Elk Rapids Iron Co. v. Township of Helena ( 1898 )

Grant, C. J.

(after stating the facts). The statute provides that all forest products “shall be assessed in the township or ward where the same may be * * * on the second Monday of April of the year when the assessment is made, except that, where such property is in transit to some place within the State, it shall be assessed 'in such place.” Act No. 206, Pub. Acts 1893, § 14, subd. 8. Section 15 of the same act is as follows:

“All forest products in transit on the second Monday in April in each year, and thereafter found in the waters or streams of this State, or on the banks or shores of any lake, pond, or stream of this State, when the same is not at the place where it is to be manufactured, shall be held to have a place of destination at the sorting grounds of the rafting and driving agents or booming company nearest the mouth of the stream, unless the contrary shall be made to appear by the owner or party having the same in charge: Provided, that all lumber, logs, timber, lath, pickets, shingles, posts, cordwood, tanbark, telegraph or telephone poles, or railroad ties, that may be piled or left in any yard, railroad reserve, or in any shed, shall not be deemed in transit, but shall be assessed to the person or corporation having control of the yard, railroad reserve, shed, or place of storage where the same may be situated at the time provided by law for taking such assessment.”

The sole question is, Were these products in transit at the time of the assessment ? It is conceded that, from the moment these logs were cut in the woods, they were intended to be transported from there to plaintiff’s mill at Elk Rapids for manufacture, and that the only delay contemplated was that caused by the condition of the water. Reliance is placed mainly upon Hill v. Graham, 72 Mich. 659. That decision was rendered in November, 1888, under the act of 1885 (Act No. 153, § 11, subd. 4). The law of 1885 was amended in 1889 (Act No. 195), adding, after the words “streams of this State,” these words: “or on the banks or shores of any lake, pond, or stream of this State, when the same is not at the place where it is to be manufactured.” It is fair to presume that the amendment of 1889 was made in view of the decision of Hill v. Graham. In that case the jury were instructed that if the logs in question were not in the waters or streams, were not actually started on their way, but were in unbroken piles, awaiting the breaking up of the river or rise of water before starting, the mere intent of the ownérs, unaccompanied by any acts showing their purpose to drive the logs, would not justify the finding that the property was in transit. The jury undoubtedly found, and based their verdict upon the fact, that the logs were simply banked, and were not in the stream. Under the law of 1893, which is the same as that of 1889 and 1891, when forest products are on the banks or shores of any lake, pond, or stream, and not at the place of manufacture, the destination is at the sorting grounds, unless the owners make the contrary to appear. The contrary is conclusively shown in this case. The case of Maurer v. Cliff, 94 Mich. 194, does not apply, because the products there involved were within a provision of the statute of 1891 identical with the proviso of section 15 of the act of 1893 above quoted. The case is within the rule laid down in Brooks v. Township of Arenac, 71 Mich. 231; Pardee v. Township of Freesoil, 74 Mich. 81; Corning v. Township of Masonville, Id. 177.

The judgments will be reversed, and judgments entered here for the plaintiff, with the costs of both courts.

The other Justices concurred.