Chilson v. Wilson
| Decision Date | 29 January 1878 |
| Court | Michigan Supreme Court |
| Parties | Israel F. Chilson, Robert Everson and Lewis Westfall v. Catharine R. Wilson |
Submitted January 11, 1878
Error to Wayne.
Trespass. Defendants bring error. The facts are stated.
Judgment affirmed with costs.
J. W Voorheis and Moore & Moore (on brief) for plaintiff in error. The common council can allow a street committee some discretion, Schenley v. Com., 36 Penn. St., 52, 64.
Joslin & Whitman (on brief) for defendant in error. The common council's power to determine how grading shall be done cannot be delegated, Thompson v. Schermerhorn, 6 N Y., 92; Cooley's Const. Lim., pp. 204-5, n 1; Dillon's Mun. Corp., § 60.
Chilson being street commissioner of the village of Plymouth, graded Church street along the front of premises of defendant in error, and Everson and Westfall assisted.
The defendant in error, claiming that what had been thus done was a trespass upon her property, brought suit therefor. Plaintiffs in error pleaded in justification that the street was public, and that the acts complained of were done under the authority and according to the directions of the village council. She recovered a small judgment and defendants brought error.
Several exceptions to rulings in regard to evidence appear in the record, but none are found which are material. They do not require special notice.
Complaint is made that the judge refused to submit a specific question to the jury. An examination of the facts shows that what he did submit was better adapted to the case than the question offered, and was sufficient. There was no record evidence of any action by the council in relation to the change in the street, and verbal evidence was admitted, against objection, of a resolution by the council and of certain other proceedings.
The judge charged that if the resolution ordered that the grade should be changed or the ditching should be done as the street committee might direct, it would not afford protection; but if it contained directions as to what should be done, and they were followed, and the defendants acted fairly in the matter, then they were protected.
There is no sound objection to this charge open to the plaintiffs in error.
The justification set up as defense was based on alleged directions by the council and not on discretionary orders of a committee, and the one could not be regarded as equivalent...
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... ... 115, 119; Smith v. Rochester, 76 N.Y. 506; ... Rowland v. Gallatin, 75 Mo. 134; Semon v ... Newton, 134 Mass. 476; Chilson v. Wilson, ... 38 Mich. 267; Judge v. Meriden, 38 Conn. 90; ... Marquette v. Cleary, 37 Mich. 296; Anthony v ... Adams, 1 Metc. 284; ... ...
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Behrendt v. Wilcox
...facts, on appeal, shows that the questions framed by the court were better adapted to the case than those proposed by defendant. Chilson v. Wilson, 38 Mich. 267. Counsel asks: ‘Did not the court err in instructing the jury generally, when the cause was submitted on a special verdict?’ Secti......
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