54 Mich. 583 | Mich. | 1884
Boyd sued defendants for removing part of a dam which he had built across the outlet which drained an adjoining highway and higher lands adjacent. Lorenzo D. Dewey owned a farm running north of the highway about half a mile, and a swale ran through this land from north to south which crossed the road through a culvert from which the water flowed across Boyd’s farm to a pond on his land which has no surface outlet. The swale is crossed by an old beaver dam near its north end, and a creek called Evans’ creek, a little to the north of it, sometimes overflows so that the water runs over this beaver dam into the swale. The swale cames down all the surface water on Dewey’s land, and there
Boyd purchased the farm which contains a little over ninety acres, in 18J2, at which time there was no obstruction to the fiowage. He first built the dam in 18YY, and it was removed so as to give room for the water in 18J8 by the highway commissioner. Being rebuilt, it was removed in 1819 by defendants, under the direction of the local authorities, Conklin himself being commissioner and acting in pursuance of their instructions.
The case, as it is now before us, presents no complications. The dam was built for the sole and express purpose of shut
If this had been an artificial drainage, the long existence of the road, which could not be kept in repair without drainage, and the undisputed fact that a regular culvert has existed at least since 1845, and that no other drainage was possible, would in our opinion put plaintiff to very strong proof to-overthrow the presumption of right. The court below gave plaintiff the benefit of that analogy, and going very far in the endeavor to avoid giving occasion for cavil, limited defendant’s justification to a substantially uninterrupted enjoyment of the drainage for twenty years without substantial objection to the public or highway authorities. But plaintiff insists that his right to intercept surface water cannot be cut off in that way, and that except in case of living waters in a defined and regular channel, there is no such obstacle, or none without such an undisputed prescriptive right as would be equivalent to a grant.
On the argument the whole subject was discussed with much ability. It is not necessary, however, to consider any more of the legal theories than such as have some application on the facts.
The real question here was whether one landowner can at his pleasure erect such barriers as will flood his neighbor’s land with water that otherwise would escape over his own, in order to partially or wholly reclaim the bed of a pond which has always existed there, and get rid of the inflow. In its natural condition neither the highway nor the upper
It was urged strenuously on plaintiff’s behalf that there is a radical difference between the common and the civil law upon the subject of the relations of upper and lower estates as to water easements and servitudes, and that at common law the latter owes no service to the former in regard to the-flow of surface water. As we are not expected officially to be experts in the civil law, we shall not attempt to discuss-that department of jurisprudence as a separate subject. But it so haj>pens that from the time of Bracton down attention has been frequently called by the common-law courts to the fact that the whole subject of rights in water has been defined by the civil-law writers in terms which substantially agree with the recognized rules of the common law, and that, they agree very closely, not necessarily because one has been borrowed from the other, but rather because both are naturally drawn from the general usages and necessities of mankind. All of the considerations which belong to the present case depend on the reciprocal action on both upper and lower proprietors of the maxim that every man, in the use of his own property, must avoid injuring his neighbor’s property as far as possible. And while the eases cited on the hearing show that courts have sometimes indulged in sweeping language that taken independently would lead to remarkable-results, the facts on which the apparently conflicting rulings-rest greatly narrow their substantial repugnance. There are,, it must, be admitted, decisions that cannot possibly be harmonized. But their number and their force do not equal their apparent importance. And there is no subject on which local usages have had so much weight in shaping the local common law as the incidents of real estate. There are parts of the Union where the land laws have always differed from the common law of other states, while the law relating to-water has been laid down in a large part of the United States-in a uniform manner, without reference to their ancient condition as French, Spanish or English colonies. The civil-law definitions, or what are supposed to be such, are quoted
The chief differences pointed out on the argument, as important in weighing decisions as furnishing precedents, ¡related to distinctions between living streams in a natural flow, and water of a different character in artificial escapes ¡or in surface descents, — to distinctions between urban and rural servitudes, — and to the purposes for which dams or • other interruptions are made.
It is not disputed that perennial flowing streams of living •water impose similar duties and confer similar rights on all riparian proprietors under all systems of jurisprudence. It is not disputed that under what is claimed to have been •the civil-law rule, the rural proprietor of lower lands was ¡required to receive the water flow of surface water from the upper lands coming in substantially its natural amount and ■condition. Beyond this we cannot harmonize much of the ■contention of counsel, and must dispose of the case as it appears to us.
.A number of the most striking cases cited by plaintiff’s •counsel in support of his appeal, as laying down the broadest ■doctrine, and as relied upon in a good share of his other citations, were cases where the lands were in towns and cities, and the erections or acts in litigation referred to the uses of that class of property. And in relying on these it was ■claimed that there was no substantial foundation for any distinction between urban and rural property.
