Arnold v. Ellis

• Decision Date: 09 November 1966
• Docket Number: No. 3,No. 1108,1108,3
• Citation: 5 Mich.App. 101,145 N.W.2d 822
• Parties: Robert ARNOLD, Vida Arnold and Janet Arnold, by her next Friend, Robert Arnold, Plaintiffs and Appellees, v. Robert ELLIS, Iola Ellis, Walter Ellis and Helen Ellis, Defendants and Appellants, and City Bank and Trust Company, Defendants, Cross-Claimants and Appellees. Cal
• Court: Court of Appeal of Michigan — District of US

Page 822

145 N.W.2d 822

5 Mich.App. 101

Robert ARNOLD, Vida Arnold and Janet Arnold, by her next Friend, Robert Arnold, Plaintiffs and Appellees, v. Robert ELLIS, Iola Ellis, Walter Ellis and Helen Ellis Defendants and Appellants and City Bank and Trust Company, Defendants, Cross-Claimants and Appellees.

Cal. No. 1108.

Court of Appeals of Michigan, Division No. 3.

Nov. 9, 1966.

Carroll B. Jones, Jones, Webb & Jones, Marcellus, for Robert, Vida and Janet Arnold, plaintiffs-appellees.

Quentin R. Fulcher, Benton Harbor, for Walter and Helen Ellis, appellants.

Ross F. Stancati, Troff, Lilly, Bonow, Piatt & File, Kalamazoo, for Robert and Iola Ellis, appellants.

Hugh B. McVicker, Jr., Jackson, for City Bank & Trust Co., defendants, cross-claimants and appellees.

Before HOLBROOK, P.J., and BURNS and HOFFIUS, ^* JJ.

HOLBROOK, Presiding Judge.

Plaintiffs are the title holders and possessors of certain real estate in the township of Constantine, St. Joseph County, Michigan, described as follows:

'All that part of the Northwest Quarter (NW 1/4) of Section Thirty-two (32) in Town Seven (7) South of Range Twelve (12) West, that lies west of flowed land and North of road leading from Constantine to Mottville, bounded North and West by Section lines. Except Ten acres in the Southwest corner, also except flowage. All in St. Joseph County and State of Michigan.'

The plaintiffs acquired this property by will from Sim Arnold, the father of plaintiff Robert Arnold. Robert and Vida Arnold are life tenants, and their daughter, Janet Arnold, twelve years of age, holds the remainder interest. Sim Arnold, plaintiffs' predecessor, acquired the property in 1931 and 1936 by mortgage foreclosure and quitclaim deed. Mary Houser, Bertha O'Dell, John White, and possibly Peter Houser whose interest is not a matter of record, were Sim Arnold's predecessors in title. They were also the grantors of property now held by the defendants. The four defendants, Robert Ellis, Iola Ellis, Walter Ellis, and Helen Ellis, are purchasers under a land contract. The defendants purchased the property in 1958 from the Fargo Engineering Company, which sold its vendor's interest to the defendant City Bank and Trust Co. of Jackson, Michigan.

Beginning with the common grantors, the first conveyance of the property now held by defendants was to William Dunn, in 1912. The description in this deed granted property to the east of a line beginning at a point in section 32 of Constantine Township, which meandered in a southerly direction through 31 calls and finally ended at an elm tree near a dam. The deed also conveyed

'a strip of land one rod wide, adjoining the westerly side of the afore described tract and extending the entire length of the said Westerly side from the section line at the north to the highway at the south, containing one and 73/100 acres of land. With right to flow the same with water for power purposes and water privileges.'

The property owned by defendants consists for the most part of a pond created by a dam across Mill Creek. The western shore line of the pond runs generally south from the section line mentioned in the above descriptions. There is, however, a small peninsula of land extending out into the pond on the west side. From the south side of this peninsula, the shoreline once again runs generally in a southerly direction until it reaches the road where the dam is located. Near the northern section of the property line a dike was constructed approximately 500 feet long and 20 feet wide apparently for the purpose of holding back the water edge of the pond. The land west of the dike is naturally low but usable unless flooded. On the south side of the peninsula, where the shoreline once again runs generally south, there is a ridge which runs in a north south direction approximately 20--30 feet west of the edge of the pond. West of this ridge, the land is low and generally unable to support heavy farm machinery. The Arnolds use this ridge for the purpose of driving their farm machinery across the low land to reach their north fields.

