150 Mich. 524 | Mich. | 1907
This bill is filed to enjoin the defendants from maintaining a sluiceway in the highway adjacent to complainant’s premises, and for a mandatory injunction requiring the defendant Oliver Launstein to fill up the drains upon his farm which carry water from off said Oliver Launstein’s farm down through said sluice-way in question and upon the land of complainant.
Complainant and defendant Launstein own each 80 acres of land, the complainant on the west, and the defendant on the east side of a north and south highway in the township of Owosso. At a point some 30 rods south of the northerly line of the two proprietors there is an open ditch extending westerly across lands of complainant, emptying into a public drain known as Wilkinson’s drain, which in turn empties into Maple river.
The bill alleges that for the past 8 years the defendant Launstein has been draining his farm and turning the waters down to and upon the highway in question and has caused a larger amount of water to flow from his farm down upon the highway than would naturally flow there and drain from his land. That in May, 1904, the defendants came to the highway and dug a drain across said highway and placed in the drain across the roadbed a large wooden culvert which was intended to and did carry the water from the highway and from said Oliver Launstein’s farm over and upon the improved land of complainant. That said sluice and drain was about 40 rods south of where the large open drain above referred to was located.
The answer admits that the defendants constructed the
The legal questions involved in the case are not difficult. The case of Gregory v. Bush, 64 Mich. 37, which has been frequently cited and followed by this court, furnishes the rule of law for the case. The defendant undoubtedly has the right to have the surface water which flows from his farm follow its natural course, and if that takes it across the lands of complainant then complainant has no right to interrupt this flow of water in this natural course or direction. To that extent the complainant’s is the servient estate.
■ These rules of law furnish a sufficient guidance for the determination of this case, and the question gets down to ■one of fact. The case has on this branch given us no little trouble, and it has required a most careful examination of the testimony, and the conclusions which we have reached are as follows: First. That the surface water which flows from the land now owned by Oliver Launstein has always found its outlet at about the point where the culvert is constructed over and thence across the highway into the lands of complainant and over his land in the direction of the present location of the Wilkinson drain. Second. That for many years the flow of water has been accelerated and increased by a shallow ditch dug at the bottom of a natural ravine extending across the lands of defendant Launstein and by other ditches leading into the same and of less importance. That this flow of water has been conveyed in this manner across and off these premises for more than the statutory period is undoubted.
The only question that could arise is whether by increasing the size of this ditch the flow has been increased beyond that fixed by the prescriptive right. The evi
The question which has given us more doubt is whether the drainage from the sag hole has been increased. But upon this question we think the weight of the testimony is with the defendant, that from the time the land was improved the custom has been to turn an ordinary furrow from these sag holes in the ground and from time to time to fill in the sag holes by scraping dirt into them freely. Except in filling in the sag holes which the defendant had, under the cases cited, a perfect right to do, there has been no increased facility of flow-age from the sag holes or ditch to the ravine in question. We are satisfied therefore that upon the facts the complainant has failed to make a case.
The evidence indicates that the complainant’s relief is open to himself; that by re-opening and keeping open this ditch in question, or if not by this means, by carrying a ditch on the westerly side of the highway north to the open ditch referred to, he can take care of the water which in right comes from defendant’s land to his own.
As to the culvert, the evidence is that this culvert is substantially the size — possibly a little larger — than the one which it was built to replace. But the fact of its being larger does not injuriously affect the complainant for the
So far as the relief prayed for by defendant against complainant is concerned, we think that the embankment which does not cross the open ditch extending easterly from the sluice in question cannot be said to work injury to defendant by damming up the water. It is lower than the highway opposite. If any injury results to defendant it must be from the stoppage of this drain. We think complainant should be required by the decree to keep the drain in question open to its original depth. The damages proven by defendant are insignificant — too slight indeed to be considered.
The decree will be for the defendant in form indicated in this opinion, and defendant will recover costs of both courts.