full amount of the alleged debt drawn by defendant on a drawee who had no funds of defendant in his hands.
    4. Appeal and Error — Exception—Saving Questions eor Review.
    The court, on error, will not consider the refusal of the trial judge to strike out testimony, when the appellant does not discuss the subject in his brief, or refer to any exception to the ruling.
    5. Amendment — Fraud—Sale—Declaration.
    Where plaintiff charged in his declaration that defendant, •after fraudulently inducing plaintiff to withhold from record a chattel mortgage on defendant’s property, transferred his property to a partnership of which defendant was a member, and it appeared on the trial that there was a bill of sale by defendant to one H., who conveyed the mortgaged property to-the partnership, the court did not err in amending the declaration so as to show the facts: the amendment did not state a new cause of action.
    6. Same — Variance.
    Nor did it so change the scope of the action as to amount to a variance between the declaration and the affidavit for a capias in the cause.
    7. Appeal and Error — Directing Verdict — Exception.
    An exception is required to review the refusal of the trial court to direct a verdict for defendant.
    Error to Kent; Cogger, J., presiding.
    Submitted January 10, 1913.
    (Docket No. 57.)
    Decided July 18, 1913.
    Case by Max Priebisch against Bernard Ottenwess for fraud. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      George Hollway, for appellant.

      Cornelius Hoffius (Edward B. Strom, of counsel), for appellee.
   McAlvay, J.

This case is brought before this court by defendant by writ of error to review a judgment of the circuit court for the county of Kent, entered upon the verdict of a jury in favor of plaintiff.

Plaintiff was a baker by trade, and had been working as such for defendant in his bakery in the city of Grand Rapids. He was a German, and did not understand or speak the English language. He is described by the defendant as a truthful, honest man. He had accumulated $500, which, on November 21, 1908, he loaned to defendant for one year at 5 per cent, interest, taking a promissory note therefor secured by a chattel mortgage upon the entire stock and fixtures of defendant’s business, and' also three horses, two wagons, and all other equipment used in the business contained in defendant’s barn. This was all the property defendant owned at the time. The suit was commenced by capias ad respondendum, upon which defendant was arrested and held to bail.

The claim of plaintiff, as charged in the affidavit for capias, and as alleged in the declaration, is that, immediately after his mortgage was given, defendant, intending to cheat and defraud him, represented that his credit would be injured if plaintiff filed and recorded his chattel mortgage, and, falsely and fraudulently intending to cheat and defraud him, induced plaintiff not to file and record said mortgage, upon the promise that he would pay him the full sum borrowed within six months, with interest for one year and would not sell, remove, or incumber any of the property covered by the mortgage;, that about three months thereafter plaintiff was informed by defendant that he had received an offer of partnership, and to act as manager in another bakery, upon which the plaintiff told him that he would at once record his chattel mortgage and protect his security; that defendant, having already sold and transferred all of the property covered by the chattel mortgage, and been paid for the same and entered into a partnership without the knowledge of plaintiff, falsely and fraudulently represented to plaintiff and promised him that if he accepted such offer he would not dispose of his business, but would retain and continue the same, and represented that his security would continue good and safe, and the property would remain under the lien of the mortgage; that plaintiff believed and relied upon such false and fraudulent representations, and was thereby deceived and defrauded, and induced by defendant not to put his chattel mortgage on record — by all of which acts and doings of defendant the security of said mortgage was rendered worthless, and he was defrauded and damaged to the amount of such mortgage. The case was tried upon the general issue pleaded by defendant; no question having been raised as to the sufficiency of the declaration or the regularity of the proceedings.

When defendant sold this chattel mortgaged property he represented to the purchaser that it was free and clear from all incumbrances, and, in stating to him his indebtedness, did not mention this. debt to plaintiff. The record shows that he sold this chattel mortgaged property to Clemens Huxoll, receiving $1,500 therefor at the time, and later $300; that a' partnership was at once formed between defendant and the son of the purchaser, and at once Huxoll, Sr., transferred the same to the partnership. Soon after-wards this partnership became financially embarrassed, gave a trust mortgage and went into the hands of a receiver. The record also shows, from the testimony of defendant, that at the time he borrowed this money from plaintiff he was deeply in debt, some dealers having already denied him credit, and that if the chattel mortgage had gone on record it would have embarrassed him with his creditors. The errors assigned and relied upon by defendant necessary to be considered relate to the admissions and competency of certain testimony, to the effect of an amendment to the declaration, which was allowed during the trial, and the refusal of the court to direct a verdict because there was no proof that the false representations, if made, were relied upon by plaintiff.

After this case was at issue, and before the trial, the plaintiff was committed to an insane asylum, where he remains a patient. A guardian was therefore appointed, and the case proceeded. On the trial the defendant was called as a witness by plaintiff for cross-examination under the statute, and all the facts in the case relied upon by plaintiff were admitted by him, except the fraudulent representations claimed to have been made to plaintiff to induce him not to file his mortgage, and that he would not dispose of the mortgaged property. These are the only disputed questions of fact in the case. A short time before the trial there was a substitution of attorneys for the plaintiff. The attorney first employed by plaintiff, and who had several interviews with defendant before suit was instituted, some of which were had in the presence of both parties to this suit, was called as a witness for plaintiff, and was asked to testify as to what was said by defendant at these interviews, and was allowed to testify that he recited to defendant the facts and circumstances charged and relied upon by plaintiff against him, by which defendant fraudulently induced plaintiff to refrain from putting the chattel mortgage on record, and the other charges of fraud made against him by plaintiff, upon which this suit is founded, and the admission of defendant that all such charges of fraud and misrepresentation were true. He was also allowed to testify as to these charges, made in his presence, by plaintiff to defendant, and defendant’s admissions to the plaintiff that they were true, all of which testimony relating to the matters stated was admitted over the objection of defendant that it was hearsay and incompetent, also upon the ground that these were statements made while the parties were attempting to arrive at a settlement.

