Higgins v. Kusterer
| Decision Date | 01 July 1879 |
| Citation | 2 N.W. 13,41 Mich. 318 |
| Court | Michigan Supreme Court |
| Parties | JAMES HIGGINS v. CHRISTOPHER KUSTERER. |
A sale of ice already formed upon a pond or stream is a sale of personalty and not of real estate.
Higgins recovered below a judgment against Kusterer for the value of a quantity of ice. Kusterer claims that title never passed to Higgins, and that the property was lawfully acquired by himself from one Loder, who cut it on a pond belonging to one Coats and sold it to defendant.
The facts are briefly these: The ice in question was formed upon water which had spread over a spot of low ground partly belonging to Hendrick Coats, forming a basin the land being dry in summer, and in the rest of the year overflowed from a small brook leading into it. After the ice formed, and in February, 1878, Coats, by a parol bargain sold all the ice in his part of the basin to Higgins, for fifty cents. The parties at the time stood near by, in view of the ice, and the quantity sold was pointed out, and the money paid. The ice was then all uncut.
About two weeks thereafter John Loder, knowing that Higgins had purchased and claimed the ice, and having been warned thereof by Coats, offered Coats five dollars for the ice, which Coats accepted, and Loder cut it and sold it to Kusterer, who had made a previous verbal contract with Loder for it. Higgins was present when the ice was loaded on Kusterer's sleigh and forbade the loading and removal, on the ground that he had purchased it from Coats. Kusterer referred the matter to Coats, who said he had sold it to Loder.
The only question presented is whether Higgins was owner of the ice.
The case was argued very ably and very fully, and the whole subject of the nature of ice as property was discussed in all its bearings. We do not, however, propose to consider any question not arising in the case.
The record is free from any complications which might arise under the circumstances. There are no conflicting purchasers in good faith without notice. Loder and Kusterer had full notice of the claims of Higgins before they expended any money. The sale to Higgins was not a sale of such ice as might from time to time be formed on the pond, but of ice which was there already, and which if not cut would disappear with the coming of mild weather and have no further existence. It was not like crops or fruit connected with the soil by roots or trees, through which they gained nourishment before maturity. It was only the product of running water, a portion of which became fixed by freezing, and if not removed in that condition would lose its identity by melting. In its frozen condition it drew nothing from the land, and got no more support from it than a log floating on the water would have...
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