rors upon which he relies, the questions in- | 3. In regard to the statement by defendvolved, and the manner in which they are ant in the presence of the officer Henry, it raised. The court will consider such state- was not a publication for which the law ment sufficient and accurate unless the op- gives a remedy. She herself solicited the posite party shall point out in his brief statement, and sent for the oflicer for the exwherein the statement is insufficient or in- press purpose of having the defendant reaccurate." Counsel for appellee cannot make peat the statement in his presence. It a statement of facts from their point of would not have been stated to him except by view, and leave this court to examine the rec-her invitation. She might have left the reord and both statements, and determine spondent's office. She waited some time for which is correct. Under this rule it is the the officer to come, and then left, and, meetduty of the appellee to point out what es- ing the officer as she emerged from the buildsential statements are omitted, and to state ing, came back with him for no other purthem as an addition to plaintiff's statement, pose than to ask him to repeat the statewith references to the record. We must ment in his presence. In Cristman v. Cristtherefore take the statement made by ap-man, 36 Ill. App. 567, plaintiff was suspected pellant's counsel as correct. The references of an assault with intent to murder. The given by them to the record fully sustain it. defendant suspected the plaintiff, and so 2. The court was in error in admitting the stated to an officer. Plaintiff took one King above letter and the statement made by de- with him, and went to defendant's house. fendant to the two detectives High and Lar-King asked her, in the presence of plaintiff, kins in regard to the larceny of his wheel. if she had any idea who did it, to which deThese were privileged communications. fendant replied: "There is only two mean They were introduced and admitted for the enough to do it, and Johnnie is one of them. purpose of showing malice. The trial judge Johnnie is the only one that would do it, and was in doubt as to their competency, but he is the one that did do it." Held that finally admitted them. Privileged communi- plaintiff could not recover. Where one recations cannot be used for that purpose. De- ceived a letter containing libelous statefendant's property was stolen, and it was ments, and himself read the letter to others, not only his privilege and right, but his duty, held that he could not recover. Sylvis v. to give to the detectives, who, in this case, Miller, 96 Tenn. 94, 33 S. W. 921. There is were specially appointed for the purpose, all no difference in principle between reading information he had, and, if he had suspic-a letter to another and soliciting a person to ions of any person, to state who the person make a similar verbal statement. Where was, and the reasons for suspecting him. one sought from the superintendent of a railSuch communications are made in the strict-road company a letter of recommendation est confidence, and are as.sacred, in the eye for his friend, which letter was given, conof the law, as the communications between taining a statement that the person had left client and lawyer, or patient and physician. the service of the company during a strike, To be evidence of malice, these communica- held that this was not publishing a libel. tions must in themselves have been mali- Kansas City, M. & B. R. Co. v. Delaney, 102 cious, and would therefore form the basis Tenn. 289, 45 L. R. A. 600, 52 S. W. 151. themselves for an action for slander. If this The following cases sustain the same docbe the law, no person would be safe from prostrine: Irish-American Bank v. Bader, 59 ecution in communicating to police officers, Minn. 329, 61 N. W. 328; Heller v. Howard, whose duty it is to examine into the case 11 Ill. App. 554; Fonville v. McNease, 1 and hunt for the criminal, his suspicions or Dud. L. 303, 31 Am. Dec. 556; King v. Warstatements which might tend to implicate a ing, 5 Esp. 14; Smith v. Wood, 3 Campb. person. Public policy forbids the adoption 323; Haynes v. Leland, 29 Me. 233. of such a rule. These detectives were under legal, as well as moral, obligations to keep these communications secret. They were not made for publication, and the offiers had no right to divulge them to others. It is very doubtful if these detectives could be compelled to disclose in court such privileged communications. Such officers, especially in large cities, are entitled to know from the citizen against whom a crime has been committed all his suspicions and knowledge, both in regard to the person suspected, and also in regard to his character and habits. The defendant did not make these statements for repetition. He made them for the exclusive use and benefit of the trusted and sworn officers of the law. They should have been forever locked in their breasts, and never disclosed; otherwise, few persons would dare to disclose to an officer the name of a suspect, or anything he had learned about his character.

Plaintiff repeatedly testified that she sent for the policeman to see if she did steal his wheel, and that she was going to make him prove it. The maxim, Volenti non fit injuria, applies.

