110 Mich. 414 | Mich. | 1896
Complainant filed a bill, as the lower proprietor of land, alleging that the defendant, who was an upper proprietor, had constructed a dam across a water way which runs through complainant’s land, the effect of which was to divert the water from its natural channel onto defendant’s land, where it is wholly absorbed, and that none of the water is allowed to come to the land of the complainant. The bill contains no allegation of damages, but it does aver that complainant has no other running water on his farm for his stock; that the stream •of water runs near his house and barns, and is of great benefit to him for his natural purposes; that he has the •equitable right to have the water flow across and upon his land; that he has suffered damages, and has been deprived of the equitable right to the use of the water by defendant; and that he is remediless at law. The defendant admits that he constructed a dam on his land, but denies that the dam prevents the flow of any water to the lower proprietor, but claims that one-half of it is allowed to flow to the lower proprietor. He claims that his dam is in substantially the same place as was a dam erected in 1852 or 1853, and which had been maintained long enough to give him a prescriptive right to maintain it; that onerhalf of the stream was diverted by the erection of the dam in 1852 or 1853; and that he now has the right to divert one-half of the waters of said stream, and use them for irrigation or any other purpose.
There was a large amount of testimony taken in the case, and Judge Adsit made a decree in which he found that
It is claimed by defendant that, inasmuch as there is no allegation in complainant’s bill that he is damaged to the amount of $100, the bill did not confer jurisdicticn on the court, and should have been dismissed. We do not think this contention can be sustained. Rowland v. Doty, Har. Ch. 3; White v. Forbes, Walk. Ch. 112.
Something more than 500 pages of testimony was taken in the case. It would not be profitable to make an analysis of it here. A careful examination of the testimony shows that the decree of the learned judge was warranted by the facts shown, except in one particular. The record discloses that in 1853 or 1853 a dam