
    Druse vs. Wheeler et. al.
    
    Error to Washtenaw Circuit.
    A entered into a written agreement to exchange lumia with tho trustees of a Church, tho proper conveyance» to bo made as aeon tut tho trustees could got logal authority to act. On tho same day ho gavo verbal permission to tho trustees to outer upon the land he woe to convey, and to build hIioiIb. Tho fence was Hot back and sheds built. Some fifteeumonth» afterward», A moved hack hi» fence ho oh to ineludo the sheds, and the trustees, a few days laterroniovod tho fence ami took off the sheds, See. Held, That thore was no right of possession secured under this contract for the oxchangn of lands. Tho whole matter was con" tingent upon the society having tho right to act. Thore was no connection betwoon the formal license ami the written contract. The rights of tho trustees must have rested on the parol license, whatever they may lmvo been, and a parol license is revocable at any timo,
    to actions of trespass to lands it is proper to givo in evidence acts almwingjtho disposition with which the[trcspuHH is committed.
   Opinion by

Campbell, C. J.

Plaintiff;' brought trespass against defendants for breaking his close and committing various grievances, including the removal of certain fences and sheds, and an imprisonment of his person. Defendants under the general issue gave notice of defense, and also of title in a Baptist Church of which they were trustees, and as such did the acts 'u question. It appeared that the plaintiff owned a farm adjoining the church lot, and November 29,1867, entered into a contract purporting to be with the trustees, whereby, as soon as the latter could get legal authority to aot, plaintiff was to deed, by warranty deed, to the churoh the lot they occupied, and a part of his adjacent premises, and the ohurch was to quit-claim to him the half quarter section, including the farm and church premises, and agreed to oocupy the land deeded by him for churoh purposes, parsonages, sheds, &c., to build their erections at certain places, and not to sell the premises for any other purposes except for farming.

On the same day plaintiff gave verbal permission to build horse sheds on that part of his land which was ultimately to be conveyed to the church, and the parties set back the fence and began to prepare the land and had got the sills laid upon the ground when further work was suspended by reason of the cold. In April it was about to bo resumed, when, according to plaintiff’s proofs, he revoked his'permission and relused to allow anything more to be done. The parties, however, went on and built their sheds. Some fifteen months thereafter, plaintiff moved back his fence so as to inolude the sheds, and a few days after the defendants took down- the fences, removed the sheds, and committed the trespasses complained of. There were 17 sheds and they were for the individual use of such as paid for them.

The principal error assigned related firsl, to the rulings of the Court, touching the respective rights of the parties concerning the premises in question ; second, to the elements which might enter into the case as causes of damage.

The Court below held that if the sheds were built by plaintiffs permission for the uses contemplated, they and the land in front of them necessary for access wore in the possession of the church, and plaintiff could get no lawful possession again except by voluntary surrender or upon legal process, and that any other taking of possession would make him a wrong doer. That the trustees might lawfully remove the fence, and take off thesheds without becoming trespassers. .Tt was further held that if the trustees entered the land and erected the sheds under or upon the conditions of the contract to exchange lands, whidh was afterwards reduced to writing, then by the terms of that contract it was the duty of the plaintiff to tender to the trustees a deed of conveyance of the premises, so as to offer to perform on his part before taking steps to revoke the liconse or gain possession of the lands where the sheds were.

Held, That there was no right of possession secured under this contract for the exchange of lands. The whole matter was contingent upon the society having the right to act. There was no connection between the formal license and the written contract. The rights of the trustees must have rested on the parol license, whatever they may have been, and a parol license is revocable at any time. The verdict, finding the defendants trespassers must rest on the absence or revocation 6f the license; and, if revoked, it was before the sheds were built, and the lapse of time between the revocation and the trespass exceeded any possible term required by season or necessity to remove them, and whether they were liable for their value or not they were no less trespassers. The Court was not called upon, therefore, to pass upon these proprietary questions.— The case was thought not to be distinguishable from that of a license to go upon Fair grounds or other places of lawful resort on occasions when they are in use for specific purposes. It was deemed evident that the rulings of the Court were all made upon the assumption that the permission was lawfully connected with the written contract. - The entire theory was based on insufficient grounds, and the rulings were erroneous.

* It was alleged as error that parol proof was admitted that certain of the defendants were acting trustees of the church. But the rule was considered settled that except for some pecular purposes, such evidence is sufficient. The Court could not try titles to office in any such litigation as the present.

It was charged as error that testimony was excluded as showing the disposition and spirit with which the trespass was committed and the malicious arrest of the plaintiff, to get him out of the way, while the trespass was to be consummated.

On the argument it was admitted that these circumstcnces should have been shown, except as to the arrest of the plaintiff, which it was claimed, would have been a ground of action by itself and therefore should not have been considered.

Meld, however, that the authorities clearly recognize the right to recover for such an injury done in connection with the wrongful intrusion as an act of aggravation, in actions for trespass to lands.— The decision of the Court was erroneous in this respect.

There was error also regarding the question of costs. The statute gives costs to the plaintiff, who recovers any sum in trespass, however small, where the title to lands or tenements, or a right of' way, or a right by prescription or otherwise to any easement in any land, or to overflow the same, or to do any other injury thereto, shall have been put in issue by the pleadings, or shall have come in question on the trial of the cause. Both title and license were set p, and each is within the clear intent of the statute.

Judgment reversed and a new trial ordered.  