4. Plaintiff was put under no restraint in the defendant's office by him prior to the arrival of the officer. She sought the interview, could have left at any time, and finally did leave of her own accord, and voluntarily returned with the oflicer. She is the sole witness to testify that the defendant said he wanted her locked up. The officer does not testify that defendant said he wanted her arrested, and defendant expressly denies it. Whatever restraint the officer placed upon her, if any, is not shown to have been at the request of the defendant. The officer testified that he said to her: "Under the circumstances, I guess, as he accuses you of stealing his bicycle, you will have to go to the station.' At first she said she

would not go, and I said, 'You better go | v. Angier, 2 Allen, 128; Smith v. Lee, 14 easily, because he accuses you of stealing his Gray, 473; Chandler v. Jamaica Pond Aquebicycle." Whether this was said in the duct Corp. 125 Mass. 550; Marsh v. Haverpresence of defendant does not appear. She hill Aqueduct Co. 134 Mass. 106; Jaqui v. then went to the station with the officer, Johnson, 27 N. J. Eq. 526; Johnson v. Jaqui, where she met the detectives High and Lar- 27 N. J. Eq. 552; Jones v. Percival, 5 Pick. kins, and went with them to the depot to 485, 16 Am. Dec. 415; Wynkoop v. Burger, see if she could be identified as the woman 12 Johns. 222; Ritchey v. Welsh, 149 Ind. who checked a wheel to Toledo. The per-214, 40 L. R. A. 105, 48 N. E. 1031; Goddard, son checking the wheel failed to identify her, Easem. Bennett's ed. 348; Washb. Easem. and she then went to her residence. Under & Servitudes, 2d ed. p. 223, § 10; Comyns' the uncontradicted testimony, the defendant Dig. Chimin. D, 5; Gregory v. Nelson, 41 Cal. could not be held liable for false imprison- 278; Kent Furniture Mfg. Co. v. Long, 111 ment. If she was illegally restrained of her Mich. 383, 69 N. W. 657; Hamilton v. White, liberty, the officer alone is responsible for it. 4 Barb. 60. le was there at her request, and was acting for her, and not for defendant. Judgment reversed, and no new trial ordered.

The other Justices concur.

Marietta IVES, Appt.,

V.

George M. EDISON et al.

(........Mich.........)

An injunction to compel the restoration of a stairway will be granted in favor of the owner of an easement in the use of it, where defendant, after a refusal of permission to change the location of the stairway, and during the pendency of an appeal from a decision denying an injunction to restrain the threatened invasion of complainant's easement, has proceeded to make the change, with full knowledge of complainant's rights and the pendency of the appeal, although the cost of restoring the building to its former condition may be greater than the injury to complainant.

(Hooker and Long, JJ., dissent.)

(June 5, 1900.)

APPEAL by complainant from a decree of

the Circuit Court for Kent County in favor of defendants in a suit to enjoin the moving of a stairway in which complainant

had an easement. Reversed.

The facts are stated in the opinion.

Mr. Charles E. Ward, for appellant: When an easement is granted in a particular place, or when it is granted without definite location, and afterwards it is located by actual use, it can be changed by neither party, and this without reference to whether it would be more convenient or less burdensome to either in some other locality.

10 Am. & Eng. Enc. Law, 2d ed. p. 428; Powers v. Harlow, 53 Mich. 513, 51 Am. Rep. 154, 19 N. W. 257; Manning v. Port Reading R. Co. 54 N. J. Eq. 46, 33 Atl. 802; Jennison v. Walker, 11 Gray, 423; Bannon

The rights of parties in private property cannot be destroyed upon considerations such as that complainant's objections are arbitrary and unreasonable; that to change the easement will but slightly damage the complainant; that her damages are greatly disproportionate to the injury caused defendants; and that complainant will really be benefited by the change. Proprietors are entitled to the protection of the law, and it is the duty of the courts to afford them this protection.

