Donohue v. Russell

This is an appeal by the defendant from a judgment of the circuit court of Bay county in summary proceedings for the possession of land lying between the meander line and the water line of Saginaw Bay.

In July, 1918, the defendant leased from the plaintiff a vacant lot on Donohue Beach for a period of five years. On this lot he built a cottage. He occupied the cottage and paid his rent until March 22, 1923, at which time this court decided the case of Kavanaugh v. Rabior, 222 Mich. 68, in which it was held that riparian owners along the Great Lakes own only to the meander line, and the title to the land beyond that line is held by the State in trust for the public. In December, 1930,Kavanaugh v. Rabior was overruled by Hilt v. Weber, 252 Mich. 198 (71 A.L.R. 1238), in which it was held that the riparian owner owns the land beyond the meander line to the edge of the water. Following the Kavanaugh Case, and until the decision in Hilt v. Weber, a period of about seven years, the defendant, acting under the advice of the State conservation department, paid no rent. The plaintiff notified him by mail that:

"No more statements will be sent you until after the disputed question of ownership is settled by either the legislature or the Supreme Court, but your account will be carried with interest."

After the question was settled in Hilt v. Weber, the plaintiff demanded the payment of rent for the preceding seven years. Defendant refused to pay. Summary proceedings were instituted, and in the circuit court judgment was rendered for the plaintiff. The defendant has appealed.

The question to be determined is whether the plaintiff is entitled to recover rent for the period during which, according to the decision in the Kavanaugh Case, she had no title. The answer depends on whether the overruling decision is given prospective or retrospective effect.

"The effect of overruling a decision and refusing to abide by the precedent there laid down is retrospective and makes the law at the time of the overruled decision as it is declared to be in the last decision, except in so far as the construction last given would impair the obligations of contracts entered into or injuriously affect vested rights acquired in reliance on the earlier decisions. * * * The overruled decision remains the law of the case with respect to the particular case in which it was rendered." 15 C. J. p. 960, § 358.

See, also, 7 Rawle C. L. p. 1010, § 36.

As the principle enunciated in these texts is supported by the great weight of current authority, it is not necessary to indulge in a further discussion of the question.

But the defendant contends that, in reliance on the former decision, he has acquired vested rights by having made permanent improvements on the premises, and, therefore, comes within the exception that prevents the overruling decision from operating retrospectively.

We think the trial court correctly disposed of this contention in the following statement, which we quote from his opinion:

"An examination of the testimony discloses that the major portion of services and betterments were required under the terms of the lease. Equipping the cottage with water and electric lights was a voluntary act on his part. All of the services and improvements were for his own convenience; the cottage, being personal property, may be removed, in which event the installation of electric lights and water would be practically destroyed, but were all originally for his own personal use and comfort, for which there could be no accounting."

Other questions argued in the briefs and not herein discussed are considered to be without merit.

The judgment is affirmed, with costs to the plaintiff.

CLARK, POTTER, SHARPE, NORTH, FEAD, WIEST, and BUTZEL, JJ., concurred.