text:
    WHEELER v. JENISON.
    1. Trial — Evidence op Contract — Negotiations on Sunday— Instructions.
    The admission of testimony as to Sunday negotiations, in an action on a contract, is without prejudice, where the jury are instructed. that all testimony tending to establish a Sunday contract is withdrawn from their consideration, and that, to entitle iilaintiff to recover, they must find that the contract was made on a week-day.
    2. Same — Witnesses—Absence prom Jurisdiction — Testimony on Former Trial.
    The fact that one who was a witness on a former trial is absent from the jurisdiction of the court is sufficiently shown, to admit of his testimony’s being read in evidence, by the affidavit of the officer into whose hands a subpoena had been placed for service on the witness, that he was unable to find him in the State, and was informed that he was in a remote State, supplemented by the testimony of the witness’ attorney that he had been informed by his client that he was going to such other State, and that he had, within a month previous to the trial, received from him letters postmarked in that State.
    3. Same — Argument op Counsel — Improper Remarks.
    Remarks in the argument of counsel as to matters outside the record are insufficient ground for reversal of the judgment rendered, where the trial court instructs the jury that such remarks are improper, and they are withdrawn by the counsel uttering them.
    4. Same — Inferences from Testimony.
    The fact that counsel in his argument, in commenting upon the testimony of a witness and her manner of giving it, draws incorrect inferences, is not ground for reversal.
    5. Same — Denial op New Trial — Appeal.
    Although the trial court, in overruling a motion for a new trial, stated that, in his opinion, the verdict was against the weight of evidence, the Supreme Court will not reverse his decision, if from the whole statement of his reasons for denying the motion, and from the evidence returned, it is not clear that the verdict was against the weight of evidence, or worked an injustice to appellant.

      Error to Kent; Adsit, J.
    Submitted April 19, 1899.
    Decided June 19, 1899.

      Assumpsit by Morton B. Wheeler and Siegel D. Kopf against Luman Jenison and Lucius Jenison for goods sold and delivered. From a judgment for plaintiffs, defendants bring error.
    Affirmed.

      C. H. Gleason, for appellants.

      Peter Doran (Charles A. Watt, of counsel), for appellees.
   Moore, J.

The defendants appeal from a judgment obtained against them by plaintiffs. The bill of particulars is as follows:

1897, July 6. Gas plant sold to defendants_____________$365 00
1897, July 6. Extra light for bar-room sold to defendants 4 10
1897, July 17. Repairing leaky sink.___________:.________ 1 45
1897, July 17. 200 pounds of carbide, at 6 cents per pound: 12 00
1897, July 17. 200 pounds of carbide, at 6 cents per pound. 12 00
1897, July 20. 200 pounds of carbide, at 6 cents per pound. 12 00
1897, July 23. Bell call system sold to defendants....... 12 00

It is the claim of plaintiffs that, prior to June 27, 1897, one of the defendants came to their store to inspect an acetylene gas light they were showing; that at his request one of the plaintiffs and their agent, Keisel, visited defendants’ hotel and grounds at Jenison Park, on Sunday, June 27, 1897, and made him a proposition for lighting the hotel and grounds at Jenison Park with a plant similar to the one shown him at the store; that a proposition was made, reading as follows:

“I propose to furnish and install in your hotel and grounds at Jenison Park one 50 one-half foot burner Star acetylene gas machine, together with all piping and fixtures necessary to make a complete'gas-lighting plant for i. e. hotel office and parlor, dining-room, and 14 outside lights on grounds. Fixtures for dining-room to be 2-light bronzed pendants; office and parlor, 2-light brass pendants; 10 outside lamps for posts. You to furnish balance of outside lamps, and all the posts for outside lighting; also to furnish man and team to plow furrow for laying pipes, and board for men while engaged in constructing and erecting plant. Price complete, including 100 pounds of carbide, $365. Respectfully,
“W. C. Keisel.
‘ ‘ Further, material and workmanship to be first-class in every particular, and guarantee the lights to be uniform and steady. Further, if all the outside lamps are furnished by you, a reduction of $2.50 each for each lamp so furnished by you. Payments 50 per cent, in 30 days, balance of 50 per cent, in 60 days.”

Mr. Jenison said the terms and price were satisfactory, and wanted plaintiffs to put in a plant at once. He said he would call at their office with his attorney, and draw up a contract according to the terms of the proposition and the verbal agreement. Later Mrs. Hanchett, acting for defendants, telephoned they feared the proposed plant would be dangerous, and to do nothing until Mr. Jenison called. Mr. Jenison called on plaintiffs June 28th or 29th, and said he had heard objections to the proposed plant. Plain- • tiffs claim he was told they were without foundation, but they did not desire to sell him what he did not want, and, if he would pay the freight for the things ordered, that would end it. It is claimed that, after further talk, Mr. Jenison’s fears were removed, and he directed the plant to be put in, and agreed to pay for it at the times and prices named in the written proposition, which was then before the parties, and that, acting upon this agreement, made upon a week-day, plaintiffs put in the plant. One of the plaintiffs testified that, after the work was completed, he had a talk with Mr. Jenison, who said he was pleased with the light, and asked the witness to look after the carbide, and see that plaintiffs’ firm kept plenty on hand, so they would not be without lights. The plaintiffs claim that the quantity of carbide charged in the bill of particulars was furnished defendants, as well as the other items named in the bill of particulars; that statements of the account were sent to Mr. Jenison, who said: “ You have been sending me statements, and I am tired of it. I intend to pay one hundred cents on the dollar, but I cannot be forced.” It is claimed the plant was completed July 10th. The hotel, including the plant, was burned July 24th. It is claimed by the plaintiffs that, after the fire, their agent was at the hotel grounds, and had a talk with Mr. Jenison. Concerning this the agent testified:

“He [Jenison] said: ‘I would like to have you come back with me to my barn. There was some carbide that was not used, and see if it is all right, and, if so, I wish you would take it back, and give me credit for it.’ And I said: ‘Certainly; if there is anything here I can take back in that respect, that is all right. I will take it back, and give you credit for it,’ — which I did.”

The amount taken back and credited was 250 pounds.

It is the claim of plaintiffs that the call bells and repairing the sink were for defendants, whose arrangements with the tenant, Mr. Bryant, as testified to by defendants’ witness, were as follows:

“Mr. Bryant leased the property, and was to furnish the hotel with provisions, and pay the help, and divide the profits at the end of the season. We were to furnish the house with all the furnishings, and buy them, — -pay for them.”

It is the claim of defendants that they did not know the plaintiffs in the transaction; that they dealt with one Keisel, and no acceptance was given the written proposition on Sunday; that on Monday, at the store, Mr. Jenison expressed his distrust of the safety of the proposed plant, and that, after much talk, it was agreed the plant was to be put in on trial, defendants to have 30 days in which to try it, and were to be under no obligations to purchase it unless satisfactory to them after 30 days’ trial, and that this verbal agreement was to be put in writing by defendants’ attorney, and was to control; that such an agreement was drawn, and was to be signed, but was not, though Mr. Keisel agreed to sign it while the work was going on. Defendants also claim that none of the other items were properly chargeable to them. The respective parties gave testimony tending to show their respective claims. The testimony was as conflicting as could well be. The witnesses for the plaintiffs were flatly contradicted by the witnesses sworn on the part of the defendants. The case was submitted to the jury, who found in favor of plaintiffs.

After the plaintiffs rested their case, defendants asked the court to direct a verdict, for the reason that the testimony showed no contract was made except a contract made on Sunday. At this time defendants had not rested their case, and when their motion was overruled they entered..fully upon their defense. It is not possible to read the testimony without arriving at the conclusion that this plant was put in pursuant .to an agreement made subsequent to Sunday. The important controversy about this agreement is whether it provided for an absolute sale, as claimed by plaintiffs, or whether the plant was put in upon trial, as claimed by defendants.

It is said the court erred in allowing any testimony as to what occurred on Sunday, and that a Sunday contract is void, and a ratification of it is impossible; citing Tucker v. Mowrey, 12 Mich. 378; Winfield v. Dodge, 45 Mich. 355 (40 Am. Rep. 476); Brazee v. Bryant, 50 Mich. 136. The court instructed the jury that all testimony, so far as it tended to establish ‘a Sunday contract, was withdrawn from their consideration. He charged them, “A contract wholly or in part made on Sunday is absolutely void by the laws of this State, and cannot be enforced by either party.” They were also told that, unless the contract was made upon a week-day, plaintiffs could not recover, and that the burden was upon the plaintiffs to establish their case. We do not think defendants have any right to complain of this feature of the case.

This case was tried once before, at which trial Mr. Keisel’s testimony was taken. At the present trial the plaintiffs claimed he was out of the State, and was at Seattle, Wash. They showed by the affidavit of a deputy sheriff that a subpoena had been put in his hands for service, that he was unable to find Mr. Keisel in the State, and was informed he was at Seattle. It was also shown by an attorney that Mr. Keisel informed him he was going to Seattle to take charge of the business of a Grand Rapids company, and had been absent from Grand Rapids two months, and the attorney was employed to look after his business interests here, which business required him to correspond with Mr. Keisel; that he knew his handwriting, and that he received one letter from him postmarked Seattle, Wash., March 10, 1898, and another postmarked April 18, 1898. This trial commenced May 13, 1898. It is alleged the admission of this testimony was error; that, before it should have been permitted, the testimony of some person with whom he had formerly lived should establish the fact of his absence. The important thing to be shown to allow the testimony to be read is the absence of the witness from the jurisdiction of the court. It is immaterial by whom it is shown, if it is in fact shown. We think it was established, and the testimony was competent Howard v. Patrick, 38 Mich. 795; Stewart v. Bank, 43 Mich. 257; Dunbar v. McGill, 69 Mich. 297.

