137 Mich. 115 | Mich. | 1904
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 Rosegrant, and Rosegrant sold to Meyer, who gave back to Rosegrant a chattel mortgage upon the house and other property, including some outbuildings, boats, etc. Meyer sold to the plaintiff, no writings being given, and yielded possession to him in the year 1900.
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 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 88 feet south of the house.
At the time plaintiff purchased the ferry, it was agreed by his vendor that the contract price should be f 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
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 brought error.
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 Rosegrant to Meyer, and the chattel mortgage given by Meyer to him, and these were excluded by the court upon the ground that these papers would throw
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 and his counsel asserted. Anything tending to show that he did not suppose so in good faith was admissible, as it would bear upon the question of damages, if nothing more, and defendant was not bound to be satisfied with the admission as made. It is clear from the record that plaintiff was a trespasser, and that a claim of adverse possession has no foundation in the testimony. He and his vendors were not shown to have occupied adversely, and such occupation as they had was not exclusive. It does not follow that the question of the plaintiff’s good faith should have been taken from the jury, as defendant’s counsel insist, but the testimony offered should have gone to the jury.
Was the refusal of the court to instruct the jury to render a verdict for the defendant, on the ground that probable cause was shown, error ? According to the defend
In this connection we may add that it was proper for the court to charge the jury that—
“ In determining this question of probable cause you can consider all the facts and circumstances as shown by the evidence, so far as they throw any light upon that question— the dispute between the parties as to the right to the use of this land, the circumstances under which the threat was made, whether it had before been made to Mr. Childs, the language used by Mr. Thurkettle in making the threat, whether the defendant fully and fairly stated all the facts, and what Mr. Frost said to his attorneys, and acted in good faith on Mr. Crane’s advice, and whether he willfully withheld any material fact from the justice in making the complaint.”
We are of the opinion that the court did not err in admitting evidence of plaintiff’s previous good reputation. It had a bearing upon the question of probable cause. The great weight of authority sustains the ruling, as will be seen by the citations in plaintiff’s brief: Bacon v. Towne, 4 Cush. 217; McIntire v. Levering, 148 Mass. 546 (20 N. E. 191, 2 L. R. A. 517, 12 Am. St. Rep. 594); Woodworth v. Mills, 61 Wis. 44 (20 N. W. 728, 50 Am. Rep. 135); Shannon v. Spencer, 1 Blackf. (2d Ed.) 526; Oliver v. Pate, 43 Ind. 132; Blizzard v. Hays, 46 Ind. 166 (15 Am. Rep. 291); Coleman v. Heurich, 2 Mackey, 189; Israel v. Brooks, 23 Ill. 575; Ross v. Innis, 35 Ill. 487 (85 Am. Dec. 373); Rosenkrans v. Barker, 115 Ill. 331 (3 N. E. 93, 56 Am. Rep. 169); Olson v. Tvete, 46 Minn. 225 (48 N. W. 914); San Antonio, etc., R. Co. v. Griffin, 20 Tex. Civ. App. 91 (48 S. W. 542); Scott v. Fletcher, 1 Overt. 488; Barron v. Mason, 31 Vt. 189; Funk v. Amor, 4 Ohio Cir. Ct. R. 271; Brand v. Hinchman, 68 Mich. 602 (36 N. W. 664, 13 Am. St. Rep. 362).
Testimony was admitted tending to show that the de
We are constrained to reverse the judgment and direct a new trial.