author: Moore, J. Hooker, J.

text:
    DUMMER v. UNITED STATES GYPSUM CO.

    1. Statute of Frauds — Easements—Oral Agreements — Validity.
    An oral agreement for a right of way over land for a spur track is void under the statute of frauds.
    2. Easements — Acquisition—Prescription.
    Title to an easement may be acquired by prescription in the same time as required in the case of land.
    3. Same — Adverse Possession.
    Title or rights in lands founded on prescription originate from the fact of actual, adverse, peaceable, open, and uninterrupted, possession for such length of time that the law presumes that the true owner, by his acquiescence, has granted the land, or interest in the land, so held adversely; and where it appears that the claimant of an easement andhispredeces-' sors did not at any time before the interference complained of make uninterrupted use of the claimed easement for the statutory period of 15 years the claim’of prescriptive easement fails.
    Error to Kent; Wolcott, J.
    Submitted May 8, 1908.
    (Docket No. 32.)
    Decided July 13, 1908.
    Trespass quare clausum fregit by William F. Dummer against the United States Gypsum Company and the Pere Marquette Railroad Company. There was judgment for plaintiff against defendant United States Gypsum Company, and it brings error.
    Reversed.

      Butterfield & Keeney (Albert N. Eastman, of counsel), for appellant.

      Kleinhans & Knappen (Charles Henry Dummer, of counsel), for appellee.

       Rehearing denied September 10, 1908.

   Moore, J.

This case was tried before a jury. At the conclusion of the testimony offered by the plaintiff, the trial judge directed a verdict in favor of the railroad company, but submitted the case against the other defendant. A verdict for $12,000 was rendered in favor of the plaintiff. The case is brought here by writ of error. The issues involved and the claims of the respective parties were so admirably stated by the late Judge Wolcott in his charge to the jury, that we cannot do better than quote therefrom:

“Gentlemen of the jury: This is an action brought by William F. Dummer, as plaintiff, against the United States Gypsum Company and the Pere Marquette Railroad Company, as defendants. The court has already stated to you that you should return a verdict of no cause of action as to the Pere Marquette Railroad Company. I have already stated on the record the reason for directing a verdict as to that company, and will not repeat it again here. So you will consider this case as if brought against the United States Gypsum Company alone.
“ In order that the jury may have clearly before it the situation, I will state to you the theories and claims on the part of both the plaintiff and defendant. In stating these claims I do not intend to intimate what the opinion of the court might be as to any point. What the facts are and what claims on either side have been established by the evidence are solely matters for the jury to determine from the evidence in the case.
“ The plaintiff’s claim in this case is substantially this: That in 1873 the mill properties now owned by the plaintiff south of Grandville, on sections 19 and 20 of Wyoming township, were owned by the Grandville Plaster Company and the Grand River Valley Plaster Company, respectively, and that the property now owned by the defendant, the United States Gypsum Company, on sections 17 and 18, together with 15 acres on the south end of section 18, which now belong to one Olthoff, were owned by Dr. H. O. Weston. That upon section 20 was located a mill for the manufacture of gypsum products, which mill had at that time begun operations. That on section 19 a mill was then in process of construction, which mill was to be operated for the same purposes, and was in fact so operated after its construction. That on the property of Dr. Weston on section 18 was located a gristmill in active operation, and that Dr. Weston had also at that time the intention of putting up another mill on his property for the manufacture of gypsum products. That at this time, viz., in 1873, none of these mills had a side track or railroad facilities, but that a railroad was running through Grandville substantially east and west, and at a distance of about three-quarters of a mile from the mills of the Grandville Plaster Company and the Grand River Valley Plaster Company, called, respectively, the ‘ Red ’ and White ’ mills. This railroad was the same one that is now owned and operated by the Pere Marquette Railroad Company. That in the year 1873, under the conditions above stated, it was agreed by Dr. Weston and the owners of the red and white mills that all three mills should join in obtaining side-track facilities, and the plaintiff claims that to this end the owners of the red and white mills agreed that they would grade and complete, all ready for the ties and rails, a roadbed from the main line of the railroad substantially south through the village of Grandville and through.the property of Dr. Weston, and down to the red and white mills, this embankment and the track, when laid, to be used to connect all three mills with the main line of the railroad.
‘ ‘ The plaintiff claims that in consideration of this agreement on the part of the owners of the red and white mills bo construct this roadbed and pay the entire cost thereof that Dr. Weston agreed to give to the owners of the red and white mills a perpetual right of way over his lands sixty feet wide upon a line agreed between them. The plaintiff claims that thereafter the projected line was sur- ‘ veyed and the owners of the red and white mills carried out their contract and agreement with Dr. Weston, and constructed at their expense and at a cost of between $3,000 and $4,000 the roadbed from the main line through the village of Grandville and across property owned by Mr. Hooper, for the right of way across which the owners of the red and white mills paid, and to the mill of Dr. Weston on section 19, and from that point to the red and white mills. The plaintiff claims that the grade and embankment and temporary bridge were completed ready for the ties and rails in 1873, with the exception of the short spur at the southerly end to the red mill, which was completed in 1874. The plaintiff claims that at once upon completion the representatives of the railroad company came to Grandville, and some agreement was made by which they agreed to put down ties and rails, and that the putting down of the ties and rails followed immediately after. And the plaintiff claims that this agreement with the said railroad was only supplementary to the one previously made between the then owners of the red mill and the white mill with Dr. Weston, and in furtherance of the same. The plaintiff claims that from the time of putting down these rails the owners of the red and white mills, now owned by Mr. Dummer, have continuously used this spur track for having conveyed in railroad cars to the railroad their manufactured products, and having conveyed to the mills from said railroad all their fuel and supplies down to the time of the temporary removal of the rails on the roadbed of the said spur track, and the right to the use of said main spur track was not interrupted until the time of the grievances complained of in this declaration. And the plaintiff claims that this user was continued, as above stated, excepting as the mills were from time to time shut down, and they had no oceasion to use the spur track until the fall of 1902, at which time the defendant, the United States Gypsum Company, tore out the bridge across Buck creek, which was a constituent part of the spur track, and the defendant thereafter refused to replace the bridge or to allow the said bridge and the rails to be restored. The plaintiff claims that because of the agreement made in 1873, as claimed and carried out by the owners of the red and white mills, the owners of the red and white mills entered into the enjoyment and possession of the right of way under a claim of right, and that thereafter all of the successive owners of the mills enjoyed and used the right of way and said spur track under said claim of right and without interruption by anyone. The plaintiff claims that until December, 1898, the owners of the red and white mills had never received any notice that their right to use the tracks was questioned in any way by the successive owners of the property now owned by the defendant, the United States Gypsum Company, and across which said side track ran, and that at the time of the first notice the side track in question had been used and enjoyed continuously whenever the mills were in operation fora period of substantially25years; and that at the time the plaintiff, who then owned the red and white mills and his predecessors in title, had acquired, as plaintiff claims, by such user an absolute right to the use of the spur track for hauling fuel, materials and products to and from the plaintiff’s properties. The plaintiff claims that in 1901, while plaintiff’s mills were temporarily idle, the Pere Marquette Railroad Company took up for temporary purposes and for use in another place, a part of the rails upon this spur track, but without intending the same as a hostile act as against plaintiff, or as a denial of his right to use the spur track in question, and that after the tearing down of the bridge by the United States Gypsum Company that the railroad company offered to replace the rails, and endeavored to prevail upon the defendant, the United States Gypsum Company, to allow the rails to be replaced and the bridge to be rebuilt. The plaintiff claims that the defendant, the United States Gypsum Company, refused to allow the same to be replaced. The plaintiff claims that he has also made verbal and written demands upon the said United States Gypsum Company to lay or permit to be laid ties and rails upon the roadbed of said spur track, but that the United States Gypsum Company refused to accede to all of said demands. And the plaintiff claims that because of the destruction by the defendant, the United States Gypsum Company, of the bridge upon the right of way, and the refusal to allow plaintiff to use the right of way for a side track, which he claims as his right as an appurtenance of said mill properties, as aforesaid, that the plaintiff has sustained the damages for the recovery of which this suit is brought.
“Now, on the other hand, the defendant claims that in 1873 Messrs. Nearpass and Cahoon paid for the grading of the right of way in question, and it was constructed with the consent of Dr. Weston, the then owner of the property, and these three turned over the possession and control of this right of way to the railroad company under an agreement that the company should lay the ties and track and keep the same in repair and have absolute control thereof. The defendant claims that that arrangement was carried out. The defendant further claims that the railroad company is the only one other than the defendant who has ever been in possession or control of said property or run ears or engines over the track. The defendant further claims that at or soon after this time those mills were put in operation; that the white mill was shutdown for a year during 1877 and 1878 pending foreclosure proceedings, again from November, 1884, to October, 1885, pending another foreclosure proceeding, and from June, 1886, to the fall of 1891, and from 1898 to 1906. The defendant claims the red mill was shut down from 1875 to 1878, and for approximately 10 years between 1881 and 1891, and from 1893 to date. The defendant claims that whenever these mills have been in operation, except during the summer and fall of 1891, that the railroad company has hauled cars, filled with their freight, over this side track. The defendant claims that from approximately 1887 to the fall of 1891 the tracks upon the Vandenbush property were torn up and were relaid under an agreement with Frank Noble, who was about to operate the red and white mills, whereby he paid $200 for the use of that portion of the right of way owned by Vandenbush, while he, Noble, operated the mills; that the red and white mills were purchased by the plaintiff at a foreclosure sale in 1896, were repaired, set in operation in the fall of 1897, and run until the spring of 1899, when the defendant claims they were shut down and not operated again until 1906. The defendant claims that in December, 1896, Jenison, the owner of the property, served notice on the railroad company forbidding them to use this right of way; that in the summer of 1897 the Weston property was purchased by Messrs. Durr, Fulton, and Root; that before purchasing it they were assured by Mr. Jenison and the railroad company that the railroad company had no fights there except under a parol license. The defendant claims that in the spring of 1899 the Durr Plaster Company, who had purchased the _ property of Messrs. Durr, Root, and Fulton, served notice on the plaintiff to remove the tracks from section 17 and to desist from further using the entire road. The defendant claims that the railroad company were advised of this by the plaintiff, who requested them to compel the Durr Plaster Company to let them, the railroad company, remain in possession; that the railroad company refused to do this, and so advised the plaintiff; that the tracks were torn up on section 17, and within a year or so afterwards the railroad company voluntarily took up the tracks down to the Buck creek bridge. The defendant claims that the Durr Plaster Company constructed a permanent fence across the railroad track, fencing in their entire property. The right of way from which the tracks had been taken up soon grew up with woods and underbrush, and the Durr Plaster Company used the ground covered by the tracks running through their mill yard for rock storage. The defendant claims that in 1902 the Durr Plaster Company conveyed this property in its condition to the United States G-ypsum Company by warranty deed, which company immediately went into possession. The defendant claims that in November, 1902, the United States Gypsum Company tore down the bridge and used the timbers for their work. At the time of doing this the local railroad officials protested and reported it to their superiors who paid no further attention to it. The defendant claims that no complaint or objection was made to this by the plaintiff or anyone else; nor did the defendant hear of it again until in November, 1904, when the plaintiff’s attorney demanded the right to enter upon the property, relay the track and rebuild the bridge; that his demand was refused, and this suit was brought. This suit was brought against the United States Gypsum Company and the railroad company.
The defendant further denies the existence of an easement or its ownership by the plaintiff. It denies that in November, 1902, the plaintiff was in possession, and the defendant, with force and arms, entered upon this possession, ejected the plaintiff, tore down the bridge, and with force and arms kept the plaintiff ejected. But, on the contrary, the defendant claims that it purchased the property in good faith, without any knowledge or notice of this easement, entered into possession, and in the ordinary course of business, and in good faith, to meet the demands of its business, took down this bridge. The defendant claims that the railroad company is the only company who has had possession or control of this right of way, except the defendant and its predecessors in title. The defendant claims that the railroad company was in possession, under a parol license, and claims there can be no prescriptive title, for the reason there has been no continuous, open, adverse and hostile possession of the plaintiff and its predecessors in title under a claim of right. The defendant claims that the original entry was made under a verbal agreement with Dr. Weston. The defendant claims plaintiff’s title does not come from its predecessors, but that through a foreclosure proceeding of a mortgage given before Dr. Weston obtained title, which, the defendant claims, makes a fatal break in the chain of title, the statute could not begin to run prior to 1882. The defendant claims that there are several subsequent breaks'of a similar character in this chain of title, due to foreclosure proceedings; each one of which is a fatal break in the chain of continuity necessary to support a prescriptive title. The defendant claims there was a hostile possession of a portion of this road from 1887 or 1888 to 1891, which possession, the defendant claims, was recognized by Mr. Noble. The defendant claims that the plaintiff cannot claim a prescriptive right, unless he was in possession; that the only possession was that of the railroad, and that this possession must have been by contract or agency; and that in either event the plaintiff is bound by the acts of the railroad company, which company disavowed any title in 1897, the defendant claims, and voluntarily surrendered possession about 1901. The defendant claims that the acts of negligence of the plaintiff and his predecessors in title estopped him from asserting any such title as against the United States Gypsum Company, who, the defendant claims, was a purchaser in good faith for value and without notice.”

