Clark v. Lake St. Clair & New Up-River Ice Co.

• Decision Date: 16 April 1872
• Court: Michigan Supreme Court
• Parties: John P. Clark v. The lake St. Clair and New Up-River Ice Company

24 Mich. 508

John P. Clark v. The lake St. Clair and New Up-River Ice Company

Supreme Court of Michigan

April 16, 1872

Heard April 13, 1872

Error to Wayne Circuit.

Judgment affirmed, with costs.

D. C Holbrook, for plaintiff in error.

Ward & Palmer, for defendant in error.

Campbell J. Christiancy, Ch. J., and Cooley, J., concurred. Graves J., did not sit in this case.

OPINION

Campbell, J.:

Clark was sued in trespass for tearing down the ice-house of the defendant in error, and justified the act as done in the abatement of a nuisance to a public highway, in which he alleged the erection to be an unlawful obstruction. The suit was brought in December, 1870, and the trespass was committed shortly previous.

The first error assigned relates to the admission of testimony of the value of storing six hundred tons of ice in the building, that having been shown to be its storage capacity.

We do not see any error in this. The building was put up for no other purpose than holding ice, and its destruction completely defeated that purpose. The damage was expressly set out in the declaration, and nothing could be more directly or inevitably the result of the grievance. The testimony came within the rules laid down by us on various occasions: Chandler v. Allison, 10 Mich. 460; Allison v. Chandler, 11 Mich. R. 542; Shaw v. Hoffman, 21 Mich. 151. The witness answered it was worth from one hundred to one hundred and fifty dollars, and no time was mentioned within which it was to be earned. Whether this would be objectionable under any circumstances, without further showing, we need not consider, as courts are bound to pay some regard to the well known incidents of ordinary business, and to know that ice is gathered in cold weather, and that when the ice-house is filled, it must continue to hold its contents until distributed, and will be useless for any other purpose. Its value, therefore, would not be ascertained necessarily by a standard of rent by the month, but might be reckoned in one sum, as the witness stated it, for storing such an amount as would fill it, and if this were not so in this case, there is nothing to show it incorrect. If any further information was needed it could be obtained but this was probably the only answer that could be given to the question. We must so assume, at least, in the absence of any further questions. We have no means of knowing whet was allowed for this damage, and cannot presume it was excessive.

We must assume that the court would charge properly, had any request been made as to the time to be covered, and if damages were excessive, a motion for a new trial, would have been permissible. The mischief was done at the beginning of the season, and there is no evidence to show that the damages were any more than would have been inevitable under the circumstances.

Certain testimony having been given concerning the condition and extent of the highway, a witness was asked: "Was the erection of the ice-house an obstruction to the road?" He answered: "I do not know of any obstruction; the shed was ten feet from the road." The objection taken to this was, that it was incompetent, and the reason urged is, that it related to opinion instead of fact. We think it is not open to that objection. Whether an erection obstructs a passage is a matter which can often be better judged by an eye-witness, than from a description of metes and bounds. The answer indicates that the witness formed his...