Allen v. San José Land & Water Co. 92 Cal. 138, 15 L. R. A. 93, 28 Pac. 215; Shaffer v. State Nat. Bank, 37 La. Ann. 242; Kaler v. Beaman, 49 Me. 207; Noyes v. Hemphill, 58 N. H. 536; Evans v. Dana, 7 R. I. 306; Gregory v. Nelson, 41 Cal. 278; Ballard v. Butler, 30 Me. 94; Merritt v. Parker, 1_N. J. L. 460; Johnston v. Hyde, 32 N. J. Eq. 455; Haslett v. Shepherd, 85 Mich. 165, 48 N. W. 533; Tillotson v. Smith, 32 N. H. 90, 64 Am. Dec. 355; Dickenson v. Grand Junction Canal Co. 15 Beav. 260.

The owner of land has the right to remove a trough erected thereon by the owner of an easement at a place where the land has not been previously flowed, although he suffers no damage from the trough.

Miller v. Bristol, 12 Pick. 550; Dewey v. Bellows, 9 N. H. 282.

An injunction will be granted to restrain the doing of that which would destroy or injure an easement.

10 Am. & Eng. Enc. Law, 1st ed. p. 847; 1 High, Inj. 3d ed. § 849: Miller v. Lynch, 149 Pa. 460. 24 Atl. 80; Walker v. Emerson, 89 Cal. 456, 26 Pac. 968; Clowes v. Staffordshire Potteries Waterworks Co. L. R. 8 Ch.

125; Haslett v. Shepherd, 85 Mich. 165, 48 N. W. 533: Lathrop v. Elsner, 93 Mich. 599, 53 N. W. 791; Walz v. Walz, 101 Mich. 167, 59 N. W. 431.

Where an easement is interfered with, equity will protect the owner of the ease

ment.

Hall v. Nester, 6 Det. L. N. 672, 80 N. W. 982.

Injunction is the remedy for the protec tion of rights in easements.

Stallard v. Cushing, 76 Cal. 472, 18 Pac. 427; Flickinger v. Shaw, 87 Cal. 126, 11 L. NOTE. For injunction to protect easement, R. A. 134,25 Pac. 268; Grimshaw v. Belcher, see McBryde v. Sayer (Ala.) 3 L. R. A. 861; 88 Cal. 217,26 Pac. 84; Walker v. Emerson, cases in note to Church v. Portland (Or.) 6 L. R. A. on page 262; and Carpenter v. Capital | 89 Cal. 456, 26 Pac. 968; State ex rel. Yale v. Electric Co. (Ill.) 43 L. R. A. 645. Duffel, 41 La Ann, 516, 6 So. 512; Shaffer

Cornwell Mfg. Co. v. Swift, 89 Mich. 503, 50 | party of the second part hereto, for all N. W. 1001.

court:

laudable and legitimate purposes, the free, perpetual, and uninterrupted use, for himself, family, friends, customers, and lessees, of the stairs and stairways now leading into the block of buildings known as the 'McReynolds Block,' in the said city of Grand Rapids, both front and rear, and all other stairs and stairways accessible from what is called the 'rotunda' in said building or block, with a like perpetual use for a passageway, and for light of said so-called 'rotunda' aforesaid, and the passageways thereto and therefrom, except such passageways as lead to the private apartments in said building or block, as belong to the parties owning the premises north of the premises conveyed in this deed. Also, hereby conveying the privilege and right to hang, place, and suspend signs, pictures, etc., at the foot of said two flights of stairs hereinbefore mentioned,

Moore, J., delivered the opinion of the Prior to May, 1886, there was a four-story brick block, known as the "McReynolds Block," at the corner of Lyon and Canal streets, in the city of Grand Rapids. The block had a frontage of about 80 feet on Canal street, and 90 feet on Lyon street. The north half of the block is now owned by the Richmond estate. The south half was then owned by Edison & Tolford. In the center of the block, leading from Canal street, there was a stairway about 52 feet wide, reaching to the second story of the block. This stairway was one half on the south half, and one half on the north half, of the block. The only access to the upper three stories of the block from Canal street was up this stairway. On the second story said right to hang and place pictures, of the block was a rotunda reaching across the entire width of the two center stores. Immediately in front of the stairway from Canal street, but at the further side of the rotunda, was a stairway leading to the third story of the building. A gallery running all around the rotunda enabled one to reach the rooms surrounding the rotunda in the third story. A flight of stairs on each side of the second stairway reached from the third to the fourth floor of the building, where there was a similar gallery to the one in the story below. The rotunda was lighted from the roof. In May, 1886, Calvin L. Ives bought the south store in this block, subject to a mortgage of $6,000, for the sum of $16,000, and a deed was executed and delivered to him on the 10th day of that month. The deed, in addition to conveying the south 19 feet and 9 inches of the block, contained the following provisions: "Granting and conveying, also, for the consideration aforesaid, unto the party of the second part, his heirs, executors, administrators, and assigns, the further right and privilege, in case said block shall ever be destroyed by fire, of building, on the premises immediately north of the premises hereby conveyed, a stairway, both in front and rear, suitable for the building or buildings to be erected or rebuilt on the premises hereby conveyed, and next immediately north thereof, the center line of which said front and rear stairway (or cases) shall be exactly over and upon the north line of the premises hereby conveyed, which front and rear stairways shall be built and perpetually maintained at the mutual and proportional expense of the party of the second part hereto, and George M. Edison, his heirs, executors, administrators, and assigns; hereby conveying an easement to the said party of the second part hereto in the premises north of the premises hereby conveyed, for the purpose above stated, and reserving to the said George M. Edison, his heirs, executors, administrators, and assigns, a like easement and privilege in the premises hereby conveyed, upon a like contingency. Also, hereby quitclaiming to the