The testimony of this witness as to the charges of fraud made by the plaintiff against defendant in the presence of this witness and his admissions that they were true was competent and admissible, and in our opinion the testimony of this witness as to the admissions of defendant, plaintiff not being present, when witness told him of the claims and charges of fraudulent conduct which the plaintiff made against him, was also admissible. These were not privileged communications, nor is the witness disqualified from testifying.

The last objection that they were not admissible because made in an attempt to settle a dispute is not meritorious. There was never any dispute as to this indebtedness. Defendant admits in his testimony that he borrowed the money from plaintiff and has not repaid it. It was simply an attempt on the part of plaintiff to collect, and the well-settled rule that, where parties meet for the purpose of settlement, admissions made by either party cannot be introduced in evidence does not apply.

Another assignment of error on the introduction of testimony is that the court erred in allowing in evidence a certain check, given by defendant to plaintiff for the full amount of this indebtedness, which, upon presentation, was dishonored because of no funds. This was brought out upon the cross-examination of defendant. It was a pretended payment of this indebtedness by a check fraudulently drawn by defendant against the firm of Ottenwess & Huxoll, purchasers, by two certain transfers, of the property defendant had mortgaged to plaintiff. It related to this transaction and was of like character, and was admitted by the defendant to have been drawn against no funds.

The error assigned upon the refusal of the court to strike out the testimony of witnesses Clemens Huxoll and William Callahan is not discussed in appellant’s brief, and we do not find in the record, nor are we referred to, any exceptions to such action of the court. It will therefore not be considered.

It appears from the record that on or about February 1, 1909, defendant sold this chattel mortgaged property to Clemens Huxoll, and that the defendant and the son of Huxoll entered into a partnership, and that Huxoll transferred this property to the partnership. The fact that there was a bill of sale by defendant to Huxoll was not knowfi to plaintiff until during the trial. The declaration charged that defendant transferred the property to the partnership. The plaintiff asked leave to amend the declaration to conform to the proofs by substituting the words “by bill of sale to Clemens Huxoll” for the words “to the partnership.” It is contended on the part of defendant thát this amendment states a new cause of action, and ought not to have been allowed. No new cause of action is stated. Plaintiff in the declaration relied upon the fraudulent representations made by defendant to him after he had stated he would file the chattel mortgage, and induced him not to file it, fraudulently representing, after he had disposed of this property included in the chattel mortgage, that he, the defendant, would not sell or dispose of said property, and that plaintiff’s security was sufficient, and that by reason of such false and fraudulent representations defendant was able to transfer the mortgaged property, to plaintiff’s great damage. The amendment does not in any respect materially change the allegations. The transfer by defendant to Huxoll, and then by Huxoll to the partnership, brought about the same situation charged in the declaration; that it was transferred to the partnership. It amounts simply to an amplification and correction of the statement of the cause of action originally intended, and which was the real subject of controversy between the parties. Gensler v. Nicholas, 151 Mich. 529, at page 532 (115 N. W. 458, 14 Am. & Eng. Ann. Cas. 452). The amendment to the declaration was properly allowed.

It is urged that this amendment created a variance between the declaration and the affidavit for the writ of capias ad respondendum, and would operate to release the sureties on the bail bond. We have already determined that the amendment was properly allowed, and did not enlarge the scope of the action, or change its identity. Therefore it would not amount to a variance between the affidavit and the declaration. Wilkinson v. Nichols, 48 Mich. 354 (12 N. W. 486). See, also, Musselman Grocer Co. v. Casler, 138 Mich. 24 (100 N. W. 997); Fish v. Barbour, 43 Mich. 19 (4 N. W. 502).

Error is assigned by defendant on the refusal of the court to direct a verdict in his behalf at the close of plaintiff’s case. Defendant took no exception to the denial of such motion. The question, therefore, is not before this court for determination. Other errors were assigned, but are not discussed in appellant’s brief.

The disputed questions of fact in the case were submitted to the jury for its determination under the charge of the court, to which defendant has made no objection, except the general one that the court erred in submitting the case to the jury on the ground that there was no evidence to sustain the allegations of fraud charged in the declaration. An examination of all of the evidence shows that there was evidence in the case which warranted its submission to the jury, and that the verdict of the jury was justified under such evidence.

The judgment of the circuit court is affirmed.

