« ForrigeFortsett »
and costs of suit. Judd took no exceptions either to the findings of fact or the conclusion of law.
Circuit Court Rule No. 89 provides that, within four days after the filing of the completed finding of facts and conclusion of law, any party aggrieved may allege in writing his cxceptions to the matters of law embodied in such finding, and such exceptions shall be settled in the same bill, which may contain the exceptions taken during the trial, and in tlıe same manner with bills in other cases. The defendant has, however, made and filed the statement of crrors relied on as required by Rule 84, and we must therefore look into the record to ascertain what foundation inay exist for those presented to this Court by counsel for defendants.
Defendants' counsel claims that plaintiff's proofs are not such as will authorize a recovery. The testimony as to the value of the annual use of the property was from one of the defendants, to whom the defendant Judd rented the property, and is very strong. The court in his findings places it at the lowest sum testified to, and his finding, not having been excepted to, is conclusive upon that subject.
Defendant further insists that the rents, not liaving been received at the time the action was commenced or suggestion made, no recovery could be had. This view, however, cannot be sustained. The suggestion authorized by the statute is, in substance, a declaration in assumpsit for use and occupation. How. Stat. $ 7531. It is for the value of the use of the premises, while withheld by the defendant, that the plaintiff is entitled to recover, and what he may have received for such use. While it is proper testimony upon the subject of its value, it is neither controlling nor binding upon the plaintiff. She would certainly be entitled to recover that amount and as much inore as she conld show the value of the use of the premises to be worth. Our statute providing for the recovery of mesne profits is taken from the New York statute on the same subject. See 2 N. Y. Rev. St. (4th ed.) 570, SS 43–51. Section 47 of our statute (How. Stat. $ 7533) is in exactly the same words as section 47 of the New York statute. The New York courts hold that the action for mesne profits under the statute is substantially an action for use and occupation. IIolmes v. Davis 19 N. Y. 488, 495; Woodhull v. Rosenthal 61 N. Y. 382, 394. In the latter case the court say : “ The action for mesne profits is now, in substance, an action for use and occupation, and the complaint is to be drawn on that theory; and the court is to render judgment, as in actions of assumpsit for use and occupation.”
The first finding of the court determined the right of the plaintiff to the rental value, and the length of time she was entitled to the same, and this finding can not be disturbed by this Court.
There is nothing in the objection that the suggestion does not sufficiently describe the judgment in ejectment. The statute requires it to be filed in that case, and it becomes a part of the record thereof. How. Stat. $ 7830. That record shows the plaintiff's right to the premises, and no other testimony than that contained in the record was necessary in this case, to show her expulsion therefrom.
Upon the facts and findings appearing in this record, we think the judgment was fully warranted, and it must be
Affirined, with costs.
Julia NOBLE V. JAMES FAIRS ET AL. Case made from Kent. (Montgomery, J.) Nov. 18.—Jan. 6.
Claim for mesne profits. Defendant had judginent. Affirmed.
John E. More for claimant.
SHERWOOD), J. This is an action for mesne profits. The judgment in ejectment was rendered January 31, 1884, in Kent circuit. On the 18th day of June following plaintiff filed in the cause, pursuant to How. Stat. $ 7830, a suggestion
of claim against defendant Charles B. Judd for the mesno profits of the lot in question, enjoyed by him. The issuo joined on this suggestion was tried before Hon. Robert M. Montgomery, without a jury; and on the 3d day of November, 1884, judgment was rendered in favor of plaintiff and against defendant Judd for $73.63, and costs of suit. It is this judgment that this Court is now asked to reverse.
The facts in this case are so nearly the same as those inn the case of Elizabeth Noble v. James Fairs et al., ante, p. 637, decided at the present term of this Court, as to raise no questions of law not already considered and disposed of in that case, which clearly rules this; and
The judgment will therefore be affirmed with costs.
