161 Mich. 351 | Mich. | 1910
The complainant owns the N. E. £ of
The court below granted complainant no relief with respect to waters which naturally, or which artificially, for a considerable period of time, have found their way from the easterly portion of defendant’s east 80 acres into this natural watercourse, and complainant does not appeal. Relief was granted with respect to the waters collected by the tile drains constructed by defendant which are otherwise cast upon the lands of complainant. He awarded to complainant a small sum by way of damages, and the decree provides for an injunction restraining defendant from any longer maintaining those tile drains which have the effect to empty water into the highway, either into the north and south highway, or into the highway running east and west, and from collecting, by means of drains, water in the swamp aforesaid.
It is not here attempted to state with precision the particular drains affected by the injunction. For that purpose, the decree must be resorted to. Without setting out the testimony presented in a record of more than 400 pages, it is sufficient, for the purpose of this opinion, to say that it establishes beyond question or doubt that the defendant has from time to time, by tiling and ditching his lands, carried into the swamp which has been referred to as situated in the southeast corner of his west 80, and into the highways which have been referred to at other points, considerable quantities of water which would not in the same volume or in the same time be accumulated, and he has by artificial means, which have benefited his own lands, freed them from large quantities of water which otherwise would stand in low places thereon, and cast them upon the lands of the complainant with resulting injury. The applicable rules of law are not difficult to understand, and counsel do not disagree about them. It is
Aside from the contention that the complainánt’s action is barred, at least with respect to some of the drains, by the statute of limitations, and the contention that relief should be denied him upon the ground that he is guilty of laches in sitting by while defendant’s system of drainage was in process of construction, defendant presents two principal defenses. One of them is that, as to some of the waters which flow from his lands into the highways and find their way into the swamp which has been referred to, the action of the highway commissioner, or of highway commissioners, is responsible for that water being conducted into the swamp; that the making of the road interfered with the natural flow of all those waters across the 40 acres to the east of complainant’s land, and so down and into the natural watercourse which has been referred to. In this connection it is claimed that the township and the owner of the land east of complainant’s land should have been made parties to this bill. The other defense, and the one which, if sustained by the proofs, would in fact be an answer to the most considerable number of complainant’s claims, is that there used to be a natural watercourse which drained the swamp first referred to; that in place of that complainant has 'put in the tile drain already referred to as leading from the swamp to the south, and that the tile drain is inadequate to do that which in the state of nature the alleged natural watercourse did; that in consequence of the size of the tile used by complainant, compared with the quantity of water which in any event came upon his land, he has dammed and impeded the natural flow of the water, to which cause he ought to trace considerable, if not all, of the injury which he complains about.
As to the drains affected by the decree which are on defendant’s east 80 acres, one empties into the east and west
We fail to see how, with respect to the two drains mentioned, the action of highway officers excuses defendant. The facts are that he discharges water from his land, by means of his drains, into the highways, and that these
It is said that because complainant purchased the east 40 acres of the west 80 acres of his land — the 40 acres which is in fact most affected by the waters from the swamp — knowing that defendant drained portions of his land into the swamp, and as since his purchase no drains have been constructed upon defendant’s east 80 acres, he is estopped to complain about the effect produced by those drains the waters from which flow into the swamp. Courts of equity have sometimes, by the application of the doctrine of laches, or of estoppel, brought about results very like those which would follow the shortening of the statute period for gaining prescriptive rights in land. We are referred to no decision in which it is held that the mere fact that one purchases land upon which an adjoining proprietor habitually trespasses involves any duty on the part of the purchaser to permit the trespasses to be repeated, (pases like Edwards v. Mining Co., 38 Mich. 46 (31 Am. Rep. 301), are not in point here, even if it could be said that what is decided, by two of four justices of this court, is the rule of decision for similar cases.Having concluded that complainant is under no obligation to receive any of the waters brought to the swamp by the defendant, either by the two drains in the east 80 acres which have been referred to, or by the drain in the west 80 acres which leads to the swamp, we hold the injunction restraining the further bringing of water to the swamp by such means was properly granted by the court below.
Of course, complainant should not have damages for any injury to the land which was not caused by this trespass of defendant. We are not satisfied that the court below, in limiting the award of damages to $50, considered any injury for which complainant is himself wholly or in part responsible.
There is a pond in the southerly portion of defendant’s west 80 acres, situated west of the center of that piece of land, and it is asserted by complainant, and we think is
We are of opinion that the decree below ought not to be disturbed, and it is affirmed, with costs to complainant.