signs, etc., to be used in such a manner as not to interfere with or obstruct the travel up and down said stairs, with a like right and privilege to suspend signs and pictures in the south half of said rotunda aforesaid in said building or block. Reserving to George M. Edison, his heirs, executors, administrators, and assigns, the right of use in common of the front entrance to the basement of said block, so that he, his lessees, his heirs, executors, and administrators, shall and may have a right of access to pass to and from the basement of the store next north of the premises hereby conveyed, and known as 'No. 20 Canal Street.'" After this deed was delivered, Mr. Ives took possession of the property; renting the first story as a store, and the upper rooms for offices and for other purposes. When this bill was filed, August 30, 1899, the one fourth of the block next. north of Mr. Ives was owned by the defendant Edison. The defendant May was a tenant of the Richmond estate, and occupied the north half of the first story as a double store. He also rented the store owned by Mr. Edison. He desired to take out the partition wall between this store and the double store then occupied by him, making one large room of the three stores, and to take out the center stairway, so that he would have but one entrance and a continuous front. He got the consent of Mr. Edison to remove the stairway from the center of the block, Mr. May proposing to put one somewhat narrower, just adjoining the party wall between Mr. Ives and Mr. Edison; the whole of it to be upon the property owned by Mr. Edison. He sought the consent of Mr. Ives but the latter refused to give it. Mr. Ives learned that Mr. May proposed to remove the stairway after he had refused his consent to its removal, and filed this bill on the 30th of August, 1899, to prevent his tearing out the center stairway. After it was filed, Mr. Ives died, and Mrs. Ives is now his representative in the proceeding. December 30, 1899, after a hearing, the bill was dismissed, with costs against complainant. An appeal was promptly taken by complainant.

The

Dickenson v. Grand Junction Canal Co. 15 Beav. 260. In McBryde v. Sayre, 86 Ala. 458, 3 L. R. A. 861, 5 So. 791, it was made to appear that complainants had changed the use of the easement very materially from what it was when granted, and that the change was harmful to the dominant estate. The court, under the circumstances, declined to grant the writ of injunction, and left the parties to their remedy at law. In the case of Starkie v. Richmond, 155 Mass. 188, 29 N. E. 770, the plaintiff did not move, after learning of the proposed trespass upon the passageway, until it was consummated by the erection of an expensive building. The court, under such circumstances, declined to interfere, but intimated pretty clearly that, if plaintiff had applied seasonably, the court would have compelled the moving of the building.

