194 Mich. 1 | Mich. | 1916
The bill of complaint in this cause was filed by certain remaindermen against the defendants William H. Anderson and John V. Hauser, as tenants for life, to restrain the defendants from committing waste by moving any buildings on certain premises described, and from in any manner destroying or injuring the freehold of said premises, and for an accounting to the plaintiffs for the injury already done, and the waste already committed.
It appears that on June 21, 1906, John V. Hauser, one of the defendants, being the owner thereof, conveyed to his wife, Laura J. Hauser, a strip of land in Sparta township, Kent county, consisting of 10 acres, being 106 2/3 rods in length, and being bounded upon the north by the right of way of the Toledo, Saginaw & Muskegon Railway Company, and there being a highway on the east side thereof. In and by said deed the grantor reserved the possession and use of said land for and during his lifetime'. The grantee of said deed, Laura J. Hauser, having been in possession of said premises, died intestate on May 19, 1910, leaving surviving her, as her heirs at law, four
The testimony shows that, for some years prior to the conveyance to defendant Anderson of said life interest, this property had been used independently, as a small farm and home of the Hauser family. The house was located near a good highway, and back and west of the house there was a small orchard, consisting mainly of pear trees. The evidence shows that defendant Anderson, owning the lands upon both the north and south of these premises, desired to change the location of the dwelling house. It was not located where he thought it should be in connection with his other holdings. He therefore proceeded to move the house back about 35 rods into the field, and placed it within 6 to 10 feet of the fence of the railroad right of way, and it was standing in this condition upon blocks at the time of the filing of the bill of complaint and the issuance of the temporary injunction. In moving the house the plaster had fallen off the walls, the house was left out of plumb, and the doors would not close. Some of the siding had been torn off to fasten planks on in the course of moving, and one or more fruit trees had been removed for the purpose of placing the house. The chimney had been entirely torn down and piled on the floor in such a manner that it sunk the floor away from the walls around the mop-boards below the plaster. Mr. Anderson, stating that the outbuildings were worthless, gave the same to the defendant Hauser and a neighbor, and they had been entirely removed from the premises; no part of them remaining upon the property. The well at the corner of the house had been entirely filled up, and no trace of it could be found. The natural stone foundation
The bill of complaint was filed on or about August 22, 1914, and the condition of the property at that time was as above stated, and it remained in that condition until the following summer. In the meantime the defendants had appeared in the case, and a demurrer had been filed on the ground, among other things, of the nonjoinder of parties plaintiff. Thereupon the bill was amended by making William H. Anstays and Eliza Wainwright, the brother and sister of the plaintiffs, defendants. Very shortly thereafter both of these last-named defendants quitclaimed their interests to the plaintiff Lena Anstays Shoemaker, after which the demurrer was overruled and the defendant Anderson answered. The bill was later taken as confessed by the defendant John V. Hauser. In the summer following the filing of the bill, the defendant Anderson proceeded to put some repairs on the house at the point 35 rods from the highway, where it was standing in the field, at the time the bill was filed. He had the rooms in the house replastered, the house straightened up and made plumb, so that the doors opened and closed, a foundation placed under the upright part of the house and the wing, a basement placed under the upright part of the house, but not under the wing. The latter is a cement basement. The house was put in fair condition, and the ceilings and walls papered, the woodwork painted, and a new galvanized iron roof was put on the house, and it has been painted upon the outside. This was the condition of the house at the time the case was heard upon pleadings and proofs in November, 1915. The facts in the case as to the removal of this dwelling house by the defendant Anderson and the giving away and removal of the outbuildings are not much in dispute.
There is much discussion of the legal propositions involved in the case by counsel for both plaintiffs and defendant Anderson. The meritorious question is: Has there been actionable waste committed? The proper test in all such cases seems to be: Do the acts proven essentially injure the inheritance as it will come to the reversioners? Abel v. Wuesten, 141 Ky. 766 (133 S. W. 774); Id., 143 Ky. 513 (136 S. W. 867), reported in Am. & Eng. Ann. Cas. 1912C, 389, and see note.
There is no evidence in the case to show any material change in the neighborhood where this property is located during the last 20 years, except in the fact that Mr. Anderson had become the owner of lands upon both sides of these premises, and that he desired to use the whole as one property in connection with his farming enterprise. The adjacent properties are used for farming purposes, and it is practically a country location.
We think that, under the pleadings and evidence, there is not presented in this case any question of permissive waste on the part of the defendant Ander
We think that in disposing of this case we should consider the quality and condition of the estate and property at the time defendant Anderson became the owner of the life estate of Hauser, the nature and condition of the property, and the relation of it to other property in the vicinity.
It is the claim of the defendant Anderson that, by the changes which he has made, he has improved the condition and value of the premises. That the same may be more valuable to him in connection with the use which he wishes to make of it and the adjoining property, is not the controlling question in the case. We are impressed with the claim of the plaintiffs that they have the right to have this property restored to them at the expiration of the life estate, substantially in the same condition it was in when Anderson took possession of it. The question whether voluntary, active, destructive waste has been committed here by the conduct of defendant Anderson becomes, in our opinion, one of fact. This is not a case where there had been any changed condition of surroundings which deprived this property of its value as a single holding, or small farm, so as to bring the case within the doctrine of Melms v. Brewing Co., 104 Wis. 7 (79 N. W. 738, 46 L. R. A. 478), cited by defendants’ counsel, and other kindred cases.
The weight of authority seems to be to the effect that, where an injunction to prevent future waste is asked for and granted, a court of equity, to prevent a multiplicity of suits, may also decree an accounting and satisfaction for waste already committed. 40 Cyc. p. 524, and cases there cited; Dawson v. Tremaine, 93 Mich. 320, 322 (53 N. W. 1044); Duncombe v. Felt, 81 Mich. 332 (45 N. W. 1004); Stevens v. Rose, 69 Mich. 259 (37 N. W. 205); Heliker v. Heliker, 184 Mich. 657-661 (151 N. W. 757); Stroh v. O’Hearn, 176 Mich. 164 (142 N. W. 865).
There is considerable conflict in the testimony in the case as to the value of the outbuildings which were of a somewhat temporary character, and more or less dilapidated, also as to the value of the well; and there is also a great difference of opinion in the testimony of witnesses as to what it would cost to replace and restore the dwelling house to its original position and condition. We have endeavored to take a reasonable view of the testimony, some of which is more or less exaggerated, and have reached the conclusion that the plaintiffs are entitled to relief in the case, and that their damages, by reason of the removal of the dwelling house, the destruction of the outbuildings and well, should be fixed at the sum of $300. A decree for that amount will be entered for the plaintiffs as their interests appear, and against the defendant Anderson, with execution therefor and costs to be taxed, and the temporary injunction will be made permanent, as prayed for in the bill of complaint.
The decree of the court below will be reversed, and one entered in this court -in accordance with this opinion.