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accommodate all. Moreover, if "opposite" is | should be omitted from the operation of the held to mean strictly "in front of," any at statute, and, if so, how far this omission tempt to extend straight lines for two miles should extend. The difficulties of the former would make confusion through the intersection and the palpable injustice of an arbitrary of lines. If, on the other hand, complainant's selection of favored lands leads to discard theory is to be adopted, all abutting premises it. We cannot believe that such was the lying east of defendant's land will be cut off legislative intent, and we are therefore forcfrom such right by Green's Point. We under ed to the conclusion that the real intent was stand it to be conceded by both parties that, to contine the right of each landholder to the previous to the enactment of the statute of limits of pre-existing riparian rights, and to 1869 referred to, the riparian rights of abut- the rules applicable to the determination of ting proprietors did not include an exclusive such limits, except as to the distance the right to set nets in the waters included in right extends into the bay, riparian rights what are ordinarily denominated "riparian in the Great Lakes not extending beyond acwaters," and that riparian rights, whatever cess to navigable water, whereas these rights they were, did not necessarily extend two may. As we understand these rights and miles or one mile from shore. We have often rules, every shore owner has a right of acsaid that the right to fish, like the right to cess to naviga ble water, subject to the gennavigate, was a public right, and that it ex eral right of navigation. If we assume that tended to all portions of the lakes. Sterling the line of navigable water is outside of V. Jackson, 69 Mich. 509, 37 N. W. 845, 13 Wigwam Bay, all lines must converge to the Am. St. Rep. 405. See People v. Silberwood, distance between headlands. The corners of 110 Mich. 103, 67 N. W. 1087, 32 L. R. A. the abutting parcels furnish starting points 694; People v. Warner, 116 Mich. 228, 74 N. | for each parcel. Therefore we should take W. 705; Brown v. Parker, 127 Mich. 390, an imaginary line from Pine Tree Point to 86 N. W. 989, recognized the rule. Ains Green's Point as a base line, to which the worth v. Fishing Club (Mich.) 116 N. W. 992. various lines must converge. A glance at It would seem to follow that the right as the map is sufficient to show that there are serted here by each party is no more than lands from which a straight line could not a statutory right; and that we understand possibly intersect the base line, and it is thereto be their claim. Whether it is open to the fore necessary to establish another base line. criticism of being class legislation, and wheth Were there headland on both sides of the er the Legislature may grant exclusive rights inner coves, we should perhaps take those of fishery over any portion of the public wa as termini for such inner lines, but there are ters, are questions that we will not pass not, and we therefore establish the center of upon in this case, as we cannot properly do the shore line as the point to which lines 60 upon this record.
from Pine Tree Point and Green's Point Assuming it to be a valid statutory right, sball converge, and meet. Lines from the we must ascertain the meaning of the stat. shore will run to those inner base lines, ute. An easy way to dispose of it would be striking the same at points proportionately to adopt defendant's theory that it was in the same distance apart as on the shore tended to give every abutter an exclusive line, and the process will be repeated in runright to fish on a strip as wide as his lot ning the lines between the base lines. This extending out two miles, and, if the shore seems to us to be the only practicable method were straight and there were no headlands, of making a fair division. no objection could be made to it. But it is We should consider whether this disposinot straight and shores seldom are; and tion of the question has the sanction of aucounsel have not been able to suggest any thority. We deem it an elementary rule that rule of division that seems to offer a fairer all shore owners on the lakes have a right to solution then the general rule for the as access to navigable water, if it is feasible to certainment of access to navigable water. give it to them, and that it is the general This rule would give every landowner on rule that frontage on navigable waters for the bay a right of access to a two-mile area, ! wharfage is proportionate to the extent of but the shore of Wigwam Bay is much longer shore frontage. For this state the question than the distance between the headlands at was settled in Blodgett & Davis, etc., v. the entrance of the bay, and, as the lines of Peters, 87 Mich. 498, 49 N. W. 917, 24 Am. all must pass between the headlands in order St. Rep. 175, and the method to be adopted to extend to the two-mile limit, one of two in ordinary cases is there pointed out. But things necessarily follows: (1) That lands that case, recognizing the difficulty of an whose frontage collectively equals the dis | inflexible rule, gives prominence to the fact tance between headlands only can have such that a fair apportionment is the object in rights under the statute; or (2) such lines view, and asserts the propriety of modifying must all converge. If we were to adopt the the rule, to that end, where circumstances former theory, we should then be perplexed | seem to require it. Something like the modto ascertain which of the several parcels ification in this case was resorted to in that were to be denied the right. If the latter, case. See, also, Gould on Waters, 88 149, we are confronted with the question whether 164, 165. Under this plan the rights of these any of the shore line between headlands parties can be easily ascertained. Manifestly
a line from the center of the shore line to | MONTGOMERY, OSTRANDER, and HOOKthe center of the outer base line can be easily ER, JJ. fixed. To ascertain the boundary line, it is
George P. Brown (William P. Belden, of only necessary to ascertain the distance from
counsel), for appellant. C. F. Button (S. W. the center of the shore line to the point on
Shaull, of counsel), for appellee. the shore where the lands of the parties meet, and a proportionate distance on the
MONTGOMERY, J. The plaintiff's inbase line. A straight line between them will
testate, while driving in a cutter in a street be the boundary. It is illustrated upon the
in defendant city, was overtaken by a team map. As shown there, the nets represented
which had escaped from its driver, Herman by the dotted line appear to be wholly within Prebe, and admittedly without fault or neg. the defendants' allotment, but we cannot be
ligence on her part was trampled upon and sure that our measurements are accurate.
