Powers v. Irish

• Decision Date: 04 October 1871
• Court: Michigan Supreme Court
• Parties: William T. Powers and others v. Stanton A. Irish and another

23 Mich. 429

William T. Powers and others v. Stanton A. Irish and another

Supreme Court of Michigan

October 4, 1871

Heard July 12, 1871 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Kent circuit.

This action was brought by Stanton A. Irish and Henry M. Fuller, against William T. Powers, Martin L. Sweet, James M. Barnett, William Harrison, John W. Squires, Julius Berkey, William A. Berkey, John B. Moon, John Mangold, Charles C. Comstock, Reuben Wheeler, Richard E. Butterworth, George M. Huntley, John E. Earle and Justus E. Earle.

The nature of the action is sufficiently stated in the opinion.

Upon the trial the counsel for the plaintiffs, to maintain and prove the issue on their part, gave evidence, under objection, tending to show that the extra labor and expense of boring lumber and preparing the rafts mentioned in the declaration at the mill of said plaintiffs, in Greenville, Montcalm county, Michigan, in the year 1867, in order to prepare said rafts properly to pass the shute in the dam at Grand Rapids, Michigan, was the sum of fifty dollars; and that in the year 1868, the extra labor and expense of preparing the rafts mentioned in said declaration at Greenfield aforesaid, to pass the shute in the dam at Grand Rapids aforesaid, was the sum of seventy-five dollars.

And the counsel for said plaintiffs, to maintain and prove the said issue on their part, offered to prove that the price of clear stuff lumber in Chicago, Illinois, declined from forty-six dollars per thousand at the middle of April, 1867, to thirty-six dollars at the middle of June, 1867, and that common lumber declined within the same time from four to five dollars per thousand; that from the twentieth of April to the twentieth of May in the same year, clear stuff lumber declined from six to eight dollars per thousand, and within the same time common lumber declined four to five dollars per thousand; and also that during the same interval in the year 1868, clear stuff lumber declined at said city of Chicago from four to six dollars per thousand feet, and common lumber from two to three dollars per thousand feet. To the admission of the matters so offered in evidence, the said defendants, by their counsel, objected, because the same were immaterial and irrelevant, and also for the reason that such evidence was too remote, indefinite and uncertain, to constitute any basis or rule of damages in said cause. The circuit judge overruled the objection and admitted the evidence and the counsel for defendants excepted. The said plaintiffs offered no evidence whatever of the value of said lumber at the time and place of detention. The counsel for the plaintiffs here rested.

It was then admitted by said plaintiffs, that in the year 1853, Eliphalet H. Turner was the owner of the lands upon which said dam abuts on the west side of Grand river, and also of lands both above and below said dam, and that William T. Powers, one of said defendants, is now, and at the time of the erection of said dam was, the owner of the same lands by title from said Turner.

And the counsel for said defendants, to maintain and prove the said issue on their part, offered in evidence the record of the board of supervisors of the county of Kent, made June 18th, in the year 1853, which record is in the words and figures following, to wit:

"On motion, the petition of Eliphalet H. Turner for leave to construct a dam across Grand river in the city of Grand Rapids, was called up, of which the following is a copy, to wit:

"'To the Board of Supervisors of the County of Kent:

"'The petition of the undersigned, a resident of the city of Grand Rapids, represents that he is the owner of an undivided half of the land lying on the right bank of Grand river, from the bridge in the city of Grand Rapids aforesaid, for one half of a mile, and he says that he is desirous of constructing a dam across said river at the city of Grand Rapids aforesaid, abutting the same upon the abutment erected at the expense of the state near the canal guard-lock on the left bank of the river, and abutting on the right bank thereof, near the residence of Silas Hall; said dam to be for hydraulic purposes, to be made of stone and timber seven and one-half feet high. It is proposed to construct an apron or shute over said dam for the passage of rafts over the same, to be of such dimensions and of such material and description as your honorable board shall think fit and proper to answer the purpose aforesaid.

(Signed) "'Eliphalet H. Turner.'

"The report of the committee on the foregoing petition being called up, on motion the same was adopted, to wit:

"'Your committee on dams, appointed by your board, on the petition of E. H. Turner for the privilege of constructing a dam across the Grand river, commencing at, or near, the waste or bulkhead of the canal on the east side of the river, and thence west across said river at a point on the west side of the river opposite the house of Silas Hall, the majority of the committee are in favor of granting the prayer of the petition, and that a committee of three be appointed to consist of the following members: Messrs. Wilson, Dockeray and Hook, for the purpose of making such restrictions as are made by the laws in relation to the powers granted to the board of supervisors by the laws of 1851, giving to the board powers for the construction of bridges and dams to certain persons or corporations under certain regulations.'"

The counsel for said defendants also offered in evidence that portion of the record of said board of supervisors, of date February 27, 1855, which is in the words and figures following, to wit:

"Mr. Bailey offered the following resolution, which was adopted:

"'Resolved by this board, That the prosecuting attorney be requested to examine the records kept by the clerk, and report to this board whether, in his opinion, the board of supervisors of the county of Kent have by any act or resolution of theirs, at any previous session, established any point or points, on which to abut a dam across Grand river, in the city of Grand Rapids.'

"The prosecuting attorney, John T. Holmes, Esq., being present, reported in obedience to said resolution substantially, verbally, legally and orally as follows, to wit: That he had examined into the matter and had found that the action at a previous session of the board had sufficiently designated a point at which a dam might be erected across said river, in said city; which report was supposed to be accepted, no one making any objection to the same."

They also offered in evidence that portion of the record of said board of supervisors, of date March 1, 1855, which is in the words and figures following, to wit:

"The committee on dams made the following report:

"'The committee on dams having had under their consideration the subject-matter in relation to the application of Eliphalet H Turner, for the construction of a dam across Grand river, report that,

"'Whereas, It does not appear on the records that proper notices were given of the application of Eliphalet H. Turner, for leave to construct a dam across Grand river, according to the resolution of said board, of date June 18, 1853, granting, amongst other things, the petition of said E. H. Turner, nor does it appear by said record that due notices of said application were posted, and it appearing, by the affidavits of E. H. Turner and S.W. Turner, that said application has been duly made, published and posted; therefore,

"'Resolved, That the clerk of said county be, and hereby is, instructed to file said affidavits, and that E. H. Turner has complied with the requirements of the statute in such case made and provided, prior to the passage of said resolution, of date June 18, 1853, as aforesaid.'

"The report of the committee was received, and, two-thirds of all the members voting in favor thereof, the same...