It is claimed plaintiffs failed to establish any liability on the part of defendants to pay for the carbide and the other items in the bill of particulars, and the court should have so directed the jury. We cannot say from the record, taking the surroundings of the case, the relationship of the tenant with the defendants, the statement which Mr. Keisel says was made to him by one of the defendants, that there was no proof of a liability. We think, with the trial judge, it was a question for the jury.

Complaint is made of the argument of plaintiffs’ counsel, which it is said was prejudicial, and, taken in connection with all the surroundings of the case and the verdict of the jury, should be regarded as reversible error; counsel citing Seligman v. Ten Eyck's Estate, 60 Mich. 269, Donovan v. Richmond, 61 Mich. 470, Amperse v. Fleckenstein, 67 Mich. 248, and many other cases. Any argument of counsel based upon matters outside the record is reprehensible, and ought to be promptly stopped by the trial judge. It is, however, just as much incumbent upon the attorneys of the defeated party to confine themselves to the record as for the other attorneys to do so. The record is not very full as to what occurred, but it is full enough to indicate the remarks of counsel were not unprovoked in one of the instances about which complaint is made. When the attention of the trial judge was called to the argument, he at once said to the attorney it was improper, and what was said was withdrawn by the attorney. While condemning the course of counsel, we are not inclined, under such circumstances, to reverse the case. Sweet v. Railroad Co., 87 Mich. 559; De Long v. Booming Co., 88 Mich. 282. In the other instance of which complaint is made, the attorney was commenting upon the testimony of a witness, and her manner of giving it. While we might not be inclined to draw the same inference from this testimony that counsel drew, we do not think what he said is reversible error. The case of Dikeman v. Arnold, 83 Mich. 221, is in point.

A motion for a new trial was made and overruled. Among other reasons urged why a new trial should be granted was that the verdict was contrary to the weight of evidence. In his disposition of the motion the trial judge said:

“One of the principal reasons alleged on the part of the defendants for a new trial in this case is that the verdict of the jury was against the weight of the evidence. In the opinion of the court, that was true.”

It is urged here with great persistence and apparent feeling that the verdict rendered was an unrighteous one; that, the circuit judge having found it was against the weight of evidence, it was his duty to set the verdict aside; and, as he has failed to do so, this court ought to do what he ought to have done. Before determining this question, however, the rest of what the circuit judge said upon that branch of the case ought to be quoted. It is as .follows:

“Yet it does not necessarily follow that a new trial should be granted for that reason. It is the province of the jury to find the facts from the evidence. It is its duty to find those facts, if in favor of the plaintiff, from a fair preponderance of the evidence. Fair preponderance of the evidence means the weight of the evidence, which the jury was instructed did not mean the greater number of witnesses sworn on a given point. The credibility of the witnesses was for the jury. All the facts and circumstances proved in the case the jury had the right to- consider in determining whether the witnesses testifying on the part of the plaintiffs were entitled to greater credit than those testifying on the part of the defendants, notwithstanding the witnesses on the part of the defendants exceeded those on the part of the plaintiffs in number. The court, from personal acquaintance with defendants’ witnesses, may have thought they were entitled to greater credit. It was not the province of the court to determine that question. The jury has determined that against the defendants, as it had a right to do, and the court would not be justified in granting a new trial on that ground. ”

The testimony in the case, as we have before said, was very conflicting. While the judge ought not to invade the province of the jury, and substitute his judgment of the questions of fact for that of the jury, he ought not to hesitate to take the responsibility of setting a verdict aside if he is clearly of the opinion the verdict is an injustice to the parties. We all know the weight to be given to the testimony of a witness will be largely determined by his appearance and manner. The jurors and the circuit judge saw the witnesses. Their opportunities for deciding who of these witnesses were telling the truth were much better than ours. We are not so clearly satisfied the verdict is against the weight of evidence, and worked an injustice to defendants, as to feel justified in reversing the case.

The other assignments of error have been considered, but we do not deem it necessary to discuss them.

Judgment is affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Grant, C. J.

license: Public Domain

text:
    LEE v. FIERO.
    Mortgages — Bill to Cancel — Incapacity op Mortgagor.
    A decree for defendant in a suit to set aside a mortgage for the alleged incapacity of the mortgagor was affirmed; there being evidence to show that the mortgagor understood the transaction in question, and that it resulted beneficially to his estate. -
    Appeal from Cass; Coolidge, J.
    Submitted April 21, 1899.
    Decided June 19, 1899.
    Bill by James E. D. Lee, Almira Lee, and Sylvia True against Byron Fiero, executor of the last will and testament of David Lilly, deceased, and Charles Lee, to set aside a mortgage. From a decree for defendant Fiero, complainants appeal.
    Affirmed.
    Complainant Almira is the widow, and her co-complainants and defendant Charles the children, of William Lee, deceased, who died intestate December 3, 1893, aged 71 years. He had occupied as a homestead the land (about 4D acres) covered by the mortgage here involved for about 45 years. This was school land, and until January or February, 1887, William Lee had not fully paid for it; there being due at that time $128. In 1885 William Lee executed a land contract to Charles for 2-n-acres of this land. Charles took possession and erected buildings thereon. In January or February, 1887, Charles applied to Mr. Michael for the loan of $368, and offered, as security, to give a mortgage, to be made by his father, upon this 40 acres. Mr. Michael went to Lansing, paid $128, and obtained the patent to William Lee. William then executed to Mr. Michael, as executor of an estate, the mortgage in question, for $368, which was duly signed by his wife. At the same time Charles executed to his father a mortgage on his land for $240, which was part of the $368 mortgage. Mr. Michael kept all the papers, and afterwards assigned the mortgage in dispute to defendant Fiero’s testator. At the time these papers were executed, William Lee had had two strokes of paralysis, which incapacitated him from talking. The claim of the complainants is that William was incapacitated from executing this mortgage, and that its contents were not explained to him or to his wife at the time. James was a witness to the mortgage, and to the deed from William to his son Charles. The bill is filed to set aside this mortgage. Proofs were taken in open court. The court found that the mortgage was given as the result of a family arrangement, participated in by all except Mrs. True; that the mortgage by William was valid as to the $128; and that complainants were entitled to subrogation as to the mortgage from Charles.

      F. J. Atwell, for complainants.

      Coy W. Hendryx and Howell & Carr, for defendant Fiero.
   Grant, C. J.

{after stating the facts). We think the decree and finding of the court are fully justified by the evidence. Mr. Michael acted in good faith, and William Lee and his wife and children were benefited to the extent of $128 paid by him to perfect the title. The mortgage from Charles was taken to protect William for money loaned Charles. While there is evidence to show the incompetency of William, there is also evidence to show that he understood the transaction, which resulted in securing title to his homestead. The decree was just and equitable, and is affirmed, with costs.

The other Justices concurred.


author: Moore, J.

text:
    ADAMS v. WERNER.
    Landlord and Tenant — Repairs -Eviction.
    Where, by act of an employé of the landlord, leased premises are rendered unfit for the purpose for which they were hired, and such condition is aggravated by the landlord’s failure properly to make repairs which he assumes to make, the tenant may, after his refusal to restore the premises to a condition adapted to the tenant’s needs, treat such conduct as an eviction, and vacate the premises; and this although the tenant himself covenanted to repair.
    • Error to Marquette; Stone, J.
    Submitted April 20, 1899.
    Decided June 19, 1899.

      Assumpsit by Sidney Adams against Gustavus A. Werner for rent. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      Button & Culver, for appellant.

      Hill & Smith, for appellee.
   Moore, J.

This case was tried before the judge without a jury. The judge made the following findings:

