
    The Gratwick, Smith & Fryer Lumber Company v. Byron R. Lewis.
    
      Logs and logging — Lien jor damage to land — Owner—Replevin— Ai bitration.
    
    Plaintiff replevied certain logs which were left by a river drive on defendant’s land, without any steps being taken to arbitrate defendant’s damages under Act No. 142, Laws of 1886, and defendant was awarded damages, and a lien therefor was found in his favor. The plaintiff raised the question of the constitutionality of the provisions of the act providing for arbitration proceedings to fix amount of damages.
    
      Held, that the lien made put and found by the jury could not he destroyed by the provision for arbitration proceedings, so long as no arbitration was attempted, and that the constitutional question was out of the case.
    Error to Oscoda. (Tuttle, J.)
    Argued June 15, 1881'.
    Decided June 23, 1887.
    Replevin. Plaintiff brings .error.
    Affirmed.
    The facts are stated in the opinion.
    0: B. M’ Gutoheon, for appellant.
    
      Marlcey & Hall, for defendant.
   Campbell, C. J.

Plaintiff, a lumbering corporation, had charge of the general drive on An Sable river in the spring of 1886, and a considerable number of logs got left on defendant’s land. Plaintiff’s agent went to get these logs, and tendered $35 for damages to the land, which defendant refused as inadequate, and ordered plaintiff’s agent not to remove the logs till the actual damages were paid. Plaintiff replevied. On the trial, defendant proved damages to the amount of $97.50, and a lien was so found in his favor.

TJpon the trial, plaintiff’s attorney asked under what law defendant claimed a lien, and was answered under Act No. 142 of the Laws of 1885. Plaintiff claimed that law was unconstitutional. The court below held that it created a valid lien, but expressed some doubt as to a part of its provisions, and allowed the recovery.

The only questions argued by plaintiff’s counsel in this Court related to the arbitration provisions of the law of 1885. These were, in substance, that, if the parties did not agree upon the amount of damages, they might arbitrate, and that, if they could not agree on arbitrators, either might notify the other to appear before a justice, who should select eighteen names of freeholders, from whom, by alternate action, each should strike off a name in succession, the moving, party beginning, until three names were left. These three were to act in the usual manner of arbitration, and their award was to become a judgment, and be enforced, subject to statutory appeal. Certain further provisions as to unclaimed logs need not be referred to. These last provisions are not changed substantially from the old law, except as to the time of proceeding to remove, and in some matters involving no new principle.

In the case before us the defendant did not resort to the arbitration proceedings, and plaintiff replevied before any steps were taken to fix the damages.

Under these circumstances, we think defendant’s counsel was right in claiming that the constitutional question became unimportant. The act of 1879, of which the act of 1885 is amendatory to section 10, contained a provision for bonding logs by the log-owner, and for proceedings to have them sold in case no removal was made or attempted by the owner, as well, as for notice to owners to remove logs• and that section concluded with a provision creating a lien on the logs for damages. The act of 1885 contains some new provisions upon the time of removal, and the steps to be taken by the land-owner, but they do not differ in principle from the law of 1879. The only change in the substantial manner of action where the log-owner proceeds to get his logs is in reference to the arbitration. If this should be stricken out, it would leave the log-owner .to his common-law remedy by replevin, and, if the whole act of 1885 should fall, it would still leave the law of 1879 in force. Both of these provide for a lien for the damages, and, as it is the same under both laws, it is immaterial which is followed. TJnder our replevin laws no special plea or notice of lien is necessary. If the facts made it out, the. judgment may be given for it. This is evidently the view which satisfied the judge that the lien might be enforced, and we can see no reason why it should not be.

It seems to us that the lien made out and found by the jury could not be destroyed by the provision for arbitration proceedings, so long as no arbitration was attempted, and that question is oat of the case.

The judgment must be affirmed.

The other Justices concurred.  