"The Court: Is there anything further you want to have charged, Mr. Galloway?

"Mr. Galloway: All I have to say is this: You stated to the jury that they must find he was the agent. The converse of that would be that, if he was not the agent, what would be his position? He says himself he was not such, and Becker says he was not. "The Court: The people charge the respondent, gentlemen of the jury, with the receiving of five hundred and forty dollars belonging to Mr. Becker, which he misappropriated; that at the time this money came into his hands he conceived the felonious intent of converting it to his own use. That is the theory of the people, and that is what is alleged in the information. Now you are to determine the truth or falsity of that charge from all the evidence under the instructions I have given you."

The trial resulted in a verdict of guilty, and the case is here upon exceptions before sentence.

The eighth assignment of error is to the effect that the court erred in not granting respondent's motion, made at the conclusion of the trial, for his discharge, under the evidence as therein given. The thirteenth assignment is that the court erred in not directing a verdict in the case as requested by the respondent. The fourteenth assignment of error is that the court erred in using the language in the charge above quoted after its attention was called to the material question of agency, by respondent's counsel. We are of the opinion that the respondent was prosecuted and convicted under the wrong statute, and that the proceeding amounted to a mistrial. There was no evidence that the respondent was the agent or clerk of the said Becker, or that he was ever in his employ, and the jury should have been so instructed. If the respondent was guilty of any offense, he should have been prosecuted under section 11610, 3 Comp. Laws. People v. Gaige, 23 Mich. 93; People v. Chappell, 27 Mich. 486; People v. Peterson, 166 Mich. 10 (131 N. W. 153).

For the errors indicated, the conviction is reversed and set aside, and the respondent discharged.

BROOKE, C. J., and MCALVAY, KUHN, OSTRANDER, BIRD, and STEERE, JJ., concurred. MOORE, J., did not sit.

FELTON v. WEDTHOFF.

1. INJUNCTION-BOND-STATING ACTION AT LAW-PRELIMINARY IN.

JUNCTION.

A bond to secure the defendant in an injunction bill against damages which may be sustained by the issuance of an order restraining the further prosecution of an action at law under 1 Comp. Laws, § 502 (4 How. Stat. [2d Ed.] § 12020), is not required in the case of a permanent injunction issued by the final decree of the court in such proceeding. The statute has reference to the preliminary injunction which may be issued upon the filing of the bill.

2. PRESCRIPTION-RAILROADS-PAYMENT-PRESUMPTIONS.

On review of evidence in a suit to quiet title to an easement in property which formed a part of the right of way of a railroad company in a public street, also for the purpose of restraining defendants against the prosecution of an action at law for damages as abutting property owners, testimony considered and held, to raise a presumption of fact that the defendants, as well as other property owners similarly situated, had received compensation for any direct injury to their interest in the real property.

3. STIPULATIONS-RAILROADS-RIGHT OF WAY-INJUNCTION SUITRESTRAINING ACTION AT LAW-QUIETING TITLE.

Under a stipulation of the parties to an injunction bill

limiting the issue to the question of defendants' damages for the taking of a right of way in a public street by a railroad company, the defendants were prevented from contending that the complainant was asking the court to restrain a recovery of damages because of negligence or carelessness of the railroad company, and that they were not therefore in court with clean hands as required by the rules of equity.

4. RAILROADS-PRESCRIPTION-RIGHT OF WAY-INJUNCTION BILL. In sustaining a claim by a railroad corporation to title in a public street by prescription, evidence tending to show that the city had authorized its occupation of the street and had frequently renewed or ratified the original action, and recognized the existence of such right in the corporation for a period of more than forty years, during which time the railroad had contributed taxes for special improvements and maintained crosswalks, there was no room for the contention that occupation of the highway amounted to a public nuisance.

The occupancy of a public street by a railroad company for a period considerably in excess of the statutory period, with the consent of the public authorities of the municipality, even if amounting to a public nuisance, might operate to pass title to an easement in the street as against the private rights of abutting property owners.

