144 Mich. 199 | Mich. | 1906
(after stating the facts). 1. This highway was laid out in May, 1892. The proceedings were regular. Andrews’ grantors, then owning the mill site and the 10 acres above described, and perhaps certain rights of flowage of other lands, were made parties to those proceedings and damages awarded them. In the petition and other papers no reference was made to the erection of a bridge. Necessarily the construction of one was implied. The highway was of the usual width, 66 feet. The old mill — a grain mill — and the race had previously been burned. Nothing was left but the dam and a residence and barn. When the fire occurred the record fails to show. No steps were taken to question the validity of the highway proceedings. Andrews’ grantors rested content with the determination of the highway commissioner and the award of damages. The first question naturally presented is: What kind of a highway did the township authorities acquire the right to construct ?
The complainants Andrews have.shown no title to the land abutting the shore or the land under the water where the highway is located. If they have any right of flowage, it is by prescription, and as to that the evidence is meager. Undoubtedly the grantors of Mr. Andrews were made parties on account of their supposed right of flowage. The township thereby became a riparian owner and possessed the right to occupy this space, 66 feet wide, across the mill pond in the construction of a highway for the public. It was not limited to any .particular form of structure. It was under legal obligation to leave an opening sufficient for the flow of the water at all ordinary
“ It is therefore not a diminution in the quantity of the water alone, or an alteration in its flow, or either or both of these circumstances combined with injury, that will. give a right of action, if in view of all the circumstances, and having regard to equality of right in others, that which has been done and which causes the injury is not unreasonable. In other words, the injury that is incidental to a reasonable enjoyment of the common right can demand no redress.”
The reasonableness of the use and enjoyment in each particular case is the controlling factor. Rowe v. Granite Bridge Corporation, 21 Pick. (Mass.) 344; Sprague v. City of Worcester, 13 Gray (Mass.), 193. In the latter case Chief Justice Shaw held that “all the defendants [the municipal authorities] were bound to do was to build a bridge with a waterway reasonably sufficient to carry off the water in its ordinary and usual condition, at all seasons of the year.” See, also, Callender v. Marsh, 1 Pick. (Mass.) 418; Ely v. City of Rochester, 26 Barb. (N. Y.) 133; Hoxsie v. Hoxsie, 38 Mich. 77. But for the complainants’ mill pond a bridge covering an opening of 45 feet would have been amply sufficient. Other bridges in the vicinity over this same stream, above and below, are built with that width of opening.
2. Without entering into details of the evidence, we are satisfied that complainants failed to make out a case for damages. It seems apparent that a space 81 feet
3. The two complainants, the Andrews and the company, have no interests and have suffered no damage in common which entitle them to maintain suit jointly therefor. The complainants Andrews have no interest in the damage suffered by the electric company. The electric company has no interest in the damage to the freehold of
Decree reversed, and bill dismissed, with costs of both courts.