MATTER OF OPENING FIRST STREET, IN GRAND RAPIDS. (Grand Rapids v. Grand Rapids & Indiana R. R. Co.) Street opening across railway track-Condemnation proceedings— Vicinage
1. A street opening law is not made unconstitutional by the omission to
provide that before proceedings can be taken thereunder, there must be some attempt to get the permission of the owners of property to
be affected. 2. The objection that before proceedings to open a street were taken no
attempt was made to obtain the consent of property owners cavnot be raised on review in the Supreme Court if not made at an earlier
stage. 3. The " vicinage" from which a jury of frecholders in a street opening
case must be drawn (Const., Art. xviii, sec. 2) may be limited by statute to the municipality instead of including the county at large;
but in such case the whole municipality will be within it. 4. The presumption is against the existence of any such bias on the parti of a street opening jury as will make its verdict unfair,
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5. The essential duty of a jury in a street opening proceeding is to pass
on the necessity for the work, and not merely the necessity of tak
ing the land for it. 6. Act 124 of 1883 for taking land for streets (1 How. Stat. pp. 1295
1300) is not clearly open to the objection that it does not require the necessity of the improvement to be determined by a jury. And if the provisions for special taxation districts are invalid, they do not in
validate the entire act, since a general tax is also contemplated. 7. The incompetency of some of the jurors returned by the sheriff docs
not affect the array if those sworn were competent. 8. The mortgagees of the franchises and easements of a railway com
pany need not be made parties to a proceeding to condemn a right of way across its track for a strect, if the track is not disturbed and the
company is left in control of the road, 9. The proper amount of compensation for land taken in condemnation
proceedings cannot be sworn to by witnesses, but must be found by
the jury from proper data. 10. Compensation for, rather than the value of, the land taken is what
should be allowed in condemnation proceedings, and includes more. u. The damage to a railroad from opening a street across it includes the
expenso entailed by the crossing, and may involve outlays for mak
ing it safe. 12. How far a city is estopped from opening a street across a railway
track by its previous course in inducing the railway company to lay its track on the faith that the street would not be opened;—and how such estoppel, if any, is to be pleaded-Q.
Appeal froin the Superior Court of Grand Rapids. (Parrislı, J.) November 18, 1855.—January 6, 1896.
Proceedings to open a street. The Grand Rapids & Indiana R. R. Co. appeals. Reversed.
T. J. O'Brien and Jas. II. Campbell for appellant. Negotiations with property owners before taking proceedings to condemn their land are jurisdictional : C. M. I.. S. R. R. Co. v. Sanford 23 Mich. 41S; M. C. & L. M. R. R. v. Clark 23 Mich. 519; Arnold v. Decatur 29 Mich. 77; Morseman v. Ionia 32 Mich. 283; Whisler v. Drain Com'r 40 Mich. 591; Laue v. Saginaw 53 Mich. 442; the oath administered to jurors in a street opening case must be co-extensire with their constitutional duty: Powers' Appeal 29 Mich. 504; Bowler v. Drain Com'r 47 Mich. 155.
City Attorney J. W. Ransom for appellee.
CAMPBELL, C. J. The appeal in this case is brought to review certain proceedings had under the general law and not ' under the charter of Grand Rapids, to open a street in extension of its original bounds. The law in question is one passed in 1883, to provide uniform methods for the appropriation of property in cities and villages, which was approved May 31, 1893, and is printed in 1 How. Stat. on pp. 1295– 1300.
On the 22d of September, 1884, the common council of Grand Rapids adopted resolutions declaring the necessity of opening First street, and widening and extending it of a uniform width of sixty-six feet from the west line of Broadway to the west boundary of the city, including in the description of the land to be taken a part of appellant's railway, thirty-three feet by sixty-six feet. The city attorney was ordered to proceed in the Superior Court of Grand Rapids, and accordingly brought these proceedings.
The appellant appeared by attorney, and was represented throughout the proceedings. Upon December 30, which was the original day of hearing, various objections were made to the sufficiency of the steps taken to give jurisdiction, and also to the validity of the statute in question. A panel of twenty-four freeholders was ordered, from which six names were struck on each side. Of the remaining twelve, who were duly summoned, three were excused, and two were found not to be freeholders. Five competent talesmen were called, and the jury thus inade up acted and found a verdict. Some challenges were made to jurors for remoteness.
Evidence was given by appellant of a trust mortgage of its road, and all its property and franchises, to secure the payment of bonds, which was in the usual form of railway mortgages, and retained to the appellant the ordinary control of its affairs until dispossessed. Objection was then made that until the trustees were made parties the proceedings were illegal. This was overruled.
Two witnesses were sworn upon the damages of appellant, and the questions asked and allowed against objection to be answered, were general as to "what amount of compensation”