6. SAME HIGHWAYS AND STREETS.

Prescriptive rights may be acquired in this State to an easement in a public street.

7. SAME-LACHES.

By sleeping upon their rights for a period of about fortyfive years, the abutting owners upon the street occupied by a railroad corporation for purposes of its right of way lost any right which they may have had to the recovery of damages to their realty by reason of any increase in the servitude of the public easement.

8. SAME TITLE BY ADVERSE USER.

There is no doubt in this State that a private nuisance may become legalized by prescription.

Error to Bay; Collins, J. Submitted January 8, 1915. (Docket No. 33.) Decided March 18, 1915.

Bill by Samuel M. Felton and others, as receivers of the Pere Marquette Railway Company, against George E. Wedthoff and others, to restrain the prosecution of actions at law commenced against the Pere Marquette Railway Company and to quiet title. From a decree for complainants, defendants appeal. Affirmed.

Bills, Parker & Shields (Gillett & Clark, of counsel), for complainants.

Joslyn & Houghton, for defendants.

STONE, J. For a clear statement of the questions and issues involved in this cause we here insert, in full, the opinion of the learned circuit judge who heard the case below:

"In this equitable action the complainants have filed a bill of complaint against the defendants to restrain them from the prosecution of a certain action at law for damages, brought by the defendant Wedthoff, as assignee of the other defendants, against the Pere Marquette Railroad Company. The complainants stand for the Pere Marquette Railroad Company which company succeeds to the rights of a railway company organized in 1867, which was succeeded by the Flint & Pere Marquette Railroad Company, the Flint & Pere Marquette Railroad Company being succeeded by the Pere Marquette Railroad Company. These various parties have a continuity of interest and succession of occupation, and will be described hereafter as the company, which term includes said companies and the complainants herein.

"The defendant George E. Wedthoff is a plaintiff in an action at law, as above stated, commenced by him on the 11th day of August, 1911, as assignee of the right of action of some 43 property holders owning property abutting on James and Jefferson streets in Bay City. These parties will be hereafter designated as the property holders. Mr. Wedthoff and the property holders filed an answer in the nature of a cross-bill to the said bill of complaint, contesting the complainants' claims and asking that their claims for

damages as abutting property holders be heard, determined, and assessed in this suit.

"James and Jefferson streets, in Bay City, were established as legal streets therein prior to 1866. In February, 1866, pursuant to proceedings before that had in the common council, the company was granted the right to construct, maintain, and operate its railway upon and along James street and Jefferson street to a point north of all of the land on said street owned by any of the defendants. The company commenced the construction of its railroad upon a right of way laid along the center of said James and Jefferson streets, and completed its construction of said railway going north to a point north of any of the land of the defendants on or prior to the 20th day of May, 1868, since which time until the present time the company has operated its railroad through the use of said track in and on said streets to carry on its railroad business, and during this time its track has been laid upon land of the property holders at the east or west sides thereof, as the case may be, to the extent of from three to five feet.

"As between the company and the property holders, and in respect to all of the property holders, the company on or before May 20, 1868, appropriated the described right of way in the center of the street upon their land, and since that time and up to the commencement of said suit, for a period of more than 42 years, it has occupied said right of way and maintained its track and operated its trains along the same, and for said period of more than 42 years prior to the commencement of said suit it has had actual, adverse, peaceable, open, and uninterrupted possession of said real estate, except as qualified by the city street use, and in that time has used its said track upon said right of way.

"The distinct claim of each of the defendants is for abuttal damages for the six years prior to said August 11, 1911, on the theory of the defendants that for prior years their claims are barred by the statute of limitations.

"This claim is valid, and the defendants are entitled to such damages, unless the company, either by grant or by prescription, prior to the time of the commencement of suit, acquired the legal right to the use of