169 Mich. 243 | Mich. | 1912
(after stating the facts). The only Michigan case cited by defendant’s counsel is Potter v. Railway Co., 95 Mich. 389 (54 N. W. 956). It is, we think, apparent that that case is not controlling of the case at bar. It is there held:
(1) That there is no testimony to sustain the claim that the way in question is a navigable stream.
(2) None of plaintiff’s lands adjoin it; therefore he has no interest except that possessed by the public in common.
(3) Plaintiff has shown no special damage.
(4) The canal was a private enterprise in which the public never obtained any rights by prescription or otherwise.
This decision is in accord with the weight of current authority, which holds that a private citizen cannot maintain an action for abatement of a nuisance caused by interrupting the navigation of a navigable stream unless he
The bill of complaint in the instant case clearly sets out facts from which it is apparent that complainant suffers private and direct damage other and different from that suffered by the public at large. It further avers that the way in question is a public highway. For the purpose of determining the question now here, that fact must be taken as admitted by the demurrer. Under the facts alleged in this bill, if sustained by competent evidence, complainant is entitled to the relief sought. Watts v. Boom Co., 52 Mich. 203 (17 N. W. 809); Turner v. Holland, 54 Mich. 300 (20 N. W. 51); Gifford v. McArthur, 55 Mich. 535 (22 N. W. 28); Board of Water Commissioners v. City of Detroit, 117 Mich. 458 (76 N. W. 70); People v. Severance, 125 Mich. 556 (84 N. W. 1089); Drake v. Paper Co., 25 Ont. App. Rep. 251; 1 Farnham on Waters and Water Rights, pp. 406-437; Smart v. Lumber Co., 103 Me. 37 (68 Atl. 527, 14 L. R. A. [N. S.] 1083).
The order overruling defendant’s demurrer is affirmed, with costs, and defendant is given 15 days in which to answer.