Lawrence Lewis.

American and English corporation cases : a collection of all corporation cases, both private and municipal (excepting railway cases), decided in the courts of last resort in the United States, England, and Canada [1883-1894] online

. (page 34 of 73)
Online LibraryLawrence LewisAmerican and English corporation cases : a collection of all corporation cases, both private and municipal (excepting railway cases), decided in the courts of last resort in the United States, England, and Canada [1883-1894] → online text (page 34 of 73)
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will be noticed, by a careful reading of the statute, that all
the proceedings were had or intended to be had under act 124,
Super. Laws 1883, P- '^S- The whole proceeding must stand
or fall, find its support or condemnation, under the provisions
of that act. The sections of our laws found in Howell's Stat-
utes, to which counsel for the petitioner has referred us, can-
not be relied upon to aid the jurisdiction of the court in the
case or to give warrant for the proceedings taken. Section
3090 does no more than to authorize the raising of money to
pay for property taken and improvements made in cases when
the same has been legally done. How. St. § 3109 says the
act therein referred to " shall apply to all cities and villages,"
but it can have no application to any proceedings not tkken
under the act. We must, therefore, lay aside all the statutes
except that of 1883 in the consideration of the case in hand.

Counsel for the respondents, at the close of the trial, asked
the court to charge the jury : "(i) The lands of the respond-
ents, the Huron Copper Mining Company and the Dacotah
Mining Company, which the petitioners in this case seek to
condemn for the benefit of the village of Houghton, are sit-
uated outside the limits of the village. Neither the charter of
the village of Houghton, nor any statute of this State, gives
to the petitioners the right to take and condemn lands outside
of the corporate limits of the village. You are therefore in-
structed to find a verdict for the respondent. (2) These
lands, which the petitioner seeks to condemn, are not the
only lands necessary and requisite for the use' of the village in
obtaining water from the spring described in the petition. In
order to utilize said spring, the petitioners must obtain the use
of other lands in order to reach the village of Houghton.
They have not obtained such lands by agreement, and have
not proceeded against the owners of such lands, although
they made them parties in their petition. This proceeding is



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320 HOUGHTON COM. COUNCIL V. HURON COPPER MIN. CO.

an indivisible one, and all the owners of the lands, the use of
which, or the title to which, it is necessary to obtain in order
to make the water available, must be made parties to the suit;
and all must be before the court at the same time, in order
that the same jury may pass upon the necessity of taking and
condemning their lands. You are therefore instructed to
find a verdict for these respondents. (3) The petitioners have
not shown any proceedings taken by them to obtain, by
agreement or condemnation, land within the village limits for
water purposes, nor that they have or own any such land for
such purposes. In order to enable the jury to pass upon
the necessity of taking lands outside the village limits, the
petitioners must show that they have the necessary lands and
facilities within the village in order to utilize the water taken
from outside. The petitioners not having shown this, you are
instructed to find a verdict for these respondents. (4) The
petitioners have made no such case against these respondents
as entitled them to a condemnation of their lands described in
the petition. You are therefore instructed to find a verdict
for the respondents." (8) " The title of act No. 1 24 of the public
acts of the State of Michigan for the year 1883, under which
the petitioners in this case have proceeded, only allows con-
demnation of lands within the city or village limits, and that
portion of said act purporting to authorize cities and villages
to take and hold lands or property outside of their corporate
limits is unconstitutional and void. You will therefore find a
verdict for the respondents. (9) The petitioners have not
shown any authority conferred upon them by a vote of the
inhabitants of the village of Houghton to take these proceed-
ings, and therefore your verdict must be for the respondents."
To the refusal of which to g^ve each and every of said re-
quests, this respondent then and there duly excepted.

