Runnells v. Village of Pentwater

Grant, J.

(after stating the facts).

1. Error is assigned upon the introduction of a receipt for $43.75, dated May 4, 1895, and signed by the village clerk, and accompanied with an application for a license to run a ferry. It also certified that, at the time of receiving the money and application from plaintiff, the common council had not drawn any contract setting forth the rules governing the running of the ferry, or designating the amount of the bond to be given by the applicant. It is urged that this receipt did not tend to establish the right in which he claimed to be disturbed, since he claimed no license. Counsel for the plaintiff stated that their object in introducing it was to show that the common council had not provided any bond or contract to rule and govern the operation of the ferry. Limited to this purpose, we do *514 not see how its admission could have prejudiced the defendant.

2. Plaintiff gave testimony as to the location of the ferry slips, and testified that he knew the location, ‘ ‘ because he had Mr. Grant sui-vey it, and saw him drive a stake, and Mr. Mears and Mr. Russell showed him where the corner of the block was.” This testimony was received without objection, and afterwards the defendant’s counsel made a motion to strike it out, which was refused. No reason was given for the motion, and it cannot, therefore, now be considered, under the rule in Rivard v. Rivard, 109 Mich. 98 , and authorities there cited.

3. The court instructed the jury that “damages will not be mitigated or lessened by proof that the owner of the scow, after it was willfully unfastened and cast adrift, had neglected to take such measures as were in his power to recover and secure it.” It is claimed that there is nothing in the record to show that the scow was willfully unfastened and cast adrift, and the case of Montgomery v. Booming Co., 88 Mich. 644 , is cited to support the contention. In that case nothing was done with the evident purpose of accomplishing the result which followed. In this case the act was done deliberately and intentionally. Probably, it would have been more accurate to use the word “intentionally,” but, inasmuch as the instruction limited the recovery to the actual damage sustained, it could not have prejudiced the jury.

4. The fifth error assigned is that the court refused to give each and every of defendant’s requests numbered 3, 7, 8, 10, and 12. These cannot be considered, because no exception to the refusal was taken. Thorn v. Maurer, 85 Mich. 569 .

5. Error is assigned upon that portion of the general charge wherein the court stated to the jury that, if the plaintiff was on his own land, the defendant had ho right to go there, or to interfere with his property. It is true that the ownership of land was not in issue, but the *515 result depended entirely upon the question whether the land was a part of the street, or was private property. The instruction was therefore correct.

We find no error, and the judgment is affirmed.

Montgomery, Hooker, and Moore, JJ., concurred. Long, C. J., did not sit.