Action to recover double damages for failure to contribute to division fence.

G. J. Cox, (P. G. Stroud, of counsel,) for appellant, Spain. J. H. Rogers, for respondent, Farr.

COLE, C. J. The parties to this suit own adjoining lands, which are used and occupied for farming purposes. Being unable to agree as to keeping up a partition fence, the plaintiff had fence-viewers appointed to make a division of the partition fence under the provisions of the statute. See chapter 55, Rev. St.; chapter 138, Laws 1880. The fence-viewers made a division, assigning to each party the fence he should build, and directing that the same should be built within 80 days from the date of the order. The plaintiff claims to have built his own part, and, on the neglect of the defendant to build the part assigned to him, the plaintiff built such share. Subsequently he called upon two fence-viewers of the town to examine the fence he had built for the defendant, and ascertain the expense thereof. The fence-viewers, having examined the fence, adjudged it to be sufficient, and made their certificate of the amount of the expense in conformity with the statute. The plaintiff brings this suit to recover double such expense, as he is authorized to do. When the case was reached for trial, the defendant claimed that he was entitled to have the issue tried by a jury; but the plaintiff insisted it was an equitable action, properly triable by the court, and this view was sustained by the learned circuit court, and the demand of the defendant for a jury trial was denied. The court proceeded to try the case, and rendered judgment against the defendant, from which he has appealed.

A number of errors are assigned for the reversal of this judgment, but we shall only consider the fifth, which is that the court erred in refusing the defendant the right of trial by jury, and in holding this to be an equitable action. That an action to recover money, given by statute by way of penalty for the neglect or refusal of a party to do a prescribed act, such as the building of a division fence, is legal, and not equitable, in its character, seems to us a proposition too plain for discussion. The correctness of the proposition would probably not be controverted in this case, were it not for the last clause of section 1397, which makes the adjoining lands of the delinquent owner or occupant liable to seizure and sale upon the judgment recovered, and which provides that such lands "shall in no case be exempt from any execution issued thereon." It is said that this provision makes the judgment a specific lien upon the adjoining lands, which it is the peculiar province of a court of equity to enforce. But we do not think the clause changes the character of the action, even if it has the effect to give a specific lien upon the adjoining land for the amount of the judgment, of which there may be some doubt. Be that as it may, statutory liens are given in many legal actions, -as for claims against boats, (chapter 144;) for labor upon logs and lumber, (chapter 143;) for the damages resulting from flowage by a mill-dam, (chapter 146,)—so that the mere fact that a lien is given does not afford an accurate test to determine the character of the action. It is true, an action to enforce a mechanic's lien under the present statute is held to be an equitable one, (Willer v. Bergenthal, 50 Wis. 474; S. C. 7 N. W. Rep. 352;) while, under the previous statute, it was held to be legal, (Marsh v. Fraser, 27 Wis. 596.) In this case the judgment is enforced by an execution, and the action is doubtless a personal one. It is said if the occupant is not the owner, and is irresponsible, the remedy given by the statute is worthless. But the lands may be sold, for the law so expressly declares. It even takes away the exemption, if the land happens to be a homestead. But, by all the analogies of the law, a suit to recover a penalty is classed with legal actions, (see chapter 142, Rev. St.;) and an action of this nature was treated as legal in Butler v. Barlow, 2 Wis. 11; Bechtel v. Neilson, 19 Wis. 50; Hazard v. Wolfram, 31

Wis. 194. It is surely an action for the recovery of money only, and is triable by a jury, unless a jury is waived. Sections 2843, 2862.

We do not pass upon the other questions discussed, though they are of much practical importance. It will be time enough to decide them when they are properly before us, after the case has been tried by a jury.

The judgment must be reversed, and the case remanded for a new trial in accordance with this opinion.

LYLE . LEASIA and others.

(Supreme Court of Michigan. January 6, 1887.) WAYS-PUBLIC-ILLEGALITY OF PROCEEDING FOR VACATING-ESTOPPEL-MICHIGAN STATUTE OF LIMITATIONS.

When the commissioners of highways of a township in Michigan, by altering a highway, practically vacate a portion of it, and the use of such portion is abandoned by the public for 12 years, its existence as a highway is at an end, although the statute makes 15 years the period of non-use which will work a forfeiture, and notwithstanding that the commissioners did not give the notice required by law to the persons owning the land in the portion of the road vacated at the time it was vacated. Such commissioners cannot be heard to establish the illegality of their own proceedings in order to acquire the lands for a public highway.

