Cuming v. Prang

Christianon, Ch. J. This was an action of assumpsit brought by the plaintiff for the value of certain gravel taken by the defendant partly froin her lot in the city of Grand Rapids and partly from an adjoining alley between its . center and the side adjoining the lot. The case was referred to a referee, who found the defend'ant liable for the whole of the gravel. But, exception being taken to his report, the court rejected the amount found by him for the gravel taken within, the lines of the alley, and gave judgment only for that taken from her lot outside of the alley. , [523] Referring, to the finding by the referee, the exception thereto, the rulings and judgment of the court for a full statement of the case, we proceed to the main question involved. The referee found defendant had taken five hundred and thirty-one cubic yards of gravel from that part of the alley lying east of the center thereof, and adjoining plaintiff’s lot. In the absence of any showing to the contrary, we must presume that-her ownership of the soil extended to the center of the alley, subject only to the public right in the same .as a highway (for such, it is to be inferred from the evidence, it was), including, probably, the right of the city authorities to sink water-pipes and gas-pipes, and to use it for like public purposes. She was therefore the owner of, and entitled to, the gravel to the center of the alley, with the right to take and remove the same to a depth which should not exceed the grade of the alley which might be adopted by the city authorities.' This right may, for the purposes of this case, be admitted (though we do not decide the point) to be subject to the right of the city authorities to use any portion of the soil or gravel for the purpose of filling up any part of this alley, from one street to the other, in bringing the alley to such grade as they should choose to adopt. But we do not think this right of the public authorities would extend so far as to allow them, as against the plaintiff, to remove the gravel entirely from the alley to fill up streets elsewhere in the city. It is therefore unnecessary to determine whether the assent given by the common council to the owners along the west side of the alley to grade the alley at their own expense and under their own management, gave to such owners all the rights to the use of the soil in such alley that the city would have possessed, had the grading been [524] clone by the public authorities, though we think it quite clear this assent did not give to the owners along the west-side of the alley the right to determine, as against the plaintiff, or any .other adjoining owner, the grade to which the alley was to be brought. And it is certain' these owners, who had thus been allowed to grade at their own expense, and in their own way, could not, as the city authorities might have done, exercise the right of eminent domain, or any right of ownership, not already fully vested in the city; and we think it exceedingly questionable whether this permission given to such owners to grade, etc., gave them any right to do any thing in the way of grading, except with the assent of the respective owners who might be affected by the work. The defendant, therefore, who was only a contractor of the owners to whom the permission had thus been given, had no right, as against the plaintiff, under the pretense of grading this alley, to take the gravel and carry it off to fill up a street elsewhere, under a contract which he had with the city; or, in other words, to take it away from the alley entirely for the purpose of sale, unless the plaintiff had assented to his using and disposing of it in that manner. The only consent shown to have been given by the plaintiff, was a consent to the grading of the alley without charge upon her, he to get his whole pay from the owners on the other side of the alley. Now, without some proof of usage or custom, to control or explain the meaning of this license, or evidence .that, upon being called upon by him, she had refused to assign or allow him any convenient place to deposit such gravel, we see nothing in her mere consent or license to grade the alley on the terms mentioned, which could authorize him thus to carry it off beyond the alley and to sell it for his [525] own profit, leaving (as tlie finding shows he did) the alley itself ungraded. This was making a fraudulent use of the license or permission she had given to grade the alley, to which alone she had assented. We think, therefore, the referee was right in allowing to the plaintiff the value of the gravel thus taken from the portion of the alley in question, and sold by the defendant, and that the circuit court erred in refusing to allow it; The plaintiff is therefore entitled to the judgment of this court, upon the finding of the referee, for all the gravel taken, as well that within the portion of the alley in question, as that upon her lot outside of the alley; amounting, as found by the referee, to one hundred and ninety-four dollars and seventy cents, with interest from the date of the judgment in the circuit court, April 22d, A. D. 1871 (one year), being thirteen dollars and sixty-three cents, making in the whole, at this date, two hundred and eight dollars and thirty-three cents, with costs in. both courts. As to the objection made in the court below, that the plaintiff was not entitled to costs, we think she was clearly entitled to them under § 5597 Comp. L., subdivision 2, in force at the time the suit was commenced; as the “right to do an injury to her lands,” “came in question on the trial of the cause;” and the right would certainly be no less clear under the same section as amended in 1871. — Sess. L., 1871, p. 192. As to the particular items and amounts to be allowed, that is a question that can only be raised upon taxation. Campbell and Cooley, JJ., concurred. Graves, J., did not sit in this case.