Steere, C. J., and Moore, Brooke, Kuhn Stone, Ostrander, and Bird, JJ., concurred.


author: Kuhn, J. Bird, J.

text:
    ROTH v. RUBERT.
    1. Equity — Jurisdiction—Adequate Remedy at Law — Multiplicity oe Suits.
    Where complainants filed a bill to enjoin certain defendants from prosecuting their appeals from the allowance of claims filed against the estate of a decedent, and the point was first raised on appeal to the Supreme Court that the complainants’ remedy was at law, and where the controversy had been heard and determined by the judge of the circuit court in chancery and if the complainants were remitted to the law side of the court several suits were likely to arise, jurisdiction is retained by the court to dispose of the alleged equitable estoppel relied on by complainants.
    2. Estoppel — Equitable Estoppel — Ratification.
    If a person by words or conduct intimates that he consents to an act and will offer no opposition to it, although it could not have been lawfully done without his consent, thereby leading others to change their position or relinquish rights which they might have enforced, he will not afterwards be permitted to question the legality of the act which he has sanctioned.
    3. Same — Evidence—Compromise and Settlement.
    Evidence considered, and held, to estop defendant from denying that her assignor assented to a compromise of his interest in decedent’s estate and of claims presented against it.
    Appeal from Livingston; Miner, J.
    Submitted January 9, 1913.
    (Docket No. 25.)
    Decided July 18, 1913.
    Bill by Catherine Roth and others against Elizabeth Rubert to enjoin appeals of defendant from the determination of commissioners on claims in the estate of David Robison, deceased. From a decree granting partial relief, both parties appeal.
    Modified and affirmed.

      William P. Van Winkle and Louis E. Howlett, for complainants.

      Shields & Shields and James A. Greene, for defendant.
   Kuhn, J.

In this cause the court of chancery is resorted to for the purpose of preventing the prosecution of two appeals from the allowance of claims by commissioners on claims in the probate court. David Robison, a bachelor, died in 1911, leaving an estate of about $27,000. Living with him at the time were Mary Cummiskey, a niece, who acted as his housekeeper, and James La Grange, his nephew. His heirs at law are: Two sisters, Catherine Roth and Jane Dunn; Mary Newman, Adela Fields, and Catherine Leedle, daughters of a deceased brother; James La Grange, son of a deceased sister; and William Robison, son of a deceased brother — all of whom were over 21 years of age. Administration of the estate having been begun, it became apparent that several large claims for services would be presented to the commissioners on claims, who had been appointed. James La Grange, Mary Cummiskey, and Catherine Roth claimed to have performed services for Robison during his lifetime and La Grange claimed to have let his uncle have some of his money. In order, if possible, to avoid litigation, an attempt was made among the heirs to effect an amicable adjustment of these claims.

A petition having been filed to have James La Grange declared an incompetent person, and for the appointment of a guardian, a meeting of the heirs was arranged by Mr. L. E. Howlett, an attorney representing one of the claimants and several of the heirs. A meeting was held in his office on the 31st day of January, 1912, at which meeting there were present Catherine Roth, George Roth, her husband, Mary Newman, George A. Newman, her husband, Adela Fields, William Robison, and Mr. Howlett. At this meeting, it is claimed, a settlement was discussed, which was to result, after paying the claims, in each sister and the family of each deceased brother and sister receiving the sum of $3,000 from the estate. Another meeting was arranged for February 2, 1912, and before leaving the office it is claimed that William Robison stated that it would be impossible for him to be present on that date, but that any arrangement by Mr. Newman, who was to attempt to bring about the settlement, would be satisfactory to him, if agreeable to the other interested parties. A meeting of all the parties in interest, with the exception of William Robison, was had, and resulted in an agreement in writing being entered into, by which Catherine Roth’s claim was to be allowed at $500, James La Grange’s claim at the sum of $5,300, and Mary Cummiskey’s claim at the sum of $5,300, and also provided for the complete distribution of all of the estate so that each interest would receive the sum of $3,000, as proposed in the meeting of January 31st. William Robison’s name was signed to the paper by Mr. Geo. Newman, under the claimed authority received at the meeting of January 31st. The commissioners on claims met on February 8, 1912, at Which meeting William Robison was present, and the agreement in writing was presented to the commissioners, read to them, and a request was made to have the claims allowed as agreed upon. As no proofs were offered in support of the agreement, upon objection being made by Mr. Shields, an attorney representing the administrator, the meeting was adjourned until February 13th, at which time formal proofs were made to support the claims, and they were allowed according to the agreement. Defendant Elizabeth Rubert claims to be the assignee of the interest of William Robison in the estate, and as such filed claims of appeal in the allowance of the Roth and Cummiskey claims. The circuit court restrained the prosecution of the appeal in the Roth claim, but denied the relief prayed for as to the Cummiskey. claim, and both complainants and defendant have appealed.

It is claimed that William Robison, by his conduct subsequent to February 2, 1912, ratified the written agreement of that day, and that because of his conduct Mrs. Rubert, his assignee, should be estopped from prosecuting the appeals. On the part of the defense it is claimed that at the time it is urged that William Robison ratified the agreement he did not know all the facts concerning these claims, and that he learned, subsequent to that time, from Mr. Rubert that Mary Cummiskey had been paid sums of money by David Robison for her services, and had made a settlement with him some years previous for $1,750, and she, having since deceased, left an estate of $10,000, or more, and that she must have received this property from her uncle, as she had no other source of income. He also claims that he learned that the Roth claim had been barred by the statute of limitations.

The theory upon which relief is sought being that the doctrine of equitable estoppel should be applied, and the assignee of William Robison’s interests be prevented from prosecuting the actions at law, the point is made that the equity court is without jurisdiction, because the doctrine of estoppel relied upon by complainants could be urged in the suits at law in support of the claims. Adjustments of controversies arising out of the settlement of an estate have been, and should be, favored by the court. Those interested in the claims and in the residue were all of kin, and if no adjustment had been arrived at, protracted and expensive litigation, it is fair to assume, would have resulted. If the jurisdiction of the chancery court is denied, several suits will have to be tried; and, in view of the fact that the matter has already been determined by the trial court, and is now before us for final determination so as to avoid multiplicity of suits, we feel constrained to hold that the controversy is properly within the jurisdiction of the equity court.