The record contains nearly a thousand printed pages, in which appear more than three hundred assignments of error, which are ably discussed in very voluminous briefs. Our view of the law as applied to the facts disclosed by the record is such that it will be unnecessary to discuss many of these assignments. The plaintiff had no record title to the easement. It is claimed that an oral agreement was made in 1872 or 1873 prior to or at the beginning of the easement. The trial judge rightly, as we think, said to the jury respecting that agreement, that, if made, it would be such an agreement as the statutes of this State require to be in writing, and, as an agreement, would be void.

It is the claim of plaintiff that he acquired a right to the easement by prescription. Upon that feature of the case the judge charged the jury as follows:

“Prescription, the term you have heard used here, is a mode of acquiring title to property or rights in property by long-continued possession, use and enjoyment; and in this State, if such possession, use and enjoyment is continued for 15 years it is presumed that a grant of the right was originally made. Such use and enjoyment, however, in order to ripen into a prescriptive right, must be adverse, exclusive, continuous and uninterrupted, under a claim of right, and with the knowledge of the owner of the land over which the right of way passes, or else used so openly and notoriously that the. owner would be presumed to have knowledge. The term ‘adverse’ means a use under a claim of right and known to the owner of the land, a use without permission asked or given, a use of such a character that it cannot be accounted for except on the presumption of a grant. A use, on the other hand, which is permissive is not adverse and cannot become a prescriptive right, no matter how long continued. An acquiescence even for a long term of years between adjoining owners in the mutual use of switch tracks for their mutual convenience would not create an easement over defendant’s lands, for the reason that such use would not be adverse or hostile.
“A license or permission to use is not hostile or adverse. To be adverse it must be under some claim of right. The claim of right need not necessarily be well founded. For example, in this ease, a parol agreement for a perpetual right of way, if any was made, would, as I have told you, be void and not enforceable. Still this would not necessarily prevent a person going into possession or enjoyment of the right of way under such agreement and using the same adversely and under a claim of right. If the original use of this right of way was by permission of Dr. Weston, and in the way of a license, then it would not be adverse, and would not become adverse so that the statute of limitations would begin to run, until the owner of the land knew that the user of the right of way was asserting a right to its use, hostile to his own rights. In considering this question you have a right to consider all the evidence as to the original agreement between Dr. Weston, and Mr. Nearpass and Dr. Cahoon, the use made of the right of way thereafter, what knowledge was had by Dr. Weston and his successors in title as to such use by the owners of the red and white mills and the railroad company. You may also consider the various deeds introduced in evidence of the property now owned by the plaintiff, such deeds, as I remember, all describing the lands and conveying the lands with the appurtenances, but making no specific mention of the right of way. I have also said that the use of this right of way claimed by plaintiff, in order to become a right by prescription, must not only be adverse, but also continuous and uninterrupted.
“ What constitutes continuous use depends somewhat upon the nature of easement claimed. The easement claimed in this case is a right of way for a railroad track over defendant’s land for the use of cars to carry away the produce of the mills, and to bring in supplies to the mills. A continuous use in such case does not necessarily mean a daily, constant and unintermittent use; but it means that the acts constituting the use shall be of such frequency as to give notice to the owner of the land of the right claimed against him. A voluntary cessation of the use for a short time would not constitute an interruption so as to prevent the acquirement of a prescriptive right, unless it appeared that the person enjoying the right has no intention of resuming the right or unless it was under such circumstances that the owner of the land now owned by the defendant had reason to believe that the owners of the red and white mills did not intend to resume the use of the track.
“It appears from the evidence that from sometime in 1886 until 1891, substantially five years, the mills now-owned by the plaintiff were not in operation, and no use was made by them of the tracks. Whether such cessation of use would or would not interrupt the running of the time necessary to acquire a prescriptive right, depends somewhat upon the circumstances of the case. If the circumstances were such as would indicate that the owners of the plaintiff’s mill had abandoned the use, or were not intending to longer assert any rights to the track (if you find they had been using it adversely before that-time), or if the cessation of use was under such circumstances and for such a period of time that the owners of' the_ land over which the tracks ran, would have reason to believe that the person using the tracks had abandoned the use, or were no longer asserting any right to use the tracks, then the cessation of the use would be an interruption of the running of the time necessary to give a right by prescription, viz., 15 years. On the other hand, if the cessation of use was under such circumstances known to the owner of the land over which the tracks were laid as indicated no intention to abandon the use, or forego any rights claimed therein, but was apparently only a nonuser for the period when the mills were not in operation, if the circumstances were such, you would be warranted in finding it was not such an interruption of the use as would be fatal to a claim of prescription. In considering this question you should consider all that the evidence shows as to the condition of the mills during that period, the condition of the track, the removal of some of the rails and ties, if there was such removal, and the purpose of such removal the taking out of some portion of the ties by Mr. Vandenbush, if he did, and the use made by him of any portion of the right of way or tracks, and the building of a fence across the track, or the placing of a gate therein. (I do not recall exactly the period when it is claimed these things were done, but I think sometime during this five years.) Also the evidence as to payment by Mr. Noble to Mr, Vandenbush for going on land then owned by him and relaying the track, and also if the evidence shows that it occurred during that time a request was made by Mr. Noble of Mr. Day for permission to relay the track.
“You may also consider the evidence, on the other hand, as to the reason for the closing of the mills, the organization of what was called, I think, the plaster pool or agency, so far as the same shows, if it does, a reason for the closing of the red and white mills during that period, and the knowledge of Mr. Day, then in possession under a contract of purchase of the lands now owned by defendant, if the evidence shows that he did have knowledge of the facts in that regard. There is evidence of other shorter periods when the mills now owned by the plaintiff were not in operation and the tracks not in use, and perhaps other instances of the taking up of other portions of the track. I do not undertake to state the testimony, if any, in that regard. As to any of these periods of cessation of use of these tracks by the plaintiff or his predecessors in title (if they used them at all), whether for longer or shorter period, the same rule I have given will apply. It is for the jury, in consideration of all the evidence in the case, to say whether or not the plaintiff has shown a continuous, adverse, uninterrupted and exclusive use of these tracks (as I have defined these terms), and under a claim of right for 15 consecutive years prior to the acts of the defendant complained of.”