Appeal from Saginaw. In chancery.

Wm. G. Gage and D. W. C. Gage, for appellant.

By proceedings to alter a highway the public abandons the portion of the road that is not used in the road as altered. Com. v. Westborough, 3 Mass. 406; Hobart v. Plymouth, 100 Mass. 159; Goodwin v. Marblehead, 1 Allen, 37. The defendants cannot claim their proceedings valid for holding the road as altered, and deny their validity for other purposes. Bigelow, Estop. 466, 578; Clay Ins. Co. v. Huron S. & L. Co., 31 Mich. 346; Prescott v. Patterson, 49 Mich. 622; S. C. 14 N. W. Rep. 571; Baker v. Braman, 6 Hill, 47; Embury v. Conner, 3 N. Y. 511; Detmold v. Drake, 46 N. Y. 324.

Tarsney & Weadock and T. A. E. & J. C. Weadlock, for respondents.

The laying out of one highway, and discontinuance of another, cannot be joined in the same proceeding. Shue v. Highway Com'r of Richmond, 41 Mich. 638; Morgan v. Same, Id., and cases cited. Service of notice of vacation of lands is a jurisdictional fact, and must be shown to have been made. Dupont v. Highway Com'rs, 28 Mich. 362; People v. Commissioners of Nankin, 14 Mich. 528.

MORSE, J. The complainant filed his bill in the circuit court for the county of Saginaw in chancery to enjoin defendants from plowing up and digging and ditching upon his premises. He claims that he is the owner in fee, and has had possession, by himself and his grantor, for 12 years prior to the filing of his bill, of a strip of land about one-half mile in length, lying between the Cass river and the Flint & Pere Marquette Railroad track and right of way; said strip is occupied by him and fenced, and contains about 10 acres, and is of the value at least of $1,000; that the same is under cultivation, and a valuable crop of grass was growing thereon when the defendants entered upon the premises, and proceeded to dig up the land, and destroy said crop; that said defendants threaten to continue to enter upon his lands, and destroy his fences inclosing the same, and to dig up and ditch said lands so as to make them unprofitable for cultivation, and thereby valueless. This strip of land is from four to fifteen rods wide, and part of the bottom lands of the Cass river, and subject to overflow, and that the operations and trespasses of the defendants, as aforesaid, will cause the surface soil, as the complainant fears, to be washed away in the freshets of said river, and the value of said land to be destroyed.

The defendant Leasia answers, admitting the ownership of the premises to be in the complainant, and the cultivation of the same, but claims that said ownership is subject to the easement of a public highway running through the lands, which highway is not under cultivation, and has been for over 30 years a well-defined and used public highway. He avers that he is highway commissioner for Bridgeport, within which township the said highway is situated, and that he entered upon such lands in the performance of his duty as such commissioner, and the other defendants entered as laborers under him; denies that he or they did any injury, or threatened any, to the land or crops of complainant; that said land, embraced, as he claims, in the highway, has been open and occupied as a public highway for 35 years,-up to and including the year 1871,--and since 1871 has been used as a highway by parties in that vicinity who desired to use the same; before 1871 there was a public bridge across the Cass river, from the foot of State street, in the village of Bridgeport; in that year a new bridge was built across the same river about one-half mile above said old bridge, which new bridge was afterwards used for crossing the river, instead of the old one, until the summer complainant's bill was filed, (1882,) when said last-built bridge became rotten, and unfit for use and unsafe for travel; that the people of the township of Bridgeport voted to build a new bridge, in pursuance of the statute, upon the site of the first-named or old bridge, and that the authorities of said township, acting under vote, have made a contract for the erection of a bridge upon said old site, the cost and expense of which will exceed the sum of $1,500, and that, in order to make said highway passable and fit for public use, it is necessary to repair and improve said highway where it runs through complainant's lands; that said highway and bridge will be the only means of crossing said Cass river in the town of Bridgeport. He also avers that in 1861 himself and one Jesse Irish were highway commissioners of Bridgeport; and, the original record of the laying out of this highway being lost, the said commissioners, for the purpose of re-establishing said highway, caused the same to be surveyed, which survey is set forth in his answer.

