Marshall v. Heselschwerdt

Decision Date06 April 1943
Docket NumberNo. 46.,46.
Citation8 N.W.2d 871,304 Mich. 664
PartiesMARSHALL et al. v. HESELSCHWERDT.
CourtMichigan Supreme Court

OPINION TEXT STARTS HERE

Summary proceedings by Benjamin Marshall and Julia Marshall against Melvin Heselschwerdt to regain possession of a gravel pit. From an adverse judgment, defendant appeals.

Affirmed.Appeal from Circuit Court, Washtenaw County; George W. sample, judge.

Before the Entire Bench.

James C. Hendley, of Manchester, and William M. Laird, of Ann Arbor, for defendant and appellant.

Jacob F. Fahrner, of Ann Arbor, and Leo L. Watkins, of Manchester, for plaintiffs and appellees.

BOYLES, Chief Justice.

Summary proceedings by plaintiffs to obtain possession of a gravel pit. Plaintiffs are the owners of a farm in Washtenaw county on which the gravel pit is located. Defendant is a general contractor, selling sand and gravel. In 1934 an oral agreement was entered into between plaintiffs and defendant for taking gravel out of the pit, which is described by the parties in their testimony as follows:

By Mr. Marshall, plaintiff: ‘I had an agreement with the defendant about taking gravel from my farm; I think the agreement was made in 1934. * * * He wanted to know if he could get some gravel out of that pit of mine there. There was an old one there years ago. They took gravel out of there. I said, ‘If you give me 20 cents a yard I'll let you take out some.’ And he thought that was too much so we dickered around and we made an agreement that if he gave me 10 cents a yard for all that he drawed out, that is, surface dirt and all, I would let him take out some gravel.'

By Mr. Heselschwerdt, defendant: ‘My name is Melvin D. Heselschwerdt. I live in the village of Manchester. I made an oral agreement with Mr. Marshall to take gravel out at 10 cents a yard. That's the only agreement we ever made. However, there were more details to it, other than 10 cents a yard. I had no business whatever on his ground except to take out gravel. Mr. Marshall told me he didn't want me to take any more out.'

No time for performance or termination was set. Plaintiffs continued in possession of the field where the gravel pit was located, and raised crops on the land. Defendant removed gravel for several years and paid for it. Eventually plaintiffs became dissatisfied with defendant's manner of removing gravel and the place from which defendant was taking gravel, and on several occasions notified defendant not to remove any more gravel. Defendant maintained a gate at the entrance to the pit, and kept it chained and locked. On one occasion plaintiffs locked and chained up the gate, but defendant cut the chain and continued to take gravel. Finally plaintiffs served on defendant a written notice in the usual form of a demand for possession and ‘to terminate tenancy,’ which further stated: ‘And you are hereby further notified to refrain from taking any further gravel from the said pit and farm under penalty for trespass and liability for all damages arising from the taking of said gravel and for all acts in connection therewith.'

Defendant argues that by reason of the form of this notice, and similar language in the complaint, the defendant was a tenant-that his status is that of a tenant, not a licensee. Defendant's own testimony refutes the claim. On cross-examination he admitted that he ‘just leased gravel’ and...

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4 cases
  • Bostrom v. Jennings
    • United States
    • Michigan Supreme Court
    • 7 December 1949
    ...oral or written. A familiar example is an oral permit to enter upon the lands of another for a particular pupose. Marshall v. Heselschwerdt, 304 Mich. 664, 8 N.W.2d 871; Frank v. Coyle, 310 Mich. 14, 16 N.W.2d As before indicated, this is not a case involving liability between the owner of ......
  • McCastle v. Scanlon
    • United States
    • Michigan Supreme Court
    • 8 June 1953
    ...Stat.Ann. § 26.906; Wallace v. Kelly, 148 Mich. 336, 111 N.W. 1049. Plaintiff had merely a revocable license. Marshall v. Heselschwerdt, 304 Mich. 664, 8 N.W.2d 871. The payment by plaintiff to defendants of the sum of $175 does not change the situation in this May the written agreement of ......
  • Forge v. Smith
    • United States
    • Michigan Supreme Court
    • 14 July 1998
    ...that the license was revokable at will.31 1 Cameron, Michigan Real Property Law (2d ed.), § 6.2, p. 189.32 Id.33 Marshall v. Heselschwerdt, 304 Mich. 664, 8 N.W.2d 871 (1943).34 Id.35 5 Restatement Property, § 513, p. 3121 (emphasis added).36 Id., comment b, p. 3122.37 Id., p. 3121. See als......
  • Hall v. Williamson
    • United States
    • Michigan Supreme Court
    • 6 April 1943

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