Was this a correct statement of the law as applicable to the facts in this case ? It has already appeared that the use of the easement, if it was an easement, began in 1872. The expiration of the 15 years’ use necessary to ripen into a prescriptive right would require the use to continue until 1887. The parties are all agreed that title to an easement may be acquired by prescription in the same time as required in case of lands. Hoag v. Place, 93 Mich. 450 (18 L. R. A. 39); Williams v. Barber, 104 Mich. 31; Nowlin Lumber Co. v. Wilson, 119 Mich. 406; Toney v. Knapp, 142 Mich. 652. The record discloses that there were at various times periods of very considerable length. when the mills were idle and the easement not used, sometimes one or two years elapsing and an idleness of several years when the owners of the mills were parties to a pooling arrangement. The defendant insists that the record is clear that the use was not continuous and uninterrupted within the meaning of the law, while it is the claim of plaintiff that in fact and law it was continuous. The claim of plaintiff is stated in the brief of counsel as follows:

“Continuous and uninterrupted. Such periods as the mills were not in operation, and the track not in use did not constitute interruptions in the use of the easement. The test is simply whether the easement is used at the pleasure of the person claiming it without interruption. Continuous enjoyment for the statutory period is not destroyed by proof of occasional intermission in actual use. Constant user of an easement is not essential to the running of the statute. It is enough if used when necessary. Cornwell Manfg. Co. v. Swift, 89 Mich. 503; Cox v. Forrest, 60 Md. 74. A user is continuous if the easement is used at the pleasure of the person claiming it, without interruption. Winnipiseogee Lake Co. v. Young, 40 N. H. 420; Collins v. Gray, 3 Cal. App. 723. It is sufficient if used for the statutory period whenever desired. Garrett v. Jackson, 20 Pa. 331; Washburn on Easements and Servitudes (4th Ed.), p. 130. A use may be.continuous though not constant — the test is if it is used whenever claimant chooses to use it. Bodfish v. Bodfish, 105 Mass. 317, 319. A' voluntary cessation of user does not constitute a fatal interruption, unless it appears there was no intention of resuming its use. Dana v. Valentine, 5 Metc. (Mass.) 8; Ferrell v. Ferrell, 1 Baxt. (Tenn.) 329. Although a right is not exercised during some years for the convenience of the claimant, this does not necessarily amount to an interruption. Earl De La Warr v. Miles, L. R. 17 Ch. Div. 535; Hesperia Land & Water Co. v. Rogers, 83 Cal. 10. A mere intermission of use or nonuser does not amount to an interruption, unless it amounts to an abandonment. Nonuser is voluntary, and interruption is from without. Jones on Easements, § 189; Carr v. Foster, L. R. 3 Q. B. 581, 588; Lawson v. Langley, 4 Ad. & El. 880; Hall v. Swift, 4 Bing. (N. C.) 381.; Bodfish v. Bodfish, 105 Mass. 317. The words ‘continuous’ and ‘uninterrupted’ are often applied to the user of an easement. These words have often been defined by the courts. We cite a few illustrative expressions: In Swan v. Munch, 65 Minn. 500, 503 (35 L. R. A. 743), it is said:
“ ‘Where the claimant needs the nse of the easement from time to time, and so uses it, there is a sufficiently continuous use to be adverse, although it is not constant.’
“And, again, it is said :
“ ‘ This is a continuous use, and an omission to use it when not needed would not disprove a continuity of use, or defeat her (the claimant’s) right to an easement by prescription.’
“In Cornwell Manfg. Co. v. Swift, 89 Mich. 503, the term ‘continuous’ is defined as applied to an easement. Of the use it is said:
“ ‘It must be continuous and uninterrupted, but not necessarily constant. It is necessarily an irregular use, depending upon season and rainfall; and it is sufficient if the use be the ordinary use, and be resorted to without interruption whenever necessary in the operation of the power.’
“ This case involved a prescriptive right to overflow lands. In Hesperia Land & Water Co. v. Rogers, 83 Cal. 10, defining the term ‘continuous use,’ as applied to an easement, it is said:
“ ‘If, whenever the claimant needs it from time to time, he makes use of it, this is a continuous use.’
“ If the claimant of an easement in real property needs its use from time to time, and so uses it, there is a sufficiently continuous use to be adverse although it is not constant.”

Counsel also cite other cases.

Again we quote from the brief:

“(June, 1886 — June, 1891.) The Plaster Pool. During this period it is practically undisputed upon the record that both mills of the Union Plaster Company were closed, and very slight use made of the spur track. Counsel for defendant rely very largely upon this period as constituting an interruption in the user of the easement, which is claimed to have broken up the prescriptive period so as to render the user prior to 1886 entirely nugatory. As we have shown heretofore in this brief, it is not continual use of an easement, in point of time, which is required for a prescriptive title, but continuous use in the sense that the person claiming the easement uses the same whenever he so desires. Carr v. Foster, supra, and many other cases cited. The proposition of law is thoroughly established that, as shown by the above-cited authorities, failure to use during a period of years does not interrupt the running of the statute, provided there is no intention to abandon.. The sole test is whether the right of way was used whenever desired during the requisite period of years.”

It will be observed that the claim of counsel, in effect, is that even though the owners of the mill thought it more profitable to enter into a pooling arrangement and stop their mills for a series of years, instead of running them, thereby making it unnecessary to use the easement, that the statute would run in favor of the owners, though there was no use in fact during that period. A reference to some of the cases cited will not sustain that claim. In Hesperia Land & Water Co. v. Rogers, 83 Cal. 10, in disposing of the case, the following language was used:

“The correct rule as to continuity of user, to give a presumptive right to an easement, and what shall constitute such continuity, can be stated only with reference to the nature and character of the right claimed. The right is not abandoned to the use of a ditch to convey water for purposes of irrigation because water does not flow in it every day in the year. The party claimant does not need the ditch every day in the year, and the law does not require him, to constitute continuity of use, to use the water when he does not need it. If he has used the ditch at such times as he needed it, it is regarded by the law as a continuous use. If a right of way over another’s land has been used for more than five years, it is not necessary, to make good such use, that the claimant has used it every day. He uses it every day, or once in every week, or _ twice a month, as his needs require. He is not required to go over it when he does not need it, to make his use of the way continuous. The claimant is required to make such reasonable use of the way as his needs require. So it is of the ditch. If, whenever the claimant needs it from time to time, he makes use of it, this is a continuous use. An omission to use when not needed does not disprove a continuity of use, shown by using it when needed. (Bodfish v. Bodfish, 105 Mass. 319.) Neither such intermission nor omission breaks the continuity.”

In Cox v. Forrest, 60 Md. 79, the following language was used:

“This is an action to recover damages for obstructing a private right of way, claimed over the land of the appellee. In the absence of an express grant, it was necessary for plaintiffs to prove an adverse, exclusive, and uninterrupted enjoyment of the right of way in question for twenty years.
“By adverse is meant a user, without license or permission, for an adverse right of an easement cannot grow out of a mere permissive enjoyment, the real point of distinction being between a permissive or tolerated user, and one which is-claimed as a matter of right. Where one, however, has used a right of way for twenty years unexplained, it is but fair to presume the user is under a claim of right, unless it appears to have been by permission. In other words, the use of a way over the lands of another whenever one sees«fit, and without asking leave, is an adverse use, and the burden is upon the owner of the land to show that the use of the way was by license or contract inconsistent with a claim of right. Bachelder v. Wakefield, 8 Cush. (Mass.) 243; Hall v. McLeod, 2 Metc. (Ky.) 98; Garrett v. Jackson, 20 Pa. 331; Tickle v. Brown, 4 Ad. & El. 369; School District v. Lynch, 33 Conn. 334; Hammond v. Zehner, 23 Barb. (N. Y.) 473.
“By exclusive the law does not mean that the right of way must be used by one person only, because two or more persons may be entitled to the use of the same way, but simply that the right should not depend for its enjoyment upon a similar right in others, and that the party claiming it exercises it under some claim existing in his favor, independent of all others. It must be exclusive as against the right of the community at large.
“Nor does the law mean by ‘an uninterrupted and continuous enjoyment,’ that a person shall use the way every day for twenty years, but simply that he exercises the right more or less frequently, according to the nature of the use to which its enjoyment may be applied, and without objections on the part of the owner of the land and under such circumstances as excludes the presumption of a voluntary abandonment on the part of the person claiming it.”

