Bigelow v. Shaw

• Decision Date: 14 April 1887
• Citation: 65 Mich. 341,32 N.W. 800
• Court: Michigan Supreme Court
• Parties: BIGELOW v. SHAW, Sr., and others.

32 N.W. 800

65 Mich. 341

BIGELOW v. SHAW, Sr., and others.

Supreme Court of Michigan

April 14, 1887

Error to circuit court, Mecosta county.

Frank Dumon, for plaintiff.

C Brown, for defendants and appellants.

MORSE J.

This action was brought in justice's court to recover damages against the defendants for entering upon a frozen mill-pond upon her lands, and cutting and removing ice during the winter of 1884 and 1885. The defendants gave notice that the title to the land would come in question, and filed the bond required by the statute in such case. Thereupon the justice certified the cause to the circuit court for the county of Mecosta, where a trial was had, and judgment rendered for the plaintiff for the sum of $50.

The circuit judge, Hon. C.C. FULLER, filed a written finding of the facts upon which he based his judgment. This finding shows that the defendants, under a lease from Edward P Shankwiler and David L. Garling, went upon that portion of a mill-pond which set back upon defendant's lands, and cut and carried away and disposed of for their own use 200 cords of ice, the value of which, as it lay in the pond, was $50. The mill-pond was formed by building a dam across Ryan creek a small stream, not meandered and emptying into the Muskegon river. The dam was built in 1866 by John Bigelow, the husband of the plaintiff. He then owned the N.W. 1/4 of the N.W. 1/4 and the N.E 1/4 of the N.W. 1/4, and lot number 2, of section 24, and the S.E. 1/4 of the S.W. 1/4 of section 13, all in township 15 N., of range 10 W., in the county of Mecosta, Michigan. Ryan creek entered these lands on section 13, and ran through both the N.E. and the N.W. quarters of the N.W. 1/4 of 24. Bigelow erected this dam for the purpose of ponding the water to obtain power to run and operate a flouring-mill on section 24. In 1873 the plaintiff joined in a mortgage with her husband, executed by him to the Albion College Endowment Fund Company, upon the N.E. 1/4 of the N.W. 1/4, and said lot 2, of section 24. This mortgage also conveyed the right of flowage to raise the water in the flume at the mill 10 feet head, on the said lands retained by Bigelow, and not embraced in the mortgage, situated on sections 24 and 13. This mortgage was afterwards foreclosed, and the title to the lands, and the right of flowage, therein described, were acquired by said Shankwiler and Garling, under whom defendants claim the ice. Bigelow also, before the commencement of this suit, conveyed to his wife, the plaintiff, subject to the aforesaid right of flowage, a certain portion of the N.W. 1/4 of the N.W. 1/4 of section 24, and the same premises upon which the ice was cut by defendants. The plaintiff, therefore, at the time of the cutting of the ice, owned the land under said ice, and the defendants' lessors owned the right to flow water upon said land. The plaintiff forbid the cutting of the ice, and the entry upon the land, before the alleged trespass was committed. The cutting and gathering of the ice on said mill-pond during the winter season of each year in no manner tended to decrease the capacity of said mill-pond to furnish power to run said mill, and was no injury to the water-power. It is also found by the circuit judge that Shankwiler and Garling have always exercised great care and caution to preserve the formation of ice on the mill-pond in question, but that, previous to the execution of the lease by them to the defendants, the plaintiff, acting by and through her husband as her agent, had been accustomed to cut and gather the ice upon that portion of the mill-pond which overflowed her land, and to sell and dispose of the same for her own use and benefit.

We think the circuit judge was right in his conclusion of law that the ice belonged to the plaintiff. Shankwiler and Garling, in acquiring title under the mortgage to the Albion College Endowment Fund Company, did not obtain any title in the land flowed, or in the water itself, but a mere right to raise the water to a certain head at the flume, and thereby overflow the land. While the proprietor of the soil thus overflowed could not draw this water off by drains or canals, so as to injure the use of the same by the mill-owners, he would have beyond question the right to use it for watering his cattle, or irrigating his lands for domestic purposes, and for any reasonable profit or advantage which did not, in a perceptible and substantial degree, impair the operation of the flouring-mill. And the almost uniform authority is that he may take and carry away the water, when formed into ice, provided he does not thereby appreciably diminish the head of water at the dam of the mill-owner. Cummings v. Barrett, 10 Cush. 186; Ham v. Salem, 100 Mass. 350; State v. Potmeyer, 33 Ind. 402; Edgerton v. Huff, 26 Ind. 36; Julien v. Woodsmall, 82 Ind. 568; Brookville & Metamora Hydraulic Co. v. Butler, 91 Ind. 134; Paine v. Woods, 108 Mass. 160; Stevens v. Kelley, (Me.) 6 Atl.Rep. 868.

The owner of the soil water is ordinarily the sole and exclusive owner of the ice forming upon such water. And this is not confined to ponds, forming or being entirely upon a person's premises, but his riparian ownership of the bed of the stream will carry with it the right to the ice forming upon the surface of such stream, as far as his riparian right to the soil extends. Lorman v. Benson 8 Mich. 18; People's Ice Co. v. The Excelsior, 44 Mich. 229, 6 N.W. 636; Washington Ice Co. v. Shortall, 101 Ill. 46; Village of Brooklyn v. Smith, 104 Ill. 429. And in all the reported cases I can find, except two, it is expressly held, in a case like the one at bar, that the land-owner has the exclusive right to the ice, and to gather and sell it for his own benefit, provided he does not thereby impair to a perceptible and substantial extent the flow of water for mill purposes, and that the mill-owner has no right whatever to such ice. This right results from and grows out of the title to the bed of the stream, and such use of the water as results therefrom. Stevens v. Kelley, 6 Atl.Rep. 868; Gould, Waters, � 191; Paine v. Woods, 108 Mass. 160-172; Brookville & Metamora Hydraulic Co. v. Butler, 91 Ind. 134; Dodge v. Berry, 26 Hun, 246; Marshall v. Peters, 12 How.Pr. 218; Washington Ice Co. v. Shortall, 101 Ill. 46.

In Mill River, etc., Manuf'g Co. v. Smith, 34 Conn 462, the court held that the mill-owner had an interest in the ice, and a right to have it...