These exceptions and the reasons stated in the respondent's
motion raise all the questions in the case requir-

SlNOLS ACTION . . , ^ rw^, ,. '

To^ ooHDnn mg our Consideration. The proceeding was one
to condemn land containing a spring of water and
a strip of land 20 feet wide for a ri^ht of way over which to
conduct the waters. The land and spring were of no use for
the purposes sought without the righl of way over the other
respondent's lands. The entire right of way was rightly,
therefore, included in the petition and asked to be condemned



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HOUGHTON COM. COUNCIL V. HURON COPPER MIN. CO. 32 1

in the proceeding. The object was entire, as much so as in
the condemnation of land for a highway, and the proceeding
should have bieen had against all the owners at the same
time; all should have had the notice required by the statute
and the opportunity to be heard before the same jury,
and the privilege of participating in selecting and im-
panelling the same. This was not done. The petitioner pro-
ceeded upon the theory that it could have as many juries as
there were diflFerent pieces of property belonging to dififerent
owners in the case to be condemned. I do not think the
legislature ever intended such a construction, or such expense
and confusion as such a practice would be likely to entail
upon the parties. The consequences which might follow for-
bid such construction, some of which are suggested by re-
spondent's counsel in their brief and argument, wherein he
says if the petitioner's theory upon the subject is correct, then
one jury might hold that there was no necessity for intro-
ducing water into the village, while another jury might hold
that there was ; one jury might find that one piece of land
was necessary, while the next might find that the intervening
piece, without which the first piece would be of no use, was
not necessary ; one jury might be in favor of taking water
from one place, another jury from another place. The bare
statement of the proposition demonstrates its absurdity.
Public policy will not permit such a multiplicity of suits, es-
pecially where such evil results might follow. The jury
must pass upon the necessity of obtaining a supply of water
and then upon the necessity of taking each parcel of land
sought to be condemned for that purpose. I think such a
proceeding is indivisible, and the same jury in the same
case should decide as to all. Brush v. Detroit, 32 Mich. 43.
I think the court should have given the respondent's second,
third, and fourth requests.

In selecting the jury the sheriff took them all from a single
township, and all from a village where the subject-

» ' ^ •' JUBT BIAS—

matter of the petition had been discussed freely ^j^«no» '^
with some apparent bias. As the testimony tended
to show there was good reason for believing some might be
biassed, the challenge to the array should have been sustained ;
the jury should have been summoned from the body of the
county. Large property interests are frequently at their dis-
9 Cor. Caa.— 21



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322 HOUGHTON COM. COUNCIL V. HURON COPPER MIN. CO.

posal in this class of cases, and great care and circumspection
should be observed in their selection. The requirements of
the statute must be strictly complied with. In re Convers,
1 8 Mich. 467 ; Swart v. Kimball, 43 Mich. 448; Powers* Ap-
peal, 29 Mich. 504.

There is nothing in the charter of the village of Houghton
authorizing these proceedings to be taken. The act of 1883
viLLAOE CAH- ^^^^ "^^ authorlze them. The provisions of that
JSds *?S1SJ act are confined to condemning land within the
ITS lucits. municipality. Section 20 of the act reads as fol-
lows : "The cities and villages of the State authorized to take
or hold land or property outside of their, corporate limits for
obtaining and securing a supply of water to the municipal-
ity, or for any other public purpose, may take private prop-
erty therefor, provided it is for the use or benefit of the pub-
lic. . . ." By this provision the act itself limits its applica-
tion to cities and villages authorized to take and hold lands
outside of their corporate limits under their charters. It is
entirely unnecessary to consider the constitutionality of the
act, so long as its provisions do not apply to the case under
investigation. I know of no statute, general or special, in
force at the time this petition was filed authorizing by its ex-
pressed terms the prosecution of the proceedings under the
theory of the petitioner's counsel ; and certainly the powers
of the village of Houghton so to do cannot be implied, b^
cause by the proceedings it is proposed to take land against
the will of the respondent. Dill. Mun. Corp. §469; Cooley,
Const. Lim. 528-541; Kroop v. Forman, 31 Mich. 144; De-
troit Sharpshooters' Ass'n v. Highway Com'rs, 34 Mich. 36;
Powers' Appeal, 29 Mich. 504 ; Specht v. Detroit, 20 Mich.
168.

I think the proceedings in this case are without the author-
ity of law, and the order entered, aflSrming the finding of the
jury, should be vacated and the petition dismissed, with
costs.

Campbell, J., concurred.

Cooley, C. J. — I concur in the result



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AUSTERBERRY V. CORPORATION OF OLDHAM. 323

AUSTERBERRY

V.

Corporation of Oldham.

(Z. R, 29 Ch, D. 750.)

The doctrine in Tulk v, Moxhay, 2 Ph. 774, is limited to restrictive stipula-
tions, and will not be extended so as to bind in equity a purchaser taking
with notice of a covenant to expend money on repairs or otherwise which
does not run with the land at law.

