41 Mich. 175 | Mich. | 1879
This was an action of trespass brought to recover damages for digging a ditch across the lands of the plaintiff.
The defendant Briggs justified as drain commissioner and the others as contractors. The case had been commenced in justice’s court and removed into the circuit, where upon motion the court permitted defendants to amend their notice annexed to the plea, by setting up the fact that they dug the ditch under a license from the plaintiff. This was objected to. We are of opinion that the court had power to permit the amendment to be made in this case. It was in furtherance of justice, and the plaintiff was not taken by surprise or deprived of any essential right thereby.
If at the time this release was signed, or at the time this agreement of September, 1875, was signed by the plaintiff, he knew, or by reasonable diligence could have known of the defects or irregularities then existing, and which it is now claimed rendered invalid the proceedings to construct this ditch, then clearly he must be deemed to have waived all right to recover damages from parties who should thereafter, in good faith, attempt to construct the ditch. If, however, he exercised due diligence to ascertain what the facts were, and at the time he signed the agreement in September, he believed that all the proceedings had been regular and legal for the construction of the ditch as laid out, and only ascertained the defects and irregularities thereafter, and thereupon objected to the construction of the ditch, we are of opinion he would be entitled to recover. Whether he did, or could by reasonable diligence have had such
•The judgment therefore must be reversed, with costs, and new trial ordered.