The property of the Valley City Milling | west bank of the canal, commencing at the Company, the defendant, is located on lot C and the southerly portion of lot B between the Grand river on the west and the canal on the east. Complainants, Berkey & Gay, are located on the northerly part of lot C and lot A, immediately north and adjoining defendant's property. A second map showing the location of these several lots is here with subjoined:

all persons so desiring to use said way. La- | without contradiction that from the earliest ter and perhaps as far back as 1896 the defendant, the Valley City Milling Company, from time to time caused to be erected a sign, or signs, at the entrance to said way bearing the words "Private" or "Danger" or other words warning intending passengers over said way that they used it at their peril.

While it is admitted by defendant that its conveyance of lot C and the southerly part of lot B does not include said disputed strip it is its contention that it has acquired title thereto through other conveyances, for instance, a deed dated March 4, 1878, containing the following description:

"The bed, banks, and basin of the canal on the east side of Grand river, including strip of land, 6 feet in width on the east side of said canal, south of Bridge street, and a strip of land 30 feet on the west side of the canal extending from Bridge street north to the north line of the land assessed to Reuben

Wheeler, excepting public streets, alleys, highways, and thoroughfares."

Other deeds introduced in evidence are said by defendant to sustain its claim to the ownership of the fee in the disputed way.

A

period within the memory of living witnesses and during all the intervening time down to the present complainants and all other persons desiring to use said way have done so, and this user we find to have been as of right and not by sufferance. No protest against such user has been voiced by defendant except by the erection of the sign, hereafter noticed, and the way has never been closed except upon occasions when repairs were necessary. The maintenance of a sign to the effect that the road was a private drive and must be used at the risk of the user is not conclusive. In the first place the way had been in use for more than a quarter of a century before any sign was erected, and in the second place the purpose of its erection would seem to be rather to avoid liability for possible injury upon the way than to assert defendant's dominion over it.

brief to the proposition that a user having [4, 5] Many cases are cited in defendant's its inception in license or favor cannot ripen into a prescriptive right. This is undoubtedly the law, but the principle cannot be apComplain

decree having passed for complainants, de plied to the facts in this case.

fendant has appealed.

The case is argued under the following heads: (1) No easement exists by grant because: (a) The reservation was over a onethird interest only; (b) the dominant and servient estates have been merged since the reservation; (c) since the merger there has been no dominant and servient estates. (2) No easement exists by user. (3) No easement ever existed on the location found in the decree. (4) The proposed garage does not interfere with a right of way.

Argued before STONE, C. J., and KUHN, OSTRANDER, BIRD, MOORE, STEERE, BROOKE, and PERSON, JJ.

Rodgers & Rodgers, of Grand Rapids, for appellant. Butterfield & Keeney, of Grand Rapids, for appellees.

BROOKE, J. (after stating the facts as above). [1] The first position taken by defendant in our opinion requires no examination. It may be conceded for the purposes of this case that the reservation contained in the deed of one-third of lots C, B, and A executed in 1836 was obliterated by the subsequent merging of all the estates in Daniel Ball. The language of this deed, however, is of evidential value not as showing that complainants have a record title to the easement, but as indicating beyond peradventure that the owners of the property as early as 1836 believed that the beneficial use of the land lying between the canal and the river could only be enjoyed by the several owners thereof, if a common way were kept open on the west bank of the canal.

[2, 3] We are of opinion that decision may well be rested upon a negation of the de

ants themselves or their grantors purchased lot C as abutting on the west side of the way then called Mill street in the deeds. The user of the way had certainly existed execution of the deeds by which defendant more than a quarter of a century before the claims to have secured the title to the fee. Under these circumstances it cannot be claimlicense or favor of the defendant or its graned that the user in its inception was through

tors.

It has been held that the open, notorious, continuous, and adverse use across the land of another from a residence or place of business to a public road for more than 20 years affords a conclusive presumption of a written grant of such way (Clement v. Bettle et al., 65 N. J. Law, 675, 48 Atl. 567), and that when the passway has been used for something like a half century, it is unnecessary to show by positive testimony that the use was claimed as a matter of right, but that after such user the burden is on the plaintiff to show that the use was only permissive (Magruder V. Potter et al., 77 S. W. 919, 25 Ky. Law Rep. 1336). See, also, Chenault v. Gravitt (Ky.) 85 S. W. 184; Wathen v. Howard, 84 S. W. 303, 27 Ky. Law Rep. 7. We are of opinion that the defendant not only failed to show that the use of said way by the plaintiffs was permissive, but that the plaintiffs introduced testimony which convinces us that such use was enjoyed by the plaintiffs and their grantors as a matter of right.