“1. On the 8th day of July, 1895, the plaintiff, being the owner of the ‘Adams Block,’ so called, on the east side of Front street, in the city of Marquette, in which block was located a gallery known as ‘Childs’ Art Gallery,’ rented the said art gallery to the defendant for the term ending April 30, 1897, to be occupied for an art gallery, for the rental of $10 a month until May 1, 1896, and $20 a month, payable on the last day of each month, for the remaining 12 months. Said lease was in writing, and contained, among other provisions, the following:
“ ‘And also that said party of the second part [the defendant] will, at his owm expense, during the continuance of this lease, keep the said premises and every part thereof in as good repair, and at the expiration of the term yield and deliver up the same in like condition, as when taken, reasonable use and wear thereof and damage by the elements excepted.'
“Then follows the usual clause for peaceable and quiet enjoyment on paying the installments of rent aforesaid. The lease was received in evidence upon the trial, and is made a part of this finding.
“2. The defendant entered into possession of the said art gallery, which consisted of a number of rooms, including an operating room, which had a skylight of glass about 13 by 18 feet in size, such as is in general use in the photograph and like business. During the continuance of such lease, and in the month of August, 1896, the defendant applied to the plaintiff for a reduction of the rent for the remainder of the term, and complained of the dullness of business. After some discussion of the subject, the plaintiff agreed to reduce the rent to $15 per month for the remainder of the term, upon condition that said defendant was to remain a tenant for another year, to wit, from May 1, 1897, to May 1, 1898, at the old rental of $20 per month. These terms were agreed upon, and such arrangement was made by the parties.
“3. The skylight referred to contained large lights of glass, 20 by 30 inches, and in the month of March, 1897, during the term of said written lease, some men in the employ of plaintiff, while engaged in throwing snow from a roof adjoining said skylight, accidentally broke two or three lights of glass in said skylight, the snow falling thereon. An attempt was made by the plaintiff’s agent to repair the injury, and two more lights were broken in the process, making five lights broken in all. No putty was used in the attempted repairs, the frame and woodwork being wet and the weather cold, but nails were driven in, fastening the glass. The next day one of the lights of glass broke across where the nail had been driven, and the defendant called the attention of the plaintiff’s agent to the broken glass, and complained of it. The said damage done to the skylight by the falling snow was not properly repaired, and the skylight leaked badly whenever it rained, or whenever the falling snow melted, during all the subsequent occupancy by defendant, rendering it necessary to use boxes and pans to catch the water, and rendering it unpleasant and unsuitable, if not impossible, to do a profitable business in the operating room at such times, and materially affecting the business of the defendant, the falling.water injuring the carpet, curtains, and furniture of defendant, of which condition the defendant complained to the agent of the plaintiff.
“ 4. At the close of the term of the written lease, to wit, on May 1, 1897, the defendant was in arrears for rent for February, March, and April, 1897. The defendant was called upon for rent by the agent of the plaintiff at the close of each month, and he refused to pay the rent until the skylight was repaired, and so stated to such agent. The defendant continued to occupy the premises under the verbal arrangement and agreement of August, 1896. The plaintiff’s agent applied to the defendant monthly for the payment of rent. The defendant on these occasions pomplained of the leaking condition of the skylight, and paid no rent (except $15 in June, which was applied in payment of the February rent), and said he wanted to see the plaintiff,- and he also complained that the rent was too high. This condition Of things continued until August 2, 1897, when the plaintiff wrote a letter to the defendant, of which the following is a copy: ,
“ ‘Marquette, Mioh., August 2, 1897.
“ ‘G. A. Werner, Esq.,
“ ‘City.
“ ‘ Dear Sir: .September last I agreed with you that in consideration of your agreeing to pay $20 per month for rent of gallery from May 1, ’97, to April 30, ’98, and also agreeing to pay this rent promptly on the 1st of evei'y month, that I would take off $5 a month from your lease until May 1, ’97. Trusting your honor to do as you agreed, I told my clerks to collect only $15 a month until May 1, ’97, and $20 after that. On this agreement you are now $90 behind with your rent, that was to have been paid promptly. Will you please give us check or pay this back rent at once ?
“‘Yours truly, .
“‘S. Adams.’
“Soon after receiving this letter, the defendant saw the plaintiff, and complained that the rent was too high, denied that he had ever agreed to pay $20 a month after May 1, 1897, and complained of the leaky condition of the skylight, and refused to pay any rent until the skylight was repaired. The plaintiff refused to repair the skylight, claiming that it was the duty of the defendant to do so under the terms of the lease. The defendant then said to the plaintiff that he would move out, and somewhere from the 10th to the 16th day of August, 1897, he commenced to make preparations to move,- and arranged to repair his own building for the business. He continued, however, to occupy the plaintiff’s premises until about September 15, 1897. Although the plaintiff 'had refused to repair the skylight, he sent a man into the gallery soon after the defendant had determined to move out, and about August 21st, with instructions to'repair the skylight. The defendant objected to being disturbed, and said he-was going to move out, and told the man to wait until he had moved. The same man came back about a week later, and was again sent away by defendant. The defendant at this time was engaged in moving out, having already removed the negatives and some stock. The plaintiff finally sent men to repair the skylight. They commenced the work about September 7,1897, and completed it about September 17th. They put in 15 new lights of glass, and three men worked türee days or more. During the time they were at work the defendant completed moving out, and vacated the premises, to the knowledge of the plaintiff.
“5. At the time of the commencement of this suit, rent remained unpaid for the months of March and April, 1897, at the rate of $15 per month, and for May, June, July, August, and September, 1897, at the rate of $20 per month, —making, in all, $130. The defendant was entitled to a credit for work of $2, leaving a balance due the plaintiff of $128, to the close of the month of September, 1897, for rent. Before the trial of the case, the defendant tendered to the plaintiff, and paid into court, the sum of $160.25 in full for damages and costs to that time. I find that the amount so tendered was sufficient to pay the plaintiff’s demand and the costs of said suit up to the time of such tender.
“ From the foregoing facts I find, as matter and conclusion of law, that the said premises, by reason of the leaky condition of said skylight, were in an untenantable condition, and were unfit and unsuitable for the carrying on of said business, and that it was the duty of the plaintiff to repair the same; that the plaintiff’s servants, while in his employ, having injured the said skylight as aforesaid, it became and was the duty of the plaintiff to properly repair the same; and that his refusal and neglect to repair said skylight, after complaint and notice by the defendant, justified the defendant in terminating the lease and vacating the premises; and that the conduct of the plaintiff in the premises amounted to an eviction in the law.”

When the original lease was made, as well as when it was modified by the verbal arrangement, the building was adapted to the needs of the tenant, who had hired it for a particular business. This was understood by the landlord. Through the act of the landlord, injuries were done to the building which rendered it practically useless for the purpose for which it was hired. The attention of his agent was called to the condition of the building. He undertook to make repairs. His efforts resulted in making a bad matter worse. Through the act of the landlord, represented by his employes and agent, the tenant was deprived of the beneficial use of the building. The conclusion of the circuit judge is justified by the following cases: Young v. Collett, 63 Mich. 331; Pridgeon v. Boat Club, 66 Mich. 326; Bostwick v. Losey, 67 Mich. 558; Leonard v. Armstrong, 73 Mich. 577; Pierce v. Joldersma, 91 Mich. 463; Grove v. Youell, 110 Mich. 285; Fisher v. Nergararian, 112 Mich. 327.

Judgment is affirmed.

The other Justices concurred.


text:
    GAGE v. TOWNSHIP OF PITTSFIELD.
    1. Highways — Defective Proceedings — Evidence of User.
    The records relating to defective proceedings in laying out a highway, and evidence that it was generally understood in the community that it was a public highway, axe admissible to show that a highway had been laid out, and, though not properly laid out, had been used sufficiently long to become a public highway, • under 3 How. Stat. § 1315, providing that ■ “all roads which have been or which may hereafter belaid out and not recorded, and which shall have been used eight years or more, shall be deemed public highways.’'

      2. Same — Opening Across Railroad — Liability eor Defects.
    Where a new highway is opened across a railroad, the township, and not the railroad company, is charged with the duty of keeping in safe condition for public travel that portion of the highway lying within the railroad right of way, but not being a part of the crossing itself nor of the approaches thereto.
    Error to Washtenaw; Kinne, J.
    Submitted April 20, 1899.
    Decided June 19, 1899.
    Case by Joseph E. Gage against the township of Pitts-field for personal injuries. Prom a judgment for plaintiff, defendant brings error.
    Affirmed.

      John P. Kirk (Randall & Jones, of counsel), for appellant

      Lawrence & Butterfield, for appellee.
   Moore, J.

Plaintiff recovered a judgment of ■ $250 against the defendant for injuries received by reason of a defective highway, from which judgment defendant appeals.

The accident occurred near Pittsfield Junction. It was the claim of plaintiff that the highway was laid out in 1882, and had been in use ever since. It was the claim of defendant that the proceedings to lay out the highway were void, and that it had not been used as a highway for 10 years. The records relating to laying out the highway were offered in evidence. Their admission is said to he error, because the proceedings were defective. ■ It is also said evidence that it was generally understood in the community that it was a public highway was incompetent. Section 1315, 3 How. Stat., provides, among other things, that “ all roads which have been or which may hereafter be laid out and not recorded, and which shall have been used eight years or more, shall he deemed public highways.” The object of this proof was to show that a highway had been laid out, and, though not properly laid out, had been used sufficiently long to become a highway. A like statute was construed in Potter v. Safford, 50 Mich. 46. In commenting upon this statute, Judge Cooley says:

“The question, then, is whether user alone for 10 years is sufficient. * * * It is notorious that the proceedings in a great many cases are carelessly managed and defective, and will not stand the test of legal scrutiny. In a strict sense, a road is not laid out unless the proceedings are in conformity with the law, but, in a popular sense, every road may be said to be laid out where proceedings have been taken by the highway authorities for the purpose, however irregular the proceedings may be, or however imperfect. * * * It is of great importance, after a way has been used for many years, in reliance upon proceedings supposed to be effectual to constitute it a highway, that parties who had acquiesced should not. be encouraged or suffered to inquire into technicalities for the purpose of defeating the public right. Ten years is ample time to allow for contesting such proceedings. If the time were shortened, it would, I think, be still better.”

In Village of Grandville v. Jenison, 84 Mich. 68, it is said:

“The extent to which a road is traveled does not govern. The law does not fix the number who must travel upon a road in 'order to determine whether it exists by user. It must be used by the public, and the public are all who have occasion to use it. In the case of Baldwin v. Herbst, 54 Iowa, 168, it was held that it would be sufficient to constitute a highway by user if it was traveled over as much, or about as much, as it would have been if ■it was laid out by the statute, and traveled as much as the circumstances of the surrounding population and their business required.”

Proceedings had been taken by the highway authorities to lay out this road as long ago as 1882. The petition was signed by the railroad company, as well as others. A release of right of way was obtained through legal proceedings, and the payment of damages to some of the landowners. While it is not shown that all of the proceedings were regular, proof was offered tending to show that,- immediately following those proceedings, the highway was opened to travel, and had been used by the public from then until the time of the accident, and is now used as a public highway. This testimony was disputed. The question was left to the jury, under a careful charge, and the jury found in favor of the plaintiff’s contention. We find no error in this. See, also, Wicks v. Ross, 37 Mich. 464.

It is claimed that, as this accident occurred within the hundred feet of the right of way of the railroad company, it was the duty of the railroad company, and not the township, to make the repairs, and, if there is any liability for the accident, it is the railroad company which is liable, and not the township. The accident occurred near the limit of the right of way, not upon the crossing itself nor upon an approach to it, but in the highway. In considering this proposition, it must be borne in mind that the railroad was in existence before the highway was laid out. In Chicago, etc., R. Co. v. Hough, 61 Mich. 507, it was said by Chief Justice Campbell:

‘ ‘ If a railroad interferes with an existing highway, it must .bear all the expense of crossing, and restoring the highway, as far as practicable, to safe condition; and the fencing and cattle-guards are necessary for that purpose. But, as pointed out in People v. Railway Co., 52 Mich. 277, when a new highway is created, then it belongs to those who create it to bear the expense of making the crossing in the condition necessary to meet all the expense and danger which it occasions.”

