71 Mich. 128 | Mich. | 1888
The bill of complaint in this cause was filed October 14, 1884, to enjoin defendants from damming or obstructing the waters of the Grand river to the extent that it will set back the waters of the Grand and Cedar rivers so as to overflow their banks, and flood complainants’ lands, and prevent the natural flowing off and subsidence of the waters of said rivers in the season of high water, and to compel the defendants to remove and abate their dam across Grand river and to so construct and maintain the same as not to flood complainants’ lands, .or any part thereof.
The bill sets forth that complainants are the owners in severalty of the lands therein specifically described as
The bill further alleges—
“ That but for the maintenance of said dam no part of your orators’ or your oratrix’s lands would be overflowed or submerged by the 'waters of said Cedar river, except small portions thereof, and for brief periods, during unusual floods and high water, but by reason of said dam the waters of said river are impeded and held back, and have been and are caused to stand for long periods of time— that is to say, during the seasons of 1882 and 1883, during the months of March, April, May, June, and July, in each year, and during the season of 1884, during the months of March, April, May, and June — over your orators’ and your oratrix’s lands hereinafter described, whereby they have wholly lost and continue to lose the rents, issues, and profits of said lands, to their great damage; that your orators’ and your oratrix’s lands are all tillable lands, fit for cultivation, except for the flooding of the same as aforesaid, but by the reason of the maintenance of said dam, and the flooding in consequence thereof, the said lands are rendered untillable and useless for the purpose of cultivation.”
The bill also sets forth the particular portions of land belonging to the complainants which are flooded.
Nine of the defendants answered, and admitted the exist
The only authority granted by the State for building a dam across Grand river at or near where this dam is located, is that conferred by Act No. 98, Laws of 1843, in which John W. Burchard, his heirs and assigns, were authorized to build a dam across the Grand Biver, in Ingham county, on section No. 9, township 4 N., range 2 W., “not exceeding eight feet in height.” It was provided in that act that—
“Nothing herein contained shall authorize the person or persons above mentioned, or their heirs or assigns, to enter upon or flow or injure the lands of any other person, without the consent of such person.-”
The defendants did not attempt to deduce their rights from Burchard, or from the grant by the State to him. It was wholly immaterial for them to do so, since the complaiiiants do not deny the right of defendants to maintain a dam across Grand river, but deny their right
There was testimony which tended to show that a dam has been maintained at the point where the present dam is located since the fall of 1843; that in 1875 the greater-portion of it was swept away, and it was that year rebuilt, to a height of 7|- feet; that after that date, and until, 1881, the owners had been in the habit of increasing the head of water afforded by the dam, by the use of flash-boards, from 12 to 18 inches in height. It was shown that flash-boards had always been used during certain seasons of the year upon the old dam prior to the year-1875. In 1881, repairs were made upon the dam by increasing its permanent height 12 inches, intending thereby to do away with the use of flash-boards. The-effect of this has been to hold the water more uniformly than it was by the use of flash-boards. The dam was also made generally tighter, and less loss occasioned by leakage.
The testimony shows that the complainants had owned the several parcels of land described in the bill as belonging to each individual from 8 to 20 years; that they had made improvements thereon, and brought the land under-cultivation, and raised crops thereon, had put down drains by which the waters were drained into Cedar river,, and had experienced no difficulty from high water, or flooding or overflow, until the repairs were made upon the dam in 1S81; and from that time the water has been set back upon their lands, causing a loss of crops, the killing of native trees, and the destruction of the land for agricultural purposes. The proof is ample and convincing that, since the repairs made in 1881, the water has been, on an average, a foot higher in Cedar river
Testimony was introduced of levels taken of tne clam up the Grand and Cedar rivers for the purpose of showr ing that the waters in Cedar river were not affected and raised as far up the river, nor to such height, as claimed by the complainants. Owing to the impossibility of arriving at precisely accurate results by the use of instruments, running over a line 'six miles in extent, involving a great number of stations, and the adjustment, taking, and registering of levels thereat, and the many different circumstances, explainable and unexplainable, which affect the action of water when obstructed and ponded in running streams, actual tests by observation and experience afford the most satisfactory testimony upon which to rely in determining the results from such obstruction. Mill Co. v. Greer, 58 Iowa, 86 (12 N. W. Rep. 128); Brown v. Bush, 45 Penn. St. 61.
Every author treating upon the subject of hydrodynamics acknowledges and points out the difference between theoretical and actual tests, and, in advancing practical rules, modifies the theoretical to corresjDond as nearly as possible to actual observation and experience. We think the observation and experience of the witnesses introduced by complainants is controlling when brought in conflict with instrumental measurements, however accurately and carefully taken.
Testimony was also introduced showing that the actual structure of the dam in the river varied from 7 to 16 feet in height, and also that, as at present constructed, it is not so high as the dam was prior to 1881, including the flash-boards. Notwithstanding all this, the proof is positive that complainants’ lands were not injured by the
The defendants sought to account for this upon two hypotheses:
1. By the clearing up of the country, and by the construction of drains, the waters, draining large tracts of country, flowed off into the Cedar and Grand rivers more quickly, and thus the water was raised to a greater height than had hitherto been ordinary by natural causes.
2. That the average rain-fall had been very much greater since 1881 than before, and this caused naturally a higher stage of water.
Testimony was offered in support of both these propositions, but I do not think either of them was established by the testimony introduced. Experience has shown, what would naturally be expected to follow, that as the country is cleared up, improved, and drained, the streams, which are the natural conduits for surface drainage, become materially lessened in volume, owing partly to the greater facility for conducting the surface Avater into them after rain-fall, and partly from the greater quantity evaporated, and also the greater quantity taken up and absorbed by the dryer soil, caused by drainage.
