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COMMISSIONER OF HIGHWAYS OF PAW PAW vs. ISAAC W. WILLARD.

Filed October 14, 1879.

Where a highway in the village of Paw Paw passed over a race-way of defendant's, held, that the village authorities only could enforce the duty of the owner to keep it in repair, following and applying Mervill v. Kalamazoo, 35 Mich. 211. Certain provisions in the charter of the village of Paw Paw considered, and held not to change the applicability of such case.-[ED.

Error to Van Buren..

Chandler Richards, for plaintiff in error.

O. W. Rowland, for defendant in error.

COOLEY, J. This case involves the liability of the township of Paw Paw for the repair of bridges within the corporate limits of the village of Paw Paw. There is a bridge on one of the highways of the village over a race belonging to Willard, whose duty it was to keep it in repair. He failed to perform this duty, and the highway commissioner proceeded to repair the bridge and then sued Willard under the act of 1855. Compiled Laws 1871, §§ 1309-1312. The defence is that the obligation to repair the bridge, when the owner of the race neglects, is on the village, and that the highway commissioner of the township has nothing to do with it. The circuit court so held.

In the somewhat similar case of Merrill v. Kalamazoo, 35 Mich. 211, this court decided that the village, and not the township authorities, must enforce the performance of the duty by the owner of the race. That decision should unquestionably govern this case, were it not for certain peculiarities in the charter of Paw Paw which are supposed to render the former decision inapplicable.

The village of Paw Paw was incorporated in 1867, of territory entirely within the township of Paw Paw. Laws 1867, vol. 2, p. 1145. The seventh section of the charter provided that "the inhabitants of said village shall be liable to the operation of any or all laws relating to township government, except so far as relates to the laying out and constructing of streets and highways, and the labor to be performed thereon within the limits thereof." The twelfth section gave to the village president and trustees power "to regulate bridges within the limits of said village." The fifteenth section provides that "the president and trustees shall have authority to lay out and establish, open, make and alter such streets,

lanes and alleys, sidewalks, highways and bridges within the limits of said village as they may deem necessary for the public convenience," and gives authority to appropriate lands for the purpose. The twenty-seventh section provides for a street commissioner, who "shall superintend and direct the making, paving, reparing and opening all streets, lanes, alleys, sidewalks, highways, water-courses and bridges within the limits of said corporation, in such manner as he may from time to time be directed by the board of trustees." Some amendments to the charter were afterwards made, but they are not important to this controversy. But for a single other provision, which will presently be given, there should be no doubt that the case of Merrill v. Kalamazoo should apply. The village seems to be given full control of the highways and bridges, and may lay out, construct and repair them at discretion, under the superintendence of its own officer. Going no further than these provisions the township would seem to be under no obligation in the premises, and to have no authority to interfere.

The last section of the charter, however, provides that "nothing contained in this act shall be construed as requiring the construction or repairing of bridges, within the corporate limits of said village, to be done at the sole expense of the inhabitants thereof; but all such expense shall be borne in the same manner as heretofore required."

As theretofore required the expense would have been paid by the whole township. It was the apparent purpose of this section that such should continue to be the case. But how was this to be accomplished? If other sections of the charter are given full effect the village might erect bridges, incur expense in procuring land for the purpose, superintend the structure when erected by its own officer, and decide for itself upon repairs. If, then, it could charge all its expenditures over to the township, we should have the remarkable spectacle of one municipal corporation deciding upon the public needs and expenditures of another, and indirectly imposing taxes upon it, which would be a monstrosity in representative government. But the alternative is that the township must provide for the construction and repair of bridges as formerly; that is to say, by acting upon the questions directly, as it must upon other matters of township government. But to do this would divest the village and its officers of supervision and control, and nullify several of the charter provisions above recited.

The conclusion seems inevitable that the village charter is not harmonious, and that all its provisions cannot be enforced, unless the village and township authorities unite in the necessary action for the purpose. My brethren think this is the case with the last section; that the village cannot build or repair bridges, at the expense of the township, without the concurrent action of the township authorities, and that, on the other hand, the village authority over bridges excludes that of the township. In this view the case of Merrill v. Kalamazoo is strictly in point, and must govern this case. The judgment must be affirmed, with costs. (The other justices concurred.)

JOHN O'CONNOR vs. WILLIAM G. BECKWITH, Administrator.

Filed October 21, 1879.

Certain matters considered, and held to constitute a valid claim against the estate of defendant's intestate. Where the plaintiff, having a claim against the estate of a deceased person, not only failed to have administration had upon such estate, but was an active party in causing a delay in instituting administration proceedings, held, that he should not be entitled to interest upon his claim.-[Ed.

