HOLCOMB v. VAN ZYLEN.

1. ANIMALS-WORDS AND PHRASES-BIRDS-STATUTES.

Under 3 Comp. Laws, § 5593 (2 How. Stat. [2d Ed.] § 4362), for double damages in case of injuries done by a dog to "sheep, lambs, swine, cattle or other domestic animal," a declaration setting up injuries done by defendant's dog to plaintiff's turkeys, was not demurrable.

2. SAME-DEFINITION.

An animal is any animate being, which is not human, endowed with the power of voluntary motion.

Certiorari to Ottawa; Cross, J.

Submitted January

13, 1913. (Docket No. 68.) Decided March 20, 1913.

Case by William L. Holcomb against Henry Van Zylen for damages to property. An order overruling a demurrer is reviewed by defendant on certiorari. Affirmed.

Walter I. Lillie, for appellant.

Louis H. Osterhous, for appellee.

BIRD, J. The defendant's dog "raised havoc" with plantiff's turkeys, and the damage which resulted is sought to be recovered in this action. The declaration is based on the statute. 2 Comp. Laws, § 5593 (2 How. Stat. [2d Ed.] § 4362). The demurrer which was interposed by the defendant raises the sole question whether a turkey is an animal within the meaning of this statute. The statute upon which the action is planted provides in part that:

"If any dog shall have killed or assisted in killing, wounding or worrying any sheep, lamb, swine, cattle or other domestic animal," etc.

As turkeys are not specifically named, it is clear that, if they are embraced within the statute, the authority for so doing must be found in the words "or other domestic animal." An animal is defined by Bouvier as "any

animate being which is not human, endowed with the power of voluntary motion." This comprehensive definition seems to have been accepted in legal matters as the proper one. 2 Cyc. p. 304; 2 Am. & Eng. Enc. Law (2d Ed.), p. 348.

The courts have dealt with the question from many different angles, and in nearly every instance they have adopted this definition, and have construed the term "animal" so as to include fowls. In Huber v. Mohn, 37 N. J. Eq. 432, the question arose in the construction of a will, where the testator had given "his horses and all other animals on the premises," and it was held that the words "all other animals" carried with them the fowls on the premises. A statute which prohibited domestic animals from running at large in the highway was construed so as to include turkeys. McPherson v. James, 69 Ill. App. 337. In construing a statute prohibiting cruelty to animals, a goose was held to be an animal. State v. Bruner, 111 Ind. 98 (12 N. E. 103). A like result was reached in the criminal cases of People v. Klock, 48 Hun (N. Y.), 275 and Reg. v. Brown, 24 Q. B. Div. 357.

The question is a new one in this court, and when it was first suggested by one of the briefs in the case that there were animals which grew feathers, it was a severe strain on the writer's credulity to accept it without reserve; but an examination of the question has brought with it the conviction that turkeys are animals under the generally accepted definition of that term as used in the law.

The question, therefore, is whether the legislature, in passing the act, had in mind this comprehensive definition of the word "animal," or whether it had in mind the popular and well-understood subdivisions of that term, namely, fowls, birds, reptiles, insects, etc. Either view could be accepted without doing violence to the language of the act. But the fact that the statutes involving this question have been generally construed by other courts in ac

cordance with the general definition induces us to follow them, and hold that the words "or other domestic animal" should be construed as including domestic turkeys.

As the same conclusion was reached by the trial court, its order overruling the demurrer will be affirmed, and the writ of certiorari dismissed, with costs to the plaintiff.

STEERE, C. J., and MOORE, MCALVAY, BROOKE, KUHN, STONE, and OSTRANDER, JJ., concurred.

SOULE v. CITY OF GRAND HAVEN.

EQUITY-JURISDICTION-VALUE OF PROPERTY-TAXATION. Complainant's bill, praying to have a tax lien for special improvements assessed against his property and land of another, as one parcel, removed, after payment by complainant of his due proportion of the tax, was not subject to the objection that the amount involved in the tax was less than $100; the land being worth more than $100, equity had jurisdiction.

Appeal from Ottawa; Cross, J. Submitted January 16, 1913. (Docket No. 129.) Decided March 20, 1913.

Bill by Charles E. Soule against the city of Grand Haven for the vacation of a tax lien for a special assessment. From a decree for defendant dismissing the bill, complainant appeals. Reversed.

Charles E. Soule, in pro. per. (C. Edward Soule, of counsel), for appellant.

Daniel F. Pagelsen, for appellee.

BROOKE, J. Complainant files his bill for the purpose of having certain real estate owned by him relieved from a portion of a special assessment tax alleged by him to be

unlawful and excessive. He is the owner of the south half of lot 262, assessed on the last ward tax roll at $650. He also owns the north half of lot 263, assessed upon the last ward tax roll at $500. These two descriptions, which, in the year 1910, when the last preceding ward tax roll was made, were owned by two different people, lie side by side, fronting on Third street, for the paving of which a special assessment was levied. The special tax roll prepared by the assessors and approved by the common council assessed the two parcels as one, and fixed the amount to be paid by complainant at the sum of $299.64. Complainant appeared personally before the board of review, and requested that the lots be assessed separately. This being refused, he paid $149.82, being the assessed cost of the improvement at $4.54 per lineal foot for 33 feet, the south half of lot 262, and the further sum of $125, being 25 per cent. of the assessed valuation upon the north half of lot 263. Complainant later petitioned the common council to vacate its claimed lien for the balance of $24.82 against both parcels. The prayer of this petition was not granted, and complainant thereupon filed his bill of complaint. A decree was entered dismissing the bill upon the sole ground that, the sum involved being but $24.82, a court of equity was without jurisdiction in the premises.

We have held in many cases that the value of the land to be affected by the lien, and not the amount of the claim asserted, determines the jurisdiction of the court. Matteson v. Matteson, 132 Mich. 516 (93 N. W. 1079), and cases cited; Wilcke v. Duross, 144 Mich. 243 (107 N. W. 907, 115 Am. St. Rep. 394). Reference is made to the decision in Van Zanten v. City of Grand Haven, post, 282 (140 N. W. 471).

The decree is reversed, and a decree will be entered in this court granting the relief prayed. Complainant will recover costs of both courts.

STEERE, C. J., and MoORE, MCALVAY, KUHN, STONE, OSTRANDER, and BIRD, JJ., concurred.

NORTHOUSE v. CITY OF GRAND HAVEN.

Appeal from Ottawa; Cross, J. Submitted January 16, 1913. (Docket No. 127.) Decided March 20, 1913.

Bill to remove cloud from title by Peter C. Northouse against the city of Grand Haven. From a decree dismissing the bill, complainant appeals. Reversed, and decree entered for complainant.

Charles E. Soule (C. Edward Soule, of counsel), for complainant.

Daniel F. Pagelsen, for defendant.

MCALVAY, J. This case is controlled by the decision in Soule v. City of Grand Haven, ante, 276. The decree is reversed, and a decree will be entered in this court granting the relief prayed.

Complainant will recover costs of both courts.

STEERE, C. J., and MOORE, BROOKE, KUHN, STONE, OSTRANDER, and BIRD, JJ., concurred.