mortally injured. This action was brought We cannot ascertain from the proofs in
to recover damages from the city, upon the the case the length of either base line or
claim that the cause of the fright to the the center of the shore line. Therefore we
team which resulted in the loss of control by find it necessary to remand the cause, with the driver was a defective condition in the directions to the trial court to take the neces highway. The annexed blueprint will show sary proof and make such changes in the decree as may be necessary to make it comply with the requirements of this opinion. Costs of this court will abide the event.
S TERS AND RESILE BRIDAL:265
HIGMWAY BRIDGL - 236'
JOHNSON v. CITY OF MARQUETTE. (Supreme Court of Michigan. Sept. 10, 1908.) 1. MUNICIPAL CORPORATIONS - DEFECTIVE STREET-DEATH-ACTION — PLEADING-VARIANCE.
In an action for the death of a person caused by the running away of a team, where the declaration counted upon the team being frightened at a defect in a highway crossing, the fact that the proof showed that they were frightened before reaching the crossing by a noise at a furnace would not constitute a variance between the allegations and proof, if it appeared that there was additional fright at the crossing; and it should be determined that the previous fright had not resulted in the driver losing control of the team in such a sense as to make their previous fright the proximate cause of the injury. 2. SAME-NEGLIGENCE OF CITY-ACCUMULA
TION OF ICE AND SNOW - QUESTION FOR
Whether a city was negligent in allowing snow and ice to accumulate in a highway on each side of a railway crossing, in such a manner as to make an unnatural hump or ridge on either side of the railroad track, held to be a question for the jury.
(Ed; Note.--For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, $ 1747.] 3. SAME-HORSES NOT UNDER CONTROL.
Horses are not to be considered beyond control of their driver where they merely shy or start, and for a moment have their own way. 4. SAME - PROXIMATE CAUSE OF INJURY QUESTION FOR JURY.
Whether an accumulation of ice and snow, causing ridges in a highway, and not an escape of steam from a furnace near the highway which had caused a team to shy, was the proximate cause of an injury resulting from their running
V SAT away, held to be a question for the jury. (Ed. Note.--For cases in point, see Cent. Dig.
the condition of the street. The crossing of vol. 36, Municipal Corporations, $ 1753.]
the highway in question over the switch of Error to Circuit Court, Marquette Coun the Marquette & Southeastern Railway is ty; John W. Stone, Judge.
indicated. The injury to the plaintiff ocAction by Laughlin Johnson, administra curred at a point some 350 feet north of this tor of Margaret M. Johnson, against the crossing. A team drawing a sleigh conveycity of Marquette. Judgment for plaintiff, ing upon it a load of wood and driven by and defendant brings error. Affirmed.