The average rain-fall, as shown by the table introduced in evidence of measurements taken by Prof. Kedzie at the Agricultural College, has been greater since 1879 than previously. The dam was rebuilt in 1875. Prom that date to 1880, inclusive, the average rain-fall, for the six years, was 33.15 inches. The succeeding six years shoAArs an average of 35.81 inches.
Witnesses introduced on the part of defendants also testified, from their observation, to there being a greater volume of water flowing in Grand river since 1881 than before; but to what extent the volume was increased from natural causes, and whether such increased flow had any effect in setting the water back upon complainants' lands,
No grant of the right of flowage of the lands of complainants is claimed. The defense rests upon rights acquired by prescription; and in such case the burden of proof is upon the defendants to show that they have, for a period of 15 years at least, each year flowed complainants’ lands to the height complained of and established by their proofs, and that such use of complainants’ lands by flowage has been adverse, uninterrupted, peaceable, open, and notorious. No testimony was introduced to show that the effect of the old dam, with or without the flash-boards, was to set the water back and to flow over complainants’ lands to the height it has since 1881, nor to show that it so flooded the land as to interfere with or destroy the crops of complainants prior to that time, for a period of 15 years. This branch of the defense has utterly failed for lack of proof.
It was claimed on the part of counsel for defendants that we should apply the rule adopted in Massachusetts, ■and laid down in Cowell v. Thayer, 5 Metc. 253, and .approved in Ray v. Fletcher, 12 Cush. 200, that the height to which a mill-owner will have a prescriptive right to maintain the water will depend upon the height of the dam by which he has raised it, and not upon the height such dam has set the water back and flowed the land in question
"We cannot accede to this doctrine. It is antagonistic to the principle which underlies the doctrine of prescription. Title or rights in lands founded on prescription originate from the fact of actual, adverse, peaceable, open, and uninterrupted possession for such length of time that the law presumes that the true owner, by his acquiescence, has granted the land, or interest to the land, so held adversely. But no one can be said to acquiesce in a claim which he cannot dispute by bringing an action at law to determine, and hence the statute of limitations requires that an action shall be brought within 15 years after the right first accrues or the adverse entry. The defendants, therefore, acquired no right by prescription to the lands in question until they showed that the acts which constituted the adverse user injured complainants, and gave them, or to those under whom they claim title, a right of action. Holsman v. Bleaching Co., 14 N. J. Eq. 335; Smith v. Russ, 17 Wis. 234; Sabine v. Johnson, 35 Id. 185; Burnham v. Kempton, 44 N. H. 90; Griffin v. Bartlett, 55 Id. 123; Mertz v. Dorney, 25 Penn. St. 519.
It is urged that relief should be denied to complainants-for the reason that they have each separate interests, and are differently affected, at least in degree, by the act complained of, and are therefore improperly joined in this suit. As the bill does not ask for an accounting, but only for injunctive relief, we think it is maintainable, under our former decisions. Scofield v. Lansing, 17 Mich. 437; Middleton v. Booming Co., 27 Id. 533; Robinson v. Baugh,.
The fact that there are several complainants praying the same relief does not materially affect the propriety of the decree. Story, Eq. PI. § 544, and note 2. Nor do we experience any difficulty in granting relief. Although it is true that the lands situated lower down the Cedar river are flooded to a greater extent than those farther up, yet, if complete relief is given to the one situated lowest down, those farther up must of necessity be relieved.
We think the complainants have made a case by their proofs, and the only serious difficulty we have had to contend with is whether we should grant the relief prayed. It is not always a matter of course to grant relief in such cases, in a court of equity, when.the law side of the court is open for legal redress. The extent of the injury, its character, the comparative values of the properties affected, and other considerations which may present themselves under the varying circumstances, ought to be duly weighed, and relief afforded or withheld, as equity and good conscience require. Robinson v. Baugh, 31 Mich. 297, 298; Fox v. Holcomb, 32 Id. 494; Cobb v. Slimmer, 45 Id. 176; Hall v. Rood, 40 Id. 46; Edwards v. Mining Co., 38 Id. 46; Gilbert v. Showerman, 23 Id. 448.
The testimony of complainants shows that there are about 300 acres of land belonging to them which are flooded and practically destroyed for agricultural purposes by reason of defendants’ dam being maintained as at present; that such land is worth about $50 an acre, and its annual rental value is about $3 an acre. We have the testimony of defendants, who estimate the value of their mill property at $150,000, and they gave testimony tend
The testimony of defendants shows that, prior to the permanently raising of the dam in 1881, the mill-owners got along very well with the dam at the height it then was, with the aid of flash-boards, and that they had as much power as they now have; and that, should this method be resumed, the mill-owners would have all the power they had enjoyed prior to 1881.
In view of the practical destruction of 300 acres of land ■or over, be its value what it may, and the consequent, .and weekly, and perhaps daily, recurring injury to each of the complainants, for which they severally would have a right of action, presenting a multiplicity of suits and vexatious litigation, it appears to us to be just and equitable that defendants should be decreed to abate and remove the top of their dam so as to lower the structure 12 inches, and that they should perform such decree on or before the first day of December next, and that they should be ■enjoined from raising the water at their said dam so as to cause the water to set back and overflow the lands of ■complainants, or either of them, or to such' height as will cause the water to set back and percolate through the soil ■of complainants, or either of them, to a greater extent than was customary or usual prior to the time repairs were made upon said dam in 1881.
The decree of the circuit court for the county of Ing