Did William Robison ratify the agreement of February 2d by his conduct subsequent thereto? It is undisputed that on February 8th, when the parties in interest appeared before the commissioners on claims, he was present and heard the agreement read and the claims argued. His own version of what occurred is shown by his testimony, as follows:

“A. I heard Mr. Van Winkle read this agreement to those commissioners;, heard him argue to the commissioners that these claims ought to be allowed because the heirs had all agreed upon the amounts. I did not hear Mr. Howlett make the same statement; I didn’t say anything to the commissioners in opposition to it. I kept still all day; went home at night. I did not tell the commissioners that day, or anybody else, that I objected to allowing those claims; I didn’t think that I needed to. Mr. Shields made the objection, and I didn’t think there was any need of me. I supposed they would have to be sworn in anyway. I suppose I was opposed to those claims that day; I didn’t tell- that to anybody. I didn’t suppose I had to. I never told anybody before April 17th that I was opposed to those claims. I was not here February 19th, when Mr. Roth and Barney Cummiskey were sworn. I knew there was an adjournment made to the 19th to hear those claims; I was opposed to, them, but I didn’t come near the meeting. I didn’t suppose I had to. I did not call up anybody and talk about the claims. I did absolutely nothing.”

The claimants who were presenting their claims were relying upon the agreement and he heard his name read as having signed, nevertheless he remained silent and raised no objection, and did not attend the adjourned meeting, although he knew its purpose. If at the times the claims were presented and allowed he had raised objection to the agreement, in all probability the claims would not have been presented at the amounts that they were, as the amounts agreed upon were the result of compromise in settlement.

Mary Cummiskey having died since the allowance of the claims, Mrs. Roth lost an important witness, and it is urged, with some force, that the representatives of Mary Cummiskey’s estate are in a less favorable situation with reference to that claim in case of contest, as they have not the same knowledge of the facts and circumstances surrounding the claim and the location of testimony to support it as she had. Having remained silent when he should have spoken, he should not now be heard to complain when, as a result of his remaining silent, he placed the claimants in a less advantageous position with reference to their claims if a contest should now be permitted. The rule of law applicable to his conduct is well stated in the case of Truesdail v. Ward, 24 Mich. 117, 134:

“It is a universal law that if a man, either by words or by conduct, has intimated that he consents to an act which has been done, and that he will oifer no opposition to it, although it could not have been lawfully done without his consent, and he thereby induces others to do that from which they otherwise might have abstained, he cannot question the legality of the act he had so sanctioned, to the prejudice of those who have so given faith to his words, or to the fair inference to be drawn from his conduct.”

See, also, Michigan Paneling, etc., Co. v. Parsell, 38 Mich. 475; Peake v. Thomas, 39 Mich. 584; Heyn v. O’Hagen, 60 Mich. 150 (26 N. W. 861); Burt v. Mason, 97 Mich. 127 (56 N. W. 365); Miller v. Ross, Bradley & Co., 107 Mich. 533 (65 N. W. 562); Dillon v. Craig, 168 Mich. 216 (132 N. W. 1041); Detroit Savings Bank v. Loveland, 168 Mich. 163 (130 N. W. 678). William Robison was apparently satisfied with the settlement until he received information concerning the claims from Mr. Rubert. Mary Cummiskey is a sister of Mrs. Rubert, and their mother, Jane Dunn, is one (j>i the parties to the contract and agreement.

The original petition for the appointment of guardian for James La Grange prayed for the appointment of Mr. Rubert as guardian, and on the day set for hearing this petition all the heirs, including William Robison, filed a written instrument asking that George Newman be appointed. The day after Mary Cummiskey’s funeral we find William Robison at the Rubert home, and the assignment was made. William Robison relates how it was made, as follows:

“While at Seth’s house the day after Maime’s. funeral, and the next day I claim to have assigned my interest in the David Robison estate to Mrs. Rubert; there were some papers prepared, and I signed them at Mr. Rubert’s house. An attorney was called down there to the house, and I signed them down there. I don’t know why I didn’t come uptown to sign them. I think Mr. Rubert asked an attorney to come down there. I didn’t sell out my interest for any amount. I didn’t get any money at all, and haven’t to this day, and have got nothing from Mrs. Rubert to show I have sold my interest in the estate except the promise. I have got a writing at home, a paper; haven’t got it here; can’t tell what it says. It said she would give me all over and above $3,000, but I should have three thousand over and above. I should have $3,000, and half over and above that. I don’t know how there is to be any above that. He told me if I were to assign this over, they would fight the claim for me. I didn’t have the money; all they made out of it they were to split. I to have half and Mrs. Rubert half, and he is now fighting it for me. He hasn’t paid me anything. I understand the day I made those papers that was the last day an appeal' could be taken. I think the judge of probate told me that. I was in his office with Mr. Rubert two or three hours before these papers were signed. I think those papers were signed about 2 o’clock; think I was up to the judge of probate’s office before dinner. Rubert took me up there to talk about something regarding this case, about appealing. Rubert said he would appeal for me; let me have the money to do the work; that he would appeal for me and furnish the money and go on my bond. Then in the afternoon that was changed, and I signed some paper, assigned it right over to Mrs. Rubert, and she made the appeal for me, and is now acting for me in this matter, I suppose.”