After the decree was entered in the court J. Eq. 116; Dewey v. Bellows, 9 N. H. 282; below, the defendant treated the case as though it was finally adjudicated in his favor, and, as appears from affidavits filed with the briefs, has torn out the center stairway entirely, and has put in the stairway as already indicated. The proof taken before the circuit judge was contradictory as to whether the proposed change would seriously injure the complainant or not. It is urged here that, while defendant may not have had the legal right to do what he has done, the change is a beneficial one to the complainant, and, in any event, has not done her such an irreparable injury as to entitle her to the aid of a court of chancery, and her relief, if any, is in a court at law; citing Woods v. Early, 95 Va. 307, 28 S. E. 374; Johnston v. Hyde, 32 N. J. Eq. 453; McBryde v. Sayre, S6 Ala. 458, 3 L. R. A. 861, 5 So. 791; Columbia College v. Thacher, 87 N. Y. 311, 41 Am. Rep. 365; Starkie v. Richmond, 155 Mass. 188, 29 N. E. 770. We do not place the same interpretation as do the solicitors for the defendant upon the case of Woods v. Early, 95 Va. 307, 28 S. E. 374. In that case an injunction was granted by the court. In the opinion the following language was used: "Mr. Justice Story says: 'Where easements or servitudes are annexed by grant or covenant, or otherwise, to private estates, the due enjoyment of them will be protected against encroachments, by injunction.' 2 Story, Eq. Jur. § 927. It was said by Judge Burks in Sanderlin v. Baxter, 76 Va. 305, 44 Am. Rep. 165: 'Damages in repeated suits would not compensate in such a case. injury is irreparable, and calls for a preventive remedy, such as a court of equity only can furnish. That court constantly interposes by injunction where the injury is of that character. By the terms 'irreparable injury' it is not meant that there must be no physical possibility of repairing the injury; all that is. meant is that the injury would be a grievous one, or at least a material one, and not adequately reparable in damages.' See also Kerr, Inj. p. 199, chap. 15, §1; Manchester Cotton Mills v. Manchester, 25 Gratt. 825. 828; Switzer v. McCulloch, 76 Va. 777; Anderson v. Harvey, 10 Gratt. 386, 398; Rakes v. Rustin Hand, Min. & Mfg. Co. (Va.) 22 S. E. 498, 499." In Johnston v. Hyde, 32 N. J. Eq. 446, cited by the counsel, the court granted an injunction, and stated: "Mr. Johnston declares himself willing, to put down through his grounds a culvert of such dimensions as the court shall direct. But without the consent of Mr. Hyde, and in the absence of any estoppel by acquiescence, the court cannot compel him to accept the substitution of a covered aqueduct for an open raceway." In the notes to this case is a collection of authorities holding that the easement cannot be changed without the consent of both the parties interested, even though the change would be beneficial, and in nearly all of the cases relief by injunction was granted. Merritt v. Parker, 1 N. J. L. 460; Tillotson v. Smith, 32 N. H. 90, 64 Am. Dec. 355; Hulme v. Shreve, 4 N.

Counsel say the proposition is universally recognized that an injunction will be issued. in the discretion of the court, only when there is threatened an irreparable injury, or a continuing trespass or injury which cannot be compensated by damages in a suit at law, "and, in the exercise of this discretion, the court will examine into all the circumstances of the case, and if it is apparent that the relief sought is disproportionate to the nature and extent of the injury sustained, or likely to be," or "if the injunction will cost the defendant many times more loss than the complainant will suffer, the court will not interfere;" citing Hall v. Rood, 40 Mich. 46, 29 Am. Rep. 528; Potter v. Saginaw Union Street R. Co. 83 Mich. 297, 10 L. R. A. 176, 47 N. W. 217; Bentley v. Root, 19 R. 1. 205, 32 Atl. 918; Wood v. Sutcliffe, 2 Sim. N. S. 163; Chapin v. Brown, 15 R. 1. 579, 10 Atl. 639; Varney v. Pope, 60 Me. 192; Welton v. Martin, 7 Mo. 307; McElroy v. Goble, 6 Ohio St. 187; 2 Beach, Modern Eq. Jur. § 713; and other cases. An examination of these cases will show that each of them differs in some essential particular from the case at bar. In some of them the easement was not a private one created by deed. In others the injured party, after knowledge of the proposed trespass, remained inactive, and allowed a large expenditure of money to be made before invoking the aid of the court. In each of them it was made to appear that it would be inequitable for the equity court to interfere. But what Mr. Ives bought are the facts in this case?

a valuable piece of property, and, as a part of the purchase, he obtained an easement that he and his grantor regarded as essential for him to possess. In the same deed which conveyed to him the title in fee to the store, there was granted to him the easement. The deed was promptly recorded, thus giving notice to the world of what his rights were. He entered upon the use of the easement, and continued to use it for nearly thirteen years. The defendant Edison joined in the deed to Mr. Ives, and received part of the consideration paid therefor. The defendant May knew what the rights of Mr. Ives were.

He