95 Mich. 586 | Mich. | 1893
Plaintiff and defendant are the owners of adjoining farms, which they purchased in 1853. They are separated by a highway running east and west, known as the “Vassar Plank Road,” plaintiff’s lands being south, and defendant’s north, of this highway. The land over which the controversy arises is low and flat, but the plaintiff’s land is a little higher than that of the defendant. This highway was constructed at a very early day, and at this point was what was known as a “log road,” composed of logs placed close together. Plaintiff charges the defendant with having constructed a dam along the side of the highway, causing the water to back up on his land, and injure his crops. He avers in his declaration that, for more than 30 years, waters accumulating upon his lands, from storms and other natural causes, were carried away and drained therefrom across said highway, and upon and over the defendant’s land; that plaintiff has a lawful easement and right away across said highway, and upon and over the defendant’s land, for the purpose of draining
Defendant pleaded the general issue, and gave notice of a special defense that he was a married man, and that the land described in the declaration as occupied by him constituted a homestead.
Plaintiff gave evidence tending to show that the old log road was constructed at a very early date; that a culvert was made across it; that in 1866 a plank road was constructed instead of the log road; that the culvert was reconstructed in the same place as in the old road, and has so continued till the present time; that some rods to the east and west of the culvert the land rises; that the natural flow of the water is, and always has been, from the plaintiff’s lands northerly, across the defendant’s lands, into what is known as “Blnmfield Creek;” that the culvert is at the lowest point; that, about the year 1870, plaintiff, defendant, and their neighbors cleaned out this “watercourse,” as- they called it, across the defendant’s land, making it a ditch about four feet wide and two deep; that they have cleaned it out on various occasions since, usually in the spring; that defendant filled up the ditch, and made an embankment about one.foot above the level of the
Defendant denies that there was any natural water-course, but it appears from his own testimony that the water from rains and melting snows has, in its natural state, always flowed from plaintiff’s land onto his own; that the ditch, which he claims is artificial, was dug before the culvert was put in the plank road; that he himself constructed it; that the ditch was connected with it; that the ditch was dug by his consent and assistance 20 years before this suit was brought, and before he obstructed it, in May, 1890. He admits the obstruction, and did not make it to prevent any damage to his land, but because plaintiff would not clean out the ditch where he (defendant) wanted him to. There is no evidence that plaintiff turned upon the defendant’s land any more than the natural flow of water.
At the conclusion of the evidence the learned circuit judge left but three questions to the jury, viz.:
(1) The character of the clam; (2) the effect it had to raise the water upon the plaintiff’s land; and (3) the amount of damages.
Plaintiff recovered verdict and judgment for $287.25.
*590 “The adjoining owners owe mutual duties, — the one to receive the natural flow, and the other not to injuriously change its conditions.”
The facts in that case are similar to those in the present case. We are in entire accord'with the rule there laid .down, which seems to us to be founded in good sense and reason. It is not necessary that this flowage be in a natural water-course with well-defined banks. If this were so, the plaintiff’s case would be somewhat doubtful. It is sufficient if the water, in its natural flowage, spreads over the land of the lower estate. Otherwise, the owner of the lower estate might construct a dam which would entirely ruin the upper estate. There is nothing to indicate that the plaintiff has increased the natural flowage of water, or has in any manner changed its condition to the detriment of the defendant.
We deem it unnecessary to refer to the other assignments of error. A careful examination convinces us that there is no error in the record.
Judgment affirmed.