38 Mich. 77 | Mich. | 1878
The bill in this cause was filed to restrain a private nuisance. The chief complaint made by it was that defendant, wdio was the owner of a saw-mill and foundry on the waters of a stream which empties into Grand Traverse Bay, was accustomed to cast the sawdust into the stream, whereby the water was rendered ■ unfit for use, the valuable fish therein destroyed or driven away, and complainant’s dam for his own mill below gradually filled up. A further grievance, but one which the bill made less prominent, was, that the mill-dam of defendant at times detained the water unreasonably, and at other times allowed it to flow by in unusual quantities, so that complainant was hindered in the operation of his own mill. The evidence in the case was
“be restrained and enjoined from allowing the water of said stream to flow over his dam in quantities greater than is required to run both his foundry and saw-mill at one time. And when defendant is running his saw-mill or foundry, that defendant allow only such quantity of water to escape into complainant’s pond as is sufficient to run both defendant’s saw-mill and foundry, and when so using the water of said stream in running said mill and foundry, he allow no water to run over his slash hoards or waste-gate into complainant’s mill-pond, and that at all times during the ordinary working hours of the day that defendant shall allow the water in said stream to flow over his dam into complainant’s pond at least to the natural flow of said stream.” Also that he “refrain from allowing more water to escape through or over said mill-dam of said defendant into the mill-pond of said complainant than is sufficient to run the saw-mill and foundry of said defendant, at one time, and also that he desist and refrain from detaining the water in said stream during the ordinary working hours of the day from flowing into the pond of said complainant over the dam of said defendant to at least the natural flow of said stream.”
This decree is subject to serious criticism in that, if construed literally, it imposes upon the defendant the burden of protecting the complainant against anything, whether attributable to his own act or neglect or not, whereby more water would be made to flow over his dam than would be sufficient for the operation of his machinery. It is not likely this was intended, but the terms of the decree are imperative, and if allowed to stand would be likely to lead to controversy and difficulty. He must not “ allow” the water of the stream to flow over his dam in quantities greater than is required to run his machín - ery. No misconduct of the defendant could authorize the court to place him under such an injunction. But if we assume that the meaning of the court was only this: that the defendant should not by his own act or default cause the water to flow over his dam in quanti
In Dumont v. Kellogg, 29 Mich., 420, 423, it was said that “as between two proprietors neither of whom has acquired superior rights to the other, it cannot be said that one has no right to use the water to thé prejudice of the proprietor below him, or that he cannot lawfully diminish the quantity which would descend to the proprietor below, or that he must so use the water as not materially to affect the application of the water below, or materially to diminish its quantity. Such a rule would be in effect this: that the lower proprietor must be allowed the enjoyment of his full common law rights as such, not diminished, restrained, or in any manner limited or qualified by the rights of the upper proprietor, and must receive the water in its natural state as if no proprietorship above him existed. Such a rule could not be the law so long as equality of right between the several proprietors was recognized, for it is manifest it would give to the lower proprietor superior advantages over the upper, and in many cases give him in effect a monopoly of the stream.”
The rule which the decree in this case prescribes is not quite so broad as the one above shown to be objectionable, but the differences are not very essential. When defendant is operating his machinery he must restrain the flow of water past him within limits which are precisely indicated, whether a proper adjustment of the right to use, as between himself and the lower proprietor, would require this or not. He could not put in new machinery and operate it by an additional flow of water without a violation of the injunction. He could not take away his dam for repairs without an apparent breach
But we are of opinion that complainant in this ease did not make out a clear right to any injunction at all. The evidence is very meagre, but at the best it only tends to show that complainant’s rights are violated provided his theory of his rights, namely, that he is enti
Our conclusion is that the decree should be reversed and the bill dismissed with costs of both courts.