Thompson v. Addison Flouring Mill Co., Docket No. 94

Docket No. 94 | Mich. | Sep 26, 1916

Brooke, J.

(after stating the facts). A careful perusal of the very voluminous record in this cause convinces us that the following facts are established by an overwhelming preponderance of the proofs:

(1) The defendant has not lowered the channel through which the water of Devils Lake entered the flume maintained by defendant in such manner as to cause the waters of the lake to flow therefrom to a greater degree than they would have flowed in a state of nature.

(2) The sill of the flume through which the excess waters of Devils Lake must flow has been maintained at its present level for upwards of 40 years.

(3) Defendant has acquired by prescription the right to impound the waters of Devils Lake .by the insertion of flashboards or a gate in said flume.

(4) For a period of upwards of 40 years defendant and its predecessors in title have claimed and exercised the right to draw the impounded waters from said lake as they were required for the purpose of producing power.

(5) In seasons of low water this right has been consistently exercised to the extent that defendant and its predecessors in title would remove all the flash-boards or lift the gate so that the water flowed without restraint over the sill.

(6) In one, possibly two, exceptionally arid seasons, either by reason of diminished precipitation or excessive evaporation, the level of the lake has been lowered to a point where no water flowed over the sill of the flume. To afford power during periods of extraordinary low water, defendant’s predecessors in title installed an auxiliary steam plant which has been operated as occasion required for many years.

(7) Lower riparian owners have acquired a prescriptive right to the continued use and flowage of the waters of Devils Lake unimpeded by a permanent barrier above the sill of the flume.

(8) During the year 1910 and the first half of 1911 the amount of precipitation was 17 inches below normal. Plaintiffs complained of the low state of the water during this period. The condition should be ascribed rather to decreased rainfall than to excessive use of the water by defendant, who in those years manipulated the gate in the flume in the same manner as it had been manipulated through a long series of years.

(9) The claim of plaintiffs that an artificial low level at a point between 17 and 23 inches above the sill of the flume has been maintained by the defendant and its predecessors in title, and that plaintiffs have acquired a prescriptive right to have the water maintained at such level, is not sustained by the proofs in the case.

The record discloses that, while the plaintiffs are interested in maintaining a high level of the waters of Devils Lake, farmers in its vicinity are equally interested each season in an early lowering of said level in order that the lands affected may be rendered fit for husbandry. Parties so interested in the lowering of the waters of the lake, and from a perusal of the record there appear to be many of them, are not parties to this record, and their rights, whatever they may be, should not be concluded by any decree herein. Inasmuch, therefore, as plaintiffs’ contention involves only the right of defendant to lower the lake to the point of taking all the water therein that will flow over the sill of the flume, and as plaintiffs’ proofs failed to show them to be entitled to the relief prayed, we agree with the decree of the court below in dismissing the bill of complaint. We disagree with that portion of the decree which establishes in defendant a prescriptive right to raise the waters of the lake to a certain fixed point above the sill of the flume.' We reach this conclusion not because defendant may not be entitled to such a prescriptive right, but because the question whether it was so entitled was not properly an issue in the case, and the rights of the interested persons not parties to the record should not be foreclosed by such a decree.

In this court a decree will be entered simply dismissing plaintiffs’ bill, with costs.

Stone, C. J., and Kuhn, Ostrander, Moore, Steere, and Person, JJ., concurred. Bird, J., did not sit.