Under the issue made by the pleadings, as aforesaid, the case was heard in December, 1882, by a jury called by the circuit judge, in order to determine in an advisory manner these questions of fact: First, was there a highway across complainant's land July 10, 1882? And, second, if so, where was the same located? The jury found there was such a highway, and that it was located upon a survey made by one Pettibone. October 26, 1885, the cause was heard, upon pleadings and proofs, before the same circuit judge, Hon. CHAUNCEY H. GAGE, who entered a decree dismissing the bill of complaint. Upon a careful examination of the record, we think the decree of the court below is wrong, and that the complainant is entitled to the relief sought in his bill. It appears from the proofs that in an early day, as far back as 1840, people residing in the vicinity commenced traveling along the river bottom, partially upon the land now owned by complainant, crossing the river by ferry or fording. Between 1852 and 1857 a bridge was built over the Cass river for the accommodation of this travel, which bridge was used continuously until 1871, when it became old and rotten, and was torn down, and a new bridge built.

The highway claimed by defendants was never laid out and established as a public road, nor is there any evidence of any proceedings attempted under the statute for that purpose. There is some misty testimony of a survey made in 1845, or thereabouts, but nothing tangible. In 1861 one Pettibone, a civil engineer, made a survey of this highway, the center line of which he claims was then the traveled part of the road. This survey was recorded in the record-book of the commissioners of highways of the township wherein the road was situated. He also testifies that the line of his survey is the same

as the road worked by the defendant. Another surveyor testifies, however, that the present line does not agree with the survey of Pettibone.

If this highway, as now claimed by the defendants, ever became a public road, it became one by user only. We do not think the testimony as to the land used for travel up to the time of Pettibone's survey is definite enough to establish a highway by user. The land was wild, unoccupied, and uncultivated. The testimony shows there were several tracks, and people traveled all over the bottom, as suited their convenience; shaping their course also in reference to high and low water times. After Pettibone's survey, there was more or less highway work done upon this road, and the public seemed to have treated it as a public highway up to the year 1871. În 1870 or 1871 a new bridge was built over the Cass river, about half a mile from the site of the old one; and thereupon, as we think, the public formally abandoned the highway there located and used upon the line of the Pettibone survey. This highway was known as the "Taymouth Road," and on the twenty-first day of February, 1870, an application was made to the commissioners of highways, by a large number of freeholders, to alter this road, so that it might cross the new bridge, instead of the old one. The commissioners proceeded under the application, and altered the same. After this action, the road now claimed by the defendants was virtually discontinued and abandoned. The travel thereafter went the new way. In 1874 that portion of the old highway, from river bank to river bank, the site of the first bridge, was discontinued and vacated by the commissioners. For a period of 12 years, from 1870 to 1882, there was no travel over the old road upon the Pettibone survey, except by stragglers and lumbermen on foot, and the teams of persons owning the land, who used the same for their convenience in working the premises. The lots owned by complainant, and comprising the lands involved in this controversy, were state lands until 1851. In that year Isaiah J. Hudson purchased these lots from the state, and received a certificate therefor from the proper officer. Some of this land was improved and worked in 1859. The complainant rented the premises about two years before he purchased, and in 1876 fenced it in, which fence remained until disturbed by defendants. No action was taken by the public, after the abandonment of this highway, to re-establish it, but the defendant claims it has never ceased to be a public road.

In this state it has been decided that a highway, or any portion of it, can be lost by non-user alone. Gregory v. Knight, 50 Mich. 61-64; S. C. 14 N. W. Rep. 700. But it is also contended by defendant that the non-user must be for the statutory period of 15 years, and that the time falls short in this case. But where there is a formal abandonment, and the opening of a new road, and its use, instead of the old one, the case is different.

The only objection urged against the action of the commissioners in altering and practically vacating, by such alteration, this part of the road upon complainant's premises, is that the records do not show that the highway commissioners gave the notice required by law to the persons owning the lands embraced in the road vacated. As long as the complainant and others owning the premises raised no question upon this point, and the action of the commissioners has for 12 years been accepted as valid by every one concerned or interested in the premises, as well as by the public generally, we do not think the public authorities can now be heard to establish the illegality of their own proceedings in order to acquire the lands of the complainant for public use without compensation. Under their actions, in which all have acquiesced, he has gone on and improved the premises, and perhaps purchased them, relying upon the fact that the road was abandoned, as he bought the land since the discontinuance of the highway. There is no principle of equity that vill sanction or sustain the action of defendants in now seeking to rehabilitate this extinct road with the life it may have once had by reason of its user before its abandonment.

