Beaverton Power Co. v. Wolverine Power Co.

• Decision Date: 07 January 1929
• Docket Number: No. 80.,80.
• Citation: 245 Mich. 541,222 N.W. 703
• Parties: BEAVERTON POWER CO. v. WOLVERINE POWER CO.
• Court: Michigan Supreme Court

245 Mich. 541

222 N.W. 703

BEAVERTON POWER CO.

v.WOLVERINE POWER CO.

No. 80.

Supreme Court of Michigan.

Jan. 7, 1929.

Appeal from Circuit Court, Gladwin County, in Chancery; Guy E. Smith, Judge.

Suit by the Beaverton Power Company against the Wolverine Power Company. From a decree granting insufficient relief, plaintiff appeals. Modified and affirmed.

Argued before the Entire Bench.

Geo. E. Nichols, of Ionia, for appellant.

John C. Shaffer, of Gladwin (Tracy, Chapman & Welles, of Toledo, Ohio, and William C. Manchester, of Birmingham, of counsel), for appellee.

WIEST, J.

The Beaverton Power Company, plaintiff, filed the original and amended bills herein to obtain specific performance of an alleged verbal agreement binding defendant company to release to plaintiff the right to flow the Weinholdt farm, so called, by a dam to be erected by plaintiff across the Tobacco river at the north eighth line of section 16, Tobacco township, Gladwin county, and to enjoin defendant from raising the water in the river above such line. The Wolverine Power Company, defendant, by answer and cross-bill, alleged an agreement binding plaintiff to grant it right to flow, by its dam at Edenville, the Hunter farm, so called, up to the north and south quarter line of section 9 of the same township. The circuit judge was unable to find the agreement alleged by plaintiff, and therefore refused specific performance, and also denied relief to plaintiff by way of equitable estoppel or injunction. The court restrained plaintiff from erecting a dam at the north eighth line of section 16, or below the north and south quarter line of section 9, and awarded plaintiff $270, for all damages occasioned by flowage of the Hunter lands, past, present, and future, by defendant's dam at Edenville. Plaintiff appealed.

The Beaverton Company has a power dam across the Tobacco river at the city of Beaverton, Gladwin county, and the Wolverine Company has a power dam across the same river 10 or 11 miles lower down at Edenville. While defendant's dam was in course of construction, it was erroneously supposed by officers of the Wolverine Company that the dam would not back water above the crossing of the north eighth line of section 16, and for that reason they were willing that the Beaverton Company acquire title to the Hunter farm of 156 acres on the southerly side of the river, the lower end of which is at the eighth line of the section, but claim that this was based on an agreement that, if the water did flow any part of the Hunter farm, the Beaverton Company should permit the same upon payment for such land. The Beaverton Company acquired title to the Hunter farm, and claims the right to erect a dam at the eighth section line. At the mentioned line and across the river from the Hunter farm is the Weinholdt farm, the title to which is in the Beaverton Company, but with right of flowage thereon in the Wolverine Company. The right of flowage of the Weinholdt farm being in the Wolverine Company, the Beaverton Company could not erect a dam at the eighth line unless it acquired such right of flowage. The Beaverton Company holds rights of flowage from its dam at Beaverton to the north eighth line of section 16, with the exception of the Weinholdt property, and the Wolverine Company holds rights of flowage from its Edenville dam to the north and south quarter line of section 9, with the exception of the Hunter farm.

Right to flow the Weinholdt land was acquired by Frank I. Wixom, as trustee, in June, 1916. In August, 1913, the Riverdale Farms Company, of which Mr. Wixom was a stockholder but not an officer, was organized to take over, and later did acquire, flowage options held by Mr. Wixom. December 11, 1918, Mr. Wixom, trustee, deeded the flowage rights to the Riverdale Farms Company, a corporation, and May 30, 1923, that company deeded the flowage rights to the Wolverine Company. The Wolverine Company was organized in March, 1923. June 1, 1923, the Wolverine Company executed a mortgage, inclusive of the flowage rights, to the Ohio Savings Bank & Trust Company of Toledo, Ohio.

Plaintiff claims that Mr. Ronald Ross, its president, was assured by Mr. Frank I. Wixom, president and general manager of the Wolverine Company, that the backwater of the Edenville dam would not go to the north eighth line of section 16, where plaintiff company proposed to place its new dam, and a release of the flowage rights on the Weinholdt lands would be given plaintiff for $600, and, relying thereon, the Hunter farm was purchased by it at an expense of $8,500, and title to the Weinholdt land, subject to flowage right, purchased at a cost of $400. Defendant denied the alleged assurances.

Mr. Ross testified that in January, 1923, Mr. Wixom informed him that the dam to be built near Edenville would back water in the Tobacco river a little above the Dale bridge; that he then told Mr. Wixom of the plan to purchase the Hunter land, provided he could also buy the flowage right held by the Wolverine Company on the Weinholdt land, and Mr. Wixom said he would be glad to sell it, as the water would not back up there and he would attend to it right away; that in April, 1923, he told Mr. Wixom that a Mr. Behan had been to see him about the Hunter land, and Mr. Wixom said that Mr. Behan had been to see him, and he had told Mr. Behan that he could not use the land and was not interested, and ‘if Ross wanted it they did not want to do anything against him, something to that effect.’ Following this talk, Mr. Ross purchased the Hunter farm for...