It would hardly be claimed that it would be competent for the legislature to provide for laying out a highway through a farm, and that, when so laid out, the owner of the land should be required to keep the highway in repair. Why should a different rule apply to railroads, as to that portion of the highway which is no part of the approach to, or the structure itself used by, the railroad ? The statute does not relieve the township from liability for defects in the highway itself simply because it is within the right of way of a railroad. 3 How. Stat. § 1446f. Counsel have failed to call our attention to any decision which supports their contention, while section 1322, 3 How. Stat., as amended by Act No. 145, Pub. Acts 1893, indicates very clearly that a highway across a railroad right of way is under the control of the township authorities.

It was the claim of the plaintiff that the township authorities had allowed the water to stand in the middle of the highway until, by the passage of conveyances, a deep and dangerous hole had been created; that, in attempting to avoid the hole, the wheels of his wagon dropped into a deep rut, and he was thrown from the wagon, head first, to the ground, and received severe injuries; and that the road had been in this condition so long the township authorities must be presumed to have had notice of the defect. His claim in these particulars was denied. The case is much like Handy v. Township of Meridian, 114 Mich. 454. The circuit judge gave a fair, clear, and intelligent charge to the jury, who found in favor of the plaintiff.

It is not necessary to discuss any other questions raised by counsel.

Judgment is affirmed.

The other Justices concurred.


author: Montgomery, J.

text:
    SMEAD v. ROGERS.
    Appeal — Decree on Conflicting Evidence — Fraudulent Conveyance.
    The Supreme Court will not reverse a decree setting aside a conveyance as in .fraud of creditors, where the evidence is conflicting, unless it is clearly against the weight of the evidence.
    Appeal from Lenawee; Chester, J.
    Submitted May 4, 1899.
    Decided June 19, 1899.
    Bill by George A. Smead against Charles E. Rogers, Roye M. Rogers, and Emma L. Rogers in aid of execution. From a decree for complainant, defendants appeal.
    Affirmed.

      John A. Riley and Watts, Bean & Smith, for complainant.

      Salsbury & O’Mealey, for defendants.
   Montgomery, J.

This is a bill filed in aid of execution at law. Prior to the 23d day of January, 1893, Charles E. and Emma L. Rogers were owners, as tenants of the entirety, of an undivided half of the property in question, which consists of a canning plant and machinery in the village of Blissfield, under a conveyance of record. Albert S. Bush and wife were the owners of the other moiety. Mr. Rogers and Mr. Bush were engaged in the business of canning fruits and vegetables. On the date above stated, Bush and wife conveyed the undivided half of the premises to Roye M. Rogers, the son of Charles E. and Emma L., and they thereafter conducted the business. On the 7th day of January, 1897, the complainant commenced a suit by attachment against Charles E. and Roye M. Rogers, and caused the attachment to be levied on the property in question on that day. On July 7, 1897, judgment was recovered in the sum of $2,255.56, and execution was afterwards duly taken out, and a levy duly made. In the meantime, on January 8th, the day following-the attachment, a deed from Charles E. and Roye M. Rogers to Emma L. Rogers, bearing date of November 30, 1894, was placed of record. This biil was filed to have it declared that this deed is fraudulent as to the complainant. The circuit judge granted the relief, and defendants appeal.

Under the statute (Act No. 99, Pub. Acts 1897), the burden of proof rests with the defendant Emma L. Rogers to establish the bona fides of the transaction. The question for our decision is whether she has met this burden, and established the bona fides. The circuit judge had the advantage of seeing the witnesses and noting their appearance on the stand, and we should proceed reluctantly to reverse his decision on a question of this nature, although it is our duty to do so if fairly convinced of his error. A thorough examination of this record has failed to satisfy us that the conclusion of the circuit judge was not warranted. On the contrary, there are many circumstances which impress us as persuasive, and which tend to show a purpose to withhold this conveyance from record, with a full knowledge that the effect would be to give a false credit to the grantors. There is credible testimony that the title of Charles E. and Roye M. to this property was asserted by the defendant Roye M. in the presence of his mother, and not denied by her. There is a marked conflict in the testimony as to how the alleged consideration was paid. It is heyond doubt that the defendant Emma must have known that her husband and son were incurring indebtedness, and, in addition to this, the alleged consideration is grossly inadequate. The conclusion that there was a fraudulent purpose is, in our-opinion, justified. Ryan v. Meyer, 108 Mich. 638; Township of Maple Valley v. Foley, 113 Mich. 622; Preston Nat. Banh v. Pierson, 112 Mich. 435. The case is distinguishable from Barkworth v. Palmer, 118 Mich. 50. In that case there was no proof of actual fraud.

The decree does not by its terms subject.the undivided half of the property held by Mr. and Mrs. Rogers as tenants of the entirety to complainant’s execution, and in this respect it is entirely proper, as the conveyance was promptly placed of record when made, and long before complainant’s rights accrued.

The decree is affirmed, with costs.

The other Justices concurred.


text:
    WATSON v. DINGMAN.
    Attachment — Service and Return.
    A return of service indorsed by the sheriff on a writ of attachment in the following language: “I served a certified copy of the within writ on A. * * * by delivering the same to A., and * * * I served a certified copy, together with a copy of the inventory, on B.,” — is fairly to be interpreted as denoting service of a copy of the writ, as well as of the inventory, upon B.
    Error to Missaukee; Aldrich, J.
    Submitted May 10, 1899.
    Decided June 19, 1899.
    Proceedings under the log-lien law by James Watson against Charles M. Dingman and Charles L. Dolph. From a judgment for plaintiff, defendant Dolph brings error.
    Affirmed.

      George J. Cummins, for appellant.

      F. O. Gaffney, for appellee.
   Moore, J.

Prior to May, 1898, the plaintiff was employed by Mr. Dingman in getting out in the woods, and driving in the river, cedar logs belonging to Mr. Dolph. On May 17, 1898, he sued out a writ of attachment against Mr. Dingman and against the logs, under the provisions of Act No. 229, Pub. Acts 1887 (3 How. Stat. § 8427a et seq.). About 10,000 pieces of cedar were seized under this writ on the 17th day of May. On the 23d day of May, Mr. Dolph gave a bond, and secured a release of the timber. The sheriff made on the writ of attachment the following return:

“State of Michigan, ) County of Missaukee,
“I do hereby return that, by virtue of the foregoing writ of attachment, I did, on the 17th day of May, A. D. 1898, attach the following property, viz.: About ten thous- and pieces of cedar from eight inches to two and one-half feet thick, eight feet long, marked some Cccc,' some Cccc Ccc, some Ccc, some C A, and cut by C. M. Dingman; and I do further return that at the village of Temple, in the county of Clare, on the 17th day of May, A. D. 1898, I served a certified copy of the within writ on Charles L. Dolph, the owner of the above-described property, one of the defendants in said attachment named, with a copy of. said writ, duly certified, as I am commanded, by delivering the same to Charles L. Dolph; and I do further certify and return that I served a certified copy, together with a copy of the inventory, on C. M. Dingman, in the township of West Branch, Missaukee county, Michigan, on May the 18th, 1898.
“Inventory of goods seized by me by virtue of this writ: About ten thousand pieces of cedar from eight inches to two and one-half feet thick, marked as follows: Somp Cccc, some Cccc Ccc, some Ccc, and some C A.
“John R. Tenant,
“Sheriff in and for Missaukee Co., Mich.
“My fees, $7.00.”

On the return day of the writ, May 27th, no appearance was made by either of the defendants, and a judgment was rendered in favor of the plaintiff. On the 31st of May Mr. Dolph filed an affidavit and bond, and took a general appeal of the case to the circuit court. On the 16th of June, by his attorney, Mr. Dolph entered á general appearance in the case. In July the case was tried by a jury. Defendant Dolph called Mr. Dingman as a witness. A trial upon the merits was fully had. After the testimony was all in, the defendant asked to have a verdict directed in his favor, for the reason that the return of the sheriff in justice’s court, not showing that a copy of the writ of attachment was served upon Mr. Dingman, did .not give the court jurisdiction. This was the first time objection was made to the jurisdiction of the court. The court refused to direct the verdict as requested, and allowed the sheriff to amend his return by inserting after the words “certified copy” the words “of said writ.” The case was submitted to the jury, who returned a verdict in favor of the plaintiff. The refusal of the judge to direct a verdict, and his allowing the return to the writ to be amended, are said to he error.

It may well he urged that the taking of a general appeal, the entry of a general appearance, and entering upon the trial without questioning the jurisdiction of the court would he a waiver on the part of the defendant; but we do not deem it necessary to pass upon that question. Neither is it essential to say whether the judge could allow an amendment under the circumstances of this case, because an examination of the return shows the writ was properly served. The return of service was made on the writ itself. It proceeds to say how service was made on Mr.- Dolph: “ I served a certified copy of the within writ on Charles L. Dolph, * * * as I am commanded, by delivering the same to Charles L. Dolph; and I do further certify and return that I served a certified copy, together with a copy of the inventory, on C. M. Dingman,” etc. A fair interpretation of this language is that the sheriff served a writ of attachment, duly certified, upon Mr. Dolph, and also served a certified copy of it, together with a copy of the inventory, upon Mr. Dingman.