In Cornwell Manfg. Co. v. Swift, 89 Mich. 503, the following language was used:

“Defendants have, however, rights of pondage upon the portions of section 17, from which they have been excluded, not only by grant, but by prescription as well. Occupation and a use of a right of flowage or pondage, in order to create a prescriptive right, need not be constant, in the sense of a daily occupancy or use. It must be continuous and uninterrupted, but not necessarily constant. It is necessarily an irregular use, depending upon season and rainfall; and it is sufficient if the use be the ordinary use, and be resorted to without interruption whenever necessary in the operation of the power.”

Without quoting further from the authorities cited by plaintiff, we may say of them that none of them stand for the proposition that the user of the easement may put himself in a position where he has no occasion to use the easement and then say that “ the sole test is whether the right of way was used whenever desired during the requisite period of years.”

The question of acquiring title by prescription is not a new one in this State. In Rayner v. Lee, 30 Mich. 384, Justice Cooley, speaking for the court, said:

“The second objection made to complainant’s title is, that, although he shows an unbroken chain of conveyances extending back more than twenty years, he does not show continuous possession under them, and consequently cannot claim title by adverse possession.
“ This objection is based upon the facts, that on two or three occasions there were brief periods when the premises were not occupied at all, and that, at other times, there were persons in possession who are not distinctly shown to have occupied under any of the parties in complainant’s chain of title. We attach no importance to the breaks in the possession. The evidence would indicate that they were only brief intervals between the departure of one tenant and the entrance of another; not at all indicating an intention on the part of the claimant to abandon his right. At no time were the premises vacant for any considerable period, and the evidence shows that in every year since 1843, some one under whom the complainant claims has assumed to be the owner, and has exercised public and notorious acts of ownership.”

In Yelverton v. Hilliard, 38 Mich. 355, Justice Graves, speaking for the court, said:

“The defense is based upon a continuous adverse possession under the tax deeds for 10 years next preceding July 36, 1875, when the suit was instituted. The finding is distinct as to such possession from that event back to January 4, 1866, when defendant received his deed. But the difficulty appears when we come to the interval between that date and July, 1865, a space of time required to make out the 10 years. Admitting, for the purpose of the question, that the fact as found in regard to Turner’s entry and occupancy is sufficient for the time covered by it — that is, from the spring of 1865 until October or November of that year — and still there is a considerable space left between July, 1865, and ths commencement of defendant’s possession, January 4, 1866. As the finding reads, the premises were vacant from the time Turner took off his little crop of turnips in October or November, 1865, to the entry of defendant in the succeeding January, and during this period there seems to have been no adverse possession and no obstacle to an entry by the plaintiff. The finding, therefore, not only fails to show 10 years’ possession under the tax deeds next preceding the commencement of the action, but, on the contrary, shows affirmatively that the possession was for a shorter period. The judgment is therefore not supported by the facts, and must be reversed.”

In Winchell v. Clark, 68 Mich. 64, Justice Morse, speaking for the court, said:

“The dam of plaintiff, at the time it was destroyed, had not been maintained long enough for her to acquire a right by adverse user to keep it there. It is not shown to have been built, for a certainty, before 1868, and it was torn down in 1882. The circuit judge was right in holding, as a conclusion of law, that the dam erected by the plaintiff invaded the rights of Clark & Amsden to their water privileges, and that its maintenance as against them was.unlawful. He was also correct in the proposition that the flowing of defendant’s land and the injuring, of his water privileges by the dam of plaintiff was a nuisance which he .had the right to abate. Wood on Nuisances (2d Ed.), pp. 976, 977; Adams v. Barney, 25 Vt. 231; Hodges v. Raymond, 9 Mass. 316; Colburn v. Richards, 13 Mass. 420; Elliot v. Railroad Co., 10 Cush. (Mass.) 195.”

In Turner v. Hart, 71. Mich. 128, Justice Champdin, speaking for the court, said:

“No grant of the right of flowage of the lands of complainants is claimed. The defense rests upon rights acquired by prescription; and in such case the burden of proof is upon the defendants to show that they have, for a period of 15 years at least, each year flowed complainants’ lands to the height complained of and established by their proofs, and that such use of complainants’ lands by flowage has been adverse, uninterrupted, peaceable, open and notorious. No testimony was introduced to show that the effect of the old dam, with or without the flash boards, was to set the water back and to flow over complainants’ lands to the height it has since 1881, nor to show that it so flooded the land as to interfere with or destroy the crops of complainants prior to that time, for a period of 15 years. This branch of the defense has utterly failed for lack of proof. It was claimed on the part of counsel for defendants that we should apply the rule adopted in Massachusetts, and laid down in Cowell v. Thayer, 5 Metc. (Mass.) 253, and approved in Bay v. Fletcher, 12 Cush. (Mass.) 200, that the height to which a mill owner will have a prescriptive right to maintain the water will depend upon the height of the dam by which he has raised it, and not upon the height such dam has set the water back and flowed the land in question during the prescriptive period; and, therefore, if he repairs the dam without so changing it as to raise the water higher than the old dam, when tight and in repair, would raise it, and thereby keeps the water more constantly and at a greater height than before, it is not a new use of the stream, but a use conformable to his prescriptive right. We cannot accede to this doctrine. It is antagonistic to the principle which underlies the doctrine of prescription. Title or rights in lands founded on prescription originate from the fact of actual, adverse, peaceable, open, and uninterrupted possession for such length of time that the law presumes that the true owner, by his acquiescence, has granted the land, or interest to the land, so held adversely. But no one can be said to acquiesce in a claim which he cannot dispute by bringing an action at law to determine; and hence the statute of limitations requires that an action shall be brought within 15 years after the right first accrues orthe adverse entry. The defendants, therefore, acquired no right by prescription to the lands in question until they showed that the acts which constituted the adverse user injured complainants, and gave them, or to those under whom they claim title, a right of action. Holsman v. Bleaching Co., 14 N. J. Eq. 335; Smith v. Russ, 17 Wis. 234; Sabine v. Johnson, 35 Wis. 185; Burnham v. Kempton, 44 N. H. 90; Griffin v. Bartlett, 55 N. H. 123; Mertz v. Dorney, 25 Pa. 519.”

In Pendill v. Agricultural Society, 95 Mich. 491, Chief Justice Hooker, speaking for the court, said:

• “ In the case of Yelverton v. Steele, 40 Mich. 541, Mr. Justice Graves, in stating the law upon the subject of adverse possession, said:
“ ‘The doctrine which sanctions the divestiture of the true owner by hostile occupancy is to be taken strictly, and the case is not to be made out by inference, but by clear and cogent proof’ — supporting his opinion by numerous authorities.
“ He quotes with approval the language of Mr. Justice Duncan where he says that ‘ it must be an actual, continued, visible, notorious, distinct, and hostile possession.’ While it would have been the duty of the court to direct a verdict for the plaintiffs in case of the absence of the clear and cogent proof upon any one of these six requisites, he could not properly direct a verdict for the defendant unless each and every one of them was established by such proof, uncontroverted; for, the moment that any evidence fairly tending to disprove one of them was given, a question of fact for the jury arose, whether it was shown by plaintiffs or appeared from the examination of defendant’s witnesses. ”

In Judson v. Wiley, 96 Mich. 255, Chief Justice Hooker, speaking for the court, said:

“ Where title to land is sought to be divested upon no better claim than occupancy, it can be justified only by clear and cogent proof upon each of the essential elements of adverse possession. Yelverton v. Steele, 40 Mich. 538; Pendill v. Agricultural Society, 95 Mich. 491. And, until each of these is supported by something more than an inference, the question should not be submitted to the jury. When there is evidence upon each of them which, if believed, can be said to establish adverse possession, the case should go to the jury. * * * This testimony was all admissible, but falls short of that ‘ clear and cogent proof’ which permits the divestiture of title to land. Some of the oases seem to have given rise to the assumption that adverse possession becomes á question for the jury when there is any admissible evidence tending to establish it, but we understand the rule to be that until the evidence reaches the required degree of clearness and cogency (which is manifestly a question for the court) there is nothing to go to the jury; and it is a clear duty of courts to protect the rights of landholders from the danger of capricious verdicts by refusing to allow consideration of the question»of adverse possession by a jury until evidence sufficient to make a prima facie case, under the rule laid down in the case of Yelverton v. Steele, has been introduced. The jury should have been directed to render a verdict for the plaintiffs.”

It should be stated that in this case Justices McGrath and Montgomery concurred for the reason that the possession was interrupted for several years. See, also, Butler v. Bertrand, 97 Mich. 59; Beck v. Schick, 110 Mich. 665; Ann Arbor Fruit & Vinegar Co. v. Railroad Co., 136 Mich. 599 (66 L. R. A. 431).

Applying these principles of law to the case in hand, what do we find ? The record discloses, not only that plaintiff has failed to establish his title to the easement by clear and cogent proof upon each of the essential elements of adverse possession, but the record discloses affirmatively that he and the previous owners did not, at any time before the bridge was destroyed, continuously and visibly for 15 years make use of the easement. A verdict should have been directed in favor of defendant. This conclusion makes it unnecessary to discuss the other assignments of error.

Judgment is reversed, and new trial ordered.

Blair, Ostrander, Carpenter, and McAlvay, JJ., concurred.

Hooker, J.

