Carley v. Gitchell

• Decision Date: 16 April 1895
• Citation: 62 N.W. 1003,105 Mich. 38
• Court: Michigan Supreme Court
• Parties: CARLEY ET AL. v. GITCHELL ET AL.

62 N.W. 1003

105 Mich. 38

CARLEY ET AL. v. GITCHELL ET AL.

Supreme Court of Michigan

April 16, 1895

Appeal from circuit court, Menominee county, in chancery; John W Stone, Judge.

Bill by Ira Carley and Edward L. Parmenter against Roland C. Gitchell and others, for the specific performance of a contract. From a decree for defendants, plaintiffs appeal. Affirmed

The conceded facts in this case are as follows: Complainants, on April 3, 1883, purchased land for a sawmill site on Cedar river, in the S.W. corner of the S.W. 1/4 of section 35 township 35 N., range 27 W., in Menominee county. At this point the Cedar river runs nearly on the line between sections 34 and 35. On May 26, 1883, one Samuel McIntosh and complainant Parmenter made a written contract, by which McIntosh agreed to sell to Parmenter a strip of land in the S.E. corner of the S.E. 1/4 of section 34, 968 feet long and 132 feet wide, and also such other portions of the S.E corner of the S.E. 1/4 as might be flooded or overflowed by reason of the building and maintaining of a dam by said Parmenter across said river when said river is at its usual height, for the sum of $3 per acre so overflowed. Said McIntosh agreed to convey the title by proper deed to Parmenter, after he had acquired a good, sure, and indefeasible title from the United States to said 80 acres of land, at which time the consideration was to be paid. Parmenter was to have possession of the strip. This agreement was duly recorded May 31, 1883. Soon thereafter Parmenter conveyed a half interest in this mill site to complainant Carley. The complainants immediately erected a mill upon their land upon the east bank of the stream, and constructed a dam, one end of which rested upon the land described in the above agreement. They also took possession of said strip, and have used it for storing lumber, and have erected some buildings thereon. The erection of the dam caused about eight acres to be flooded all the time, which, without the dam would be flooded only in the spring and at the time of heavy rainfalls. The cost of their entire mill plant is $22,000. They occupied said mill property from 1883 to October, 1892, when this bill was filed. McIntosh made a formal entry of this land, 80 acres, under the homestead act of congress, on the 25th day of June, 1883. He lived upon and occupied it, clearing and improving certain portions thereof, until March 13, 1888, when he died. His title would have become complete in June following. His widow made application under the homestead act, thereby succeeding to the rights of her husband, and obtained a patent September 1, 1891. December 24th following she conveyed the land by deed to the defendants. Prior to the entry of McIntosh, one Kinney had made entry of this 80 acres, and had made certain improvements thereon. For reasons unnecessary to mention, his entry and application were void. McIntosh was poor, and at the time he made the agreement Parmenter paid Kinney for his improvements, for McIntosh, who desired to make a homestead entry upon the land, and also his expenses in making the entry. It was at that time of little value, not exceeding $3 per acre. Owing to the erection of the mill its value was increased to $12 per acre. After the purchase by the defendants, they brought an action of ejectment against complainants, who thereupon filed this bill in chancery, setting up the above facts, alleging the irreparable injury to them by the substantial destruction of their property, and praying for the specific performance of the contract, that they be decreed to be in the rightful possession of the property for the purposes of flowage, and that, if the contract cannot be enforced, they may be decreed to have possession for a term of years sufficient to fulfill the object of the mill plant and improvements. The case was heard upon pleadings and proofs, and the bill dismissed.

Grant J., dissenting.

Sawyer & Waite, for appellants.

W. H. Phillips and B. J. Brown, for appellees.

MONTGOMERY, J. (after stating the facts).