By the agreement made William Robison did not get any money, and it provides that Mrs. Rubert shall prosecute this appeal, and in case the final distributive share of William Robison in the estate of his uncle, after deducting the expense of litigation, does not exceed $3,000 that Mrs. Rubert will then release and reconvey the property assigned. In case his distributive share exceeds $3,000 after deducting the expense of litigation it provides:

“Then the said parties hereto are to share equally in any and all excess or residue; that is to say, that the said Elizabeth Rubert shall duly assign, convey, and make over unto the said William L. Robison one-half of all such excess, the remaining one-half of the same to remain the individual property of the said Elizabeth Rubert.”

It certainly can be claimed that this was an unfair arrangement and while William Robison is not complaining, nevertheless it is illuminating as showing the relationship of the parties to this controversy. In no contingency, by the strict letter of this agreement, can William Robison profit. The motive of Mrs. Rubert in taking this assignment is explained in her testimony as follows:

“A. I have no desire only this, the desire I had; the deal with William Robison and myself I will admit, was a purely business transaction.
“Q. For what, purpose?
“A. Why, it was just a business' transaction between him and myself.
“Q. What was your motive in buying in there?
“A. My motive for buying in was, as I said, to get inside the ring. I was just outside, and was to get inside, to get inside so I could do something to see that was divided up; my mother would get what belonged to her.”

It is claimed by William Robison that he had no knowledge of the settlement of Mary Cummiskey with David Robison by which she received $1,750 in settlement of her services up to that time. This settlement is claimed to have been made in the presence of Mr. and Mrs. Rubert, David Robison, and Mary Cummiskey.

Mr. Louis E. Howlett, the attorney, testified as to the conversations had in his office on January 31st, and stated that the proposed settlement was fully discussed in the presence of William Robison. With reference to Mary Cummiskey’s claim he says the following occurred:

“Then the question came up of Mary Cummiskey’s claim, and they all said she was asking too much, and they all said that, and they went on to tell the mortgages she had, and as they said Dave had given them to her, but George said they were matters of a private nature that he didn’t want brought up, and if they were brought up it might sweep the estate, and he wanted it settled, and he said he thought if the heirs would take $3,000 apiece, and Mrs. Roth to have $500 more, that a settlement could be made; and Mrs. Roth spoke up and said she would be glad to get $3,000 and he turned to Willie Robison, asking him if he would be willing; he said: ‘Yes; that is more than I ever expected to get.’ Then it was talked about how they would get together, and I don’t just remember the talk, but George said he would get them all together in a couple of days; I don’t know, maybe he set the date; I don’t remember, but he asked Will Robison if he could come back, and he said ‘No,’ he couldn’t keep running over here, that he was teaming it, and he turned to me, he says, ‘Is it necessary for me to come back?’ I said: ‘No;’it wasn’t necessary; ‘you ought to come.’ He said: ‘You folks go ahead and get a settlement if you can; whatever the rest agree to I am willing to stand by.’ * ■ * *
“Q. Mr. Howlett, after Willie Robison was present in your office on the 31st of January, I ask you whether or not he knew what it was claimed by different heirs that Mary Cummiskey had been paid upon her claim, if anything?
“A. Well, as to the exact amount in dollars and cents, I couldn’t say, but I know that on that day Mr. Newman told of different mortgages that were recorded, either in Miss Cummiskey’s name singly or jointly with Dave Robison, and he said in his opinion they had been given to her for services, and that he had been told that she was paid as they went along.”

Mr. Newman testified as follows:

“It was talked to Willie Robison that the claims of Mary Cummiskey and James La Grange were somewhat around $5,000 or $6,000 at that time. I did not know just what the claim was at that time, and Mrs. Roth’s was $500. And it was talked that there would be left somewheres around $3,000, as a distributive share for Will Robison, and for each of the others, $3,000 apiece for each of the five heirs. My wife and her two sisters would take one share, $3,000; Will Robison would take $3,000; Aunt Jane and Aunt Kate, each take theirs; and Willie Robison would take his $3,000 for his share.
“Q. What did Willie Robison say about taking the $3,000 for his share?
“A. At that time, I don’t know as he said. He said whatever we did, whatever settlement we came to would be satisfactory to him.
“Q. Was there some time before that, when he said what he thought about the amount he should get out of the estate and how much he expected to get?
“A. He didn’t expect he would get anything.
“Q. Did he say so?
“A. Yes, sir; he said it was a surprise to him to get anything.
“Q. What did he say, if anything, about being satisfied with getting $8,000?
“A. He told me he was perfectly satisfied. He said he couldn’t come over here on the 2d of February, or the day we agreed to come, because he was working, teaming it. I think Mr. Howlett said, ‘Well, it won’t be necessary, if these people can act for you.’ And in reply to that he said ‘Whatever they did is satisfactory,’ and then we separated.”

Adela Fields testified as to this conversation, as follows:

“First, we thought the claim that Mary Cummiskey put in was too heavy. I learned the amount of her claim through Mr. Van Winkle telling George Newman ; I understood that Van Winkle was acting as her attorney in presenting the claim; I think her claim was $5,300. Jimmy La Grange’s claim the same; Mrs. Roth’s claim $500; that was the talk this day when we were all there. It was talked that Mary’s claim was for services and housework there on the farm. It was discussed, as to whether or not she had ever been paid anything; some said she had been paid, and some said she hadn’t. I think she had been paid in part anyway. There was a little talk there among us as to what property she had.”