I concur in the opinion that the nonuser stated in the above opinion, if it was adverse, is sueh as to defeat plaintiff’s claim.


source: Caselaw Access Project

author: Carpenter, J.

license: Public Domain

text:
    O’DELL v. GOFF.
    1. Appeal and Error — Decision on Former Appeal — Law of the Case.
    A determination on a former review that the testimony warranted the submission of certain questions to the jury will be followed on a subsequent review on a record not materially different from the former one.
    2. Wills — Contest — Testamentary Capacity — Insane Delusions — Evidence—Sufficiency.
    In proceedings to probate a will, contested on the ground that testator’s belief in the illegitimacy of his son was an insane delusion, evidence examined, and held, that there was evidence from which the jury might infer that his belief was not reached by weighing testimony, but was merely the offspring of his monomania upon the. subject of spiritualism, and that the question whether testator’s belief was an insane delusion was, therefore, a proper one for the jury.
    3. Judgment — Foreign Judgment-Validity — Collateral Attack — Jurisdiction— Evidence — Statutes — Extraterritorial Effect.
    A statute of Indiana making the affidavit of the petitioner in a divorce case prima facie evidence of his bona fide residence necessary to confer jurisdiction upon the courts of that State, merely prescribes a rule of evidence for the courts of Indiana, ineffective here, and does not prevent a showing here that the petitioner was in fact a resident of Michigan, and that the courts of Indiana had no jurisdiction.
    4. Evidence — Admissions—Statements of Others — Failure to Deny.
    Failure of the defendant in a divorce case to deny statements contained in a deposition, of the taking of which she had notice, cannot be taken as an admission that such statements were true, where the controversy was being tried by a court of another State which had no jurisdiction because of the nonresidence of the parties.
    5. Wills — Contest — Testamentary Capacity — Issues — Evidence — Reputation—Admissibility.
    In proceedings to probate a will, contested on the ground that testator’s belief in the illegitimacy of his son was an insane delusion, the chastity of testator’s wife, contestant’s mother, was in issue, and evidence of her chaste reputation was admissible.
    6. Evidence — Reputation—-Presumptions—Effect.
    The issues being such that contestant could not prevail without convincing the jury that his mother was in fact chaste, the fact that there was no evidence of lack of chastity, and that contestant might, if he chose, rely upon the presumption of chastity, affords no ground for ruling that affirmative proof of chastity was inadmissible.
    7. Appeal and Error — Exceptions—Necessity—Rulings on Evidence.
    Rulings admitting testimony to which no exceptions were taken cannot be reviewed.
    8. Same — Briefs—Limiting Scope of Review.
    A point made upon the oral argument as to the competency of nonexpert witnesses to express an opinion, not made in the brief nor in the trial court, will not be considered.
    9. Wills — Contest—Insane Delusions — Monomania—Explanations — Witnesses—Credibility. ,
    Where, in a will contest, in which one of the issues was whether testator was a monomaniac upon the subject of spiritualism, contestant introduced testimony tending to prove that testator entertained the belief that a departed spirit brought and gave to him a crisp new $5 bill, permission to an expert offered by proponents to explain the circumstance, on the theory that the belief of testator was rational from the standpoint of a spiritualist, was properly denied, where it appeared that the proffered explanation would only have brought into the case a theory of spiritualism which, if believed by the jury, would have justified their discrediting contestant’s witnesses who had sworn that testator entertained such belief, that not being a proper test of the credit of the witnesses.
    10. Trial — Instructions—Submission to Jury — Harmless Error.
    The practice of allowing counsel themselves to read to the jury such of their requests to charge as have been approved by the court, instead of the trial j udge himself reading them or making them a part of his general charge, though not approved, furnishes no ground for reversal in a case in which counsel did not object nor except to it.

      11. Same — Refusal of Requests.
    The court may in its discretion refuse requests to charge which emphasize the importance of the testimony of a particular witness.
    12. Wills — Contest —Undue Influence — Instructions — Propriety.
    On the trial of a will contest, an instruction that “No declarations or statements made by testator before or after he made his will can be considered by you as any proof of undue influence, or that he was unduly influenced in making his will,” was properly [refused, since, though the declarations furnished no evidence that others exerted an undue influence, they might afford evidence of the effect of said influence upon his will.
    Error to Cass; Coolidge, J., presiding.
    Submitted June 9, 1908.
    (Docket No. 52.)
    Decided July 13, 1908.
    B. O’Dell and others presented for probate the last will and testament of John F. Goff, deceased. The will was allowed in the probate court, and Leslie Goff appealed to the circuit court. There was judgment for contestant, and proponents bring error.
    Affirmed.

      A. Lynn Free (Alfred J. Mills, of counsel), for appellants.

      Smith & Lyle (Victor M. Gore, of counsel), for appellee.
   Carpenter, J.

The purpose of this suit is to probate the will of John F. Goff, deceased. That will gave to contestant, Goff’s only son and heir, about $1,800, and bequeathed the balance of the estate of about $41,000 to found a home for spiritualistic mediums. This is the second time the case has been heard in this court. Our first decision will be found reported in 149 Mich. 152 (10 L. R. A. [N. S.] 989). There we set aside a judgment denying probate of the will, and ordered a new trial. The case has again been tried, and again a jury has disallowed the will. The proponents insist that the evidence did not justify the trial court in submitting to the jury either of the following questions:

(1) Was testator’s belief that his son was illegitimate an insane delusion ?

(2) Was the will the result of undue influence?

(3) Was testator a monomaniac upon the subject of spiritualism ?

We decided on the former hearing that the testimony did warrant the submission to the jury of the second and third of the above questions. We regard that decision as authoritative, for the present record does not differ materially from the former record.

Upon that hearing we also said:

“ There is evidence that testator’s belief in contestant’s illegitimacy which influenced the making of the will was produced by spiritualistic communications.”

It would be fair to say that this falls short of deciding that this belief was an insane delusion, and we shall therefore treat the first of the questions raised by proponent as an open one and decide it now. There is no evidence in this case which has any legal tendency to prove testator’s son to be illegitimate. Neither is there evidence which has any legal tendency to prove that his mother, Rowena Gofif, testator’s wife, was unchaste. There is, however, evidence that testator was informed that his wife committed adultery about the time contestant was conceived, and if this were all the testimony on the subject found in this record, we would have no hesitancy in saying that testator’s belief that his son was illegitimate was one reached by weighing testimony, and therefore that it was not an insane delusion. But this is not all the testimony contained in the record. There is testimony which tends to ■ prove that many of, if not all, the reports of his wife’s infidelity originated in wicked and false slanders invented by testator himself. There was also testimony that before his son was conceived testator became an investigator of spiritualism, and that still later he became a spiritualistic monomaniac, incapable of reasoning where that subject was concerned. It may also be inferred from his acts and his declarations that many times, and particularly about the time the will was made, he received spiritualistic communications informing him that contestant was not his son, and the inference may also be drawn that he had such extraordinary confidence in these communications as to be impelled to follow them blindly and implicitly. From this testimony we think the jury should have been permitted, as they were, to draw the inference that testator gave no credit to the information he received tending to prove his wife’s infidelity, and that his belief in his son’s illegitimacy was not reached by weighing that testimony, but was merely an offspring of his monomania upon the subject of spiritualism. In short, we think that question 1, above stated, was properly submitted to the jury.

In this connection we will consider certain other objections relating to the subject under consideration. Testator obtained a divorce in the State of Indiana from contestant’s mother in the year 1856. The trial court proceeded upon the assumption that the Indiana court was without jurisdiction, and its decree therefore void. Appellant contends that this is erroneous, and that the court had jurisdiction. The jurisdiction of the court is made to rest upon the sworn statement in the bill of complaint, sworn to by testator, that “he is now a resident of the said county and State.” It is insisted that effect should be given to this statement because a statute of the State of Indiana makes it evidence that the court possessed jurisdiction. We must hold otherwise. The statute of Indiana prescribed a rule of evidence for the courts of that State. It has no effect in this State. See Jones v. Railway Co., 80 Minn. 488 (49 L. R. A. 640). The undisputed evidence in the case proves that at this time testator resided in Michigan. . The Indiana court was therefore without jurisdiction, and the contention under consideration is overruled. People v. Dawell, 25 Mich. 247.

A deposition made by one William P. Bennett and filed in the Indiana case contained what purported to be a copy of a confession of adultery signed by Rowena Goff, contestant’s mother. It is urged that, as said Rowena Goff had notice that this deposition was to Be taken, her failure to deny the same furnishes evidence that it was true. We think otherwise. The controversy was being tried by a court which possessed no jurisdiction, and she was pursuing a course which she had a lawful right to pursue by paying no attention to the steps that were therein taken. Nothing can be taken against her, therefore, because she did not present her side of the controversy to that court.