Semble, that the burden of a covenant (not involving a grant) never runs
with the land at law except as between landlord and tenant.

Cooke V, Chilcott, 3 Ch. D. 694, overruled on this point.

Morland v. Cook, Law Rep. 6 Eq. 252, explained.

Holmes v, Buckley, i Eq. C. Ab. 27, discussed.

Consideration of the circumstances under which a covenant will be held
to touch or concern the land of the covenantee so that the benefit may
run with the land.

A, by deed, conveyed for value to trustees in fee a piece of land as part
of the site of a road intended to be made and maintained by the trustees
under the provisions of a contemporaneous trust-deed (being a deed of
settlement for the benefit of a jomt-stock company established to raise the
necessary capital for making the road) ; and in the conveyance the trustees
covenanted with A, his heirs and assigns, that they, the trustees, their
heirs and assigns, would make the road, and at all times keep it in repair,
and allow the use of it by the public, subject to tolls. The piece of land so
conveyed was bounded on both sides by other lands belonging to A. The
trustees duly made the road^ which afforded the necessary access to A's
adjoining lands. A afterwards sold his adjoining lands to the plaintiff,
and the trustees sold the road to the defendants, both parties taking with
notice of the covenant to repair.

Held, that the plaintiff could not enforce covenant against the defend-
ants.

The promoters of an intended road by deed declared that the road
should not only be enjoyed by them for their individual purposes, but
*• should be open to the use of the public at large for all manner of purposes,
in all respects, as a common turnpike road," but subject to the payment of
tolls by the persons using it.

Held, that this was not a dedication of the road to the public, and that
the road was not a highway repairable by the inhabitants at large under
section 150 of the Public Health Act, 1875.

Semble, an individual cannot, without legislative authority, dedicate a
road to the public if he reserves the right to charge tolls for the user; and
the mere fact that a number of persons form themselves into a company
for making and maintaining a road, and erect gates and bars and charge



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324 AUSTERBERRY V. CORPORATION OF OLDHAM.

tolls, does not make the road a " turnpike road" in the sense of a turnpike
road made such by act of Parliament, and so dedicated to the public.

In the year 1837, the owners of property adjacent to an
old circuitous highway leading from Higgenshaw to Lower
Moor, in the borough of Oldham, being desirous of construct-
ing a shorter and more direct road between those places, it
was proposed that the owners of the lands through which the
new road was^to pass should sell the necessary slips of land
for agreed sums of money amounting in the aggregate to ;f 173
19s. lod., the sum agreed to be paid to one of these landowners,
John Elliott, through whom the plaintiff in this action claimed,
being £\\ iis. 8d. It was also proposed that the construc-
tion and maintenance of the road should be undertaken by an
association or company of proprietors who were to be rep-
resented by trustees.

To carry out this arrangement a deed of settlement was ex-
ecuted on the 3d of March, 1837. The parties to this deed
were Joshua Milne, John Milne, and Samuel Lees, of the first
part ; James Milne and John Travis, of the second part ; the said
James Milne and various other persons whose names and seals
were comprised in the 2d schedule thereto, and the several
other persons who should from time to time execute the deed
and whose names and seals should be comprised in the 3d
schedule thereto, of the third part. The deed then redtedas
follows : That the making of the proposed new road would be
of great public advantage ; that the several parties thereto,
being willing at their own expense to carry out the under-
taking, had agreed to form amongst themselves a joint-stock
company, under the style of the Higgenshaw and Lower
Moor Road Company, and to raise capital for the purchase of
land for the formation of the road and making and maintain-
ing the same ; that it had been agreed that the said Joshua
Milne, John Milne, and Samuel Lees should be the trustees
in whose name the lands necessary for the road should be pur-
chased, and that the road when completed should not only be
appropriated, used, and enjoyed by the parties thereto "for
their individual purposes, but (subject as thereafter mentioned)
should be open to the use of the public at large for all manner
of purposes in all respects as a common turnpike road"; that
contracts had been entered into by or on behalf of the said
company for the purchase of the necessary lands for a total



