181 Mich. 624 | Mich. | 1914
The bill of complaint in this cause was filed to restrain the defendant corporation from overflowing certain lands owned by the complainant and located upon the Boardman river near Traverse City, Mich. These lands, it is alleged, were overflowed by reason of the wrongful and unlawful construction of a dam upon said river by the defendant corporation, and consist of about 7% acres, formerly owned by Charles T. Cedersten and sold by him out of the, northwest corner of 40 acres to James M. Crandall.
Crandall admitted having had a conversation with Crotser and said:
“Joe Crotser asked me what I would take for any little additional damage they were doing to me — that was when he was negotiating with Mr. Cedersten about his property — and I told him I did not know anything about what the damage would be. I did not say until the dam was in. I said it would be a damned sight more than what he had paid; that is the very words I used, what he paid for the first damage. He wanted to raise it 3 feet. He said nothing about the additional damage. He said he wanted to raise it 3 feet more. He wanted 3 feet more of the head than the original right he had purchased. * * * I cannot tell at all what the time was. It was before the dam was built. I think it was.
“Q. He said that he was going to raise the water 3 feet higher than the 40-rod point from the bridge,
“A. He told me he was going to raise it. .He said that they wanted that right. * * *
“Q. You expected, Mr. Crandall, that they would pay you absolutely in full for whatever damage they did you by raising that water that extra 3 feet you spoke of, didn’t you?
“A. I did not know what to expect when they didn’t do it. I do not know whether I calculated to make them do it or not. Mr. Crotser did not offer to do it when he talked with me. He asked me what the damage would be, and I told him I did not know. ❖ * ❖
“Q. But before you said in answer to that, didn’t you, that they would pay you a damned sight more than they had in the first instance?
“A. That is what I said. Yes; for the first 40 rods. I told Joe that, and that night he told me that they wanted to raise that dam 3 feet higher than the original understanding, and that they got the right of way to the 40-rod point.
“Q. And you knew then that they contemplated building it 3 feet higher?
“A. How did I know what they were going to build? He said he wanted that right.”
So much of the testimony' has been set forth to show that Crandall understood that the defendant was going to raise the dam, and that'he made no objection to its construction; the only question being the amount of damages which were to be awarded to him. Crandall was around the dam while it was being constructed nearly every day, and talked with the men engaged in the construction, and told the witness Matthews that he thought the 22-foot head would cause the flooding of his yard. He sold to the defendant eight or nine loads of lumber which went into the construction work, and took away pine butts, given to him by the company, which were removed in excavating for the dam. Complainant acquired the premises with full knowledge of these conditions.
“It is further ordered, adjudged and decreed that the complainant be given 30 days from the date of filing this decree within which to submit further proofs of the damages sustained by the complainant by reason of the construction and maintenance of defendant’s dam, and the flooding of complainant’s premises, as alleged in said bill of complaint, and that, upon application of either of the parties to said suit, a jury be impaneled and sworn to hear the proofs and to assess said damages.”
This record is convincing that injunctive relief should not be given to the complainant. Relying upon Crandall’s attitude during the construction of the dam, which justified the conclusion by the defendant that all he desired was adequate compensation for whatever damages the construction would cause him, the defendant made a large investment of money. The record demonstrates that the defendant was at all times willing to pay whatever Crandall’s damages amounted to. Because he did not know the extent of his damages, Crandall insisted upon waiting to see what they would be before agreeing upon compensation. He stood by and saw valuable improvements made, and neither he nor his grantees can now obtain relief in equity to aid in their destruction. A general rule is laid down in 11 Am. & Eng. Enc. Law (2d Ed.), p. 428, and quoted in the opinion of this court in Sheffield Car Co. v. Hydraulic Co., 171 Mich. 423, 450 (137 N. W. 305), where Mr. Justice Stone has reviewed some of the Michigan cases on the subject of estoppel:
“It may be stated as a general rule that if a person having a right, and seeing another person about to commit, or in the course of committing, an act infringing upon that right, stands by in such a manner as really to induce the person committing the act,
This rule finds support in the decisions of this court. See Jacox v. Clark, Walk. Ch. (Mich.) 249; Payne v. Paddock, Walk. Ch. (Mich.) 487; Truesdail v. Ward, 24 Mich. 117; Blake v. Cornwell, 65 Mich. 467 (32 N. W. 803); McKee v. City of Grand Rapids, 137 Mich. 200 (100 N. W. 580); Stock v. City of Hillsdale, 155 Mich. 375 (119 N. W. 435).
The decree will be affirmed, with costs to the defendant, but without prejudice to complainant to elect within 30 days, if he so desires, to resort to the court of law rather than to have a jury determine the question of damages in this cause.