162 Mich. 19 | Mich. | 1910
Lead Opinion
(after stating the facts). In what we have to say hereinafter, it will be borne in mind that the complainant village has no sewage system. That it is not claimed by defendant, that by reason of urban improvements, raising, grading streets, etc., therein, the natural course of the surface water has been diverted upon his land, or that the volume thereof has been increased by any act of complainant. He specifically admits in his answer that the water in question has flowed across his land from time immemorial. Under the circumstances disclosed by the record in this case, therefore, we are of opinion that the rules of law established by this court, relative to the care of surface water in rural districts, must control. A contrary holding would, it seems to us, place it within the power of any resident of a village to compel the village to enter upon the construction of a sewage system, whenever he happened to become the owner of a lot which from time immemorial had borne the servitude of carrying surface water from adjacent lands. Villages ordinarily are not wealthy enough to undertake expensive public works, and residents therein must be presumed to have taken up their homes there with a knowledge of this fact. In villages, taxes are lower and conveniences are fewer than in towns and cities. Those who choose to live in villages must bear the ordinary inconveniences incident to such residence. Treating this case as falling within the rural, rather than the urban, class, there is no difficulty in
It seems to be settled law in several other States that municipalities are not obliged to provide artificial drainage for surface waters. They may not, however, collect them and discharge them in unnatural volume upon private lands. Lynch v. Mayor, etc., of New York, 76 N. Y. 60 (32 Am. Rep. 271); Davis v. City of Crawfordsville, 119 Ind. 1 (21 N. E. 449, 12 Am. St. Rep. 361); Gilfeather v. City of Council Bluffs, 69 Iowa, 310 (28 N. W. 610); City of Atchison v. Challiss, 9 Kan. 603; Collins v. City of Waltham, 151 Mass. 196 (24 N. E. 327).
Clause 3 of the decree in the court below was, in any event, unwarranted by the pleadings. Defendant sought no affirmative relief. Thayer v. Lane, Walk. Ch. (Mich.) 200; Smith v. Rumsey, 33 Mich. 183; Booth v. Thompson, 49 Mich. 73 (13 N. W. 363); Andrus v. Scudder, 120 Mich. 502 (79 N. W. 794). But this is unimportant, as we are of opinion that complainant was entitled upon the hearing to a decree enjoining defendant from interfering with the natural flow of surface water over his premises, such decree to become operative only when complainant had caused all sewers {i. e., drains connected with water-closets) to be disconnected with said drain.
Inasmuch as the proceedings upon contempt, subsequent to decree, show that nothing but surface water at
Dissenting Opinion
(dissenting). There are two statements in the opinion of Mr. Justice Brooke, controlling of the conclusion which he reaches, which I think find no support whatever in the record. Those statements are:
“In what we have to say hereinafter, it will be borne in mind that the complainant village has no sewage system. That it is not claimed by defendant that by reason of urban improvements, raising, grading streets, etc., therein, the natural course of the surface water has been diverted upon his land, or that the volume thereof has been increased by any act of complainant. He specifically admits in his answer that the water in question has flowed across his land from time immemorial.”
The land is not in a state of nature. It is in an incorporated village, which, according to the last census, had upwards of 1,200 inhabitants. The block in question is built upon with houses and barns. The village has a system of underground drainage, adopted and constructed by village authority. This is expressly charged in the bill of complaint, which further charges that the water collected in this system is discharged upon the land of defendant by consent of the owner thereof. What is charged in the bill, and what defendant specifically admits, is not that the water in question has flowed across his land from time immemorial, but that — I quote from the bill — “from time immemorial the land * * * has been drained when not interfered with artifically ” across the land of defendant. It is not claimed on the part of the village that it ever acquired the right to discharge upon defend
But it was intimated on the argument that complainant did not rely solely upon the alleged license. If we were to assume, in the face of the charge in the bill, that the village expended large sums of money in constructing a system of artificial drainage, in reliance upon an alleged consent of the owner of the property to receive the water so collected, that the village intended also to assert a right to have the waters go as they would have gone if the land was in a state of nature, the complainant has no better case. Whether the rule applicable to rural property and conditions should be applied in this case does not depend upon the simplicity or complexity of the system of drainage established in the village of Trenton. The court may, and should, take judicial notice of the fact that after the building of a village upon land the land is no longer in a state of nature, and there is and can be of necessity no such thing in fact as that natural percolation and flow of surface water which existed before the village was built. It is said by tbia court in Boyd v. Conklin, 54 Mich. 583 (20 N. W. 595, 52 Am. Rep. 831):
*26 “A number of the most striking cases cited by plaintiff’s counsel in support of his appeal, as laying down the broadest doctrine, and as relied upon in a good share of his other citations, were cases where the lands were in towns and cities, and the erections or acts in litigation referred to the uses of that class of property. And in relying on these it was claimed that there was no substantial foundation for any distinction between urban and rural property. There is no question but that such a distinction is recognized in the civil-law authorities referred to on the argument, as well as in several of the cases cited. The distinction is one of substance and not arbitrary. As already suggested, the adjoining owners owe mutual duties — the one to receive the natural flow, and the other not to injuriously change its conditions. It is obvious that tira laying out of town streets and the multiplication of buildings cannot avoid making serious changes in the surface of the ground and in the condition of surface water. Grades must usually be established for streets and sidewalks, and pavements and other surface changes are usual, in addition to the walls of buildings which, with their embankments, must obstruct or change the drainage. It is almost universally expected and provided that sewerage and drainage shall be regulated by some municipal standard. There cannot be towns without changing the face of the land materially. And where the same rule has been applied to towns as to the country, it has, in some cases at least, been done expressly, because in the circumstances of the record the particular land in question had remained under rural conditions. If — as seems to be true —some decisions ignore the distinction, they depart from the old rule, and cannot be maintained as harmonious with the general line of authority, unless on special facts which do not justify their broad dicta”
Whether in any case, as between proprietors of adjoining lands in a village, the rule applicable to rural property should be held to apply, we need not determine. Here the village — the municipality — is asserting the right to flow the land of one member of the community with water gathered in underground conduits, for the benefit of the community. This it may not lawfully do.
In so far as the court below held that the village had no right to discharge, by means of its artificial drainage, water
Concurrence Opinion
Inasmuch as the defendant was not seeking to reasonably improve his property in accordance with the urban rule, I concur in the foregoing opinion.