Herman Prebe was approaching this crossArgued before GRANT, C. J., and BLAIR, 1 ing from the south, and while upon the
bridge, at a point some 200 feet or less from faulty highway which justifies a jury in the crossing, an unusual noise at the Carp finding a municipality in fault. But that furnace startled the team, they commencing is not this case, as the evidence was ample to dance, and the driver was not able to to show that snow was thrown and piled on bring them down to a walk until the cross this highway in such a manner as to make ing of the railway by the highway was reach an unnatural humpor ridge on either side ed. At this point he was thrown from the of the track. sleigh and lost control of the team. The evi As to whether this condition of the highdence tended to show that an unusual and way was the proximate cause of the injury unnatural accumulation of snow had been presents the principal question in the case. formed at this point by shoveling from the The circuit judge left this question to the railroad tracks onto the highway at either jury under instructions, the language of side and into the traveled part thereof snow which is not complained of. It is contended, which had formed a very steep embankment, however, that there were no facts which the exact depth of which is not shown, but warranted the submission of this question to which was obviously a dangerous embank the jury. The testimony upon this point ment. The jury awarded a verdict to the was given by Herman Prebe, and was as plaintiff, and the defendant brings error. follows: "A. Well, I came along with my The errors relied upon are a variance be cord of wood, and coming onto the Carp tween the case made and the case attempted bridge the horses, they were going, driving to be made by the proofs; that the defect in along gently and slowly. The horses were the highway, if there was any defect, was young, and gay, and dancing, and coming not the proximate cause of the death of towards this end of the Carp bridge, right Mrs. Johnson, it being contended that the | in front of the furnace, the horses got a proximate cause was the fright of the hors- | little uneasy from the noise of the furnace. es occasioned by the steam escaping from They were making some noise in the furnace. the furnace, and the negligence of the driver, They seemed to take a stronger hold on the Herman Prebe, in the manner in which he lines than what they had; and I was standwas driving the horses and the manner in ing with my feet braced on the rack bewhich he stood on the sleigh, and his failure hind and holding my lines in my hands, tryto equip his horses with sleigh bells.
ing to hold the horses down to a walk, and The question of whether there was a vari- that is what I couldn't do, the few steps ance between the declaration and the proofs from the furnace on to this crossing. Q. is so closely connected with that of wheth- | How fast were they going? A. They were er the condition of the highway was the jumping up and down some; not drawing, proximate cause of the injury that the dis- but jumping up and down. Q. Sort of dancussion of one necessarily involves a deter cing, as horses will when they are excited ? mination of the other. It is contended that | A. Yes; they were dancing up and down, and the declaration counts upon the team being | me standing there then holding them in. I frightened at the highway crossing; where wanted to slow them down to a walk, and as, it is said they were frightened at the they wouldn't walk them few steps. I didn't furnace. But if there was additional fright get them to walk; and, coming onto this at the crossing, and if it should be deter- | track, I got throwed off. • * Q. How mined that the previous fright had not re- did you come to fall off the sleigh? You sulted in the driver losing control of the say you were standing there braced, holdteam in such sense as to make their pre ing them in with the lines. How did you vious fright the proximate cause of the in: | come to fall off ? A. Because the team was jury, we see no fault in alleging the fright going on a little trot, and by this drop, and which was the occasion of the injury as oc me falling off as soon as they got onto the curring at the highway crossing.
track— Court: Q. What threw you off? It is next contended that there was no A. Well; the drop of the track. • • . My negligence proven against the city of Mar lines dropped out of my hands after I fell; quette. This point was not very strongly not before. I don't remember them dropping pressed at the hearing. We do not think it out of my hands at all. They were in my open to serious question that there was evi- hands when I started to fall. I did not let dence in this case that at this crossing | go of them before I fell. I have driven there was an unnatural accumulation of horses 10 or 15 years, and had had considsnow and ice occasioned by shoveling from erable experience in driving during that the railroad track so as to produce a hump time. I am a farmer, and use horses in my on either side of the track of several inches business and haul wood to town more or depth; thus increasing the height of the less in the winter. I was driving that day bank on either side. We think it was at in my usual manner. I was standing in the least a question for the jury as to whether back of the box braced against the hind dashthis left the highway in a condition reason board. I was not between the pile of wood ably safe and fit for travel. It is true that and the dashboard. I was standing on the the natural accumulations of snow and ice | end of the bottom boards which stick out and the natural results of traveling on the behind the dashboard. The sides of the box same do not of themselves make a case of i which come up one or two feet high also extend back beyond the hind end board. I , has been recognized in numerous decisions, didn't