Bigelow v. Reynolds

• Decision Date: 26 January 1888
• Citation: 68 Mich. 344,36 N.W. 95
• Court: Michigan Supreme Court
• Parties: BIGELOW v. REYNOLDS ET AL.

36 N.W. 95

68 Mich. 344

BIGELOW v. REYNOLDS ET AL.

Supreme Court of Michigan

January 26, 1888

Error to circuit court, Ottawa county.

Action of trespass on the case by Henry G. Bigelow against Charles Reynolds and Andrew J. Emlaw. Judgment for plaintiff, and defendant brings error.

CAMPBELL J.

This is an action of trespass on the case, but contains allegations of trespass vi et armis, brought by plaintiff against defendant ostensibly for his disturbance in the possession of certain mill property which is alleged to be personalty. The first count alleges his ownership and management of the property, when disturbed, in entirety, and avers a trespass on April 15, 1879, and divers times since. The second count, which is the one on which recovery seems to have been had, claims an interest of an undivided one-third, but as a partner with two other persons. The period of disturbance is set between April 15, 1879, and November 25, 1879. On the trial, plaintiff's case was put upon this general state of facts: That in 1872 a lease was made by defendants and one Carlton L. Storrs, whereby the latter was made lessee for 10 years of the mill premises, and this lease became vested afterwards in plaintiff and two partners, named Enos Stone and Wales Storrs, who did business in the mill till about 1876, when they gave it up, and went into other pursuits, and never resumed it. In 1877 the mill seems to have been leased to a tenant, and in 1878 it was further leased to Glover & McFee. In 1878, defendants, who owned the freehold, purchased of the First National Bank of Grand Haven an execution title to the mill property, which they supposed valid, and which, if valid, made them owners of the whole title, and entitled to possession, subject to no other claim, unless, possibly, one created by a mortgage of plaintiff's interest to Edward Bigelow. Glover and McFee recognized defendants as entitled to possession, and put them in possession; and there was testimony that plaintiff said to defendant, substantially, that he approved their purchase. Defendants ran the mill through the season of 1879, with no objection. At the close of the reason, plaintiff asked them for an accounting. Subsequent transactions introduced some new elements, and the recovery below was only sought and had for the rental value for that year. The suit was begun in September, 1885, but recovery was had back to April 1879,-more than six years before suit brought,-upon the apparent notion that nothing became due till the close of the season. If the possession was wrongful, an action would lie at once, and need not be postponed till that time.

There were several questions raised by the assignments of error, which we do not think it necessary to consider separately, as enough can be grouped to dispose of the case. The only trespass committed, if any, was committed when McFee and Glover were tenants, and during their term. The action of trespass for that entry would have been theirs if it lay at all. But they admitted defendants peaceably and voluntarily, and no actual trespass was committed. In April 1879, defendants were in peaceable occupancy, claiming title to the land and mill property, and, whatever else they may have done, they committed no trespass. There was no proof that plaintiff or any...