9 Mich. 536 | Mich. | 1862
Complainant filed her bill to restrain defendants from using more than a certain definite number of square inches under a given head, out of a water power on the River Raisin in the city of Adrian, and also to restrain them from using that portion except for specific purposes. The-case was put at issue by replication to answers, and the bill was dismissed for want of equity. It appears that Addison J. Comstock, the original owner of the premises held by both parties, built a saw-mill upon the premises now owned by complainant, which was furnished, with power by a dam, which is near defendant’s land, and either touches it or approaches it quite closely. In 1886, he-conveyed to Rufus and George W. Merrick the lot now claimed by defendants, “together with fifty square inches, of water, to be drawn under nine feet head and fall, or an equivalent at any point above; said water to he used hy said party of the second part for the purposes only of a cabinet shop and the business connected therewith, and also furnace operations.” The saw-mill was subsequently burned down while A. J. Comstock owned it, and was rebuilt in 1884 by complainant. Previous to 1851 all of the premises and water power, except the lot of defendants and the water privilege conveyed to Rufus and George W. Merrick, had become vested, one-half in Rufus Merrick, and one-half in Joshua Mandeville, the husband of complainant, from whom ahe derives title. In that year, articles of agreement were made between them for the purpose of the partition of the land and premises so held in common, and it was agreed that Merrick should take a parcel
We think it entirely clear that, under this arrangement, Mandeville was to have acquired and did acquire the whole water power except so much as belonged to Merrick’s factory.
The complainant has, we think, a clear right to confine defendants to the use of the fifty square inches mentioned in Comstock’s deed. The only question remaining is whether in the use of that quantity we should limit them to certain purposes.
It is plain that Comstock designed to confine the use of the fifty square inches to cabinet making and furnace purposes. Nor do we think he was precluded from making such a restriction in the way he selected. The grant of the easement (for it is nothing but an easement or servitude) was precisely analogous to a right of way for one class of purposes, as for example a footway. Whether the restriction was subsequently removed is a more serious question.
It is much- to be regretted that no evidence was taken in this case, for without it we can not arrive with any certainty a.t the solution of this inquiry. If, when this partition was made, Merrick’s factory had been, with Mandeville’s knowledge, changed from a furnace and cabinet factory to a woolen factory or any other kind of establishment, we are inclined to think the restrictions were removed. If such a change was made subsequently, it would depend
As the case is now presented, the bill claims that the change in machinery was made after the partition. The answer, which is responsive to the bill in this respect and not merely in avoidance — because, if the oaths were not. waived, a discovery on this point would have been required— alleges that it was made long before. The oath of the defendants being waived, the bill and answer are of equal validity on this fact, and neither outweighs the other. In the absence of evidence, this point remains open, and, complainant can have no relief which depends in any way on its settlement.
While, therefore, we think complainant entitled to an injunction against the use by the defendants of more than the quantity of water granted by A. J. Comstock to Rufua Merrick and George W. Merrick, we can not, as the case stands, interfere to confine that use or determine its restrictions. The decree therefore must be made without prejudice to the rights of either party in reference to the restriction claimed by complainant, and without reference to any future proceedings at law or in equity in regard to any rights relating to it.
The decree below must be reversed, with costs, and a decree entered perpetually enjoining defendants and all claiming under them from using more of the water of the pond than the amount granted by the deed to Rufus and George W. Merrick, leaving the question of restriction in such use open to determination at law or in equity as it may come in controversy hereafter.