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AUSTERBERRY V. CORPORATION OF OLDHAM. 325

sum ot ;^I73 19s. lod., and proper conveyances had been pre-
pared and were Awaiting execution for vesting such lands in
the said Joshua Milne, John Milne, and Samuel Lees, who
were to stand possessed thereof upon the trusts thereinafter
declared ; and that the business of the said company should
be carried on subject to the provisions thereinafter contained ;
it was then witnessed and agreed that the said Joshua Milne,
John Milne, and Samuel Lees, and the survivors and
survivor of them, and the heirs of such survivor^ should for-
ever thereafter stand possessed of the lands intended to be
granted to them, upon the trusts thereinafter declared. And
it was further witnessed and agreed that the said parties
thereto, and all other persons who should thereafter become
proprietors as thereinafter mentioned, should, whilst holding
shares in the capital of the said company, be and they were
thereby united into a company for making and maintaining the
said road, and should be and continue the proprietors thereof
under the name of ** The Higgenshaw and Lower Moor Road
Company" ; that for the purpose of making and maintaining
the road and other general purposes attending the same a
capital of ;£'i6oo should be raised in thirty-two shares of £^0
each ; that the number of shares held by each person should
be written opposite his or her name at the time of his or her
executing the deed ; that the said £\Tl 19s. lod. should be
paid out of the capital of the company for the purchase of the
land necessary for the road as aforesaid, and that the re-
mainder of the money to be received by the said company,
whether by way of capital or profits, or otherwise, should be
applied by the trustees in paying the costs of the present
deed, of the conveyances, and of the establishment of the said
company, and that the remainder of the capital should be ap-
plied in making and afterwards maintaining in repair the said
road pursuant to the specification, ground-plan, and cross-
section contained in a schedule of even date, and in setting up
necessary toll-gates. Then followed provisions describing
the line of road ; for the erection of tables of tolls to be fixed
from time to time by a majority in value of the company at a
meeting for the purpose, — " that no person or persons (except
such persons and for the purposes only as are mentioned in
the said several conveyances of the said land so purchased by
the company as aforesaid) shall be allowed to travel upon, use,



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326 AUSTERBERRY V. CORPORATION OF OLDHAM.

or enjoy any part of the said road, or pass through any such
toll-gate, side-bar, or chain, to be erected or set up as aforesaid,
without having previously paid such toll as may from time to
time be demanded of him, her, or them, pursuant to the table
of tolls for the time being authorized by the said company to
be demanded and taken as aforesaid" for payment of tolls by
the parties to the present deed ; that the trustees should
apply the tolls in payment of the current expenses of the
company, " and in repairing and keeping in repair the said
road," and in discharge of the principal and interest of any
moneys borrowed on the security of the tolls, and then in
payment of the dividends declared to the proprietors of the
company. Then followed various provisions as to meetings,
rights of voting, keeping of the company's books, calls on
and forfeiture of shares, declaration of dividends, appointment
of new trustees by the shareholders, variation or modification
of any clauses in the present deed, and enrolment of the
present or any future deed of settlement by the trustees if
deemed expedient.

The schedule of even date referred to in this deed was
signed by the parties to the deed, and the owners of the slips
of land which were to be conveyed as the site of the road,
and contained a specification describing the construction of
the road, with a plan attached showing its course, and the
lands, with the owners' names, through which it was to run.
Amongst the owners* names appearing on the plan was that
of John Elliott, the plaintiff's predecessor in title, who owned
the land on each side of the slip agreed to be conveyed by
him.

John Elliott conveyed his slip of land to the trustees by an
indenture dated the 8th of April, 1837, being one of the in-
tended conveyances referred to in the deed of settlement
This deed was made between the said John Elliott, of the one
part, and the said Joshua Milne, John Milne, and Samuel Lees,
of the other part ; and thereby the said John Elliot, in con-
sideration of'the sum of £\^ \\s, Sd., paid to him by the said
Joshua Milne, John Milne, and Samuel Lees, granted and re-
leased unto the said Joshua Milne, John Milne, and Samuel
Lees, their heirs and assigns, the plot of land therein described
— being part of certain lands belonging to him, Elliott, called
Higher Moor Fold, and which said plot of land was therein