Rulings upon the admission and exclusion of testimony. The trial court permitted contestant to introduce testimony tending to prove that Rowena Goff — testator’s wife and contestant’s mother — bore the reputation of a chaste woman before and during the time she cohabited with testator as his wife. The purpose for which this testimony was introduced was to prove the fact of chastity. Proponents’ counsel objected to this testimony. We understand, and the trial court understood, by this objection that it is contended, not that the method adopted to prove chastity was an improper method (as to this see Harris v. Neal, ante, 57; 3 Wigmore on Evidence, § 1983), but that the fact of chastity was not involved in this suit. We think it was. Contestant could not prevail in his position that testator’s belief in his illegitimacy was an insane delusion without convincing the jury that he was in fact his father’s son. Involved in this was the question of his mother’s chastity. It is true that it would not suffice merely to prove his mother’s chastity. He must go further, and prove that testator’s belief that his mother lacked chastity was an insane delusion, but nevertheless the fact of chastity was legitimately in issue. To convince the jury that testator’s belief of his wife’s lack of chastity was an insane delusion, it was necessary to convince them that she was in fact chaste. This does not mean that contestant must introduce affirmative testimony upon this subject. He might choose to rely upon the presumption of chastity which, in the absence of testimony, would obtain. See People v. Brewer, 27 Mich. 134; Greenman v. O’Riley, 144 Mich. 534. But his right to introduce such testimony cannot well be denied. It is also true in this case, as heretofore indicated, that there was no evidence of lack of chastity. This does not, however, afford ground for saying that affirmative proof of chastity was inadmissible. It merely proves that it was unnecessary.

Several witnesses were permitted to express the opinion that testator was a monomaniac. It is contended these witnesses did not testify to facts which entitled them to give their opinions. Most of this testimony came in without any exception, and the rulings admitting that testimony we cannot review. The rulings to which exceptions were taken are not open to the objection under consideration. That testimony came from witnesses who did testify to facts which entitled them to give their opinions under the rule repeatedly approved by this court. The point was made upon the argument that, when the capacity of a testator is assailed upon the ground that he is a monomaniac, the competency of a nonexpert witness to express an opinion is determined by a different rule than that which is applied when his capacity is assailed upon the ground of general incompetency. We do not feel called upon to pass upon this contention because it was not made in the brief. Nor do we think that it was made in the trial court.

Contestant introduced testimony alluded to in our former opinion tending to prove that testator entertained the belief that a departed spirit brought and gave to him a crisp new $5 bill.. Proponents complain because an expert witness sworn by them was not permitted to explain this circumstance. They contend that this testimony was admissible as tending to prove that the belief of testator under consideration was rational from the standpoint of a spiritualist. We are bound to say, from the questions asked, and the colloquy that ensued between counsel and the court, that the excluded testimony would have had no such tendency. It would have only brought into the case a theory of spiritualism which, if believed by the jury, would have justified their discrediting contestant’s witnesses who had sworn that testator entertained such belief. We are of the opinion that their credit was not to be tested by that standard, and that the trial court properly excluded the testimony.

Charge and refusal to charge. Each party to this litigation preferred many requests to charge. Tne learned trial judge marked such of those requests as he thought should be given to the jury, and, instead of himself reading them to the jury or making them a part of his general charge, he directed them to be read, and they were read by the counsel who prepared them. Complaint is made of this practice by proponents’ counsel. We are bound to say that the practice is one which should not be resorted to except by consent of counsel or by reason of some exigency not shown to exist in this case. There are a great many reasons why the statement of law which the trial judge gives to the jury for their guidance should proceed directly from him. In that way, and only in that way, can there be any assurance that every principle of law given them for their guidance receives its due emphasis. It may be presumed, however, that in this case there was no impropriety in the practice. Counsel did not object nor except to it. The learned trial judge had a right to suppose that the practice met with their approval, and its adoption furnishes no ground for reversing the judgment.

Proponents’ counsel preferred 128 requests to charge. Sixty-four of these requests were given. Complaint is made because of his refusal to give the remaining 64. Most of these requests were covered by the requests that were given or by the general charge of the court. Many of them contained an incorrect statement of law. Many of them were argumentative in nature. Some of them emphasized the importance of the testimony of particular witnesses. The court had at least a discretion to refuse to give those requests. See Westchester Fire Ins. Co. v. Earle, 33 Mich. 144. We think these general remarks sufficiently deal with all the complaints of proponents'under consideration, save that which arises from their complaint of the trial court’s refusal to give the following request :

“ No declarations or statements made by John F. Goff before or after he made his will can be considered by you as any proof of undue influence, or that he was unduly influenced in making his will.”

The vice of this request lies in the concluding language, “or that he was unduly influenced in making his will.” It is unquestionably true (see Zibble v. Zibble, 131 Mich. 655) that the declarations of John F. Goff furnished no evidence that others exerted an undue influence, but those declarations might afford evidence of the effect of said influence upon his will. See, in this connection, In re Townsend’s Estate, 122 Iowa, 246; Potter v. Baldwin, 133 Mass. 427. It would therefore have been incorrect to charge the jury that tho3e declarations were no proof “that he was unduly influenced in making his will,” and it follows that the request under consideration was properly refused.

Argument of counsel. It is contended that there was prejudicial error in the arguments of contestant’s counsel. The statement of which most complaint is made, and the only statement which we think deserves attention, is that relating to the character of Rowena Goff for chastity. It was argued by contestant that her character for chastity was involved in this suit. Proponents contend that that character was not involved. We have already disposed of this question adversely to proponents’ contention. Other complaints of the argument do not merit special attention. Some extravagant statements were made, but nothing brought to our attention by proper exceptions discloses reversible error.

A great many other complaints are made, but of these it may be said that they are disposed of adversely to proponents under the reasoning contained in this opinion, or in the former opinion, or that they are answered by elementary principles of law, or by a proper construction of the record. They involve no question of importance to the profession, and disclose no reversible error.

The judgment is affirmed.

Grant, O. J., and Blair, Hooker, Moore, and Mc-Alvay, JJ., concurred.


author: Hooker, J.

text:
    BRAASCH v. MICHIGAN STOVE CO.

    1. Master and Servant — Personal Injuries — Child Employe— Statute — Violation—Knowledge of Master.
    That a master employing a boy under the age of 16 at a dangerous employment in violation of Act No. 113, Pub. Acts 1901, was deceived in respect to his age, to which deception the boy was a party, does not estop the boy from maintaining an action for damages resulting from a personal injury received in such employment. Syneszewski v. Schmidt, ante, 438, followed.
    3. Evidence — Experts — Opinions — Competency — Matters of General Knowledge — Judicial Notice — Harmless Error.
    Though it was incompetent to call an expert to prove that an electric freight elevator was a place of danger to life and limb, that being a question of fact which the jury were as competent to decide without expert evidence as with it, the error in doing so was harmless in a case where plaintiff, a boy of 14, lost his foot in consequence of placing it over the edge of the floor of the elevator, since the court will judicially notice that a freight elevator is a place of danger to life and limb in the hands of an inexperienced boy of 14.

      3. Damages — Personal Injuries — Earning Power — Instructions.
    In an action by a minor for personal injuries, instructions examined, and held, not open, when construed as a whole, to the objection that they permitted the jury to award damages for plaintiff’s earning capacity for the period intervening the trial and the time when he should reach majority, a time during which his earnings belonged to his father.
    4. Same — Exoessiveness.
    An award of 14,000 to a boy of 14 for having his foot crushed between the floor of an elevator and the floor of the building, held, not so excessive as to require reversal or make it error to deny a new trial.
    Error to Wayne; Brooke, J.
    Submitted June 12, 1908.
    (Docket No. 34.)
    Decided July 13, 1908.
    Case by Edward A. Braasch, by next friend, against the Michigan Stove Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.
    . Bowen, Douglas, Whiting & Murfln, for appellant.

      William Van Dyke (James H. Pound, of counsel), for appellee.

       Rehearing denied November 30, 1908.

   Hooker, J.

The defendant, a corporation engaged in the manufacture of stoves, employed the plaintiff and set him at work running an electric freight elevator in its factory. A few hours later he was injured, his foot being crushed between the elevator and a floor. It is obvious that this happened by reason of his foot being allowed to extend over the edge of the floor of the elevator, as it approached the fifth floor of the factory from below. He recovered upon this, the second trial of the cause, a verdict and judgment for |4,000, and a new trial having been denied, the defendant has appealed.

The plaintiff gave testimony tending to show that at the time of his employment he was 14 years and 8 months old, and it is claimed on his behalf that such employment was in violation of sections 2 and 5 of Act No. 113, Pub. Acts 1901, and conclusive evidence of defendant’s negligence. The defendant produced testimony tending to show that application for work was made on behalf of the plaintiff, by his cousin, one Meyers, an employé of the defendant ; that later he was told by defendant’s superintendent to bring the plaintiff to the factory. He did so, and at the interview Callan, the superintendent, in plaintiff’s presence, asked Meyers: “How old is he? Has he got papers?” and Meyers answered: “Why, no, he doesn’t need any papers. He is as big as you (Callan) are;” that he (Callan) told plaintiff to stand up, which he did, and that he was at least two inches taller than Meyers. He was therefore employed, and soon after placed under the charge of a man then running the elevator, with directions to the latter to instruct him in his duties, and to stay with him until he had learned it all. It is defendant’s contention that the superintendent was deceived by the statement of Meyers into the belief that the plaintiff was more than 16 years of age, and that the plaintiff was a party to such deception, and estopped from making a claim that the defendant was guilty of a violation of the statute. The learned circuit judge left the cause to the jury and a verdict for $4,000 followed.

The cause is before us for a second time. In our former decision (147 Mich. 676), we reversed the judgment previously rendered in favor of the defendant, holding that the plaintiff had a right to have the verdict of a jury upon the following questions, viz.:

“Whether the employment of a boy under 16 to run an electric freight elevator is within the prohibition of section 3, Act No. 113, Pub. Acts 1901, as endangering life or limb, is a question for the jury.
“ In an action by a boy under 16 for injuries received in operating an electric freight elevator, evidence examined, and held, that whether he should have had other and further instructions as to the danger incident to his employment, and should have been warned of its dangers, were questions for the jury.”

