121 Mich. 638 | Mich. | 1899
Complainants are the owners of a flour and grist mill in the village of Linden, Genesee county. A dam has been maintained across the Shiawassee river by complainants and their grantors for upwards of 30 years, and the water-power thus provided has been the only power used in or about this mill. The bill alleges that above the dam in Shiawassee river are two lakes, known, respectively, as “Tupper Lake”and “MudLake,” the two being connected by a river known as the “Middle River,” and the upper lake being fed by Shiawassee river,
The complainants have the right to have the water flow naturally, without being accelerated or impeded, except to the extent that the concurrent rights of the upper riparian proprietors may effect such results. In so far as the proper use of the stream above results in inconvenience, •or impedes the use of the stream by complainants, it is damnum absque injuria. Has the upper riparian owner the right to reclaim a portion of this lake by so accelerating the flow of the stream as to lower the water in the lake, thereby narrowing the area so as to reclaim overflowed lands ? This accumulation of water from the overflow of the banks of the lake, fed by the Shiawassee river above, cannot be called surface water. West v. Taylor, 16 Or. 165; Schaefer v. Marthaler, 34 Minn. 48? (57 Am. Rep. 73); Macomber v. Godfrey, 108 Mass. 219 (11 Am. Rep.
The decree dismissing the bill of complaint is reversed, and a decree will be entered enjoining the proposed deepening of the river, with costs .of both courts to complainants.