123 Mich. 647 | Mich. | 1900
At an early day there were in Oakfield township, Kent county, five lakes, whose overflow found its way northward to the Flat river, as follows, viz.: From Horseshoe lake to Woodbeck lake; thence to Stock or Banks lake; thence to Thomas lake; thence to McClellan lake, whose outlet emptied into Black creek; which, after receiving the waters of Clear creek, emptied into Flat river; upon which, some miles below, were the
John and George Banks owned the lands between Woodbeck lake and Thomas lake, which included Stock or Banks lake, in the bottom of which was a bed of marl, supposed to be valuable, but which could only be made available by lowering the water in that lake. We get the impression from the testimony that in ordinary stages of the water there was little, if any, water flowing between the three southernmost lakes, but that the Van Winkle dam, which was located upon Black creek, below the mouth of Clear creek, for logging purposes, set the water back into McClellan, Thomas, and Banks lakes, and possibly the others also. The level of Horseshoe lake was considerably above the level of Wabasis creek, distant a few rods south. They were separated by a ridge of sandy land. Banks Bros, conceived the plan of cutting a ditch- through this ridge, thus making an outlet to these lakes to the south, which would have the effect of lowering Banks lake. To enable them to carry out this pro
Banks Bros, proceeded without delay to construct the ditch contemplated, and, to avoid any effect upon the lakes north of Banks lake, they built a dam upon their own land, across the outlet of Banks lake, which had that effect, except when cut or injured, as it was on a few occasions. At the time this ditch was dug, a highway existed upon the ridge south of Horseshoe lake, and a bridge was built by Banks Bros, over the ditch. The ditch had the expected effect upon the lakes, lowering the water several feet, and exposing the marl bed. Owing to the nature of the ground and the sharp fall, the water increased the size of the ditch, and made trouble with the bridge. Finally, it is said, an arrangement was made by which the township agreed to maintain the bridge, and ultimately it changed the line of the highway from the ridge to a point on lower ground near the lake, and erected a new bridge. It is, claimed that this bridge was used more than 15 years prior to 1893, and until burned by some person or persons unknown.
Soon after this, the township authorities attempted to vacate the road near the lake, and relay it upon the ridge,
The important questions appear to have been:
1. Whether Banks Bros, acquired a right to maintain their ditch.
2. Whether it was abated under proceedings by the board of health of the township, and, if so, whether those proceedings were valid.
4. Whether the Middletons and Wright, or any of them, had anything to do with those proceedings.
5. Whether the complainants suffered any injury thereby. •
The court found:
1. That the agreement between Banks and the riparian owners was a license, revocable at the end of 20 years, and that, as Banks Bros, were claiming under such license, they acquired no prescriptive right to control the waters of the lakes.
2. That practically no beneficial use of the marl beds was made by Banks Bros., except in an experimental way, from about 1871 to 1893.
3. That the alternate rising and lowering of the waters, resulting from the attempts of Banks Bros, to control them, created a public nuisance, and that the township board of health, after due notice, abated «it, by filling the ditch, thereby restoring the waters of the lakes to their nátural level.
4. That this was a proper and legal exercise by the board of health of their power.
5. That the damages, if any, to the complainants were inconsiderable, while the menace to the public health was great.
The bill was dismissed, with costs, and the complainants have appealed.
