| Mich. | Apr 10, 1872
Eice sued plaintiffs in error for obstructing the Muskegon river so as to interfere with the free passage, of bis lumber. The first count in the declaration alleges the damage to have been caused by the unlawful maintaining of' a dam, and various eddies, whirlpools and other mischiefs caused by it. The second count proceeds upon various obstructions to the natural flow of the stream, which it was alleged “had theretofore non and flowed, and was accustomed to run and floto, and of right did run and flow, and still of right ought to non and flow freely,” and complains of the obstructions as hindering and preventing the water-course from “running and flotuing freely and naturally,” from plaintiff’s mill (above the obstructions) to Lake Port (which was at the mouth of the river).
The injuries and obstructions are substantially identical
The case finds that on the hearing it was admitted that the dam complained of was erected at the point designated as obstructed, and that authority had been legally granted for the erection of a dam of the height and dimensions specified by the legislature and the board of supervisors. The evidence of damages was confined chiefly to injuries caused by the existence of the dam, and none of it distinguished between that and any other cause of damage.
We do not think any recovery could be had under this state of things. The declaration was based entirely on the unlawful obstruction of an open water-course, — not upon the excess or insufficiency of a dam authorized to be built of certain dimensions and in a certain way.
The supervisors, under the limitations fixed by th'e legislature, fix the dimensions and plans which they are willing to approve, and the only cause of grievance is the violation of those regulations. The authorities determine in their lawful discretion what accommodation is needed for convenience of floatage on these water-ways, as the proper authorities regulate by law, or otherwise, the dimensions and .facilities of ways by land. The only obstruction which can be a grievance is an obstruction of the stream beyond that which they have legally permitted. The whole theory of the declaration is that the Muskegon river has been left in a state of nature, and cannot be lawfully obstructed at all. And the whole proof of damages set forth in the case rests on the'same theory.
There seems to have been some conflicting evidence upon the condition of the dam and shute, but the estimate of damages is throughout on the general grounds, and there is nothing in the declaration to authorize an inquiry into the legal sufficiency of the dam or its appurtenances.
The judgment must be reversed, with costs, and a new trial ordered.