Mr. Dolph has no reason to complain of the action of the circuit judge. The contract between Mr. Watson and Mr. Dingman was made .in the fall of 1897. It was the claim of the plaintiff that he was to stay with Dingman until the job was done, including the driving of the logs', for which he was to receive $24 a month for the work in- the woods and $1.50 a day for the driving; and that, though he worked for Mr. Tower 13 days after the logs were put in the river before the Dolph logs were driven, because it was desired to have the Tower logs go out first, the contract was a continuous one, and that he was entitled to a lien on the logs, not only for driving them, but also for the work done in the woods. It was the claim of the defendant that the hiring by the month was one contract, and the hiring by the day was a separate and distinct arrangement, and that the work by the month ended more than 30 days before the filing of the notice of a claim of lien, and that for that work the plaintiff was not entitled to a lien, and the judge should so direct the jury. His refusal to do so is said to be error. Testimony was offered tending to sustain the diverse claims of the parties. Under a very careful charge, these claims were submitted to the jury, who found in favor ,of the plaintiff. We do not think there is reversible error in the case.

Judgment is affirmed.

The other Justices concurred.


author: Long, J.

text:
    PHELPS v. CITY OF DETROIT.
    1. Municipal Corporations — Railroads —Bridging Tracks — Damages to Abutting Property.
    A city which proceeds, under charter provisions inadequate to confer the power, to construct a bridge over railroad tracks at a street crossing, is liable in damages to the owner of abutting property, the rental value of which is depreciated by the structure.
    2. Same — Continuing Wrong — Limitation of Actions.
    The maintenance by a city of a bridge across railroad tracks, which it was without authority to construct, and which depreciates the rental value of abutting property, is a continuing wrong, for which the property owner may recover his : damages arising within the period of limitations, although the right of action for the erection of the structure is barred.
    Error to Wayne; Carpenter, J.
    Submitted April 19, 1899.
    Decided June 19, 1899.
    Case by Ealph Phelps, Sr., against the city of Detroit, for the unauthorized maintenance of a bridge in front of plaintiff’s premises. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Eeversed.

      Edwin F. Conely, Orla B. Taylor, and Ralph Phelps, Jr., for appellant.

      C. D. Joslyn and Arthur Webster, for appellee.
   Long, J.

This is an action on the case to recover damages for the depreciation of the rental value of plaintiff’s property by the action of the city in constructing a bridge on the highway in front of such premises over the Michigan Central Eailroad tracks. The plaintiff is, and has been for many years, the owner of several lots, upon which houses have been constructed, fronting upon Fourteenth avenue, in the city of Detroit, conforming to the grade of the street, and from which he had received large amounts of rent, l'n 1875 the defendant erected a bridge over the Michigan Central Railroad tracks, which cross Fourteenth avenue adjoining the plaintiff’s premises. This bridge takes up the entire width of the street, except about five feet on each side, thus depriving the property of the benefits of the street as a street. The approaches to the bridge, which are immediately in front of the plaintiff’s premises, are built of stone, iron, and earth, and vary from 10 to 40 feet in height. This bridge and its approaches have remained in this condition continuously since its erection, in 1875. It is admitted by the defendant that the erection of the bridge caused some damage to the plaintiff’s property, but it is contended: (1) That there was never any liability whatever on the part of the city for damages occasioned by the erection of the bridge; (2) that, if there ever was any liability, the claim is barred by the statute of limitations. The court below concurred in these views, and directed the verdict in favor of defendant.

We cannot concur in either of these contentions. Since the decision of this court in Schneider v. City of Detroit, 72 Mich. 240 (2 L. R. A. 54), we have always supposed tfiat the question of such liability was settled in this State. The charter provisions considered were similar to those in force in 1875, when this bridge was constructed. The facts in that case were identical with the present, but the question of the statute of limitations was not involved. The inquiry there was whether the common council of the city of Detroit had authority to construct the bridge over the railroad tracks; and it was conceded by Mr. Justice Champlin, who wrote the opinion, that, if the authority to build the bridge existed, — all the proceedings having been regular, and the bridge and approaches having been erected according to plans adopted,- — -the city would not be liable. The charter of the city under which the council claimed the right to construct the bridge provided that it (the council) should have power to establish, widen, and extend streets and avenues in the city, and to grade, pave, repair, and otherwise improve the streets and highways. Section 33, chap. 7, Act No. 326, Local Acts 1883. The only section of the charter (section 38 of the same chapter) which then conferred in express terms upon the council the authority to erect a bridge in the street restricted that authority to the purpose of sewerage or drainage, and, as Mr. Justice Champlin th,ere said, “ did not extend to the purpose of securing a safe crossing of a railroad track by erecting a bridge in the street.” He said further:

“Is the authority implied from the section conferring power to grade, improve, or extend streets? * * * I do not think it is either expressly given or necessarily implied by the terms of the charter. The construction of bridges over railroads is not the ordinary or usual method of grading streets. The exercise of the power to erect such bridges in streets would necessarily involve quite an amount of abutting property in damage, and some entirely in destruction, for any beneficial use or enjoyment. Such consequences cannot be brought under the general power to grade streets, but must be provided for under the power of eminent domain. Private property cannot be appropriated for the public use without the necessity therefor is first determined by a jury under our Constitution, and compensation awarded and paid. Doubtless the method of crossing a railroad by a viaduct is safer than a crossing at grade, and upon streets which are recognized thorough; fares, over which the public are almost constantly passing, such bridges would greatly conduce to the public safety and convenience, and it would be wise for the legislature to confer upon municipalities the authority to erect such structures in the streets, and condemn private property for that purpose, if necessary; but, until this is done by special enactment, I do not think it can be done under the power now conferred by the general authority to grade, make, repair, and improve streets. It follows that the city authorities had no right to erect the bridge in the street in question so as to injure plaintiff in the usual and ordinary enjoyment of his property, and the city is liable to him for the injury for which he has complained in damages.”

The writer of the present opinion concurred with Justice Champlin. Mr. Justice Campbell said in the case:

“I agree in the result arrived at by my Brother Champlin. But I have no doubt the city may build bridges where necessary for a safe passage, subject always to the payment of damages when it injures private property, as was done here.”

These views were concurred in by Justices Sherwood and Morse.

The learned counsel for the defendant in the present case seem to have entirely misconceived what Mr. Justice Campbell had in mind in adding what he did to the opinion. He agreed in the result, — that is, agreed that the city was liable for the damages sustained by the plaintiff, —and undoubtedly agreed also to the proposition that the charter provisions were not broad enough to warrant the action, and consequently the power, if it existed, must necessarily come from the right of eminent domain; that, this right not having been exercised, the city had acted without authority, and was a wrong-doer, and must respond in damages. But the learned counsel for the defendant say that- — .

“Mr. Justice Campbell must have had in mind the damages following a direct injury, such as was sustained ' by the plaintiff in Ashley v. City of Port Huron, 35 Mich. 296 (24 Am. Rep. 552), and not damages for incidental injury caused by changing the grade of a street or erecting a necessary bridge.”

The views expressed by Mr. Justice Campbell must be read in the light'of the questions there involved, and the result which Mr. Justice Champlin reached, in which all the members of the court concurred.

Even if the city, in the present case, had been clothed with the power to construct this bridge by right of eminent domain, no such proceedings having been taken, it would be held liable for damages to abutting property. Hoffman v. Railroad Co., 114 Mich. 316. In 1893 an act was passed by the legislature with special reference to proceedings for the separation of grades. Act No. 92, Pub. Acts 1893. In the case of Harper v. City of Detroit, 110 Mich. 427, it appeared that the action was brought to recover damages to abutting property in the construction of a bridge by the city over certain railroad tracks. No proceedings had been taken under the act of 1893 to condemn the property and fix the damages. It was held that proceedings should have been taken under this act, which was intended for the protection of owners of - property upon highways and streets; and that, .such proceedings not having been taken, the city was liable in damages.

We not only think the case of Schneider v. City of Detroit settles the question in favor of plaintiff’s contention, but that upon principle the city must be held to respond in damages to abutting property owners. The city has the undoubted right to establish and change the grades of streets, and to make use of them for the common and ordinary purposes for which they were intended; but it has no more right to destroy the use and enjoyment of the abutting property, for the benefit of a railroad company, and without compensation, than a railroad company would have under like circumstances; and in such cases, where damage is by injury aside from actual taking of property, the rule is to make the party whole as far as practicable.

But counsel for defendant contend that the action is barred by the statute of limitations. The action was brought to recover for injuries sustained by the maintenance of the bridge during the period of 3-J- years previous to the commencement of suit. The position of the plaintiff is that the maintenance of the bridge is a continuing wrongs or nuisance, and that, though the right of recovery for the original erection of the bridge has been lost by the lapse of time, yet the right to recover for the injury done during the last six years remains. On the other hand, counsel for defendant contend that the bridge in question is a permanent structure, and the injury to the plaintiff, if any,— past, present, and future, — was ascertainable and complete as soon as the bridge was completed.

There are some authorities which "seem to sustain the contention of counsel for defendant. In Town of Troy v. Railway Co., 23 N. H. 83 (55 Am. Dec. 177), the rule was laid down that, whenever the nuisance is of such a permanent character that it will continue without change from any cause but human labor, the damage is original, and may at once be compensated; and that, therefore, no future action can be maintained as for a continuing nuisance. This rule has been followed in' some of the other States, but it has been criticised and repudiated by most of the courts of this country. It has never been the rule in this State.

In Hoffman v. Railroad Co., supra, the question was squarely presented. There counsel for the railroad company claimed that a railroad, when once constructed, is of such a permanent character that it is to be presumed that it will remain permanently, and that whatever damages were done to the premises were done in 1880, and the owner of the abutting property was not only entitled to recover the damages which had then accrued, but for all that might thereafter accrue. The action was brought for damage to the abutting property in the reduction or diminution of its rental value for the six years prior to bringing the suit, on May 16, 1894. There had been no condemnation proceedings, and this court quoted with approval the following language from Grand Rapids, etc., R. Co. v. Heisel, 47 Mich. 393:

“There is no reason, and, so far as we can discover, no law, which allows the wrong-doer to cast any portion of an actual and appreciable loss on the party whom he injures. In such a case as this, it is in the power of the company, and always has been, to have the compensation settled once for all, and to get any benefit which the law attaches to such a method of ascertainment. Until this is done, the possession is a continuous wrong, for which, as intimated in our former decision, the amount accruing year by year is recoverable.”