think to brace against the sides. I including the case of Bleil v. Detroit City stood behind, and had my knees against the Railway, 98 Mich. 228, 57 N. W. 117, re end board and had the lines in my hands. lied upon by counsel for plaintiff. We I should think according to my experience I think it was open to the jury to say that, excould handle the team as well there as if | cept for the condition of this highway, the I were sitting on the load. I should judge driver had sufficient control of his team so the drop from the traveled part of the high- that no serious consequences could have way to the track would be from 18 inches to followed. It is true he was not able to bring 2 feet. I could not tell whether the snow them down to a walk in this short distance was packed down hard or not. I did not of less than 200 feet; but that absolute conlook at that. * * * When my horses ran trol of horses may be temporarily lost by away and threw me off at the crossing, they the driver is an incident to travel up the took the load of wood along with them; and, highway which public authorities are reawhen I regained consciousness, it was stand sonably bound to take notice of. Such a ing in front of Rustenhoven's saloon. I came movement of a team as would not be uninto town afterwards with a load of wood. common is not necessarily a loss of control The wood was not spilled out at the cross within the meaning of the authorities. See, ing. I have had that team two years. It is on this point, Wharton on Negligence, $ 103; a young team. They were not frightened Olson v. Chippewa Falls, 71 Wis. 558, 37 N. at the furnace, but it is a young team, and W. 575; Simons v. Township of Casco, 105 always a little gay and dancing. They did Mich. 588. 63 N. W. 500. We think the facts not run away or anything like that. The are such as to justify the submission of this noise of the furnace never affected my hors question to the jury. es on any previous occasion so much as then. Under the heading, “City Not Responsible They had noticed the furnace before, but it for Consequential Damages,” it is contended is not every time the same noise came out that the city is not responsible for Prebe's of the furnace that it was then. I can't | horses being frightened by the furnace comremember of ever coming along there when pany, and the city and Prebe are not joint there was such a noise that set the horses to wrongdoers. The question of whether there dancing. This team ran away from me at is sufficient causal connection between the home before this occasion. * * * Q. Were defective highway and the injuries to the you doing all you could to stop your horses plaintiff's intestate to justify the court in when they went into this crossing? A. Yes, submitting this case to the jury has been sir. Q. You are sure about that? A. Yes, sufficiently discussed in dealing with the sir. Q. Couldn't you get them down to a question of proximate cause. If it is open walk before you got there? A. No. Q. Do to the jury to find that the driver would you say the furnace scared your team ? A. not have lost the control of the team but Yes, sir; that is where they got their hold for the defect in the highway, then the conon the lines. Q. Was it steam? A. I couldn't nection between the wrong and the injury say; but it was a whistling noise from the is sufficient to justify a recovery. furnace. What whistling they done or what We discover no error in the rulings in the they done I don't know. They first com- | admission of testimony, and think there was menced to dance when I was on the bridge. a case for the jury. The judgment is af. Q. Did you have the crossing in mind when firmed. you were trying to hold the horses down? A. Yes, sir. Q. But you say they were jumping so you couldn't get them down? A. I couldn't get them down to a walk get- | CHASE, Deputy Atty. Gen., v. KALAMAZOO ting onto the track.”
CIRCUIT JUDGE. We have quoted this testimony at con- (Supreme Court of Michigan. Sept. 15, 1908.) siderable length, as we deem it the control 1. WITNESS-SUBPENA-FEES AND EXPENSES ling question in the case. It must be con -WITNESSES-COMPENSATION ceded that under our decisions, if it could Fees in serving subpænas and witnesses'
fees and mileage in criminal cases need not be said that Prebe lost control of his horses
be paid in advance, but only after the trial upon and they were in fact running away and be due proof of attendance. yond control at the time they reached this 2. SAME-FORM. crossing the condition of the highway at
In a prosecution under Laws 1895, p. 358, that point could not be said to be the proxi
No. 193, to prohibit and prevent adulteration,
fraud, and deception in the manufacture and mate cause of the injury. But we think the
sale of articles of food, and drink, subpenas case should properly fall within the line of should be issued in the ordinary form and in cases of which Langworthy v. Green, 95
the customary way; there being nothing in
the statute to authorize any departure thereMich. 93, 54 N. W. 697, is the leading case,
from such as a notation therein that officer's in which it is held that a horse is not to be fees and expenses in serving the subpana and considered beyond control that merely shies witness' fees named therein were not to be or starts and for a moment has his own way.
paid by the county. This case was followed in Gage v. Railroad Mandamus by Henry E. Chase, Deputy Company, 105 Mich. 335, 63 N. W. 318, and Attorney General, to compel John W. Adams, Kalamazoo circuit judge, to issue subpænas | the Attorney General's Department, he should in a criminal case in the usual form. Writ at once furnish that list to the clerk and issued.
have those subpænas issued. I think the Argued before GRANT, C. J., and BLAIR, same had better be sent to the dairy and MONTGOMERY, OSTRANDER, and HOOK food commissioner." Subpænas were issued, ER, JJ.
