Thurkettle v. Frost

• Decision Date: 07 July 1904
• Citation: 137 Mich. 115,100 N.W. 283
• Court: Michigan Supreme Court
• Parties: THURKETTLE v. FROST.

100 N.W. 283

137 Mich. 115

THURKETTLE v. FROST.

Supreme Court of Michigan

July 7, 1904

Error to Circuit Court, Kent County; Alfred Wolcott, Judge.

Action by Henry Thurkettle against Shepherd P. Frost. Judgment for plaintiff, and defendant appeals. Reversed.

Crane, Norris & Drew, for appellant

Smedley & Corwin, for appellee.

HOOKER J.

For many years a private ferry was maintained across Grand river. The first ferryman was one John Everhard, and in 1884 he obtained a license from the highway commissioner to build a habitation in the highway, at the river bank. Everhard sold his ferry and house to Rosecrans, and Rosecrans sold to Meyers, who gave back to Rosecrans a chattel mortgage upon the house and other property, including some outbuildings boats, etc. Meyers sold to the plaintiff, no writings being given, and yielded possession to him in the year 1900. He lived in the house from that time until the disagreement which led to this action arose. Smedley plaintiff's counsel, became the owner of the chattel mortgage in the meantime. The Allendale Timber Company owned 800 acres of land lying on the bank of the river, both north and south of the highway referred to. They purchased in 1898. The buildings occupied by the plaintiff were upon this land only 2 1/2 feet of the house being within the limits of the highway. The Allendale Timber Company was engaged in logging operations at this place, the defendant being its manager. The highway extends to the river at the point where the ferry landing was established, on its west bank. The ground sloped upward from the river, forming a side hill, upon which were plaintiff's house and other buildings. The house was almost 5 rods from the river, which runs approximately north and south at that point, and the outbuildings were about 38 feet south of the house. At the time plaintiff purchased the ferry, it was agreed by his vendor that the contract price should be $500 less if he should have to move to the other side of the river. He was fully advised of the true ownership of the land, and made no claim of ownership. It is not clear, however, that he knew that the house did not stand wholly within the highway. Plaintiff bought the ferry in October, 1900, and previous to that time the timber company had built a dock extending from the highway south a distance of 150 feet. It was between the buildings and the river. There was also a logging railroad and a team road; one branch of the railroad being close to the west side of the buildings, thus bringing the buildings between the railroad and the dock. The defendant desired to use the ground upon which the buildings stood for a banking place for logs, and asked plaintiff to move his buildings. This he refused to do, claiming a right to remain there. The defendant told him that he should put his men on the next morning to grade the hill for the purpose. A Mr. Childs, who was in his employ, and generally had charge of such operations, was with him at the time of this talk. The plaintiff replied that he should stop them if they came, and, being asked how, replied, 'With cold lead.' The men did not appear to do the grading, but upon the next day, acting under advice of counsel, defendant began summary proceedings to recover possession of the land, and also made a complaint, upon which a warrant was issued for the plaintiff's arrest, under the statute providing for recognizances to keep the peace. After his arrest this proceeding was dismissed, at the suggestion of the prosecuting attorney, upon the ground of irregularity in the proceedings. The summary proceedings case was tried, and a verdict and judgment rendered against the plaintiff in this case, and the buildings have been removed, and defendant is in possession of the premises. At some stage of the proceedings after the dismissal of the surety proceedings, the plaintiff began this action against the defendant, charging him with false imprisonment and malicious prosecution. He recovered a judgment for $275 on the malicious prosecution count, and the defendant has appealed.

It was the plaintiff's claim that the institution of the proceedings to bind plaintiff over to keep the peace was a malicious and unwarranted prosecution and persecution intended to harass the plaintiff and make his occupancy uncomfortable, and thus drive him into yielding his rights. In contravention of this claim, the defendant sought to show that the plaintiff knew that his house was upon the premises of the defendant, and that he never claimed to own the land where the buildings stood; that he was not only without any paper title to the land, but that his purchase of the house was with knowledge that it had always been treated as personal property. To support this defense, the defendant offered in evidence the bill of sale given from Rosecrans to Meyers, and the chattel mortgage given by Meyers to him, and these were excluded by the court upon the ground that these papers would throw no light upon the case, and the admission that the buildings were personal property. Counsel coupled with his admission the statement that plaintiff purchased the right to occupy the dwelling house and its appurtenances purely as a dwelling as long as he was a ferryman; not claiming any title to the real estate, but purely the right to occupy and use it as long as he stayed there as ferryman. It is said by defendant's counsel that there is nothing in the bill of sale that implies any such right or understanding. An inspection of the bill of sale satisfies us of this. There is nothing in it that indicates an attempt to convey any tenancy in land, or an understanding by the purchaser that he was acquiring such. It is obvious from this record that the plaintiff had no title or right to possession of any part of the premises, unless it be such part of the house as stood in the highway; and, whether a landowner can be bound by a license by the highway commissioner to another to build and occupy a dwelling in the highway in front of his premises, we do not decide. It is plainly deducible from the record that the only excuse for plaintiff's refusal to vacate this land was his alleged claim that he supposed he had a right to stay, under his purchase, which both he...