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AUSTERBERRY «/. CORPORATION OF OLDHAM. 327

expressed to be intended to form part of the said intended
line of road from Higginshaw to Lower Moor — together with
liberty to enter upon the adjoining lands of the said John
Elliott for making artd completing the said road, and to erect
on the said plot of land toll-gates with toll-houses, and to de-
mand and take the tolls mentioned in any table of tolls put up
at any such toll-gate before any horse, beast, cattle, cart,
wagon, or carriage (except as thereinafter mentioned) should
be permitted to pass through such toll-gate, except mines and
minerals, " and also except such rights and privileges of pass-
ing toll-free over jthe said line of road for certain purposes as
hereinafter is mentioned and expressed." To hold the said
plot of land, liberties, powers, and privileges, unto and to the
use of the said Joshua Milne, John Milne, and Samuel Lees,
their heirs and assigns, forever, for the ends, intents, and pur-
poses therein in that behalf expressed and declared of and
concerning the same (that was to say) : " Provided always,
and it is hereby agreed and declared by the said parties to
these presents; and each of them, the said Joshua Milne, John
Milne, and Samuel Lees, for himself severally and respectively,
and to and for his several and respective heirs and assigns,
doth covenant and agree with the said John Elliott, his heirs
and assigns, by these presents in manner following (that is to
say), that they the said Joshua Milne, John Milne, and Samuel
Lees, their heirs or assigns, or some or one of them, shall and
will within the space of three years now next ensuing, at
their or his own costs and charges, convert, make, and form,
and fence ofiF, in a good, workmanlike, and proper manner,
the whole of the said plot of land, hereditaments, and premises
hereby granted and released, into a road or way to form part
ot the said line of road from Higginshaw to Lower Moor
aforesaid, and in like manner make and form the remainder
of the said line of road, which when so finished shall be of the
length, width, dimensions, and construction, and made of such
stone and other materials and in such manner as is set forth
and expressed and as drawn and laid down or delineated in
the specification, ground-plan, and cross-section contained in
a certain schedule or writing bearing date the 3d day of
March last past, and since the date and execution hereof
signed by the said several persons parties to these presents,
and by several other persons owners of other lands over



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328 AUSTERBERRY V, CORPORATION OF OLDHAM.

which the said intended line extends ; and also that the said
line shall from and immediately after the expiration of the
said term of three years (subject nevertheless to such tolls
for horses, cattle, beasts, carts and carri&ges passing thereon
as may by the said Joshua Milne, John Milne and Samuel
Lees, their heirs and assigns, from time to time be fixed and
determined upon) be used by the public; and shall and
will forever hereafter be kept open and used as and for a
road for the use of the public (subject as aforesaid) ; and
also that they the said Joshua Milne, John Milne and Samuel
Lees, their heirs and assigns, shall and will from time to time
and at all times hereafter keep and maintain the said road
and every part thereof in good repair, order and condition,
except such part thereof as hereinafter is mentioned." Then
followed a proviso that no toll should be taken or demanded
from Elliott, his heirs or assigns, lessees, tenants or occu-
piers, for any horse, cattle, beast, or carriage laden with
materials for repairing the fences or drains thereinafter
covenanted to be kept in repair and maintained by Elliott,
his heirs or assigns, or his or their tenants, etc., of the lands
adjoining the said plot of land thereby granted, nor for any
horses, etc., or carriages passing over the said line of road
for any purpose connected with the occupation of the said
lands called Higher Moor Fold for farming or agricultural
purposes only or relating to the cultivation thereof. And
Elliott covenanted that he, his heirs or assigns, or the
tenants, etc., of the lands adjoining the said plot of land
thereby granted, would at all times keep m repair and main-
tain the fences and ditches on each side of so much of the
said road as passed over the lands of him, Elliott, and also
keep the drains thereof in repair.

Elliott, though a vendor, was not a member of the com-
pany of proprietors of the new road, and he never executed
the trust deed. In or about the month of May, 1837, four
conveyances in similar terms of sites for the new road were
executed to the trustees by other landowners. At the time
the trust deed and conveyances were executed the lands
through which the new road was to pass were and had been
used for agricultural purposes.

The trustees having taken possession under their several
conveyances, the new road, afterwards called Shaw Road, was



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AUSTERBERRY Z/. CORPORATION OF OLDHAM. 329



Online LibraryLawrence LewisAmerican and English corporation cases : a collection of all corporation cases, both private and municipal (excepting railway cases), decided in the courts of last resort in the United States, England, and Canada [1883-1894] → online text (page 34 of 73)