Newcombe v. Chesebrough

• Decision Date: 21 January 1876
• Citation: 33 Mich. 321
• Court: Michigan Supreme Court
• Parties: George K. Newcombe v. Alonzo Chesebrough

33 Mich. 321

George K. Newcombe v. Alonzo Chesebrough

Supreme Court of Michigan

January 21, 1876

Heard January 12, 1876; January 13, 1876

Appeal in Chancery from Iosco Circuit.

Decree reversed, and the bill dismissed, with costs of both courts.

Gaylord & Hanchett and Ashley Pond, for complainant.

W Scofield, E. W. Meddaugh and T. Romeyn, for defendant.

OPINION

Campbell, J

The bill in this case is filed to obtain from Chesebrough certain lands patented to him on the 11th of January, 1868, at which time complainant claims they were legally held for his benefit under a reservation upon a swamp-land road contract and therefore not subject to private entry.

The contract, or contracts (for there were five of them), were made by the state authorities with one William Thorlby on the 6th of April, 1863, to build one mile under each contract of the Midland and Isabella state road. The work was to be done by November 4, 1864. Within that time it was accepted by the local commissioner, prior to October 4, 1864, when Thorlby died. On the 1st of October, 1864, the contracts were assigned to Frederick P. Shaw. The governor for a long time delayed acting upon the certificates of completion, but in August, 1865, David Crapo was directed by the governor to examine the road throughout, and reported it incomplete. Milton Bradley, local commissioner, subsequently examined it, and reported adversely.

On the 21st of August, 1867, Newcombe obtained an assignment of these contracts, and applied to the commissioner of the land office for a list of the lands reserved, which the commissioner sent him. He then proceeded, under assurances of the local commissioner, to do the work and bring it to completion. On the 1st of April, 1868, the board of control passed a resolution declaring that all contracts which "by their terms" expired on or before December 31, 1867, should be canceled by the 1st of July, 1868, unless evidence should be furnished of their being performed properly, and directed notice to be given to contractors. Newcombe did not receive notice till July 2, when upon his representation the order was suspended, and the work was finally approved December 31, 1868.

On the 15th of January, 1869, on applying for patents, complainant learned the lands had been sold.

The main question in this case is, whether the reservation remained in force when this sale took place. The statute declares that lands selected by contractors to apply on their contracts shall be "withheld from market during the full time specified in said contract for the completion thereof."--Sec. 5 of road law; § 3959 C. L.

It also provides that the board of control may extend the time for completing any contract. Sec. 3 (§ 3957). In this their powers are very large, and whatever they did concerning these contracts, we are disposed, as now advised, to assume was lawfully done, and binding on the state.

The question is, whether the reservation was kept alive all this time by what was done.

No action was taken by the board, one way or the other, until after defendant purchased the lands. But there is evidence which seems to show that contracts while running uncanceled were regarded by them practically as in force. There is no official resolution to that...