Upon the present record it is claimed that the court erred in refusing to give defendant’s 7th request, i. e.:

“ It appears from the testimony of the witnesses Braasch, Meyers and Callan that it was represented to Callan, the superintendent of the Michigan Stove Company, that the plaintiff, Braasch, was of the age of 16 or over, and if you believe that Mr. Callan employed Braasch relying upon the statements made in Braasch’s hearing, by Meyers, that he did not require any papers, then the defendant did not in any way violate the provisions of Act No. 113 of the Public Acts of 1901, in reference to the employment of persons under 16. years of age, and the plaintiff cannot recover.”

It is urged that the record conclusively shows that the defendant was deceived in regard to the age of the plaintiff, and that he, the plaintiff, should therefore be estopped from claiming damages upon the ground of a violation of the statute. One who deliberately falsified regarding his age to get employment is not entitled to much sympathy, in a suit against the employer, whom he has deceived, in an action based upon the statute. It is said that he should be estopped from recovering on such a claim. We held the contrary in the case of Syneszewski v. Schmidt, ante, 438.

A witness was called by plaintiff’s counsel, as an expert, to prove that a freight elevator was a place of danger to life and limb. Counsel truly say that this was a question which it was the province of the jury to decide, and there is force in the contention that it was not competent to call witnesses to decide it for them. We understand that this injury was not the result of any inherent -and hidden danger involved in the use of the machine, but was the obvious consequence of placing a foot over the edge of the floor of the elevator, voluntarily or involuntarily. This was as apparent to a juror as anyone, and the jurors could decide that it was so, as well without the opinion of the expert as with it. We think the testimony was within the rule laid down in Melzer v. Car Co., 76 Mich. 94, and other cases cited in appellant’s brief.

But this was harmless error, for we will take judicial notice that a freight elevator is a place of danger to life and limb in the hands of an inexperienced boy of 14 years. The legislature has seen fit to forbid the employment of such persons for the management of dangerous machinery, fixing the age limit at 16 years. An elevator, like many other machines, is a reasonably safe machine under proper management, but accidents are not infrequent. Any construction of the statute which does not take into account the inexperience and natural heedlessness of children overlooks an important consideration. Undoubtedly it was passed to protect children against accidents, which in adults might well be said to result from negligence on the part of the victim, but which in children would be largely due to a want of experience, or heedlessness, for which experience is ordinarily the only cure. Without implying that a child can never be chargeable with contributory negligence in such a case, it may well be said that all so-called heedíessness may not be negligence. But this may perhaps be thought a digression. The point of it all is that we feel justified in saying that the management of an elevator passing floors as this did, is an occupation dangerous, within the meaning of the statute, to the life and limb of a boy of 14 years of age. It is not a question of the obviousness of the danger, but whether the occupation is one attended with dangers which a child would not be competent, in view of childish habits and instincts, to understand or avoid. The case of Allen v. Jakel, 115 Mich. 484, was a case involving an obvious danger, but it was held that an increased obligation, growing out of the ignorance and inexperience of childhood, rested upon one who would employ a child. This did not involve a statute against child labor, and the case was a recognition of an increased duty of instruction growing out of immaturity of the employe. See, also, Sterling v. Carbide Co., 142 Mich. 284, where we said that “the statute * * * clearly recognizes that a child under 16 years is immature in judgment.”

Error is assigned upon the following charge:

“ He is entitled, further, gentlemen of the jury, to recover damages for his decreased earning capacity if you find from the evidence in this case and from your observation from the injured limb that during his lifetime his earning capacity will be decreased by reason of the injury.”

It is said that this permitted the jury to award damages to his earning capacity for the period intervening the trial and the time when plaintiff should reach the age of 21 years, a period somewhat over a year, which counsel claim was a right belonging to his father and not to him, upon the theory that his father was entitled to his earnings for that time, no proof of emancipation being offered. From the charge itself we take the following:

“If you resolve all these questions, gentlemen of the jury, in favor of the plaintiff, you will then consider the question of damages. I charge you, first, as to what damages he cannot recover. He cannot recover for any medical attendance or doctor’s bills, to start with. He cannot recover for any time lost during the time that he was ill. I think the testimony shows that there was about a year that he was unable to get work. He is an infant, and under the law his time at this time would belong to his father, and there is no evidence in the case that his father manumitted to him or gave him his own time, so that that element of damage is not in the case for your consideration. He is entitled to recover, gentlemen of the jury, if you find under my instructions that he is entitled to recover, he is entitled to recover for his pain and suffering, not alone what he has suffered in the past, but what you find he will suffer in the future as the.direct and necessary result of the accident. He is entitled to recover for the inconvenience and the humiliation which you find that he will suffer by reason of his crippled condition, if you find that his condition will entail either inconvenience or humiliation in the future. Now, gentlemen of the jury, both of these elements of damage are elusive. It is hard to determine accurately what the plaintiff is entitled to for the value of that pain or suffering or inconvenience and humiliation. As I have said before, they can neither be weighed nor measured. They ought never to be oppressive, but they ought to be full and fair compensation for those elements. They must in the last analysis be referred to the exercise of the judgment of twelve honest men, intent only upon doing the right thing between these two parties.
“He is entitled further, gentlemen of the jury, to recover damages for his decreased earning capacity, if you find from the evidence in this case and from your observation from the injured limb, that during his lifetime his earning capacity will be decreased by reason of the injury. There is no testimony in the case tending to show that since the happening of the injury up to the present time, his earning capacity has been decreased. But I am still of the opinion that you may, viewing the foot and taking into consideration the condition in life of the plaintiff, that you are the judges as to whether or not such an injury will result in a decreased earning capacity through the life of this boy; and if you find that the injury is such a one as to decrease his capacity to earn a livelihood, then your verdict should include such a sum as will fairly compensate him for that decrease, if you find it to exist.”

The jury were explicitly told that he could not recover for lost time while ill, and that his time during the year that he could not get work belonged to his father. But he afterwards allowed them to find damages through his lifetime if they should find that his earning capacity will be decreased, etc.

The defendant’s counsel did not call attention to the question now raised in any request to charge, although plaintiff’s 6th request plainly claimed damage for loss of earning capacity. Nor did they, when the charge was given, call attention to the omission to notice the period of a year or two between the trial and the time when he would reach his majority. Had they done so, no doubt the judge would have said to the jury expressly what he had impliedly said before as to failure to get work, that he had no right to recover for lost earning capacity prior to his majority. Under the former and fairer practice of requiring exceptions to be taken before the return of a verdict, the court and plaintiff would have been protected against errors of this kind, and the statute allowing assignments of error upon the charge, after judgment, and without exception, is productive of injustice, affording as it does the opportunity for raising points before us which have not been brought to the attention of the trial court. It certainly is not conducive to the administration of justice, that just and hard earned verdicts and judgments procured at large expense should be lost through the intentional or inadvertent omission of opposing counsel to carefully cover all points involved before the trial court and his right based on a recent statute to raise them later in this court. Thereby the plaintiff is made an insurer of the accuracy of all the instructions of the trial court, and the defendant is relieved from the necessity of bringing all points that he intends to rely on before the trial court. There is nothing in this case to indicate any intentional omission of counsel to raise this point before verdict. On the contrary, we have every reason to believe that their conduct of the case was eminently fair. What has been said is merely to call attention of the bar to the injustice of the existing statute eliminating exceptions to the charge, and the manifest injustice that has followed its enactment, in the many cases which we have been obliged to reverse upon comparatively unimportant points. We think, however, that the charge, when it is all read together, shows that the learned circuit judge intended that the jury should not award any damages for lost earnings during plaintiff’s minority, and it would be a stupid juryman who would render a verdict for decreased earning capacity covering a period when the earnings if made would not belong to the plaintiff. He expressly told them that he could not recover for time already lost, whether from inability to get work or want of ability to work, for the reason that he was an infant during this time and his father had not emancipated him.

It is not unreasonable to presume that every citizen competent to act in the capacity of juror knows that a person is an infant and that his father is entitled to his services until he reaches the age of 21 years. We find nothing to indicate a claim to the contrary in this record, and we feel warranted in the conclusion that court, counsel and jurors must all have understood that recovery for increased earning capacity must commence when the plaintiff became his own master.

-] We are not convinced that the verdict was so excessive as to require a reversal, or that the court erred in denying a new trial.

The judgment is affirmed.

Grant, C. J., and Moore, Carpenter, and McAlvay, JJ., concurred.


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    HARRINGTON v. CALHOUN PROBATE JUDGE.
    1. Trial — Conduct—Tampering with Jurors — Drains — Establishment.
    Where, on review of proceedings to establish a drain, it appears that the jury who found that the drain was a necessity and assessed the damages, while considering their verdict and looking over the lands to be taken, “accepted entertainment of, and were repeatedly treated to cigars by, certain of the petitioners for the drain and who were interested in its construction,” and while the jury were taking their dinner at one of the petitioners, a lady who was waiting on them said: “The way to a man’s heart is through his stomach,” and inquired whether they would want stagnant water near their homes, the proceedings must be quashed.
    2. Same — Waiver op Irregularities — Failure to Object.
    Where the irregularities occurred on June 11th, the verdict was filed on the 13th, and the objections were made on the 14th, a waiver of the objections could not be inferred from failure to seasonably object, where relator’s counsel did nothing to indicate his approval or his intent to waive objections, and merely maintained silence.