The testimony convinces us that the complainants have a valuable bed of marl upon their land, in proximity to the railroad, and that it is not accessible with the water at its natural level. As early as 1865 the Banks considered it worth their while to go to considerable trouble and expense to drain the bed, so as to make it feasible to excavate and use the marl. From that time until 1893 they maintained and enjoyed their right to keep the waters down. The township, if it had any rights to the contrary, did not assert them, nor does it appear that the public, or any member of it, complained that rights of navigation were affected thereby. On one occasion Mr. Middleton did assert an objection to the maintenance of
We are satisfied from the testimony that Mr. Middleton and other persons interested in raising the lakes had more to do with having the ditch declared a nuisance than did any well-founded or wide-spread conviction that the public was suffering from, or in danger of, an epidemic ascribable to the draining of those lakes. Many witnesses testify that the odors arising from the drained portions of the lakes were not specially noticeable, or the subject of comment; while, of those who testify to the contrary, some admit that they wanted the water raised to help their wells, to facilitate the drinking from the lakes by stock, the making of a pleasure resort for cottagers, or that the
The board of health was moved by a petition. This is recorded in the proceedings of the board. Then followed an entry as follows:
“Edward W. Blanchard, one of the members of the township board of health, moved that A. D. La Shell, one of said board, be instructed to serve the following notice upon George Banks and John Banks, said service to be made as soon as convenient; said notice being in words and figures as follows, to wit:
‘“Oakeield Township, Kent County, Mich., June 5, 1-893. “‘To George Banks and John Banks:
“ ‘ You are hereby notified, as owners or occupants of the artificial drain or ditch leading from certain lakes in said township, particularly the lakes known as the ‘Woodbeck Lake’ and the ‘Horseshoe Lake,’ in said township, by which the said lakes are drained into Flat river, instead of into Black creek, where said water would naturally flow, to abate a nuisance caused along and around the margin of said lakes by the maintenance of said artificial drain; said nuisance consisting of the fluctuation of the amount of water retained in said lakes by said artificial drain partially draining the same, and leaving at certain seasons of the year a large amount of*655 land around the margin of said lakes, which is low, wet, and unwholesome, and dangerous to health, on account of decayed vegetation and the gases and unwholesome stench which arises therefrom while the land is so temporarily exposed. The exposing of said land to the sun, and the withdrawing of the water therefrom, being a public nuisance, and a detriment to the public health of the inhabitants of said township, you are therefore ordered to have said nuisance abated by filling up said artificial drain sufficient to cause the water to flow in its natural channel, within forty days from the date of the service of this notice upon you.
“ ‘ Given under our hands this 5th day of June, 1898.
‘“Edward H. Jones,
“‘Edward W. Blanchard,
“ ‘ A. D. La Shell,
“ ‘H. M. Hutchins,
“ ‘Members of the Board of Health of the Township of Oakfield, Kent County, Michigan.’”
This is followed by an entry reading:
“I hereby certify that I personally served the within notice.
“Dated this 5th day of June, 1893.
“A. D. La Shell.”
It was admitted by La Shell, whose name is appended to the entry, that he did not serve the notice on George Banks, and that the entry was made after this bill was filed. It does not show what notice was served, nor upon whom it was served. The record contains no action upon the petition, declaring the ditch a nuisance, and ordering it abated, unless the motion of Blanchard, directing a notice to be served, can be said to sufficiently show such action.
We need not inquire whether the complainants acquired prescriptive rights against those with whom they contracted. It is evident, however, that they did, so far as the Middletons and Wright were concerned.
As to the members of the board of health, there is no pretense that their acts can be justified, except upon the theory of valid action as a board or health. So, the highway officers can only justify upon the theory that Banks Bros, trespassed upon the highway, or that their rights
The compláinants may take a decree requiring the defendants Middleton and Havens, at their own expense, to remove the obstructions to the complainants’ ditch, and put it in as good condition as before it was filled, and requiring defendants Middleton to replace and rebuild the dam between Banks and Thomas lakes, upon its former site, to the same height, and in as substantial a manner and condition, as it was before said dam was cut or destroyed, and that, unless said work shall be done or completed within 90 days from the filing of this decree, the complainants shall be at liberty to do and perform the same, or either thereof; in which case they shall be entitled to recover from said defendants Middleton the sum of $250 for reconstructing said dam, and from said defendants Middleton and Havens the sum of $723 for removing the obstructions to said drain. The bill will be dismissed as to defendant Wright, with costs. All other defendants will be restrained- from preventing the removal of said obstructions, or in any way preventing the drainage of said lakes to the level at which they were maintained previous to the filling of said drain. The complainants will recover costs of both^ courts against defendants Middleton and Havens.