William Robison testified that the only subject he could remember being discussed at this meeting was “about Seth Rubert’s being guardian,” and did not think any other subject was discussed.

The trial judge in his finding states:

“I am of the opinion that Mr. Howlett and Mr. Newman stated the facts correctly.”

If the testimony of Mr. Howlett is to be accepted as stating the facts, and we agree with the circuit judge that the testimony is convincing, it follows that Mr. William Robison, having heard the conversation in Mr. Howlett's office, knew about the mortgages that it is claimed Mr. Robison gave Mary Cummiskey. He was a visitor, two or three times a year, at Mr. Robison’s home; during the last 20 years Mary Cummiskey was the housekeeper. As stated, sometimes he would stay there for a week at a time. We cannot agree with the contention that he was deceived at the time the settlement was arranged, as he must have known, from what he heard in Mr. Howlett’s office, that Mary Cummiskey had considerable property, and that she had received it from her uncle, David Robison.

The temporary injunction restraining the prosecution of the appeal from the allowance of the claim of Mary Cummiskey should be made permanent, and in this regard the decree of the lower court will be modified; in other respects, it will stand affirmed, with costs to the complainant.

Steebe, C. J., and Mooee, McAlvay, Bkooke, Stone, and Osteandee, JJ., concurred with Kuhn, J.

Bird, J.

(dissenting). I am of the opinion that this injunction bill should be dismissed, and that the claims of Catherine Roth and Mary Cummiskey should be tried on their merits in a court of law in conformity with the statutory procedure. The showing made at the hearing to enjoin their prosecution in the usual manner is. very convincing that neither claim has any merit. The Roth claim is admittedly outlawed, and was at the time it was presented to the commissioners, and should have been rejected by them, as the statute in express terms forbids the allowance of such claims against the estates of deceased persons. 3 Comp. Laws, § 9375. It appears by the testimony of two witnesses who were in a position to know the facts that the Cummiskey claim had been paid in the lifetime of the deceased, and that instead of the estate being indebted to her, she was indebted to the estate. This testimony raised a strong suspicion against the honesty of, the claim, and fully justified the chancellor in refusing to enjoin its prosecution. The answer of complainants to this is that all the parties in interest agreed upon a “compromise” of the claims against the estate, and therefore no one of them is in a position to prosecute an appeal from the decision of the commissioners in the circuit court. Willie Robison, whose assignee effected the appeal, signed no compromise agreement, nor did he authorize any one to sign it in his behalf. Neither the fact that the Roth claim was outlawed, nor the fact that the Cummiskey claim had been paid, was known to him when it is claimed he ratified the compromise agreement. If he were ignorant of these facts, he would not be bound by the compromise agreement. Hurley v. Watson, 68 Mich. 531 (36 N. W. 726); Maxson v. Railroad Co., 117 Mich. 218 (75 N. W. 459); Deffenbaugh v. Manufacturing Co., 120 Mich. 242 (79 N. W. 197); Leonardson v. School District, 125 Mich. 209 (84 N. W. 63); Upton v. Dennis, 133 Mich. 238 (94 N. W. 728); Cowan v. Manufacturing Co., 141 Mich. 87 (104 N. W. 377).

An effort is made to discredit the testimony of the Ruberts on account of Mrs. Rubert’s interest in the estate and for various other reasons. It is true they have a selfish interest to serve in defeating the claims, but it must be remembered that by reason of their nearness to Mary Cummiskey they were in a position to know the facts about which they testified. If, as is contended by counsel, this testimony is unworthy of belief, a jury in the circuit court will doubtless discover it, and give it such credence as it deserves. If the claims are honest ones, they should become a charge against the estate on their merits, and not by estoppel.

To further discredit these witnesses counsel attacks the assignment of the claim of Willie Robison to Mrs. Rubert, and calls it unconscionable. The record shows that Willie Robison made an assignment of his interest in the estate to Mrs. Rubert, but it does not show that he has ever expressed any regret that he did so. He makes no complaint that he has been overreached, and asks no relief from this court on account of it, and there would seem to be no good reason why we should concern ourselves with a possible difficulty between these parties in the future.

The order of the chancellor dismissing the injunction as to the Cummiskey claim should be affirmed, and a like order should be entered in the Roth claim.

The defendant should recover her costs in this court.


author: Moore, J.

text:
    MAKI v. MOHAWK MINING CO.
    1. Constitutional Law — Equal Protection of Laws — Statutes —Cross-Examination.
    Act No. 307, Pub. Acts 1909 (5 How. Stat. [2d Ed.] § 12865), granting to either party the right to call as a witness the opposite party, his agent, or employee, or any one who may have been such agent or employee at the time of the transaction in question and permitting cross-examination, etc., does not deny a defendant the equal protection of the laws.

      2. Master and Servant — Inspection—Safe Appliances.
    It is the master’s duty not only to furnish a safe cable for a hoisting apparatus in its mine, but also to provide reasonable inspection to see that it remains safe.

    3. Same — Negligence—Evidence.
    Evidence that a cable, having a supposed breaking strain of 7% tons and a safe working strain of 2y% to 3 tons, parted under a load of about 486 pounds, that the broken end was badly frayed and weak, tended to support plaintiff’s claim of negligent failure to inspect.
    4. Same — Instructing Servant — Hoisting Device — Use.
    Where plaintiff had no instructions to ascend the shaft by walking up the footwall of the mine in which he was employed, and had been told by the servant to whom he looked for orders and instruction to aid his ascent by taking hold of the bucket, and neither had previously done the work in which they were engaged at the time of the accident, and defendant had provided no ladders, it could not be said that plaintiff assumed the risk or was guilty of contributory negligence for ascending with the aid of the bucket connected with defendant’s hoisting device which broke and caused injuries to plaintiff.

