Broek v. Miller

• Decision Date: 01 December 1927
• Docket Number: No. 47.,47.
• Citation: 216 N.W. 385,240 Mich. 667
• Parties: TEN BROEK et al. v. MILLER et al.
• Court: Michigan Supreme Court

240 Mich. 667

216 N.W. 385

TEN BROEK et al.

v.MILLER et al.

No. 47.

Supreme Court of Michigan.

Dec. 1, 1927.

Appeal from Circuit Court, Kent County, in Chancery; Willis B. Perkins, Judge.

Suit by Henry W. Ten Broek and another against Swan A. Miller and another. Decree for plaintiffs, and defendants appeal. Affirmed.

Argued before the Entire Court.Diekema, Kollen & Ten Cate, of Holland, Mich., for appellants.

Linsey, Shivel & Phelps, of Grand Rapids, for appellees.

BIRD, J.

Plaintiff is the owner of three lots on Macatawa Park, in Allegan county. They are improved with two cottages. Macatawa Park is a summer resort, with numerous cottages. The cottages are furnished water and electric light by defendant, Macatawa Resort Company, which was incorporated for the purpose, among other things, of furnishing water and electric light to the resorters. There is no village or city control on the beach, and everything relating to health, order, and the peace of the community is governed by regulations and laws of the resort company.

The company had furnished plaintiff water and electric light for several years for his cottages. On July 16, 1923, the company severed the connections of the water and light, and refused to furnish him water and light thereafter, although he was willing to pay for it, unless he subscribed to the following conditions:

‘Macatawa Park, Michigan, April 9, 1924.

‘Ten Broek Conditions.

‘Build such septic tank as approved of by the board of health.

‘Pay for the value of wood taken, $25.

‘Sign contract to abide by our laws and rules and regulations.

‘Pay the attorney's fee, $35.

‘When the above is complied with, he will be recognized as a cottager.’

Plaintiff refused to comply with the conditions, and in the spring of 1924 he restored the connections, and filed this bill and obtained a temporary injunction inhibiting defendants from again severing them.

Defendants contend that the connections were severed because plaintiff was ordered to build a septic tank to care for his sewage, and instead of doing so he constructed a cesspool. Defendants further claim that plaintiff cut two trees on resort property, and would not comply with the rules and regulations of the resort company.

Plaintiff denies that he refused to comply with the rules and regulations of the resort company, and denies that he cut two trees on resort property, but admits that he cut two dead trees on his own property which were leaning toward his cottages, and because they were a menace to his cottages.

Plaintiff further shows that he did not receive the notice to construct a septic tank until after he had completed a new cesspool, and he denies that the state health officer ordered the installation of septic tanks, but charges that he simply suggested it. He also denies that he violated any rules of the resort company by installing a cesspool, as section 23 of its by-laws recognized that cesspools may be installed. That by-law provides:

‘No cesspool shall be placed within four feet of any cottage or within the cottage or outbuilding connected therewith.’

And he shows by his proofs that many other cottagers, naming them, maintained cesspools to care for their sewage, and at the same time were receiving water and light.

One soon discovers while reading the record that there was much bad blood between Mr. Swan A. Miller, the president and general manager of the resort company, and the plaintiff. Without discussing their grievances, it perhaps will be sufficient to say that the unfriendly feeling which existed between them undoubtedly influenced, in some measure, the company when it deprived plaintiff of his water and light.

The real question for us to determine is whether the resort company was entitled to cut off and deprive p...