[6] It is next contended by defendant that no easement ever existed on the location found in the decree. This claim is based upon the fact that the decree delimiting the way across defendant's land commences at a point 19.10 ft. west of the westerly line of

and it is urged that if any right of way ex-[defendant's proposed garage would seriously isted it was a right of way 30 feet wide im- interrupt their use of the way. mediately west of the canal. An examination of the Defendant's Exhibit C will show that the defendant just north of Michigan street has erected a garage 17.06 feet wide extending westerly from the edge of the canal, and that its intake is open for an equal distance west of the west line of the canal. Again referring to said plat we find that the way over the Berkey & Gay property is approximately 30 feet wide, though north of that it has been narrowed by structures at one point to 23.25 feet, and at another to 17.04 feet.

not measure up to the contract of warranty, | testimony on this issue was along the same the measure of defendants' damages agreed upon lines on the second trial, but there was in the contract, that another horse be furnished, was binding.

[Ed. Note.-For other cases, see Sales, Cent. Dig. §8 1284, 1295; Dec. Dig. 442(1).] Error to Circuit Court, Newaygo County; Joseph Barton, Judge.

Action by John McKinley against Fred L. Small and others. Judgment for plaintiff, and defendants bring error. and new trial ordered.

Reversed,

Argued before STONE, C. J., and KUHN, OSTRANDER, BIRD, MOORE, STEERE, BROOKE, and PERSON, JJ,

Warner, Raudabaugh & Person, of Lansing, for appellants. George Luton, of Newaygo, and Wm. J. Branstrom, of Fremont, for appellee.

for a Percheron stallion. The defendants re

more of it bearing upon the defects of the horse and the causes which produced them. This issue was again one for the jury, and should have been submitted to them. They should have been instructed, in substance, that, if they found the horse was sexually what the contract of warranty represented

he should be when delivered to defendants, and that his failure afterward to measure up to the warranty in that respect was due to his sickness and improper handling after the defendants received him, plaintiff was entitled to recover the amount of his notes.

On the other hand, if they found the horse was sexually defective when he was delivered to defendants, and therefore was not such a horse as plaintiff had agreed in his contract of warranty to furnish them, the

plaintiff was not entitled to recover.

[5] On the second trial the court was of

the opinion that there had been no rescission of the contract by the defendants, and therefore directed a verdict for the plaintiff. While the record shows some talk about rescission, the real issue made by the defendants' testimony was whether plaintiff had lived up to his contract of warranty in furnishing the kind of a horse he had agreed not rely on a rescission. They relied on the contract. They insisted upon plaintiff mak

BIRD, J. This case was before this court on a prior occasion, and reversed because of the failure of the trial court to submit to the jury a certain question of fact. 178 Mich. 556, 146 N. W. 230. A retrial has been had, and it is here again for review. The main issue in the first trial was whether plaintiff should recover against defendants on a certain promissory note given by them sisted the payment on the ground that the plaintiff had not lived up to his warranty of the horse. The warranty was as follows: "We guarantee the above horse to be a reasonably sure foal-getter and transmitter of sixtying good his contract of warranty, and from per cent. of good producing mares owned by the above-named stockholders, provided he shall have plenty of exercise and proper feeding and grooming, care and handling, and in case he should not prove so, we agree to replace him with another of the same breed and price, upon the delivery to us of the above named horse in as sound and good condition as he is at present.'

The defendants offered testimony tending to show that the horse was sexually impotent when he was delivered to them; that they notified plaintiff of the fact, and demanded another horse; that later they returned the horse to him; but that he never replaced him with another, in accordance

with the contract,

[1] Plaintiff replied to these contentions by introducing both lay and expert testimony that, if the horse were sexually weak, he was made so by sickness, improper care and handling after he was purchased by defendants. The testimony on this question clearly made it one of fact.

to furnish. The defendants, in fact, did

their viewpoint the thing he had to do to "make good" was to furnish them another horse that would satisfy the terms of the warranty. This was the measure of damages agreed upon in the contract, and was therefore binding. Canavan v. Neeld, 189 Pa. 208, 42 Atl. 115; 35 Cyc. 633; Black v. De Camp, 78 Iowa, 718, 34 N. W. 625; Monroe v. Hickox, Mull & Hill Co., 144 Mich. 30, 107 N. W. 719; Twin City Creamery Co. v. Godfrey et al., 176 Mich. 109, 142 N. W. 362, 50 L. R. A. (N. S.) 805.

For the failure of the trial court to submit this question to the jury, the judgment must be reversed, and a new trial ordered. The defendants will recover their costs.

CITY OF KALAMAZOO v. PERRIN. (No. 464.)