    Error to Houghton; Streeter, J.
    Submitted January 22, 1913.
    (Docket No. 7.)
    Decided July 18, 1913.
    Case by Alex. Maki against the Mohawk Mining Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Allen F. Rees, for appellant.

      O’Brien & Le Gendre (George O. Driscoll, of counsel) , for appellee.

       Upon the duty of a master to inspect tools or implements furnished servant, see note in 1 L. R. A. (N. S.) 944.

       As to servant’s assumption of risk from latent danger or defect, see note in 17 L. R. A. (N. S.) 76.

   Moore, J.

The plaintiff was employed in the mine of defendant. While so employed he received injuries for which this suit was brought. From a verdict and judgment of $2,000 in his favor the case is brought here by writ of error.

The errors relied on are grouped as follows:

“(1) The provisions of Act No. 307, Laws of 1909, permitting so-called cross-examination under certain circumstances are unconstitutional.
“(2) There is no evidence in the record of negligence on the part of the defendant.
“(3) There is no evidence in the record of any failure in the duty of the defendant with reference to inspection.
“(4) The defendant company had provided a safe and proper way for ascending the shaft without using, the means adopted by the plaintiff.
“(5) On the record in this case the plaintiff was guilty of contributory negligence as a matter of law, and also assumed the risk of injury, under the circumstances of the case.
“(6) The judgment should be reversed because of improper and prejudicial remarks made by plaintiff’s counsel in the course of the trial.
“(7) There were errors in the admission of testimony, which should require a reversal of the judgment.
“(8) There was error in the charge of the court with respect to the duty of inspection.”

Of these assignments of error counsel say:

“We have considered that the questions raised are dependent directly upon well-known and well-understood general principles relating to actions for personal injuries, and we have, therefore, refrained, to a large extent, from the citation or quotation of specific authorities.”

Before the questions involved can be properly considered, a brief statement of facts is essential. The plaintiff is a Finn, and when hurt was something more than 22 years of age. He was employed as a trammer in the mine, until the day of the accident, when he was set to work as a mucker in shaft No. 4, which has an incline of about 36 degrees. The shaft was completed to the thirteenth level, and from that point it was sunk to where the fourteenth level was to begin, and the work had begun in cutting out the plats at this level. This work had proceeded down almost perpendicularly for about 20 feet. In doing this work the rock was hoisted in buckets to the thirteenth level. This hoisting arrangement consisted of a trolley cable, rigidly fastened at the upper end to one of the timbers at the thirteenth level and at the lower end to an eyebolt driven into the rock in the hanging wall of the shaft near the bottom. On this cable ran a carriage or trolley. The hoisting rope ran from the puffer engine, .which supplied the power, over a guiding pulley at the thirteenth level, and then down to the trolley or carriage, where it passed over a sheave in the trolley down to a sheave on the bucket, and up to a permanent fastening on the trolley. When the bucket was at the bottom of the shaft to be filled, it would rest on the floor of the shaft below the trolley. When the engine was operated the first effect of the winding up of the hoisting rope would be to raise the bucket from the foot of the shaft to the trolley. As the shell of the sheave on the bucket engaged with the trolley, the bucket could go no further in that direction; the effect of the hoisting rope was to pull the trolley itself with the bucket suspended therefrom, up on the trolley cable until it reached the plat, or platform, of the thirteenth level, where the bucket would strike against guiding skids and be dumped.

The plaintiff was sent for the first time into the place where the plat was being cut, on the morning in question, with another green hand, and a third man who was an experienced man, and was called the old mucker. Neither of the other two men had done work of this character before. The record indicates fairly that the old mucker was expected to direct the new men how to work. When dinner time came, the bucket had been loaded, and as it started up the shaft the old mucker took hold of it at the rim, with his right hand, and told the plaintiff to take hold of it with his left hand, and the two gave their disengaged hands to the third man, and as the bucket ascended the men followed it, their feet still on the foot wall, and were steadied and partly sustained and pulled by the ascending bucket. They had got out of the nearly perpendicular place and ascended up the shaft, where it was at an angle of 36 degrees some distance, when they let go of the bucket, and after it had passed on about 10 feet the cable parted about 2 feet from the end that was fastened to the trolley or carriage, and the loaded bucket came tumbling down the shaft, and before the plaintiff could get out of the way the bucket struck him and inflicted the injuries for which he sued. The place where the three men worked was at the bottom of the shaft so that, when the bucket began to ascend with its load, and they were at work, they were always below the bucket.

Counsel for appellant has the following to say of the cable which drew the bucket:

“There is no question on the record but that a sufficient rope was furnished. It was the same kind of a rope which had been furnished for all the sinking in the mine. Indeed, it was the same apparatus. The testimony shows without dispute that it was a comparatively new rope; that it was a half-inch wire rope, of which the breaking strain was from 7% to 9 tons, and the safe working strain or load from 2% to 3 tons, while the actual load carried by the rope on that slope was about 486 pounds. This load was when it was carrying the loaded bucket.”