and across their faces was written in red John E. Bird, Atty. Gen. (Henry E. Chase
ink: “Officer's fees and expenses in serving and Charles W. McGill, of counsel), for
this subpæna, and fees and mileage of witrelator. Alfred J. Mills, for respondent.
nesses named herein are not to be paid
by the county of Kalamazoo.” Thereupon PER CURIAM. Certain complaints were the relator, the Deputy Attorney General, made by one of the deputy dairy and food
petitioned for the writ of mandamus to cominspectors of the state against certain per pel the circuit judge to order the issuance sons in the county of Kalamazoo for vio of these subpænas in the usual form in crimlation of section 3, No. 193, p. 358, Pub. Acts inal cases. As printed in the petition, a 1893 (Comp. Laws, $ 5012). Examinations | part of the language required by the respondwere had before an examining magistrate. ent's order to be indorsed on the face of The magistrate found reasonable cause to be the subpæna was omitted, viz., that part lieve the defendants guilty, and bound them reserving the determination of whether such over to the circuit court for the county of fees and expenses should be paid by the Kalamazoo for trial. Informations were county or the state. filed to which the respondents pleaded not Fees in criminal cases are not required to guilty. One was against one Phillip Bres- be paid in advance. They are only paid aftson. The case was set for trial. The pros er the trial upon due proof of attendance. ecuting attorney appeared in the cases, and The statute makes it “the duty of all prosewas assisted by a duly accredited repre cuting officers of this state to prosecute to sentative of the Attorney General's depart completion all suits brought under the proment. A controversy arose between the pros visions of this act upon the complaint of ecuting attorney and the representative of the commissioner or of any citizen." Section the Attorney General's office over the ques 20, No. 193, p. 362, Pub. Acts 1897. We find tion of fees, the prosecuting attorney con nothing in the statute to authorize the istending that under the pure food act the suing of a subpæna in any other than in the expenses of the witnesses and officers should
ordinary form. The proper time to raise be paid by the state; the Attorney General's the question of liability is after the expenses department contending that they should be have been incurred, and by some proper paid by the county the same as other crim proceeding to determine whether the state or inal cases. The representative of the Attor
the county is liable. Criminal trials should ney General appeared before the circuit court not be delayed by raising questions of this of Kalamazoo county, and made a motion
character. It was the duty of the prosecutfor an order to compel the issuance of sub
ing attorney to instruct the clerk to issue panas for witnesses. The prosecuting at
subpænas in the ordinary form and in the torney feared that the issuing of the sub
customary way. The court, when the matpænas by his authority without protest would
ter was brought to its attention, should have estop the county from raising the question
instructed its clerk to issue the usual subof its liability. An unnecessarily accrimoni
panas in criminal cases. ous discussion occurred before the circuit
The writ will issue, but without costs. judge upon the question. After patiently hearing the discussion, the court made the following order: “It is ordered that the clerk of this county issué subpanas for all witnesses in this cause which the prosecut
ROBINSON v. HARMON. ing attorney may ask for. Said clerk shall
(Supreme Court of Michigan. Sept. 15, 1908.) indorse on the face of each subpæna, namely: "Officer's fees and expenses in serving
1. STATUTES – INVALIDITY – EXPRESSION IN this subpana and fees and mileage of wit |
TITLE OF SUBJECT-CURED BY SUBSEQUENT
AMENDMENTS. nesses named herein are not to be paid by
Sess. Laws 1873, p. 504, No. 198, 8 9 the county of Kalamazoo. The question (Comp. Laws, 8 6234), was first amended by whether the state of Michigan or the dairy Pub. Acts 1877, p. 186. No. 177; the seventh and food department of the state of Michi
subdivision of section 9, p. 506, providing a
maximum car load freight rate for certain disgan or Kalamazoo county shall eventually tances. Section 9 was thereafter amended by pay the officers and witness fees in con Acts 1883, p. 107, No. 116, Acts 1857, p. 286, nection with such subpænas so issued is left
No. 230, Acts 1889, p. 280, No. 202, Acts 1891,
p. 101. No. 90, and Acts 1907. p. 56. No. 54. for future adjustment and determination,
none of which amendments materially changed and is not intended by this order to be pre subdivision 7 and all of which fully complied determined by this court. If the prosecut with the constitutional requirements as to the ing attorney has a list of the witnesses, if
expression of the subject-matter in the title of
the act. Hold, that any infirmity in the amendthe same has been furnished him by the ment of 1877 was cured by the subsequent state, the dairy and food commissioner, or l amendments.