The decree of the court below dismissing the bill of complaint is reversed, and a decree will be entered in this court enjoining defendants, in accordance with the prayer of complainant's bill, and costs of both courts awarded him.

(The other justices concurred.)

LEONARDSON v. HULIN and others. (Two Cases.)

(Supreme Court of Michigan. January 6, 1887.)

EQUITY-GRANTOR OF UNSOUND MIND-GRANTEES WITH NOTICE.

In a suit in equity to have deeds of lands and assignments of mortgages set aside and declared void, as in fraud of the grantor, and of the equitable interest of the complainant in the property, where it appears that at the time the first of the conveyances was made the grantor was in his eighty-fourth year; that at that time, and during the remainder of his life, he had a mania for making instruments affecting his property; that he frequently made such instruments, and then destroyed them; that he was peevish, and took offense at imaginary wrongs; that he had become filthy in his personal habits and acts; that the grantees, in the conveyances complained of, knew of his mental condition, and of the rights of the complainant; and that the consideration for the conveyances was inadequate: held, that such conveyances are fraudulent and void.1

Appeal from Macomb. In chancery.

Original and supplemental bills to have conveyances declared void.
Crocker & Hutchins, for respondent.

A court of equity will set aside a conveyance made by one whose mind has become very weak by age, sickness, or other cause, when the consideration is grossly inadequate. Allore v. Jewell, 94 U. S. 506; Clark v. Fisher, 19 Amer. Dec. 402; Harding v. Handy, 11 Wheat. 103; Condensed Rep. 235; Jacox v. Jacox, 40 Mich. 473; Bowe v. Bowe, 42 Mich. 195; S. C. 3 N. W. Rep. 843; Duncombe v. Richards, 46 Mich. 166; S. C. 9 N. W. Rep. 149; Thorn v. Thorn, 51 Mich. 167; S. C. 16 N. W. Rep. 324; Perry, Trusts, § 190.

A. S. Canfield, Thomas Wellman, and Wm. T. Mitchell, for appellants. On the facts shown there is nothing on which to hold that the grantor was incapable of making the deeds in question. Kempsey v. McGinnis, 21 Mich. 123-138; Aicken v. Wickerly, 19 Mich. 506; Fraser v. Jennison, 42 Mich. 206, 227, 235; S. C. 3 N. W. Rep. 882. The conveyances are valid, if the grantor understood the import of the transactions. Hovey v. Hobson, 55 Me. 256; Miller v. Craig, 36 Ill. 109; Lozear v. Shields, 23 N. J. Eq. 509; Lowder v. Lowder, 58 Ind. 538-542; Van Alst v. Hunter, 5 Johns. Ch. 148; "Senile Dementia," 3 Amer. Law. Reg. (N. S.) 449.

MORSE, J. The original bill was filed in this cause, January 26, 1880, and during the life-time of Aaron Hulin, Sr. Aaron Hulin, Sr., died during the pendency of the suit, February 14, 1881, and thereafter, upon leave of the court, the supplemental bill was filed. The facts in the case, as we find them, are as follows:

In the fall of 1843 the defendant, Aaron Hulin, Sr., then a bachelor of the age of about 49 years, intermarried with Elizabeth Leonardson, the mother of complainant, at Chesterfield, in the county of Macomb. She was a widow, with four grown-up children, and about 48 years old. She had $300 or $400 in money, derived from her first husband's estate, who was the father of complainant. Hulin, at the time, owned 80 acres of land in Chesterfield, and some real estate in Ohio. Soon after the marriage, Hulin, with the money of his wife, bought 40 acres more of land in Chesterfield, taking the deed in

1 As to the avoidance of instruments executed by those of unsound mind, see Worthington v. Campbell, (Ky.) 1 S. W. Rep. 714, and note; Physio-Medical College v. Wilkinson, (Ind.) 9 N. E. Rep. 167; Worthington v. Campbell, (Ky.) 1 S. W. Rep. 714, and

note.