      Error to Calhoun; North, J.
    Submitted June 12, 1908.
    (Docket No. 86.)
    Decided July 13, 1908.
    Certiorari by George Harrington and others against George W. Hamm, probate judge, and Edward D. Dickinson, drain commissioner of Calhoun county, to review proceedings for the establishment of a drain. There was judgment for respondents, and relators bring error.
    Reversed, and proceedings quashed.

      Hatch & Page, for appellants.

      Winsor & Miller, for appellee.
   Carpenter, J.

We are called upon in this case to review proceedings for the establishment of a drain brought before the circuit court by writ of certiorari. Various irregularities are alleged. In our judgment we need consider but one. It appears by the record that the jury who found that the drain was a necessity, and who also assessed damages, while considering their verdict and looking over the lands to be taken, “accepted entertainment of, and were repeatedly treated to cigars by, certain of the petitioners for the drain and who were interested in its construction,” and, while said jury were taking their dinner at one of the petitioners, a lady who was waiting on said jury said: “ The way to a man’s heart is through his stomach,” and inquired whether tñey would want stagnant water near their homes. The circuit judge said:

“ Such conduct would justify the setting aside of a verdict of the jury in ordinary proceedings at law, but the conditions surrounding the determination of such a matter as the proceeding in mind is quite different, and it does not seem to me that the court can say that the mere exchange of such courtesies as are indicated in this record unduly influenced the judgment of 12 men whose integrity and standing as citizens was passed upon by the relators’ counsel at the time of their selection as jurors.”

We cannot approve this reasoning. While a judge or juror is determining a controversy, he should accept no favors from a party interested therein. Such favors are usually extended for the purpose of improperly influencing his judgment, and, if he accepts them and decides in favor of the party extending them, he justly subjects himself to severe criticism. Judicial proceedings will become a mockery if such conduct is tolerated, for every suitor will be encouraged to compete in schemes of corruption. In Detroit, etc., R. Co. v. Campbell, 140 Mich. 384, a verdict in proceedings instituted by a railroad company to condemn land was set aside for just such conduct, and we said:

“ Taking property by virtue of the right of eminent domain is a proceeding that ought to demand quite as careful oversight as the trial of any other case, for it deals with as important interests as any civil cause. * * * We do not know that the jurors were influenced in this case, but we are of the opinion that owners of land should not be subjected to such dangers, or be required to show affirmatively that they have suffered.”

Several reasons are urged for saying that the case is not ruled by the Campbell Case. It is said that it was necessary for the jury to get their dinner while they were examining the route of the drain. This is doubtless true; but the slightest forethought would have provided for obtaining that dinner elsewhere than at the house of one of the petitioners and in some other manner than at his expense.

It is said that relators’ counsel should have made an earlier objection to the misconduct of the jurors. The misconduct occurred on the 11th of June, when the jurors were making their view of the proposed drain. Their verdict was filed on the 13th of June. The objections were made on the 14th. They could not well have been made earlier. To sustain the contention in question, we must decide that counsel should have objected to the irregularities at the time they occurred. It might be sufficient to say that it is not to be inferred that certain of these irregularities of a serious nature were observed by counsel at the time they occurred. It is true, however, that he did know of some of them, and perhaps it may be inferred that as to these he did not immediately protest. But it may not be inferred that he did anything which indicated his approval or his intent to waive objections. It may be presumed that he maintained a dignified silenc'e. And this was the proper course to take for a lawyer and a gentleman. And in taking it he did all that was necessary to preserve his clients’ rights. It is said that he waived his objections because he accompanied the jury when -they took dinner at the house of one of the petitioners. Whether this would amount to a waiver of the particular objection, viz., the objection that the jurors accepted this entertainment, is a point which we are not called upon to determine in this case. It certainly would not amount to a waiver of other objections, viz., that the jurors received other favors from petitioners — objections which require us to vacate the verdict.

The order of the circuit court will be reversed, and the proceedings quashed.

Grant, O. J., and Blair, Moore, and McAlvay, JJ., concurred.


text:
    LEWIS v. JACOBS.
    1. Cancellation op Instruments — Deeds—Fraud—What Constitutes.
    Where defendant, the owner of an interest in certain lands, fraudulently induced his co-owner to believe he had found a purchaser for the lands, and that the property was less valuable than it was, and induced him to transfer his interest to a third party whom he represented to be acting for the purchaser, but who speedily transferred to defendant’s wife, the transaction was fraudulent, and properly set aside.
    3. Fraud — Misrepresentations — Reliance by Party Defrauded — Diligence.
    A defrauded party does not owe to the party who defrauds him an obligation to use diligence to discover the fraud.
    3. Deeds — Acceptance—Presumptions.
    Where a landowner conveyed the land to her agent for the purpose of facilitating the transaction by which they were defrauded, and on discovery of the fraud the agent repudiated the conveyance by wh'ich he transferred the land to defendant’s agent, and reconveyed to his principal, the acceptance by the principal of her agent’s deed of reconveyance will be presumed.
    4. Appeal and Error — Review—Extent—Questions not Raised Below.
    Whether the testimony of an agent of a party since deceased was incompetent under section 10313, 3 Comp. Laws, as amended by Act No. 30, Pub. Acts 1903, will not be decided, where the objection was not made in the trial court.
    5. Same — Briefs — Supplemental Briefs — Questions ConsidERED.
    Objections made in appellant’s supplemental brief, not made in the original brief, will not be considered.
    Appeal from Ontonagon; Cooper, J.
    Submitted June 16, 1908.
    (Docket No. 2.)

    Decided July 13, 1908.
    Bill by William H. Lewis, trustee, against John H. Jacobs and others to set aside a deed on the ground of

      fraud. From a decree for complainant, defendants appeal.
    Affirmed.

      Ball & Ball, for complainant.

      M. J. Sherwood, for defendants.
   Carpenter, J.

Decedent, Alice S. Hill, and defendant John H. Jacobs, were the owners of certain land and standing timber thereon situated in Ontonagon county-in this State. Said Alice S. Hill owned an undivided three-fourths and said John H. Jacobs owned the remaining undivided one-fourth. Said Alice S. Hill resided in Washington, D. C. Said John H. Jacobs resided in the city of Marquette in this State. By correspondence said Jacobs suggested_to Mrs. Hill that she join him in selling the timber on said land, saying that he had a man who' would buy all of it except the hard wood for $2,500. Mrs. Hill thereafter sent her son, defendant James Marshall Hill, to Marquette to confer with defendant Jacobs. In order that he might have full power to act she executed and delivered to him a warranty deed of her title. After reaching Marquette and conferring with defendant Jacobs, said James Marshall Hill executed a deed conveying the undivided three-fourths of the timber on certain of said lands to the Marquette National Bank and delivered it to said bank. This he did believing that defendant Jacobs was also transferring his interest and that said bank was simply acting as the agent of a third person. Said Jacobs did not in fact transfer his interest, and the title acquired by the Marquette bank was through his agency speedily transferred to his wife. Shortly thereafter the Hills concluded that they had been defrauded. Said James Marshall Hill re-conveyed his interest to his mother, Alice S. Hill, deceased, and defendant Jacobs was notified that the transaction was repudiated on the ground of fraud. In a few days thereafter said Alice S. Hill died testate leaving a will making the complainant her trustee. Subsequently, this suit in equity was instituted praying a re-conveyance of said property. The case was heard upon testimony taken in open court and a decree rendered for complainant. Defendants appeal. The principal question is one of fact. Was the conveyance procured by the fraud of Jacobs? We have no hesitancy in saying that it was. He fraudulently induced said James Marshall Hill to believe that he was uniting with him in the sale and he also fraudulently induced him to believe that the property was less valuable than in fact it was. It is urged that diligence on the part of Hill would have discovered the fraud. This is answered by our own decision of Smith v. Werkheiser, 152 Mich. 177, wherein we say:

“A defrauded party does not owe to the party who defrauds him an obligation to use diligence to discover the fraud.”

It is urged that there is no evidence that Mrs. Hill ever accepted the deed of reconveyance executed by her son James Marshall Hill. We answer this by saying that the law supplies this omission. Her acceptance is presumed. See Kaufman v. State Savings Bank, 151 Mich. 65; Bangs v. Browne, 149 Mich. 478; and Thatcher v. St. Andrew’s Church, 37 Mich. 264.

It is urged as Mrs. Jacobs died before this suit was tried that the testimony of James Marshall Hill was incompetent under that provision of section 10212, 3 Comp. Laws, as amended by Act No. 30 of the Public Acts of 1903, reading as follows:

“ No person who shall have acted as an agent in the making or continuing of a contract with any person who may have died, shall be a competent witness in any suit involving such contract, as to matters occurring prior to the death of such decedent, on behalf of the principal to such contract against the legal representatives or heirs of such decedent, unless he shall be called by such heirs or legal representatives.”

We do not feel called upon in this case to determine whether this provision rendered incompetent the testimony of James Marshall Hill. That objection was not made in the trial court and cannot for the first time be made in this court.

We do not consider 'other objections made in the supplemental brief and not made in the original brief.

The decree is affirmed.

Montgomery, Ostrander, Hooker, and Moore, JJ., concurred-