The plaintiff disputed the statement that the cable was comparatively new. We shall have occasion to recur to this subject later.

Upon the trial a witness was called by the plaintiff who was in the employ of the defendant at the time of the accident, but was not in its employ when called as a witness. This gives rise to the first assignment of error which is discussed.

1. Is Act No. 807, Public Acts of 1909 (5 How. Stat. [2d. Ed.] §12865), unconstitutional? The provisions read as follows:

“Hereafter in any suit or proceeding in any court of law or equity in this State, either party, if he shall call as a witness in his behalf the opposite party, employee or agent of said opposite party, or any person who at the time of the happening of the transaction out of which such suit or proceeding grew, was an employee or agent of the opposite party, shall have the right to cross-examine such witness the same as if he were called by the opposite party; and the answers of such witness shall not interfere with the right of such party to introduce evidence upon any issue involved in such suit or proceeding, and the party so calling and examining such witness shall not be bound to accept such answers as true.”

It is urged by counsel:

“The pertinent provision of the Federal Constitution is that part of the fourteenth amendment as follows: ‘Nor (shall any State) deny to any person within its jurisdiction the equal protection of the laws.’ Our own Constitution also provides perfect equality in the law for all persons. * * * Had the legislature confined the operation of the act to cross-examination of persons in the employ of the opposite party at the time of the trial, or at the time of testifying, we might have a different question, as in such a case there may be some presumption that the witness so situated may be, to some extent, under the dominion or influence of the employer, and for that reason the act might be held to have made a proper classification with respect to witnesses; but no classification can be permitted unless there is a just, _ underlying distinction which will justify such classification. But in attempting to confer this right upon one or two litigants as against the other, under circumstances where there is no possibility of any distinction to justify the granting of such right to one and not to the other, to that extent at least, the act must, in its operation and of necessity, put the parties in an unequal position before the court. By it such a law will confer unequal privileges, with no distinction relating to the parties or the witnesses which could justify such a classification.”

Counsel cite no authority upon this proposition. The act in question has been construed by this court in Antosik v. Alkali Co., 166 Mich. 415 (132 N. W. 80); Jones v. Railroad Co., 168 Mich. 1 (133 N. W. 993); Johnson v. Carbide Co., 169 Mich. 651 (135 N. W. 1069). In National Coal Co. v. Mining Co., 168 Mich. 198 (132 N. W. 88), the witness called was not then in the employ of the opposite party, but it was held that the provisions of the act allowed the witness to be called. It is true the constitutional question was not raised in any of these cases. It is apparent from what we have quoted from the act that its purpose was to do away with a technical rule of evidence, and to facilitate getting at the facts of a given case, so that it might be tried upon its merits. We do not see where this does an injustice to any one. No one has a vested right in a rule of evidence. See 8 Cyc. p. 924; In re Patterson’s Estate, 155 Cal. 626 (102 Pac. 941, 26 L. R. A. [N S.] 654, 132 Am. St. Rep. 116, 18 Am. &. Eng. Ann. Cas. 625). The legislation creates no class and no preferences.

Groups 2, 3, and 8 may be considered together. It was the theory of the defendant that, having furnished a safe cable, it was for the men to make all further needed inspection. It was the view of the judge that, not only must the defendant furnish a safe cable, but that it was charged with the duty of making reasonable inspection to see that it remained safe. There is testimony that the defendant regarded it as the duty of the miners to make the inspection, while they in turn regarded it as the duty of the timber men. The case presents an illustration of the old adage that what is everybody’s business is no one’s business. There is testimony to the effect that after the cable parted the end was cut off, that it was badly frayed, and appeared to be in a weakened condition. It is not a forced inference to say, if a half-inch cable, having a breaking strain of 7^ to 9 tons, and a safe working strain of 2% to 3 tons, gives way when carrying a bucket which, with its load, weighs 486 pounds, with such added weight as the three men might have imposed upon it, under the conditions stated, that its usefulness as a cable was greatly impaired. Especially so as its parting, whether the men were part way up the shaft or were in the bottom of the hole, might work so disastrously. See Van Dusen v. Letellier, 78 Mich. 492 (44 N. W. 572); Morton v. Railroad Co., 81 Mich. 423 (46 N. W. 111); La Fernier v. Wrecking Co., 129 Mich. 596 (89 N. W. 353); Panela v. Mining Co., 165 Mich. 329 (130 N. W. 686).

4. It is said the defendant company had provided a safe and proper way for ascending without using the means adopted by the plaintiff. There were no ladders in the shaft, but counsel argues that the plaintiff might have walked up on the foot walls. It has already appeared that plaintiff had never done this work before, and was never in this place before. He had no instructions to go up on the foot wall unaided. He did what he was told to do by the old mucker, to whom he was supposed to look for instructions. What we have said in relation to this feature of the case will dispose of group 5. See Baldwin on Personal Injuries (2d Ed.), §368; Johnson v. Chemical Co., 152 Mich. 84 (115 N. W. 1043).

6. It is said the case should be reversed because of prejudicial remarks of counsel. A reference to the record shows that counsel was examining a witness who evidently thought that he knew more about the conduct of a trial than did court or counsel, and while we cannot commend the conduct of counsel, it may in a measure be excused, especially as there is nothing to indicate that it did any mischief. The case was carefully tried, and we find no reversible error.

Judgment is affirmed.

Steere, C. J., and McAlvay, Brooke, Kuhn, Ostrander, and Bird, JJ., concurred. Stone, J., did not sit.