22 Mich. 439 | Mich. | 1871
Plaintiff brought trespass guare clausum, etc., against defendants for breaking his close and committing various grievances, including, besides the removal of certain fences and sheds, an imprisonment of his person.
Defendants, under the general issue, gave notice of license, and also of title in a Baptist church, of which they were trustees, and as such did the acts in question.
It appeared that plaintiff owned a farm adjoining the church lot, and on the 26th day of November, 1867, entered
On the same day plaintiff gave verbal permission to build horse-sheds on that part of his land which was ultimately to be conveyed to the church, and the trustees set back the fence and began to prepare the land, and had got the sills laid upon the ground, when further work was suspended by reason of the cold. Early in April the work was about to be resumed, when, according to plaintiff’s proofs, he revoked his permission, and refused to allow anything more to be done. The parties, however, went on and built their sheds. About fifteen months thereafter plaintiff moved back his fence so as to include the sheds, and four days later defendants took down the fences, removed the sheds, and committed the trespass complained of. The. sheds were for the individual use of such as paid for them, and were seventeen in number.
The principal errors assigned relate: First, to the rulings of the court, touching the respective rights of the parties concerning the premises in question; and, Second, to the elements which might enter into the case as causes of damage. There are also some minor questions.
The court held that if the sheds were built by plaintiff’s permission, for the uses contemplated, they and the land in front of them, necessary for access, were in the possession of the church, and plaintiff could get no lawful possession
There is no right of possession secured under a contract for the sale or exchange of land, before conveyance, unless directly provided for. In many cases such provision is made, but it is not implied from the agreement to sell. In this written contract there is no such provision, and nothing looking towards it. The trustees who covenant for the future transfer make no absolute and positive stipulation to sell or purchase, but only agree to do so in case they gain legal authority, which of course would be uncertain. The whole contract was made contingent, and no step was to be taken by either party until then. The grant of immediate possession would be rather inconsistent with the contract than conformable to it, as everything was future and uncertain. And, inasmuch as the quit-claim from the church to the plaintiff was to cover the whole church lauds, it is manifest it must precede and not follow the deed from the plaintiff, or it would divest the society of all that the contract was intended to secure. Until the church should deed to the plaintiff he was not called upon to do anything.
And there could be no possible legal connection between
The suggestion that the parol permission may be construed into a lease at will, has been disposed of by what has already been said in regard to the agreement. But as no possession of a continuous kind was contemplated, and as the object of the license was merely to allow particular persons, at times when they should attend the church, to enter upon the premises to shelter their animals and vehicles for brief periods, the case is not distinguishable from that of a license to go upon fair-grounds, or other places of lawful resort, on occasions when they are in use for specific purposes.
It is manifest that the rulings of the court were all
It was alleged as error, that parol proof was admitted,— that certain of the defendants were acting trustees of the church. But- the rule is well settled that, except for some peculiar purposes, such evidence ’ is sufficient. The court could not try titles to office in any such litigation as the present. — Call v. Kalamazoo Mutual Ins. Co., 2 Doug., 124.
The principal additional errors complained of relate to the exclusion of testimony to show the disposition and spirit with which the trespass was committed, and the malicious arrest of the plaintiff, to get him out of the way while the trespass was to be consummated.
The rule is so well settled, which allows a jury in all actions of tort to consider all the contemporaneous acts bearing on the malice or absence of malice, and the circumstances of aggravation, in determining the amount of damages, that it was not disputed upon the argument, except as to the personal arrest, which it was claimed would have been a ground of action by itself, and therefore should not have been considered here.
The authorities, however, clearly recognize the right to recover damages for any su’ch injury done in connection with the wrongful intrusion, as an act of aggravation in an action for trespass on lands. — Sedgw. on Dam., Ch. 5; 2 Stark. Ev., 813, and cases. The importance of evidence, as to motives, was considered in Detroit Daily Post Co. v. McArthur, 16 Mich., 447; and willful trespasses, accompanied by manifestations of insult or any other aggravating conduct, cannot be regarded in the same light with acts done under a belief of right, without confounding things essentially different.
Upon the question of costs we also think there is error in the judgment. The statute gives costs to the plaintiff, who recovers any sum in trespass, however small, where “ the title to lands or tenements, or a right of way, or a right by prescription or otherwise, to any easement in any land, or to overflow the same, or to do any other injury thereto, shall have been put in issue by the pleadings, or shall have come in question on the trial of the cause.” — 2 C. L., 5697.
Both title and license were set up in the notice under the general issue, which is, under our practice, the only admissible form of pleading such matters, and each is within the clear intent of the statute.
The judgment must be reversed, and a new trial granted.