204 Mich. 370 | Mich. | 1918
This is an appeal from a decree of the circuit court for Kent county, in chancery. The plaintiffs. owned farms on section 14, Plainfield township, which lie north of the east and west highway and parallel to and adjoining each other. The defendant John P. Weller owned 40 acres immediately east of and adjoining the farm of the plaintiff Fred Suffrouw. The defendant Augusta H. Brewer owned land directly south of the John P. Weller farm. The dispute between the parties arises from the flow of a certain stream of water across their land. In its natural
On October 12, 1915, the defendant Joseph Brewer, acting for his wife, the defendant Augusta H. Brewer, with the consent of the defendant Weller, had constructed in this stream, at the point of the divide, a cement basin with a two-inch pipe leading into the west branch and so arranged that, unless obstructed, this pipe would empty its full capacity of water into the west branch. The basin was arranged with a concave apron leading into the south branch so that the balance of the water would flow through the south branch. It is the claim of the defendants that they
After hearing all the testimony, the trial judge came to a conclusion as follows:
“From the testimony of 10, or perhaps 11 witnesses, there being about 13 witnesses sworn in the case, the court is satisfied that by a preponderance of the evidence it is established that the waters of this stream have, for a period of 40 years, or perhaps more, been divided upon the premises of the said Weller at the location where the divide now exists, about equally, the natural flow of the water going about one-half in a westerly direction and the other half south and across the premises of the said Augusta Brewer; and from the evidence it is clearly established by a preponderance of the evidence and more, by the great weight of the evidence, that this use of the water and the manner in which it has been so divided, has been so divided for 40 years or more.”
That a prescriptive right to the flow of water can be acquired by 20 years of user, is definitely estabalished in this State. Stock v. City of Hillsdale, 155 Mich. 375; Chapel v. Smith, 80 Mich. 112; Conklin v. Boyd, 46 Mich. 56; Gregory v. Bush, 64 Mich. 37 (8 Am. St. Rep. 797). A careful reading of this record has satisfied us that the circuit judge was fully justified in coming to the conclusion that he did, that by the clear preponderance of the evidence it was established that for a long period of years, more than 40, this water has befen divided at the point where the divide now occurs on the Weller farm, and that it did run, according to the great weight of the evidence, one-half through the west branch and the remainder
It would not be. profitable to here review the evidence in detail, and it is sufficient to say that upon the record as here made, we are satisfied that the trial judge reached a just and equitable conclusion in dividing the water one-half to each stream and granting the plaintiffs the relief they prayed for. See Hilliker v. Coleman, 73 Mich. 170; Rummell v. Lamb, 100 Mich. 424; Mastenbrook v. Alger, 110 Mich. 414.
The decree is affirmed, with costs to the plaintiffs.