189 Mich. 301 | Mich. | 1915
In this cause the bill of complaint was: filed to obtain an injunction restraining defendant Stinchcomb from maintaining a certain drain constructed by him, and from discharging waters through the same upon the lands of the complainant, and re
Counsel have not furnished us with any plat or map of the premises involved, rendering it necessary to refer to descriptions thereof and conditions at considerable length.
In 1904 complainant purchased, and at the hearing below was the owner in fee of, the southeast quarter of the southwest quarter of section 35, less 10 acres in the northwest corner thereof, in the township of Sebewa, Ionia county. In 1908 he purchased another 40 acres, being 240 rods long by 26 rods and 11 feet wide, extending from the northeast part of said first-described land north to the north’ section line of said section. One William F. Sayers had been for 30 years the owner of 80 acres lying immediately east of and adjoining complainant’s said land. Extending east and west along the south line of complainant’s land, and the land of said Sayers, is. a county line road between the counties of Ionia and Eaton. Directly south of and across the said highway from said Sayers’ land and in the township of Sunfield, defendant Stinchcomb owns 40 acres of land extending south of said highway a distance of 160 rods, being what may be called “a long 40.” He also owns 80 acres of land extending lengthwise west of the south portion of the long 40 above mentioned; his land taken together being an L-shaped parcel. One Mrs. Rumfielt owned 40 acres directly south from complainant’s land, and lying between said highway and said 80-acre parcel of defendant Stinchcomb. Monroe Stinchcomb, a brother of defendant Stinchcomb, has for many years owned a parcel of land lying directly east of, and adjoining the long 40 of said defendant Stinchcomb. The right of
Complainant’s 30-acre lot above described is low land, as is also a part of the 40-acre lot lying north. Said low land is difficult of drainage, and has never been adequately drained. A public drain, known as the Bliss and McClelland drain, was constructed about 30 years ago, and extends for some distance through the township of Sebewa. This drain does not touch complainant’s land, and the nearest it comes to it is on the farm adjoining on the west owned by one Lenhart. This drain does not furnish an outlet for the water that accumulates on complainant’s low land, nor is it of sufficient depth to afford an outlet to a drain across complainant’s low land, adequate to drain the same. After the construction of the Bliss and McClelland drain, and about 28 years ago, several landowners in the neighborhood joined in digging a private drain, commencing at the south side of the county line road, at a point about on the line between the land of complainant and said Sayers, and extending north through a culvert across the road, and thence along said line between complainant’s and said Sayers’ land, but on said Sayers’ side of said land, a distance of about 50 rods. Later this drain was extended by running it thence diagonally in a northwesterly direction to and across the land of complainant and said Lenhart, a distance of about 100 rods, until it intersected said Bliss and McClelland drain on said Len-hart’s land. This work was done and said extension constructed by said Sayers and one Halliday, who then owned complainant’s 30-acre parcel, and about the year 1896. About the time the ditch was dug from the highway along said Sayers’ west line, as above stated, a
About 18 or 19 years ago a drain extended westerly from the culvert across said highway above referred to, and along the north side of said Rumfielt land adjacent to the highway, a distance of about 12 rods, then turning to the south, nearly at right angles, was continued a distance of about 50 rods to a piece of woodland on said Rumfielt’s land. It was constructed about 2 feet deep to a ravine. It is claimed that the water collected in this ravine, and was thence carried down said ditch to and across said highway and settled on the lands of complainant. Later Asa Stinchcomb, defendant’s father, who then owned the land now owned by defendant Stinchcomb and Monroe Stinchcomb, extended a tile dram from the upper end of the Rumfielt drain across the Rumfielt land in a southeast
From the terminus of the Rumfielt drain, on the Rumfielt land, as above described, defendant Stinchcomb also had another ditch extending to and upon his 80-acre lot, located south of and adjoining the Rumfielt land. After the construction of the Rumfielt drain, and at a point 30 or 40 rods south of the highway, and where it was 15 or 20 rods from said drain to the line, a puncheon drain was constructed from the Rumfielt drain to the Stinchcomb land, but no further. It is the claim of complainant that these several ditches
It was in evidence that in the fall of 1913 defendant Stinchcomb, without the knowledge or consent of complainant, constructed a new tile drain, extending from the south line of his long 40 northerly, and. west of the center line of said 40, to the above-mentioned culvert in the, highway, thus discharging the water from said drain to and upon complainant’s low lands. This drain is from 4 to 6 feet in depth, except at its commencement and terminus, where it is 30 inches in depth, and the tile that were used were 8-inch tile, except for a distance of about 60 rods at the south end, where 6-inch tile were used. At the time of the construction of this tile drain, two branch tile drains of 4-inch tile were extended easterly therefrom, both located on the north 20 acres of said long 40. One of said branch drains was about 30 rods south from said highway, and the other one about 50 rods south therefrom. Complainant testified that in February, 1914, defendant Chamblin told him that he had agreed to pay defendant Stinchcomb $60, or the difference between 6 and 8-inch tile, for the privilege of an outlet from said Chamblin’s land through said tile drain. In their answers both defendants denied any such offer or arrangement, but defendant Chamblin admits in his testimony that there was such a proposition, and that he so told complainant.
It is the claim of the complainant that the effect of this new tile drain was to bring water from the several parcels of land above mentioned in larger quantities,
While one has a right to drain and dispose of the surface water upon his land, yet he cannot lawfully concentrate such water, and pour it through an artificial ditch or drain, in unusual quantities and greater velocity, upon an adjacent proprietor. It is also well-established that a prescriptive right of drainage can only be exercised in the manner and to the extent that it has been used during the prescriptive period, and this rule is applicable here. Osten v. Jerome, 93 Mich. 196 (53 N. W. 7); Chapel v. Smith, 80 Mich. 100 (45 N. W. 69); Bruggink v. Thomas, 125 Mich. 9 (83 N. W. 1019); Breen v. Hyde, 130 Mich. 1 (89 N. W. 732); Township of Merritt v. Harp, 131 Mich. 174 (91 N. W. 156); Id., 141 Mich. 233 (104 N. W. 587, 108 N. W.
( We are of opinion that the equities of the case are with complainant, and that his claim is not only sustained by a preponderance of the evidence, but is more in accord with reason and the conceded conditions than is that of the defendants.
The decree of the circuit court is affirmed, with costs to complainant.