Middleton v. Flat River Booming Co.

27 Mich. 533 | Mich. | 1873

Cooley, J.

This was a bill in equity by a number of owners o-i mills and factories on Flat river, to enjoin the defendants from various acts which it is alleged tend to render the water-power by which their machinery is operated of little value to them. The bill was demurred to on various, grounds, and was dismissed in the court below.

One objection is that the parties complainant have no. common interest. They are owners of several mills, and only have a common interest in the question involved. The case Is within the decision in Scofield v. Lansing, 17 Mich., 437. No accounting is asked for by complainants, and so far as - the bill discloses the facts, the question is single, and no embarrassment can be occasioned by this joinder of complainants.

Ifc is said, however, that it appears' • from the bill that ■other parties are interested in the question, who should- be' joined if it is proper for more' than one to file it. But this does not follow. The bill may be' filed either by one alone, or by any number who feel the grievance. i.

It is also urged that the bill does not show but .that the complainants have an adequate’ remedy at law. . The obvir ous answer is, that if the allegations of the bill áre sustained, only an injunction can be an adequate' remedy. The complainants cannot be required to lie by and sé.e their mills rendered useless and wait the slow and uncertain process of a suit for damages for. their redress.

Another position of defendants is, that being an incorporated company, and authorized by the act under which they were organized to do the act complained of, they are not liable to such suits by private parties. The case of Sheboygan v. The S. & F. R. R. Co., 21 Wis., 675, is referred to, but it is not in point. There the act.sought to be enjoined might or might not prove injurious, and it was very properly held that the question of nuisance ought to be tried at law. Here, if the facts are as alleged, th.e injury is direct and unquestionable. The incorporation act cannot be understood as intending to authorize the companies formed, to destroy vested rights of property; it supposes on the other hand, that they will use their corporate powers with the same regard to the rights of others which is required of natural persons.

Defendants further urge that they are organized for the enjoyment and improvement of the right of navigation,'and that this is the paramount right on a navigable river, to which the rights of mill-owners must be subordinate. Flat river is a stream valuable for floatage, but not for navigation in the more enlarged meaning of the term. . On such a stream it eannot be said that the right of floatage is paramount to the use of the water for machinery. Each right should be enjoyed with due regard to the existence and protection of the other. Complainants aver that in the erection of dams they have made proper provision, by constructing shutesy for the passage of logs, and they have a right to demand a like consideration for their interests on the part of those who use the stream for rafting.

It is objected that the bill does not sufficiently allege damage. It avers that the water is detained by dams above their mills, which virtually amount to a drying up of the stream, and destroying its value as a means of furnishing water-power, while the water is thus detained, and that very much is lost by percolation and evaporation, while thus detained. The allegation of injury is sufficient.

The object of this detention of the water we suppose to he, that it may be let down occasionally in larger quantities, and thus afford better floatage than can be had in the natural condition of the stream. How far this may be done with due regard to the rights of persons on the stream below cannot be determined on demurrer, but must be the subject of evidence. Complainants make out a prima facie case, which calls for answer, and it is to be presumed the court will be able to make the proper decree, when all the facts are before it.

The objection that the location and description of the dams complained of are not given, has no force. It is a general injunction the complainants seek against any such obstructions, wherever situated. The bill alleges that the defendants are threatening other obstructions than those already erected, and the injunction asked for reaches those as well as such as the existing structures.

The decree should be reversed, with costs, and the cause remanded with directions to overrule the demurrer, with leave to defendants to plead.

The other Justices concurred.