(Supreme Court of Michigan. Dec, 22, 1916.) [2-4] Another contested question on the 1. MUNICIPAL CORPORATIONS 449(3) first trial was whether the redelivery of PAVING-PROCEEDINGS-SUFFICIENCY. the horse to plaintiff was a valid delivery, A charter requirement that "when any speunder the contract, and this court held incial assessment is to be made pro rata upon the lots and premises in any special district accordits former opinion that the redelivery was ing to frontage or benefits, the city council shall a valid one. The only question then which by resolution direct the same to be made by the was open on the first trial was whether the city assessor and shall state therein the amount horse measured up to the warranty when to be assessed and whether according to frontage or benefits, and describe or designate the he was delivered to defendants. This was lots and premises or locality constituting the likewise the issue on the second trial. The district to be assessed," is sufficiently complied

with to support the assessment by a resolution without authority to assess abutting properthat: "The city assessor is hereby authorized ty owners for reconstruction and repaving and directed to make a special assessment roll containing a description of the property adja- of the street, and, if it had such authority, cent to the streets so improved as contained in it was not properly exercised. The trial said resolution and between the points herein- judge in his opinion made the following after mentioned, and to be benefited by the imstatement: provement so made, and to assess against said property the amount of benefit according to benefits. The foregoing special assessment being a portion of the cost of paving on said streets to be paid by the abutting property benefited thereby."

"Upon the oral argument it was not only conceded but claimed by counsel for both parties, in open court, that the improvement in question was, under the settled law, and for the purposes of this case should be considered, a re[Ed. Note.-For other cases, see Municipal construction and repavement of the street, and Corporations, Cent. Dig. § 1072; Dec. Dig. not regarded as repairs to an existing pave449(3).] ment."

2. APPEAL AND ERROR

925(2)—PRESUMPTIONS SCOPE-WAIVER OF POINTS. Where the trial judge in his opinion stated that certain things were not only conceded but claimed by both parties, and such statement was not expressly denied, it would, on writ of error, be presumed that such was the case, and no question on such matter would be reviewed. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 3730-3733; Dec. Dig. 925(2).]

The history of the street in question as to its pavement is, briefly, as follows: It was paved in 1892 and one-third of the expense was assessed to abutting owners. In 1902-03, the original pavement having become worn out, it was repaved by the Bitulithic Paving Company, and the entire expense was spread upon the general tax rolls. Under this contract, the paving company guaranteed to keep 3. MUNICIPAL CORPORATIONS 406(1)—PavING-SPECIAL ASSESSMENTS-ESTOPPEL. the pavement in repair for five years after its The mere fact that the city in one year acceptance. In June, 1908, the city passed voted to pay from the general treasury for cer- a resolution requiring the paving company tain paving repairs would not estop it from levy- to put the street in condition under its coning a special assessment for future repairs. [Ed. Note.-For other cases, see Municipal tract, and in December, 1908, a final settleCorporations, Cent. Dig. § 1001; Dec. Dig.ment was made with the paving company, 406(1).] and the balance which had been retained by

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1068; Dec. Dig. 447.]

4. MUNICIPAL CORPORATIONS 447-PAV- the city to insure the performance of its ING-SPECIAL ASSESSMENT STREET RAIL- guaranty was paid over to the paving comWAY TRACKS. The mere fact that a paving contract re-pany. It is asserted by the defendant that quired a street railway company to pave be- the street was not put in repair by the paving tween its rails, and that the city permitted it company in accordance with said resolution, to delay after paving outside the rails, on agree- and it is asserted by the attorney for the city ment to pave later, would not invalidate the special assessment for the paving laid. that repairs were made in accordance with said resolution, and that the settlement made with the company seven months later was Imade only after the paving company had fulAlled its contract as to the guaranty. The record fails to disclose what was done under the resolution of June, 1908, with reference to repairs. It does show, however, that on December 28, 1908, a resolution was passed by the common council directing the payment of $1,980.30 to the paving company.

5. Appeal and ERROR 173(1)—PRESERVA

TION OF GRounds-DEFENSES.

A question of defense not contained in the plea and notice filed is not open on writ of error. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 1079, 1093; Dec. Dig. 173(1).]

Error to Circuit Court, Kalamazoo County; George V. Weimer, Judge.

Action by the City of Kalamazoo against George W. Perrin. Judgment for plaintiff, and defendant brings error. Affirmed.

Argued before STONE, C. J., and KUHN, OSTRANDER, BIRD, MOORE, STEERE, and BROOKE, JJ.

Alfred J. Mills, of Kalamazoo, for appellant. Marvin J. Schaberg, of Kalamazoo, for appellee.

The case was heard by the court without a jury, and a verdict was directed in favor of the plaintiff for the amount claimed.

[1] It is first contended on behalf of the appellant that the provisions of the city charter, which are mandatory, were not followed literally nor in substance by the city council, and that therefore the assessment relied upon is unlawful and inoperative. Section 7, c. 23, of the Charter, being Local Act No. 475, of 1897, is as follows:

BROOKE, J. The plaintiff city sues to recover the sum of $126.50; said sum having "When any special assessment is to be made been assessed against land owned by the de- pro rata upon the lots and premises in any special district according to frontage or benefits, fendant abutting West Main street in said the city council shall by resolution direct the city for repaving and resurfacing said street. same to be made by the city assessor and shall With its plea of the general issue, defend-state therein the amount to be assessed and whether according to frontage or benefits and ant filed a notice of special defenses. De- describe or designate the lots and premises or fendant contends, in effect, that the city was locality constituting the district to be assessed."