Bernard v. City of St. Louis

• Decision Date: 02 October 1922
• Docket Number: No. 84.,84.
• Citation: 220 Mich. 159,189 N.W. 891
• Parties: BERNARD et al. v. CITY OF ST. LOUIS.
• Court: Michigan Supreme Court

220 Mich. 159

189 N.W. 891

BERNARD et al.

v.CITY OF ST. LOUIS.

No. 84.

Supreme Court of Michigan.

Oct. 2, 1922.

Appeal from Circuit Court, Gratiot County, in Chancery; Joseph A. Moynihan, Judge.

Suit by Fred H. Bernard and others against the City of St. Louis, Mich. Decree for plaintiffs, and defendant appeals. Modified and remanded, with directions.

Argued before FELLOWS, C. J., and WIEST, McDONALD, CLARK, BIRD, SHARPE, MOORE, and STEERE, JJ. Romaine Clark, of Ithaca, and Searl & Searl, of St. Johns, for appellant.

Chas. W. Giddings, of St. Louis, and O. G. Tuttle, of Ithaca (Arthur Brown, of Ann Arbor, of counsel), for appellees.

MOORE, J.

The plaintiffs filed their bill of complaint against the defendant, and alleged, among other things, that they are holders of certain land which they obtained through a chain of title from Henry L. Holcomb; that upon this land there is the premises known as the Park Hotel, which was built some 50 years ago as a sanitarium; that part of the treatment consisted in applying the waters from a certain mineral spring, which is alleged to have curative properties in the treatment of diseases. It is claimed that the spring in question is what is known as a flowing well, and has been flowing upwards of fifty years, and flows directly into a pumping room of the hotel proper, where it is lifted by a force pump to a storage tank on the roof of the hotel, there to be distributed to the various rooms of the hostlery for the need of patients and guests.

The proofs disclose the fact that the city of St. Louis for many years obtained its water supply from Pine river, which then furnished good water, but with the increase in population the stream became polluted, so that at an election held by the city, a bond issue was authorized and plans made for sinking wells and purchasing the necessary machinery to equip a waterworks for the city. Wells were sunk on land belonging to the municipality adjacent to the sanitarium, and water was struck which flowed in considerable quantities, enough to satisfy the engineers of the city that the needs of the city would be amply met from the five wells sunk.

It is further shown that the water department immediately built a new reservoir and attached pumps to the city's wells, and began to pump its supplies. A large fire occurred in the city of St. Louis, and there was insufficient water supply from the wells, so that the old lines to the Pine river were reopened, and water pumped from the river; that upon a threatened resumption of the pumping of the wells the plaintiffs in this suit filed their bill of complaint, praying for an injunction restraining the city from operating its wells to the detriment of their own supply, and for other relief.

The case was heard at great length in open court, and the Chancellor made a personal inspection of the plant. He was of the opinion that the plaintiffs were entitled to injunctive relief, and made a decree, from which we quote as follows:

‘First. That said defendant, the city of St. Louis, and its officers, counselors, attorneys, employees, and agents, absolutely desist and refrain from pumping from its wells, and any other wells, to such an extent as to diminish the flow or the pressure of the water flowing from the plaintiffs' well, known as the Magnetic Mineral Spring.

‘Second. That said defendant and its officers, counselors, attorneys, employees, and agents absolutely desist and refrain from interfering with, changing or molesting in any manner the pipe line and equipment used in connection therewith or the flow of the water of the magnetic mineral well to plaintiffs' hetel and sanitarium through its said pipe line and equipment as it was at the time of filing the bill of complaint in this case on December 19, 1921, and at the time of hearing thereon.’

The case is brought into this court by appeal.

Defendant's claim is stated by counsel as follows:

‘(1) That the plaintiffs are not entitled to any relief in a court of equity, and are not entitled to an injunction.

‘(2) That plaintiffs, by reason of laches, delay, and acquiescence and by their conduct are estopped from claiming relief by injunction.

‘(3) That plaintiffs are not the owners of the Andrews well or the flow thereof, and had never acquired, by grant or prescription or otherwise, any right, title, or easement in or to the percolating waters, or to have the water from the Andrews well flow through the Andrews pipe line to the boiler house.

‘(4) That the threatened injury and damage claimed by plaintiffs is infinitesimal compared to the great and irreparable injury which will be suffered by the defendant and its inhabitants by the continuance of said injunction.

‘(5) That if said injunction is continued, great and irreparable injury will result to said defendant, its inhabitants, and that the health and lives of its inhabitants will be endangered.

‘(6) That the bill does not allege and the proofs do not show that any irreparable injury will result to plaintiffs by reason of the pumping of the city wells as proposed.

‘(7) That defendant does not desire nor intend to injure plaintiffs or their business, and that its proposed pumping amounts to a reasonable use of its share of the waters.

‘(8) That plaintiffs are using the water from the Andrews well for commercial purposes on other lands, and are not entitled to restrain defendant from a reasonable use of the waters...