181 Mich. 241 | Mich. | 1914
The complainant, as well as the defendant association, are riparian owners on Lake Goguac. This lake is near the city of Battle Creek, and covers 360 acres, and is fed by subterranean springs. Complainant purchased a parcel of land bordering on the lake in 1886, and commenced to take therefrom its water supply in 1887. From that time on, its consumption of the water increased, until it reached upwards of 3,000,000 gallons per day at the time this suit was filed. The defendant association is the owner of lands bordering on the lake adjoining those of complainants. It maintains a summer resort and bathing beach during the summer months. Complainant has for some time objected to the bathing at the resort, on the theory that it polluted and rendered the water unfit for the use of its inhabitants. Its protests were not heeded by the association, nor by the other defendants who own and manage it. In order to enforce what it conceived to be its rights, this bill was filed to perpetually restrain the defendants from operating
Both complainant and defendants are riparian owners, and as such, in common with others, they own the bed of the lake, and by virtue of such ownership both have a right to a reasonable use of its waters for domestic, agricultural, and mechanical purposes. Clute v. Fisher, 65 Mich. 48 (31 N. W. 614); 40 Cyc. p. 635. Unless the complainant can show that it has some right other than that which arises by reason of riparian ownership, it has no greater right in the waters than have the defendants. As a riparian owner, the complainant has no right to divert the water for the purpose of selling it to the inhabitants of Battle Creek. Stock v. City of Hillsdale, 155 Mich. 375 (119 N. W. 435); Smith v. City of Rochester, 92 N. Y. 463 (44 Am. Rep. 393); Ulbricht v. Water Co., 86 Ala. 587 (6 South. 78, 4 L. R. A. 572, 11 Am. St. Rep. 72); Lord v. Water Co., 135 Pa. 122 (19 Atl. 1007, 8 L. R. A. 202, 20 Am. St. Rep. 864); Sparks Manfg. Co. v. Town of Newton, 57 N. J. Eq. 367 (41 Atl. 385).
The question therefore gets around to this: Whether one riparian owner is entitled to equitable relief as against another riparian owner, to aid him in diverting the water to uses other than for riparian purposes. If this were a suit by complainant to protect its right to some reasonable use of the water incidental to its riparian ownership, it would present a different question, but when it seeks relief of this character to facilitate its business of unlawfully diverting the water, it prays for relief to which it is not entitled as a mere riparian owner. But counsel
Another claim made by complainant is that it has acquired the right by prescription to take its water supply from the lake. Defendants’ riparian rights began in 1885, before complainant’s did. When complainant purchased, it was with the view of putting down wells; later it installed an intake. As the use of the water by the city increased,,the lake was lowered to such an extent that defendants filed a bill to restrain complainant from lowering the water and interfering with their riparian rights. The city recognized the rights of the defendants and other riparian owners by diverting Minges brook into the lake, which action brought the lake back to its normal level, since which time it has been so maintained.
In view of the conclusion reached upon this question, it will be unnecessary to consider the other questions raised. The decree of the trial court will be reversed, and the bill dismissed, with costs to defendants.
I find myself unable to agree with the conclusions of my Brother Bird in this case. In addition to the facts stated by him in his opinion, it should be noted that the complainant city of Battle Creek purchased the land upon which it located its waterworks from one Surby, who was at that time and for many years had been conducting a summer resort in a small way upon the banks of the lake. He sold to the city a portion of his land with the knowledge that the city intended to erect a pumping station thereon
“The question in such a case is not whether the diversion, being for a legitimate use, is in quantity such as is reasonable, having regard to all the circumstances, as it is in cases of distinctly riparian uses, but only whether it causes actual damage to the person complaining. * * * That there can be no recovery for a diversion of water for a proper use, so small in quantity and of such character that it occasions no injury to the present or future use of the lower riparian land is recognized in other jurisdictions” — citing cases.
I am further of the opinion that the complainant is entitled to the relief prayed upon the ground of estoppel. As before pointed out, the parties held title as riparian owners from a common grantor, Surby. It is to my mind entirely clear that Surby, having sold a part of the land belonging to him upon the shore of the lake for the purpose of enabling the city to establish a system of waterworks for the sup
I am further unable to agree with the proposition that the use which the defendant resort association is making of the waters of the lake is, under the circumstances, either reasonable or lawful. In the case of People v. Hulbert, 131 Mich. 156 (91 N. W. 211, 64 L. R. A. 265, 100 Am. St. Rep. 588), the court held, though with some apparent difficulty, that Mr. Hulbert, a riparian owner, could not be punished for bathing in this lake, although his act was in violation of a legislative enactment. Act No. 428, Local Acts 1887. Whatever may be said of the propriety of this decision, and its soundness is questioned by complainant, it is apparent that the court was mindful of the possibility of future developments when it very carefully limited the effects of the decision to the single point then in issue. Mr. Justice Moore, in concluding his opinion, said:
“In what we have said we do not mean to intimate that an upper proprietor may convert his property into a summer resort, and invite large numbers of people to his premises for purposes of bathing, and give them the right possessed only by the riparian
This court thus clearly foreshadowed its probable action if such a case arose. It is unnecessary to predicate complainant’s right to relief upon the fact that the health of 30,000 people is endangered by defendants’ unlawful acts. The city as a riparian owner, with but a single resident upon the land who used or was entitled to use the waters of the lake for drinking purposes, would have the absolute right to enjoin his neighbor from making such use of the water as would render it unfit for drinking purposes.
Defendants filed a cross-bill, in which it asks that complainant be restrained from diverting any of the waters of the lake through its pipes. Even if complainant’s use of the water was wrongful, injunctive relief would be denied. Stock v. City of Hillsdale, 155 Mich. 375 (119 N. W. 435).
I am of opinion that the decree of the circuit court should be affirmed, with costs to complainant.