The plaintiff recovered her damages for the six-years rental prior to the commencement of suit. The judgment was affirmed, and it was said, “We think the principle announced by the court in the Heisel Case should control this case.”

Not only is this the rule as settled in this State, but the same general rule obtains in most of the States. In the recent case of City of Chattanooga v. Dowling, 101 Tenn. 342, the supreme court of Tennessee had before it the like question. The court said:

“The question here presented is, Conceding the liability of the city to suit for the injury complained of, should all the damages have been recovered in one action by the injured party, or can he maintain successive suits until the nuisance is abated ? * * * To hold that for such a nuisance the injured party could have only one action, in which he must recover all his damages, past and prospective, would not only be to assume that the wrong-doer will always persist in his misconduct, but would be in effect to give him a license to continue in it. The courts will do neither.”

Uline v. Railroad Co., 101 N. Y. 98 (54 Am. Rep. 661), was an action for damages occasioned by the unlawful maintenance of a railroad in front'of plaintiff’s premises, the grade being raised, etc. The road was built 40 years before the action was commenced. Two extra tracks were laid in 1874. Suit was brought in 1883. The case is in every respect like Hoffman v. Railroad Co., supra. The court held that it was a continuing wrong, and that successive actions might be brought for damages occasioned thereby. The court said, “The law will not proceed upon the assumption that a nuisance or illegal conduct will continue forever.”

City of Nashville v. Comar, 88 Tenn. 415, was a decision by Mr. Justice Lurton, now of the United States court of appeals. He takes up the case of Town of Troy v. Railway Co., supra, and the cases of other courts which have followed that case since, and shows with great clearness that those cases are not only illogical, but that they are in opposition to the great weight of authority. After speaking of the rule announced in the Troy Case, that “wherever the nuisance is of such a character that its continuance is necessarily an injury, and where it is of a permanent character, that will continue without change from any cause but human labor, there the damage is an original damage, and may be at once fully compensated,” the learned justice says:

‘ ‘ This seems to us an artificial and arbitrary test. There are supposable nuisances which, by the effect of time, might at last abate themselves; but by far the greater number of trespasses, wrongs, and nuisances would continue indefinitely without the expenditure of human labor to remove or abate them. It is a rule which does not recommend itself by either its reasonableness, its certainty of application, or its justice.”

He then cites many cases in support of his contention, and proceeds:

“This assumption that a wrong-doer is to be presumed, from the mere character of the work, to intend to continue in his wrong, and that he will not remedy his defective or unskillful work, is repudiated in the majority of the American cases.”

We deem it unnecessary to quote from the multitude of cases cited in the briefs of counsel for the plaintiff here. The doctrine contended for by them is supported, not only by the great weight of authority in this country, but in England. Two English cases may be mentioned as supporting their contention: Darley Main Colliery Co. v. Mitchell, 11 App. Cas. 127; Crumbie v. Wallsend Local Board, L. R. 26 Q. B. Div. 503. The following cases in this country support the rule: Town of Roxbury v. Railroad Co., 60 Vt. 121; Inhabitants of New Salem v. Eagle Mill Co., 138 Mass. 8; Ramsdale v. Foote, 55 Wis. 557; Reed v. Mayor, etc., of Birmingham, 92 Ala. 339; McGowan v. Railway Co., 23 Mo. App. 203; Fell v. Bennett, 110 Pa. St. 181; Reid v. City of Atlanta, 73 Ga. 523; Sloggy v. Dilworth, 38 Minn. 179 (8 Am. St. Rep. 656); Omaha, etc., R. Co. v. Standen, 22 Neb. 343; Schulte v. Transportation Co., 50 Cal. 592. We close this part of the case by the further citation from the opinion of Mr. Justice Lurton, in which we concur:

‘ ‘ It seems to us that the true rule deducible from the authorities is that the law will not presume the continuance of a wrong, nor allow a license to continue a wrong, when the cause of the injury is of such a-nature as to be abatable either by the expenditure of labor or money; and that, where the cause of the injury is one not presumed to continue, that the damages recoverable from the wrongdoer are only such as have accrued before action brought, and that successive actions may be brought for the subsequent continuance of the wrong or nuisance.”

The judgment below must be reversed, and a new trial granted.

The other Justices concurred.


text:
    SHEFFERLY v. AUDITOR GENERAL.
    Tax Sales--Setting Aside Decree.
    A decree for the sale of land delinquent for taxes will not be set aside after confirmation of the sale, even though such decree has not been enrolled, on the ground either that the township treasurer failed to make the tax out of personal property, or that his return to the county treasurer was prematurely made, in view of the provision of section 70 of the tax law (Act No. 206, Pub. Acts 1893) that, while the practice with reference to setting aside sales shall be the same, so far as applicable, as in cases of mortgage foreclosure, no sale shall be set aside after confirmation, except in cases where the taxes were paid or the property was exempt- from taxation.
    Appeal from Macomb; Eldredge, J.
    Submitted January 3, 1899.
    Decided June 28, 1899.

      Petition by Mary Shefferly against Roscoe D. Dix, auditor general, Alexander McMillan, and Charles Canned, to reopen a decree in a tax proceeding. From a decree for petitioner, defendants McMillan and Canned appeal.
    Reversed.

      Louis C. Wurzer, for petitioner.

      Dwight N. Lowell, for appellants.
   Grant, C. J.

The petitioner, Mary Shefferly, resided in Detroit. She had a mortgage upon the land described in the petition, situated in the township of Warren, Ma-comb county. In 1893 a tax was levied upon her mortgage interest under the law of 1891. The tax was not paid, was returned delinquent, and sold December 20, 1895, under the tax proceedings taken by the auditor general. The lands were bid off to the State, and were purchased July 24, 1896, by the defendant* Canned. The redemption expired November 30, 1896. January 28-, 1898, she filed this petition to reopen the decree. Relief was granted upon the payment of the tax,'interest, and costs.

The reasons assigned by her counsel for setting aside the decree are:

1. That the decree was never enrolled, and that, therefore, the court was clothed with power to modify or set it aside.

2. That the township treasurer failed to make the tax out of the personal property.

3. That the return of the township treasurer was premature, in that it was made on February 5, 1894, and should not have been made until March 1st.

The court, in vacating the decree, relied upon Benedict v. Auditor General, 104 Mich. 269. That case has been misconstrued, as was held in Brooks v. Auditor General, 119 Mich. 329. A11 the points raised have been disposed of against the claim of the petitioner in the prior decisions of this court. Brooks v. Auditor General, supra; Spaulding v. O’Connor, 119 Mich. 45; Auditor General v. Sparrow, 116 Mich. 574.

Decree reversed, and petition dismissed, with costs.

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


author: Hooker, J.

text:
    KELSEY v. WAYNE CIRCUIT JUDGE.
    Mandamus — Dissolution of In junction — Review.
    Where, upon an application for mandamus to compel a circuit judge to vacate an order dissolving an injunction, the return of the respondent fairly indicates that the merits of the question received consideration, the Supreme Court will not he inclined to interfere with his discretion.

      Mandamus by Eber L. Kelsey to compel Edward D. Kinne, circuit judge, presiding in Wayne county, to vacate an order dissolving an injunction.
    Submitted February 7, 1899.
    Writ denied June 28, 1899.

      Moore & Moore, for relator.

      Humphrey & Grant, for respondent.
   Hooker, J.

A statement, in chronological order, of some of the more’ important facts upon which the question before us depends, will aid in making the case plain. Charles E. Kelsey was the owner of a lot of lumber. Some of it lay upon docks of the W. & A. McArthur Co., Limited, and some upon premises of the Cheboygan Lumber Company; these concerns having possession of, and liens for sawing upon, the respective portions of the lumber. Kelsey was in debt to others, and on October 15, 1895, executed to the complainant, the Union Trust Company, as trustee, two chattel mortgages, which were at once filed. The first of these secured three notes in favor of Eber L. Kelsey and Charley L. Kelsey. This mortgage was made subject to certain liens for saw bills and purchase price. The second mortgage secured other claims, including the two liens mentioned. On December 30, 1895, one Bowen, an unsecured creditor of Kelsey, attached this lumber in an action against Charles E. Kelsey. The sheriff, Ming, did not remove it, but put notices of the levy upon it, and put it under surveillance, and at all times claimed possession, until it was replevied from him by Eber L. Kelsey. On April 2, 1896, the complainant sold the lumber upon an alleged foreclosure of the first mortgage, and Eber L. Kelsey purchased it, with full notice of the claim made by the attaching creditor and sheriff. On being refused possession, he replevied it from Ming, the sheriff, and upon the trial he was defeated, and the sheriff recovered a judgment for the amount of the levy, the attachment case having gone to judgment. Upon review in this court, the judgment in the replevin case was reversed. See Kelsey v. Ming, 118 Mich. 438. From that decision it is evident that the validity of the chattel mortgages was in dispute, and this was held to be a question for the jury. It was also said that, if the first mortgage was valid, it was not extinguished by an irregular sale, but that the purchaser would succeed to the rights 'of the mortgagee. It was also held that, if the plaintiff had succeeded to the rights of the mortgagee and lienholdprs, the judgment of the attaching creditor could net be given priority over such claims ©f the plaintiff without determining their validity, and a judgment for the amount of the claim would not be the proper one.