Error to Kent.

Taggart, Stone & Earle, for plaintiff in error.
Champlin & More, for defendant in error.

GRAVES, J. O'Connor brought a claim against the estate of Cusick, and the case was appealed to the circuit court, and there sent to a referee. The referee reported a finding in favor of O'Connor, and returned a bill of exceptions taken by the administrator. The latter objected to the proceedings, and the court confirmed all the findings of fact, but overruled the conclusion of law in favor of O'Connor, and gave judgment for the estate. The administrator acquiesced in this determination, embracing a confirmation of the finding of facts, but O'Connor brought error.

The record contains the bill of exceptions taken before the referee at the instance of the administrator. It does not purport to include all the evidence, but only so much as, in the referee's judgment, tended. "to prove the facts stated and found in the report."

We think, under these circumstances, there is no ground for the administrator to go behind the findings of fact, and urge that they are not borne out by the evidence.

He has not complained of any part of the adjudication below, and if it be admitted that his bill of exceptions is entitled to any consideration here, it is not full enough to be of any avail to him. The case depends on the law arising on the facts reported by the referee.

The decedent, Cusick, was a single man, and had never been married. He died in January, 1864, intestate, leaving four sisters and one brother as his heirs at law. One of the sisters is O'Connor's wife. For about fourteen years preceding his death, and when not stopping elsewhere, he made his home at O'Connor's, and this was the case whenever he was sick or unable to get work. He acquired a lot of forty acres near O'Connor's, and, six or eight years before his death, put up a rough shanty on it, and lived there a part of the time. During the last six years of his life he boarded with O'Connor about half of the time, and for the same period Mrs. O'Connor and her daughter generally washed and mended for him, and also made more or less of his clothes. He was somewhat intemperate, and his habits and poor health caused much special care and attention.

There was no bargain or express understanding concerning pay, and no account was kept, and he never paid anything. But from time to time, during the six years mentioned, he repeatedly declared to different members of O'Connor's family that he would pay for all that was done for him. O'Connor provided for him during his last sickness and paid the funeral expenses. Shortly afterwards the surviving brother, and Mrs. Caples, a sister, quitclaimed to O'Connor their interest in the forty-acre lot, in order that it might be used to pay the debts. It was encumbered by a mortgage given in October, 1859, carrying interest at ten per cent., and decedent's note accompanied the mortgage. In April, 1864, O'Connor bought these securities and took possession of the land, and in 1869 he voluntarily discharged the mortgage of record and gave his son a deed of the south half of the lot. No steps were taken for a legal settlement of the estate until some time in 1876. Prior thereto O'Connor had gone on in good faith, and believing that all interested desired him to pursue the course taken.

The amount left of personal property was trifling, and this was divided between Mrs, O'Connor and Mrs. Caples, except a few pounds of pork and flour, which were given to the sisters of charity.

The first question is whether these findings of fact, which have

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been referred to and which the circuit court confirmed, establish a valid claim against the estate; and we think they do. We cannot look beyond the finding to speculate upon what might have been found to qualify or change the case. finding is in the nature of a special verdict, and is conclusive here; and, whatever questions there may be to be settled between O'Connor and the heirs, there is no room in this case and on this record for anything more than an adjudication upon his claim against the estate.

We think the demand founded on the note and mortgage a valid charge beyond controversy. They were the personal obligations of the deceased, and O'Connor purchased them, and the estate has never paid them. The other demands stand on a different footing, but we think all the items found by the referee to be owing to O'Connor, apart from the allowance of interest, must be allowed.

Their intrinsic nature gives them a meritorious character, and decedent did not expect the benefits were being rendered gratuitously. He expected to pay, and there is no fact indicating that O'Connor expected no return, and the finding includes an assumpsit in construction of law. The question of interest on this branch is governed by different considerations. It is a question of damages and not of positive agreement. The point is whether the detention of the demands ought to be compensated by damages in the name of interest.

Now it does not lie with O'Connor to impute laches to the estate or claim damages therefor. He was a creditor, and might have taken or procured adminstration without delay, and he neglected to do so. Moreover he was an active party in causing the estate to stand without being settled and without any one to represent it. He acted on an understanding that there should be no administrator and no legal settlement, and we think he must be deemed to have waived all right to damages for the delay.

According to the view taken O'Connor should be allowed on account of the note and mortgage $565.83, and on account of the other items found by the referee $1,150.15.

The determination of the court below against O'Connor must be reversed, and an order must be entered here allowing him the foregoing sums against the estate, and it must be so certified to the court below.

(The other justices concurred.)

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