Elliott v. Carter, Docket No. 99

Docket No. 99 | Mich. | May 22, 1905

Grant, J.

(after stating the facts). 1. That neither the public, in constructing highways, nor private parties for the benefit of their own lands, can turn water from its natural course onto the lands of another, is well settled. 2 Farnham on Waters & Water Rights, 960; McAskill v. Township of Hancock, 129 Mich. 74" court="Mich." date_filed="1901-12-10" href="https://app.midpage.ai/document/mcaskill-v-township-of-hancock-7941416?utm_source=webapp" opinion_id="7941416">129 Mich. 74 (55 L. R. A. 738); Breen v. Hyde, 130 Mich. 1" court="Mich." date_filed="1902-03-18" href="https://app.midpage.ai/document/breen-v-hyde-7941559?utm_source=webapp" opinion_id="7941559">130 Mich. 1, and authorities there cited; Smith v. Township of Eaton, 138 Mich. 511" court="Mich." date_filed="1904-12-14" href="https://app.midpage.ai/document/smith-v-township-of-eaton-7942882?utm_source=webapp" opinion_id="7942882">138 Mich. 511. It is shown by a survey made by a competent surveyor that the lands around this swale on the defendant’s farm are lower than those upon the complainants’ farm, and that, when there is water sufficient to overflow that part of the swale east of the highway, it naturally goes upon the land of the defendant. The ditch, as it was dug by the defendant from this swale to the sluiceway, is about five feet deep. It has not been dug to this depth a sufficient length of time to give him the right by prescription. Prior to 1894 it was not as deep by two feet. To the depth to which it was dug and had existed for more than 15 years before suit was brought, both the township and the defendant had acquired, a prescriptive right to its use. It is apparent that in that condition the water- did not cause much, if any, damage to the complainants. The depth of the ditch acquired by prescription is three feet below the surface of the ground at the highest point.

2. The claim of estoppel rests upon the evidence that complainants and their grantors had worked in the construction of this ditch. The record does not show that they, by any acts or conduct, consented that this ditch should be dug to the depth now claimed by the defendant. Neither does it justify the conclusion that they consented to and acquiesced in the depth now claimed, and in the tile as now proposed to be put in the sluiceway.

The decree will be reversed, and the decree entered in this court for the complainants, in accordance with this opinion, with costs of both courts.

Moore, C. J., and Blair, Montgomery, and Ostrander, JJ., concurred.