. After the reversal of the replevin case, the Union Trust Company filed a bill in this case in the circuit court for the county of Wayne, the replevin suit being pending in the county of Cheboygan. The bill alleges the various claims of the parties interested, and asks that the validity of the mortgages and liens and the rights of the parties be determined, and that in the meantime an injunction issue to restrain the defendant Ming from any further proceedings in the replevin case. An order was made allowing such injunction, upon condition that a bond in the sum of $1,500 be filed. This was not complied with, and the writ was not issued upon this order. Eber L. Kelsey was made a defendant, and he filed a cross-bill, setting up substantially the same state of facts alleged in the original bill. This also prayed a similar injunction, and an order like that made upon the original bill was made. This was complied with, and the writ issued. Ming answered, and made a motion to dissolve the injunction, which was granted, as shown by the following order:

‘ ‘ In this case it is ordered that the order for the injunction on the bill and cross-bill is set aside, but without prejudice to the rights of the complainant in the original bill or cross-bill, or either of them, to apply to the judge of the circuit court for the county of Cheboygan, or the judge presiding at that court, for a renewal of said orders, or either of them, and the issue of new injunction or injunctions thereon; this court being of the opinion that each of said applications should have been made to the judge of the circuit court of the county of Cheboygan, or to the judge presiding in said court, and therefore it did not pass upon the merits of the applications for or the issuing of the injunction, or the rights of the parties to such injunction.
[Signed] “E. D. Kinne,
“Acting Circuit Judge.”

The present proceeding is an application for mandamus to compel the circuit court, in chancery, to vacate the order dissolving the injunction.

In his return to the order to show cause, the learned circuit judge states that in his answer, which was sworn to, the defendant Ming denies all of the equities in the original bill, and, further, that respondent considered fully the merits of the matter brought before him in the motion to dissolve the injunction, and ordered the injunction to be set aside, but without prejudice to the right of the complainant, or defendant Kelsey, to apply to the circuit judge of the county of Cheboygan, or the judge presiding at that court, for a renewal of said orders, or either of them, and that at the special request of the solicitors for the complainant in the cross-bill, after the defendant’s solicitors had left the room, he incorporated into the order this language: “And therefore it did not pass upon the merits of the applications for or the issuing of the inj unction, or the rights of the parties to such injunction.” The return states further:

‘ ‘ This language was put into said order for the reason that complainant’s solicitors stated that the circuit court for the county of Cheboygan, upon his application, might refuse to hear the same on the ground that said application was res adju dicata, having been passed upon by this respondent, sitting as one of the judges of the Wayne circuit court; and that this respondent did not refuse to pass upon the merits of said motion for dissolution, as stated in the eighth paragraph of said petition. This respondent denies that he made any statement that the merits of said petition had not been considered, and alleges that the merits of said application were fully considered, but that he made the statement in said order that they had not been passed upon for the .reasons alleged in the eighth paragraph of this answer.”

It also states:

“This respondent avers that no bond was filed by the Union Trust Company, as complainant in the original proceeding, and no injunction was issued in said original cause, but that, after a full consideration of the merits of the whole proceeding, he made his order in both the original and cross actions, for the purpose of setting aside the order allowing the injunction in the original suit, and for dissolving the injunction issued in the cross action; and that he made said order of dissolution after full consideration of the case in the manner aforesaid, and after the same had been fully argued by counsel for the respective parties; and that if he had been so requested by Messrs. Moore & Moore, solicitors for the cross complainant, he would have immediately decided said motion for the dissolution of injunction upon the merits of said case; and that the only reason that this respondent did not pass upon the merits in making his order for dissolution was he was specially requested by Messrs. Moore & Moore, solicitors for cross complainant, to make the order in the form in which it' now appears; and that said order, a copy of which is attached to the petition in this case, was prepared by Messrs. Moore & Moore, the solicitors for the cross complainant, and this respondent was requested to sign the same in the form in which it was drawn, and without passing upon the merits, so that they would not be concluded by-such decision in any application that they might make to the circuit court for the county of Cheboygan in any subsequent proceedings taken by them; and that said order in its present form was made by this respondent for the benefit and protection, and at the urgent request, of Messrs. Moore & Moore, solicitors for the cross complainant in said action.”

The order, as explained by the return of respondent, indicates that the learned circuit judge, in the exercise of his lawful discretion, dissolved this injunction, but that he endeavored to so frame his order as not to preclude the complainant, or defendant Kelsey, from taking steps to procure another injunction in Cheboygan county, where the property was situated and defendant Ming resides. We cannot suppose that he meant to indicate the opinion that an application could be made before the Cheboygan court in this proceeding, as counsel appear to claim, and his answer indicates the contrary. Counsel urge that the respondent should have passed on Mr. Kelsey’s right. to this injunction, and that, not having done so, his order should be vacated. Counsel say, in a letter accompanying the brief:

“It is obvious that, should this court merely pass upon our right to have the injunction heard on its merits in the Wayne circuit court, we should regard an adverse decision in the Wayne circuit court as error, and immediately ask this court to determine whether or not the case was one for equitable interference. It seems to us, therefore, that the court will he able to determine our right to the injunction in this hearing, and obviate the necessity of repeating our application to the Supreme Court.”

From this we infer that counsel assume that we would review the order dissolving this injunction on the merits. We have-very rarely interfered with the discretion of a circuit judge upon the granting or dissolving of injunctions, when he has passed upon the merits. We have so often declined to consider the merits of such applications that we do not repeat the discussion of the cases here. See McGrath, Mand. Cas. Nos. 810, 814-850. But, as will be seen from some of these decisions, we do vacate orders granting injunctions where they are clearly in direct violation of law, and should an officer refuse to hear or pass upon the merits of an application, whether from an admitted misconception of law or otherwise, we might require him to consider and pass upon them. But that is not this case. We think the return shows that the merits of this question were considered. The application is therefore denied.

The other Justices concurred.


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    BROUGHTON v. JONES.
    1. Corporations — Chattel Mortgages — Authority to Execute —Special Meeting of Direotors.
    A chattel mortgage covering all the property of a corporation, executed under authority given at a special meeting at which only two of the four directors were present, the remaining two not having been notified of the meeting, is invalid.
    2. Same — Assent of Stockholders.
    A chattel mortgage executed by directors of a corporation without proper authority will not be treated as the act of the stockholders, where it does not appear that the stockholders held any meeting for the purpose of giving the mortgage, or that all of them assented to it.
    3. Appeal — Review—Questions not Raised Below.
    A point raised for the first time on appeal will not be considered.

      Error to Wayne; Frazer, J.
    Submitted April 4, 1899.
    Decided June 28, 1899.
    Replevin by Frederick Broughton against Henry K. Jones. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      John H. Powell, for appellant.

      Lewis H. Paddock, for appellee.
   Moore, J.

The defendant, Henry K. Jones, obtained a judgment against the Detroit Mill-Supply Company, and levied upon certain personal property which' he claimed belonged to it. The plaintiff claimed to be entitled to the possession of said property by virtue of a chattel mortgage for $1,300 given to him by said Detroit Mill-Supply Company, and replevied the property levied upon. After all the proofs were in, the circuit judge directed a verdict in favor of defendant, for the reason that no authority had been shown for the giving of the mortgage. The plaintiff brings the case here by writ of error.

. It is his claim that early in 1896 he loaned Mr. Taylor $700 to enable him to engage in business; that afterwards Taylor and one Major E.’Jones formed a partnership, under the name of the “Universal Engineer & Mill-Supply Company,” into which partnership the business of Taylor was merged, the new company assuming the debt of Taylor to Broughton, giving the latter notes therefor. In June, 1896, a corporation was formed called the “Detroit Mill-Supply Company,” and it is the plaintiff’s claim that this corporation took over the business of the Universal Engineer & Mill-Supply Company, and assumed the debt due plaintiff. He also claims that in October, 1896, he loaned the new corporation $40Q, and that said corporation also owed S. Smith' $200, which debt was assigned to him, and that on December 3, 1896, the corporation was authorized to give him a mortgage for these debts, and that on December 5th such a mortgage was given. It was filed on the 12th of December, and soon thereafter Mr. Broughton took possession of the property by virtue of his mortgage, and was in possession when defendant levied upon the goods. It is the claim of defendant that the debt of $700 was the debt of Taylor, and not of the Detroit Mill-Supply Company; that the $400 was not borrowed of Broughton, but was borrowed of one Kretzschmar, and the note of the corporation was given for it. No proof on the trial was given as to the debt of $200 to Mr. Smith. It is also the claim of defendant that, while the mortgage is dated December 5 th, it was not given until the 11th, and after one of the creditors of the company had attached some of the goods of the company, and was given without authority, and for the purpose of defrauding the creditors.

A number of errors are assigned, but, if the circuit judge was right in holding the mortgage was given without authority, that will end the discussion. The property covered by the mortgage was practically all the property of the corporation. To take possession of the property described in the mortgage was to take possession of all the property of the corporation, and practically ended the business. There does not seem to be any written record' of the election of directors, but we think it is clearly established there were four directors, who undertook to and did manage the affairs of the company. Such authority as was given to execute the mortgage was given at a special meeting of the directors, at which meeting but two directors were present. There is nothing to show that the other directors were ever notified that such a meeting was to be held or that such action was to be taken. While the management of corporations is usually left to their directors, no court, so far as we know, has ever held that one-half of the directors of a corporation, without the knowledge of the others, can dispose of all the property of the corporation by action at a special meeting, notice of which is not given to all the directors. The case comes within Covert v. Rogers, 38 Mich. 363 (31 Am. Rep. 319); Doyle v. Mizner, 42 Mich. 332.

Plaintiff urges that, though the directors were not properly authorized to make this mortgage, it may be treated as the act of the stockholders; citing Eureka Iron & Steel Works v. Bresnahan, 60 Mich. 332; Preston Nat. Bank v. George T. Smith Middlings Purifier Co., 84 Mich. 364. The trouble with this contention is there is no evidence to show that there was a meeting of the stockholders held for the purpose of giving this mortgage, or that all of them ever assented to the giving of it.