Another important factor in this case, apart from the contour of the western edge of the pond and the characteristics of the land immediately west of the shoreline, is the level of the pond. The trial court in this case determined that the level of the pond should be maintained at a height no greater than 786 feet above mean sea level. Prior to the start of this litigation, the defendant installed flash boards in the spillway and raised the level of the pond to 788.62 feet above mean sea level. Since the bottom of the pond at the spillway was 772.15 feet, the defendants were maintaining a head of water of about 16.47 feet. At this height, the water from the pond seeped through the dike north of the peninsula and flooded the property west of the dike. It also washed out a causeway at the extreme north end of the pond which was used by John Oldenberg to get from one field to another. Behind the dike, plaintiffs' exhibits show large trees standing in water which was estimated to be anywhere from 1 foot to 2 1/2 feet deep. Although the property west of the dike was naturally low and therefore wet, it had never been submerged to that extent.

Although the height of the pond at the time of the original 1912 conveyance from the common grantors was very much in dispute, the following facts seem reasonably certain. The United States Department of Interior made a survey in 1914 and found the level of the pond to be 786 feet above mean sea level. The Peoples Light and Power Co. used the dam to generate the electricity which provided the power for the first electric lights for the town of Constantine. The Power Co. raised and lowered the level of the pond at varied intervals, but apparently this did not disturb neighboring property holders. The Power Co. gave up on the pond in 1918 and from then until 1941 little was done with it except for releasing the water in 1938 because of a weakening of the dam over which a public highway ran.

The Fargo Engineering Co. purchased the property in 1941, because one of the owners, a Mr. Hunt, was interested in hydro-electric operations as a hobby. He never went beyond rebuilding the spillway, however, because he could not obtain a clear title to the power house located on the south side of the highway. When Fargo decided to sell this property, it was listed as a pond and dam with a 16 foot head. The listing expired without a sale, and thereafter Fargo told interested purchasers, including defendants, that there would not be over a 14 foot head. The purpose of this was to protect the causeway, used by Mr. Oldenberg, located at the north end of the pond. The defendants purchased the property in 1958. Mr. Walter Ellis contemplated moving his business to the site of the dam so as to take advantage of the cheap power source. There was testimony to the effect that a 14-foot head would produce a sufficient amount of electrical power for this purpose.

In 1960, Robert Ellis raised the level of the pond causing the flooding of the land west of the dike and the destruction of the causeway. He also had the property surveyed. After this survey, Robert Ellis built a fence around what he thought to be his property. The fence ran from the spillway along the road, across plaintiffs' driveway and ended at plaintiffs' front door. It started again at the back door of the house and ran in a northerly direction through plaintiffs' soybean field well west of the ridge which ran alongside the western shore of the pond. Because of the fence, plaintiffs could not reach the fields located on the northern part of their property.

Plaintiffs brought suit in the circuit court for St. Joseph county. The court ordered defendant to remove the fence and set the maximum pond level at 786 feet above mean sea level. The parties to the suit were Robert and Vida Arnold, plaintiffs, and Robert and Iola Ellis and the City Bank and Trust Co., defendants. The court reserved jurisdiction to determine the actual property line if that became necessary at a future date.

The primary purpose of the second suit, out of which this appeal arose, was to determine the boundary between the two parcels of property. Janet Arnold was joined as a plaintiff and Walter and Helen Ellis were joined as defendants. The Bank entered a cross claim against the Ellis family for reformation of the deed and Walter and Helen Ellis sought rescission of the land contract. Robert and Iola Ellis did not join in the claim for rescission.

The court reaffirmed the pond level of 786 feet and set the boundary line as the shoreline when the pond is at 786 feet plus one extra rod around the west side of the pond. The contract between the defendant Bank and the Ellis family was reformed to conform with this description. The rescission claim was denied.

Defendants-appellants raise the following questions for this Court to consider on review: (1) Did the court have power or jurisdiction to set the pond level at 786 feet above mean sea level? (2) Did the court err in deciding that the only reliable proof of the pond level was the survey made by the United States Department of Interior? (3) Did the court err in restraining defendants from raising the pond level above 786 feet for the reason that plaintiffs had knowledge of defendants' right to flow plaintiffs' land? (4) Did the trial court err in not attempting to set the boundary by angular adjustments of known distances as found in the deeds of the parties? (5) Did the trial court err in setting the boundary? (6) Did the trial court err in granting reformation to the City Bank and Trust Co. without taking into consideration the land loss to appellants?

Defendants contend in their brief that the Inland Lake Level Act of 1961, P.A.1961, No. 146, as amended (C.L.S.1961, §§ 281.61--281.86 (Stat.Ann.1965 Cum.Supp., §§ 11.300(1)--11.300(26))), operates to preclude the circuit court from...