Glenn v. Line

155 Mich. 608 | Mich. | 1909

Brooke, J.

(after stating the facts). It is the claim of the defendants that the complainant has not acquired a right by prescription to flow the water from the swamp across defendants’ lands; and, secondly, that, even i.f the complainant has acquired such prescriptive right, it has been forfeited by improper use thereof on the part of the complainant. The record clearly discloses the fact that, not only have the defendants’ grantors acquiesced in the complainant’s rights in the ditch for nearly 50 years, but that the defendants themselves during the time of their occupancy of the servient estate have definitely recognized this right. They have themselves, on at least one occasion, cleaned out a portion of said ditch, and have permitted the complainant on other occasions to do likewise. Indeed, the very work they were engaged in at the time the injunction was issued (that of putting in a four-inch tile drain through the southerly knoll and down to complainant’s land) was an unmistakable recognition of the complainant’s rights and their own duty in the premises ; the only contention between the parties at that time being as to the size of the tile. That an easement may be acquired by prescription to flowage of surface water collecting upon the land of one person over the lands of an adjacent proprietor is the settled law of this State. Gregory v. Bush, 64 Mich. 37; Boyd v. Conklin, 54 Mich. 583.

It is not apparent from the record that the complainant has abused his right. It is true that for the purpose of removing his crop from an adjoining field he has from time to time thrown rails, straw, and other loose material into the ditch at a point just south of the line between the two farms. These obstructions, after harvest, were removed, and when in place, apparently only impeded, but did not wholly obstruct, the flow. The complainant claimed, and the circuit judge held, upon evidence which we think satisfactory, that a four-inch tile would be of inadequate capacity.

Under the facts disclosed by the record, the complainant is entitled to the relief prayed.

Decree affirmed.

Grant, Montgomery, Hooker, and Moore, JJ., concurred.