157 Mich. 419 | Mich. | 1909
The facts in this case were agreed upon by counsel for the respective parties, pursuant to the proviso in section 3, Act No. 340, Pub. Acts 1907. Complainant’s mother, being the owner of certain lands on section 15, in the township of Walker, in Kent county, died in 1893, and the title thereto descended to complainant. Complainant, upon the death of his father in 1895, succeeded to the title to certain lands on section 22 in said township. Before the construction of any drain, a depression which might be called a swale originated on section 22 in the township of Walker, Kent county, Mich., about 16 rods west of the north and south quarter line dividing that section, and about 16 rods south of the north
In 1904 complainant laid off his land on section 15, for residence purposes and suburban homes, into tracts of five acres each. One of these parcels, which contained the swale or pond in controversy, was sold to Emery Toogood. On this parcel sold to Toogood there was a high and dry building spot, and Toogood built a house there. The land was dry at the time, and there were no indications of any tile running under the railway track on this land. The tile was below the surface of the ground, and the ground had been cultivated, but the end of said tile drain, and the last tile thereof, extended into an open ditch some 6 inches or a foot beyond the earth covering the remainder of said tile, and the open ditch ran to the north 10 or 15 feet. At the time Mrs. Dempsey bought there was snow on the ground, and at the time Mr. Toogood bought this swale or pond was filled with quite a rank growth of vegetation. At the time of the purchase Toogood did not go down into the low ground, as nothing was said by the complainant about the tile running under the highway, and part of his water south of the highway on section 22 coming onto the land on the north side of the highway on section 15; nor was anything said about this by Mr. Coveil, the complainant, or anybody else, and Mr. Toogood made no inquiry in regard to it, and therefore Mr. Toogood knew nothing about it. Mr. Toogood afterwards cultivated this land and plowed it, but the tile was below the surface, and he never discovered it. Mr. Toogood subsequently sold three acres of these five acres to Ida May Dempsey, and Ida May Dempsey subsequently sold one acre to Mrs. Richards, and one acre to Mrs. Emma McCarthy. Subsequently Mrs. Dempsey orally agreed to sell the parcel of one acre in which the tile drain ends, and in which a portion of the swale lies, to defendant Bright, who, after this oral contract, began hauling sand, and succeeded in partially filling the tile so that the water was, to a large extent, prevented from running through, before the service of the
There is no system of public drainage of any sort nor any public sewer, and the water gathers in these two swales or ponds or swamps, one on the south side of the highway, and one on the north of the highway, and the swamp on the north side of the highway being a little lower than the one on the south side, if not interrupted, would gather more water when the tile is stopped up, and the stopping up of the tile prevents the water from the south side from coming onto the north side of the highway to a certain extent, but when the water gets high enough to pass through the tile under the right of way of the interurban railway company, it still continues to flow onto the north side onto the land owned by the said Ida May Dempsey, but the stopping of the tile has caused the water to stand in the swamp on the south side of the highway longer than it otherwise would, but both pieces of land become dry during the summer. The complainant, Covell, knew at the time he sold to Emery Toogood that said property was bought for the purpose of building thereon suburban homes. He gave to said Toogood a warranty deed, with full covenants, and free and clear from all incumbrances.
The court dismissed complainant’s bill for an injunction and damages, and complainant has appealed to this court. It is clear that this record does not present a case of interference with the flowage of a natural watercourse or with the natural flowage of surface waters. The right to discharge the waters from section 22 upon section 15 through the artificial drain was a prescriptive right. The question, therefore, for our consideration is whether defendant Toogood, notwithstanding his full covenant warranty deed, took the lands conveyed burdened with this prescriptive right. To entitle the complainant to a decree the burden was upon him to establish that the servitude
The decree is affirmed, with costs to defendants.