Alton v. Meenwenberg

• Decision Date: 24 March 1896
• Citation: 66 N.W. 571,108 Mich. 629
• Court: Michigan Supreme Court
• Parties: ALTON ET AL. v. MEEUWENBERG.

66 N.W. 571

108 Mich. 629

ALTON ET AL. v. MEEUWENBERG.

Supreme Court of Michigan

March 24, 1896

Error to circuit court, Newaygo county; John H. Palmer, Judge.

Trespass by Dallas D. Alton and another against John Meeuwenberg.From a judgment for defendant, plaintiffs bring error.Affirmed.

L. A. Miller, for appellants.

A. F Tibbitts and Martin Rozema, for appellee.

MOORE J.

Plaintiffs sued defendant in justice court for an alleged trespass committed by him upon land of which they claimed to be in the exclusive possession.The acts which were claimed to be trespasses were the setting of stakes and the digging of ditches.The defendant pleaded the general issue, and gave notice that the land where the alleged trespass was committed "is, and at the time the said injuries were supposed to have been committed, was a public highway, *** legally laid out, established, and used as such"; that the defendant was commissioner of highways; and that what was done, was done as such commissioner.The defendant also gave a bond, and paid such fees as the law requires, and the justice certified the case to the circuit court for trial.The case was afterwards tried before a jury, who rendered a verdict in favor of the defendant.

No record title was introduced on the part of the plaintiffs.They claimed to be in the actual possession of the premises in question.Their testimony was to the effect that they built a one-story cottage on the premises in 1893, and shortly afterwards inclosed the premises with a fence, a part of which was cut away soon after, and that the present fence was built in the spring of 1894.They claimed to have built a dock along the lake front, to have graded the grounds, and made other improvements; that the trespass complained of consisted of the digging of two parallel ditches, about 2 rods apart, through some boggy, wet land.These ditches were 12 to 16 inches deep, 2 feet wide, and about 10 rods long.It was claimed, on the part of the defendant, that in 1878 one Smallegan was the owner of the land upon which these ditches were dug; that in that year he gave to the public, for the purpose of a highway, a strip of land that would embrace the land in question in this suit; that he built a brush fence along the whole line of said strip, throwing it open to the public, the south end opening into the south line section road, and the north end opening into a piece of new road which the owner of the land on the north (one Jones) had in like manner opened to the public.It was further claimed that, while Smallegan cleared up the rest of the land, he and the subsequent owner never made any improvements on this strip, except for highway purposes, and never claimed any title to it after 1878.At about this time some attempt was made by the authorities to lay out a highway on this line.It was claimed that in 1878 one Waters made a survey of said strip, and placed his notes of that survey on record with the town clerk, and that it was made by the consent and with the assistance of Smallegan and Jones, and other of the adjoining neighbors.It was also claimed by the defendant that, every year since 1878, highway labor had been performed on that strip under the direction of the commissioners and overseers of highways.At about the middle of this strip about halfway between its ends, is a marshy spot.The defendant also claims that the piece of land opened by Jones, as far south as the eighth line, was a well-traveled road, and that the strip given by Smallegan, as far south as the marshy spot, had been used for travel by the public for several years.It was not claimed by the defendant that the strip of land that was marshy, or that the land south of it to the section line, was generally traveled; but it was claimed that highway labor was expended upon its entire length, and upon every part of it.These various claims of the defendant were disputed by the plaintiffs.In September, 1893, the plaintiffs fenced in the north end of the Smallegan strip; their north fence being on the eighth line, and their east fence on the line of fence placed there by Smallegan in 1878.The east fence runs through to the lake, and takes in about one-half of the marshy spot; the piece of land fenced in by them being about 60 rods.Smallegan and Banega protested against the building of this fence, and tore away at least a part of it.In July, 1893, the defendant was petitioned by seven freeholders to ascertain, describe, and enter of record the center line of this road.He caused a survey to be made, and placed the proceeding upon record with the township clerk.By some error of the angles of that survey, one of them was marked "south" instead of "north" in the field notes, which would make it appear that the road turned off into the lake.The plat attached to the field notes shows this was an error.This was also shown by the surveyor, and it was also shown by him that the line, as actually surveyed in 1893, followed substantially the line run in 1878.It was claimed by the defendant that the plaintiffs occupied their cottage only during the heated season of 1893, and again in 1894, staying there at night and over Sunday, and that they permitted others to occupy it during the season of 1894; that their permanent residence was in Fremont.On August 12, 1894, the defendant went upon the land inclosed by plaintiffs, and, as highway commissioner, let a job of ditching on this marshy spot at the extreme south end of plaintiffs' inclosure, and about 40 rods south of the cottage.Mr. Miller, claiming to represent the plaintiffs, ordered the defendant off the premises.The plaintiffs claimed that the Smallegan strip of land was never dedicated to the public, but that it was fenced in by Smallegan, and used by him as a pasture.Proof was introduced bearing upon the several claims of the parties.

The first 8, and the 10th, 11th, 12th, 14th, 15th, 16th, 17th, and 18th assignments of error relate to the rulings of the trial judge upon the admission of testimony.We think none of them are well taken.

The 9th and 13th assignments of error relate to the ruling of the judge in allowing an amendment to the notice attached to the plea, by substituting for the words, "and used as such," the words, "and a public highway by dedication and use."This was objected to by counsel for plaintiffs, he claiming that it made a new issue, and a different issue from the case certified by the justice, and he cites How.Ann. St. � 6896.In McFarlane v. Ray,14 Mich. 470, which was a case in trespass, brought originally in justice court, though the proposed amendment in that case was denied, it was stated: "We have no doubt of the power of the circuit court to allow amendments that do not affect substantial rights."This is the only decision we can find in our own courts where this feature of the statute has been construed.The purpose of the notice attached to the plea in this case was to apprise the plaintiffs that the defendant claimed the disputed land was a public highway, and that what he did was done as a commissioner of highways.The notice, before it was amended, fully accomplished that purpose.It was not necessary to amend it to allow the testimony to be received which was offered in support of defendant's theory.The amendment did not make a new issue, or affect substantial rights, and its allowance was not error.

The only other questions open for discussion relate to the refusal of the circuit judge to give plaintiffs' several requests to charge, and to the charge as given by him.We have repeatedly held that the trial judge is not bound to follow the exact language of the counsel who...