It is now urged that, as the record shows that upon the same day the mortgage was filed a bill of sale was given to John H. Jones as trustee for all the creditors, one creditor could have no rights over the others. This claim was not made in the court below, but, on the contrary, Mr. Broughton claimed to be in possession of the goods under his chattel mortgage. It has been so often held that we will not consider a point raised here for the first time, it is not necessary to do more than cite some of the authorities. Waterman v. Waterman, 34 Mich. 490; Hogelskamv. Weeks, 37 Mich. 422; Maxwell v. Bridge Co., 41 Mich. 453; Chatterton v. Parrott, 46 Mich. 432; Winchester v. King, 48 Mich. 280; O’Neil v. City of Detroit, 50 Mich. 133; Lane v. Boom Co., 62 Mich. 63.

We do not deem the other assignments of error of sufficient importance to discuss them.

Judgment is affirmed.

The other Justices concurred.


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    FLETCHER v. HAGERMAN.
    Equity — Agreement for Support — Specific Performance — Security.
    The execution of a mortgage in complainant’s favor, to secure his support for the remainder of his life, was properly decreed to cover property received- by defendant, directly or indirectly, by reason of complainant’s discharge of a mortgage, where, although it' was contemplated and agreed at the time of the discharge that complainant’s suppiort should be secured upon property to be received in exchange for that upon which the discharged mortgage was an incumbrance,' defendant, ' after receiving the former mortgage and its discharge, declined to give any security.
    Appeal from Hillsdale; Chester, J.
    Submitted April 5, 1899.
    Decided June 28, 1899.
    Bill by Saunders Fletcher against James P. Hagerman. and Martha J. Hagerman to compel the execution of a mortgage. From a decree for complainant, defendants appeal.
    Affirmed.

      A. L. Guernsey and W. D. Fast, for complainant.

      F. A. Lyon, for defendants.
   Hooker, J.

The defendants have appealed from a decree requiring them to execute a mortgage upon certain property for $1,000, in complainant’s favor, to secure his support for the remainder of his life. The decree was based upon an alleged arrangement between them whereby the mortgage theretofore existing was delivered to complainant’s daughter, one of the defendants, upon condition that he should receive such support, and a subsequent agreement that defendants would secure him for such support upon other property, to be received in exchange for the farm upon which the former mortgage was an incumbrance, provided that complainant should discharge such mortgage, which he did. The learned circuit judge, who saw the witnesses, was of the opinion that it would be unconscionable for the defendants to refuse such security after receiving the former mortgage and its discharge, and in this view we concur. We are of the opinion that the defendants have been disposed to provide for the complainant, but have felt that it would be an injustice to them if required to pay or secure the amount of the original mortgage, in view of their agreement made at a time when their differences were under discussion. At that time the farm which the defendants had received from the complainant was in their possession, but, after it was proposed to part with it, he. refused to discharge the mortgage unless the defendants would protect him, which they agreed to do. The circuit judge has placed a construction upon the acts and agreements of the parties which does substantial justice, and is as favorable to the defendants as they had- a right to expect. We are satisfied that the Camden property was purchased with funds that indirectly came from the property received from the complainant, if it was not paid for with money received by reason of his discharge of the original mortgage. The decree of the circuit court is therefore affirmed.

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


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    ST. JOSEPH VALLEY RAILWAY CO. v. GALLIGAN.
    Deeds — Construction—Easements—Waters.
    One who conveys to a railroad company for a right of way the natural bed of a creek, and a strip of adjacent land, specifying in the deed that the latter grant is for the unobstructed flow of the diverted waters, “and for no other purpose, except to keep the banks on either side properly piled, planked, and protected from washing,” and reserving the right to “cover” the creek, and, when so covered, to use and occupy all space to the line of the railroad right of way, is not restricted to a covering by platform, but may place a shop building over the stream in such way as not to obstruct it; the grantee having an easement merely, which does not affect the grantor’s title or possession.
    Appeal from Berrien; Coolidge, J.
    Submitted April 18, 1899.
    Decided June 28, 1899.
    Bill by the St. Joseph Valley Railway Company to restrain Michael J. Galligan from covering a creek with a building. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Sam H. Kelley, for complainant.

      A. P. Cady, for defendant.
   Long, J.

The only question in this case is, the construction to be placed upon the language contained in a deed from defendant to complainant. It appears that defendant was the owner of lot 12 in block 1 in Thresher’s addition to the city of Benton Harbor. On December 5, 1896, defendant and wife conveyed by warranty deed to complainant, for a cash consideration, a part of said lot, -the description being as follows:

“All that part of lot number twelve in block one in Thresher’s addition to the village, now city, of Benton Harbor, lying west of Ox creek, as located according to annexed plat, being that part of lot twelve lying west of a line beginning fifty-four feet west of tbe northeast corner of said lot twelve; running thence south, twenty degrees and thirty minutes east, seventy-five feet; thence south, sixty degrees and thirty minutes east, thirty-three feet, to a point at the alley thirty-four feet west from the southeast corner of said lot twelve; also a right of way fourteen feet wide immediately east of said described line, to allow Ox creek to flow unobstructed, and for no other purpose, except to keep the banks on either side properly piled, planked, and protected from washing. Parties of the first part except from the operation of this deed, and expressly reserve to themselves, their heirs and assigns, the right at any time to cover Ox creek wherever it touches or crosses lot twelve aforesaid, and, when so covered, to use and occupy all space and land to the line of said railway right of way first above mentioned. Together with all and singular the hereditaments and appurtenances thereunto belonging or in any wise appertaining.”

This deed was put in escrow pending the fulfillment of a certain contract executed at the same time of the execution of the deed, which contract is as follows:

‘‘ This contract and agreement, made and entered into this 5th day of December, 1896, between Michael Galligan, of Benton Harbor, Michigan, party of the first part, and the St. Joseph Valley Railway Company, a corporation, party of the second part, witnesseth:
‘‘ Whereas, the said first party has sold to said second party, and conveyed by warranty deed, part of lot number twelve in block one, Thresher’s addition to the city of Benton Harbor, and has also conveyed the right of way for Ox creek over said lot, according to the description in said deed and the annexed plat thereof:
“Nozo, therefore, in consideration of the premises, and other valuable considerations, the said railway company, its successors and assigns, hereby agrees to so change the present location of Ox creek so that the angle or turn of said creek will be ten feet south of the southwest corner of the building belonging to said Galligan on said lot. The said railway company is also required to construct at least five piling, at twelve feet apart, on each side of the said creek from Territorial street to the rear end of said building, and to board the same up with two-inch plank.
“These several matters to be done by said railway company are to be done on or before March 1st, 1897; and said railway company is hereby discharged from any and all damages that may hereafter occur by reason of said piling, other than such damages as are directly due to the negligence of said railway company; and said railway company is hereby released from any and all damages that may have heretofore occurred by reason of the construction of said road or said Ox creek. Said piling to be oak, at least sixteen feet long, and not less than ten inches in diameter at the butt end. The .covenants and agreements herein made to be binding on the said parties, their heirs, administrators, successors, and assigns.
“It is hereby agreed that, should said railway company desire, it may substitute eight feet piling in lieu of the sixteen feet piling hereinbefore mentioned, provided said railway company shall fill the rear of the lot east of Ox creek and south of the boiler shop with sand to a level with the front of said lot.”

Complainant complied with the conditions of the said contract, and by authority of defendant or his agent the deed was delivered to complainant about January 27, 1897.

It was admitted that complainant’s roadbed is now operated on the original and natural bed of the creek. In order to so occupy the creek bed, complainant purchased by deed a strip of land 14-J'feet wide off the west side of lot 12 for additional roadbed, and also a right of way across defendant’s land, 14 feet wide, for a new channel for the creek. On the east portion of said lot defendant had a boiler shop, and about February 15, 1897, he began making preparations to remove it over .and upon the piling along the banks of said creek, so that the boiler shop would be directly over the creek, and be immediately adjacent to the bridge across the creek, which bridge is the entire width of Territorial street. Complainant filed its bill to restrain the defendant from moving said building over said Ox creek, and, upon a hearing of said cause, the temporary injunction, issued at the time of the filing of the bill of complaint, was dissolved, and the court dismissed the bill of complaint, and assessed damages against the complainant in the sum of $139, together with $20 fees to the circuit court commissioner and costs to be taxed, whereupon complainant appealed. The question is whether or not the word “cover,” as used in the deed, authorized the defendant to remove his boiler shop over the creek. Defendant contends that it did.

We think the court was correct in his construction of the deed, and in holding that the defendant might place his shop there. The deed, so far as concerns this portion of the land, grants only a right of way for Ox creek “to flow unobstructed, and for no other purpose,” except, as stated in the deed, “to keep the banks on either side properly piled, planked, and protected from washing.” The right to cover Ox creek wherever it touches or crosses lot 12 is expressly reserved by the grantor, with the right, “when so covered, to use and occupy all space and land to the line of said railway right of way,” etc. This grant amounts to no more than an easement, and in no way affects the title or possession of the grantor. Morrill v. Mackman, 24 Mich. 279 (9 Am. Rep. 124). The grantee had a qualified possession only so far as it might be needful for its enjoyment. Morrill v. Mackman, supra. It appears that the only purpose for which the complainant desired the premises was for the making of a new channel for the creek, and for the flow of the water therein. The defendant surrendered no possession except for that purpose, and at the same time he reserved the right to cover and use it for his own purposes. Complainant contends that this covering was only to be by platform. There is no such limitation in the exception in the deed, and it cannot fairly be inferred from the testimony that that was the understanding between the parties.

The decree below must be affirmed.

The other Justices concurred.