There is no question but that such a distinction is recognized in the civil-law authorities referred to on the argument, as well as in several of the cases cited. The distinction is ■one of substance and not arbitrary. As already suggested, the adjoining owners owe mutual duties, — the one to receive the natural flow, and the other not to injuriously change its conditions. It is obvious that the laying out of town streets .and the multiplication of buildings cannot avoid making serious changes in the surface of the ground and in the condition of surface water. Grades must usually be established for streets and sidewalks, and pavements and other surface
The Massachusetts cases lay down so broadly the right of the lower proprietor to cut off the water flowing down on? him, that whatever distinctions may be found in their facts,, the court evidently meant to disregard therm The Wisconsin? cases perhaps go about as far, and the Indiana rule is stated" in similar terms. It can hardly be said that there is any fixed New York rule which would apply to such a case as the present. In the case of Barkley v. Wilcox 86 N. Y. 140, where the interference with the water was by building and banking up a house near a street, the facts did not call for any very general discussion, and the court, while expressing-a preference for the views of the Massachusetts courts over the rule in Pennsylvania and other states to the contrary, saw the necessity of caution in adopting those views too universally, and left the door open to deal with cases like this on their own footing. In Bowlsby v. Speer 2 Vroom (N. J.) 351, the facts and the decision were like those in Ba/rMey v. Wilcox, but can hardly be said to disturb the earlier case of Earl v. De Hart 1 Beasl. Ch. 280, where the civil-law principle was treated as in some cases furnishing a proper rule for town property which was not so situated as to require a different treatment.
Mr. Washburn, in his treatise on Easements (p. 355), indicates that the Massachusetts rule is not sustained by the weight'
Much of the discussion found in the cases referred to turns, not on the right of the upper owner to have egress for his water, but upon the right of the lower owner to have the water come down. In the present case, Boyd does not seem to desire this supply. But it is quite supposable that, if this pond were not entirely on his premises, it might be of some importance to the neighboring land that it should not be diminished or destroyed.
It is not necessary on this record to determine how far defendants could themselves have shut off the supply, because it is evidently not for their interest to do so. But there is no lack of cases which hold that rights may exist in a flow -of water which is not a natural living stream. And while here, as in other cases, the rights of parties must depend .somewhat on the circumstances and surroundings, the general principle underlying all the cases is that the upper and lower owners must respect any valuable rights which accrue to either from the position of their lands. The narrow definition of water-courses as natural living streams, which appears in a few cases in the United States, is not an ancient or universal definition. On the contrary, water running in a natural or artificial bed is very frequently, if not generally, so regarded. But names are of small importance, inasmuch as the only consideration that need be looked at is the character and surroundings of the flowage. The following authorities recognize valuable rights in water, and some of them are spoken of expressly as water-courses, which are entirely distinct from natural living streams. Woolrych on Waters 3, 146-7; Wright v. Williams 1 M. & W. 77; , Rawstron v. Taylor 11 Exch. 369; Broadbent v. Ramsbotham, 11 Exch. 602; Beeston v. Weale 5 El. & Bl. 986; Ivimey v. Stocker L. R. 1 Ch. App. 396; Watts v. Kelson L. R. 6 Ch. App. 166;
Upon such questions as are raised on this record there is, except in the Massachusetts doctrine and the cases which have followed it, very little conflict of opinion. Whatever may be the rights of adjoining proprietors as to the use and diversion of water, there is no right in any one, by raising artificial obstructions, to flood his neighbors’ lands, by stopping the escape of water that cannot escape otherwise. Some cases have intimated that there might be larger rights of obstruction where the particular drainage was not necessary. But actual mischief done as a natural and necessary consequence of such erections is almost universally treated as an actionable nuisance. Lawrence v. G. W. R. Co. 16 Q. B. 643; Rylands v. Fletcher L. R. 3 H. L. 330; Tootle v. Clifton 22 Ohio St. 247: Wood on Nuisances § 386; Hurdman v. N. E. Rw. Co. L. R. 3 C. P. Div. 168; Whalley v. Lancashire & Yorkshire Ry. Co. L. R. 13 Q. B. Div. 131; summarized in 30 Alb. L. J. 3; Broder v. Saillard L. R. 2 Ch. Div. 692; Gillham v. Madison Ry. Co. 49 Ill. 484; Gormley v. Sanford 52 Ill. 158; Ogburn v. Connor 46 Cal. 346; Butler v. Peck 16 Ohio St. 334; Nevins v. City of Peoria 41 Ill. 502; Livingston v. McDonald 21 Iowa 160; Hooper v. Wilkinson 15 La. Ann. 497; McCormick v. Kansas City R. R. 70 Mo. 359; Shane v. Kansas City Ry. 71 Mo. 237.
As previously suggested, the rights of upper and lower •owners are not treated by the common-law authorities as peculiar to either common or civil law, but as natural incidents to the land, which are and must be analogous as governed by universal jurisprudence, except where specially modified. The English courts have never hesitated to cite the civilians on such questions, and they have decided cases ai’ising out of England without attempting to inquire into and local law as the basis of decision. Thus, in the East Indian case of Rameshur Pershad Narain Singh v. Koonj Behari Pattuk
There seems to be no reason for attempting to draw distinctions between the civil and the common law on this subject. The authorities recognize the principles as in no sense conventional, or derived from any school of jurisprudence, but as resting on the immunity of one man’s property from injury by another in violation of natural justice and in disregard of the relative conditions arising from its position. Each may do in using his own what is consistent with the fair interests of the other.
The escape of water in the present case is natural and is necessary, and there was no right to prevent it by such a dam as defendants broke through. The charge given was at least as liberal as plaintiff had a right to ask.
The judgment should be' affirmed.