32 N.W. 800 (Mich. 1887), Bigelow v. Shaw

Citation:32 N.W. 800, 65 Mich. 341
Opinion Judge:MORSE, J.
Party Name:BIGELOW v. SHAW, Sr., and others.
Attorney:[65 Mich. 342] Frank Dumon, for plaintiff. C. Brown, for defendants and appellants.
Case Date:April 14, 1887
Court:Supreme Court of Michigan
 
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Page 800

32 N.W. 800 (Mich. 1887)

65 Mich. 341

BIGELOW

v.

SHAW, Sr., and others.

Supreme Court of Michigan

April 14, 1887

Error to circuit court, Mecosta county.

[65 Mich. 342] Frank Dumon, for plaintiff.

C. Brown, for defendants and appellants.

MORSE, J.

This action was brought in justice's court to recover damages against the defendants for entering upon a frozen mill-pond upon her lands, and cutting and removing ice during the winter of 1884 and 1885. The defendants gave notice that the title to the land would come in question, and filed the bond required by the statute in such case. Thereupon the justice certified the cause to the circuit court for the county of Mecosta, where a trial was had, and judgment rendered for the plaintiff for the sum of $50.

The circuit judge, Hon. C.C. FULLER, filed a written finding of the facts upon which he based his judgment. This finding shows that the defendants, under a lease from Edward P. Shankwiler and David L. Garling, went upon that portion of a mill-pond which set back upon defendant's lands, and cut and carried away and disposed of for their own use 200 cords of ice, the value of which, as it lay in the pond, was $50. The mill-pond was formed by building a dam across Ryan creek, a small stream, not meandered and emptying into the Muskegon river. The dam was built in 1866 by John Bigelow, the husband of the plaintiff. He then owned the N.W. 1/4 of the N.W. 1/4, and

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the N.E 1/4 of the N.W. 1/4, and lot number 2, of section 24, and the S.E. 1/4 of the S.W. 1/4 of section 13, all in township 15 N., of range 10 W., in the county of Mecosta, Michigan. Ryan creek entered these lands on section 13, and ran through both the N.E. and the N.W. quarters of the N.W. 1/4 of 24. Bigelow erected this dam for the purpose of ponding the water to obtain power to run and operate a flouring-mill on section 24. [65 Mich. 343] In 1873 the plaintiff joined in a mortgage with her husband, executed by him to the Albion College Endowment Fund Company, upon the N.E. 1/4 of the N.W. 1/4, and said lot 2, of section 24. This mortgage also conveyed the right of flowage to raise the water in the flume at the mill 10 feet head, on the said lands retained by Bigelow, and not embraced in the mortgage, situated on sections 24 and 13. This mortgage was afterwards foreclosed, and the title to the lands, and the right of flowage, therein described, were acquired by said Shankwiler and Garling, under whom defendants claim the ice. Bigelow also, before the commencement of this suit, conveyed to his wife, the plaintiff, subject to the aforesaid right of flowage, a certain portion of the N.W. 1/4 of the N.W. 1/4 of section 24, and the same premises upon which the ice was cut by defendants. The plaintiff...

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