Powers v. Irish, 23 Mich. 429

23 Mich. 429 | Mich. | 1871

Grates, J.

The defendants in error brought this action to recoyer, damages alleged to have been caused to their rafts of lumber, by means of a dam of plaintiffs in error, across Grand river.

The jury returned a verdict for four thousand dollars, upon which judgment was entered. It is now urged that upon the trial the court erred in admitting and excluding certain testimony and in refusing to charge as requested. Several of the objections stated in- the record are abandoned and those still insisted on are considered as presenting two points.

First: Whether the proceedings of the board of supervisors in relation to giving leave to Turner to dam the river were properly excluded; and, second, whether it was correct to admit evidence of the value of lumber at Chicago in the years 1867 and 1868.

The rejection of the proceedings of the board of supervisors was right. Without particularly considering other objections to their admission, we think the petition did not substantially comply with the requirements of the statute. — Comp. L., § 856. The law required that the petition should set forth the purpose, location, height and description of the dam, and whether it was proposed to construct a lock or shute or apron for the passage of boats, vessels, rafts or timber, and if so, the description of such passage; and it also required that before any hearing on the petition, notice of the application, signed by the petitioners, and stating substantially the contents of the petition, should be posted for three weeks in each township crossed by the stream, and published by a newspaper, if any, published in the county. This provision, as well as the nature of the subject-matter, makes it obvious that the legislature intended that the petition should be the ground-work of the proceeding, and contain the whole plan in detail, and that by means of the notice embodying the substance of the petition, all interested should be advised in advance of the hearing, of the precise nature of the project, and be in a situation to judge as to the propriety of the scheme, the nature and measure of the meditated obstruction, and as to the security promised by the plan to the interests of riparian proprietors and others. In case the petitioners should propose a way for boats, vessels, rafts or timber, it was not intended that the public should be kept in ignorance of its scope and character until after, or upon, the hearing; nor was it intended to cast upon the supervisors the duty of prescribing the dimensions of the passage or the materials to be used in making it. The law was carefully framed to insure precise information to the public, 'in season to enable all who might choose, to oppose the application on the hearing before the board. And it neither contemplated a decision in the absence of such information, nor invested the board with power to supply deficiencies in the petition. There is room for contending that the petition was substantially defective for want of precision and detail in setting forth the required particulars about the dam. But without dwelling on this, or, indeed, deciding it, we are clearly of opinion that the omission of any description of the proposed shute or apron for rafts was a fatal defect. No one was bound to appear and contend before the board about a passage proposed by the petition, but not described in it; and the resolution of the supervisors respecting the passage could not supply a fact required by the law as a basis for their power to act.

Upon the other point we think the court erred. It is conceded that the Grand river at the place of. the obstruction was a public highway. The impediment, which caused the injury, appears upon this record to have been a public nuisance, and a recovery was allowable only for such damage as was peculiar to the plaintiff's, and was the natural and proximate consequence, of the nuisance. And so far as the facts set forth in the declaration legally imported damage or gave rise to it as a necessary result, the plaintiffs were entitled to give evidence of damage, and to recover accordingly. But any damage, which was not the necessary result of the facts stated, or such as they legally imported, was neither provable nor recoverable in the absence of circumstantial allegations connecting it with the imputed cause. On recurring to the declaration, we find it stated, by way of inducement, that the plaintiffs were manufacturers of lumber and timber "for market at various places on Lake Michigan, in the states of Michigan, Illinois and Wisconsin,” while nothing is alleged to show that the lumber in question was destined for any particular market, or that any particular market was lost to the plaintiffs.

It is, therefore, manifest that the facts laid in'the declaration do not connect the loss of the Chicago market, or the loss of any particular market, or the scale of prices in any such market, with the cause of the damage suffered by the plaintiffs; and it is equally plain that the loss of the Chicago market cannot be regarded as a necessary result of the detention or destruction of the rafts in Grand river, or, as a consequence, legally imported by the facts pleaded. For this error the judgment must be reversed, with costs, and a new trial ordered.

The other Justices concurred.

Subsequently, October 31st, Norris é Blair, on behalf of the defendants in error, made the motion mentioned in the opinion below.

Per Curiam.

Action on case against fourteen defendants, some of whom appeared and pleaded, and others suffered default. Verdict on the issue was rendered for the plaintiffs, and the jury trying the issue assessed damages against the defaulted defendants, and" a joint judgment was rendered against all except three, as to whom the cause was discontinued. A portion of the defendants bring error, and, having taken proceedings for severance, the case is brought to a hearing as to them, and the judgment is ordered to be reversed for the admission of improper evidence upon the question of damages.

Motion is now made on behalf of the defendants in error to dismiss the writ of error for various informalities and irregularities, one of which is, that one of the necessary parties was not named in the writ. Affidavits are filed excusing the delay in making the motion, but we think it comes altogether too late. The case stood over for decision one term after argument, and the defects were never pointed out until, now. We should never reach an end of litigation if we should permit such questions to be raised after judgment.

If this motion is not granted, it is then insisted that the order for judgment in this court should be so framed that it will reverse the judgment below only as to those defendants who "sued out the writ of error. But we cannot do this. When a judgment is severable, it may be reversed in part and affirmed in part; but a judgment which is an entirety against several parties, whether in tort or assumpsit, if reversed as to one must be reversed as to all. — Bae. Air. Tit. “Error,” (Mi); Sargeant v. French, 10 N. H., 444; Sheldon v. Quinlen, 5 Hill, 441. This is so notwithstanding the error sustained affected one of the defendants only; as where one was an infant and appeared by attorney, — Arnold v. Sandford, 14 Johns., 424; Cruikshank v. Gardner, 2 Hill, 333; or one was protected as a judicial officer while the other was liable, — Harman v. Brotherson, 1 Denio, 537;. or judgment was rendered against two, one of whom had not been brought in by process or otherwise, — Richards v. Walton, 12 Johns., 434. But in the case before us the error for which judgment is reversed affected all the defendants-alike, inasmuch as it gave the jury an erroneous- standard, for the estimation of damages.

So strictly is the rule to which we have referred applied, that it is held that a release of errors by the party against whom tbe error was committed will not bar tbe writ as to the others. — Blanchard v. Gregory, 14 Ohio, 413.

The judgment must be entered iu tbe usual form.