The circuit judge found this agreement between McIntosh and Parmenter to be against public policy, and void under the homestead act. It will be noticed that the contract in question was made prior to the actual entry of the land as a homestead by McIntosh at the United States land office, so that he was required to make both the preliminary affidavit under section 2290 of the Revised Statutes, and final proof of occupancy under section 2291. Section 2290 requires that the applicant shall make an affidavit, in which he shall state that such application is made for his exclusive use and benefit, and that entry is made for the purpose of actual settlement and cultivation, and not, either directly or indirectly, for the use or benefit of any other person. Section 2291 requires that, in addition to proof of residence and cultivation, the applicant shall make affidavit that no part of such land has been alienated, except as provided by section 2288, which section authorizes a conveyance for church, cemetery, or school purposes, or for the right of way of railroads. We think it is impossible to distinguish the present case from Anderson v. Carkins, 135 U.S. 483, 10 S.Ct. 905. In that case Anderson agreed with Carkins, by an agreement bearing date December 16, 1876, to convey to him by good and sufficient warranty deed, on or before May 1, 1881, the land described. The land was entered as a homestead on the 7th of March, 1877. On the 31st of March, 1884, Anderson made final proof under the homestead law. The land contracted to be conveyed by Anderson had been in the possession of Carkins, who held it, together with 80 acres additional, as a timber claim, from 1873 to the time of the contract. He had broken and cultivated 40 acres, and planted on it 20 acres of trees. The improvements that he had made were of the value of $1,000, and it was in consideration of his relinquishing his claim to the 60 acres that the agreement to convey the land in question, one-half of the amount, was made. A similar consideration was furnished in the present case by Parmenter, he paying Kinney for the improvements which he had made upon the land, prior to the entry of McIntosh. The court, in Anderson v. Carkins, had no difficulty in holding that there was ample consideration for the contract, but it was held void on grounds of public policy. The court said: "There can be no question that this contract contemplated perjury on the part of Anderson, and was designed to thwart the policy of the government in the homestead laws, to secure for the benefit of the homesteader the exclusive benefit of his homestead right. Such a contract is against public policy, and cannot be enforced in a court of equity." See, also, Mellison v. Allen, 30 Kan. 382, 2 P. 97. But it is strenuously insisted that, as McIntosh permitted the complainants to have possession of this land, "and the use of the stream, with the right to attach their dam to his side of the stream, with knowledge that they were to build a mill, and as a matter of fact was knowing to the steps entered into by them, to build and equip the mill at the large expense which they were to," his acts should be construed as "at least a license, which in time might ripen into an easement, even if it had not after this lapse of time; and being a license acted upon, and upon which money was expended, would be irrevocable as long as the mill of complainants was carried on and operated at that point." The occupancy has not been for a sufficient length of time to create a right by prescription, and it is but an evasion to say that that which could not be made the subject of agreement, because of public policy intervening to prevent it, can be sustained as license, where the only attempt at license is in the execution of an agreement void in law. To sustain this contention would be in effect to make a new contract for the parties, and we think it not permissible.

An attempt is made to bring this case within the case of Edwards v. Mining Co., 38 Mich. 46. In that case a bill was filed for an injunction. Defendant, at a cost of some $60,000, had erected a stamp mill on the banks of Hill creek, and had been operating the same for some years. As a result of its operation, large quantities of sand were carried down by the waters of the stream, and deposited on the bottom lands below, and the evidence showed that it would be impossible to carry on the mining operations of defendant with profit unless this were permitted. After the erection of the mill, the complainant purchased a piece of land, through which the water ran, a short distance below this mill, and upon which the mill, as operated, was depositing sand. This land was purchased for speculative purposes, and apparently under an expectation of being able to force defendant to buy it at a large advance on the purchase price. The real value of the land, except as a convenience to the business of defendant, was small. The court held, in effect, that an injunction is not a process to be lightly ordered in any case, and is not a matter of right, and it was said "Wherever one keeps within the limits of lawful action, he is certainly entitled to the protection of the law, whether his motives are commendable or not; but, if he demands more than the strict rules of law can give him, his motives may become important. In general, it must be assumed that the rules of common law will give adequate redress for any injury; and when the litigant avers that under the circumstances of his particular case they do not, and that, therefore, the gracious ear of equity should incline to hear his...