Cole v. Dooley

• Decision Date: 27 July 1904
• Citation: 100 N.W. 561,137 Mich. 419
• Parties: COLE et al. v. DOOLEY, Drain Com'r.
• Court: Michigan Supreme Court

100 N.W. 561

137 Mich. 419

COLE et al. v. DOOLEY, Drain Com'r.

Supreme Court of Michigan

July 27, 1904

Appeal from Circuit Court, Barry County, in Chancery; Clement Smith Judge.

Suit by Ervin P. Cole and others against Patrick Dooley, drain commissioner of Barry county, to restrain the latter from constructing a proposed drain. From a decree in favor of plaintiffs, defendant appeals. Affirmed.

Thomas Sullivan and Fred W. Walker, for appellant.

Colgrove & Potter, for appellees.

HOOKER J.

Thornapple Lake is a body of water between two and three miles long, and half a mile in width, in the county of Barry. The testimony in the case shows that there is deep water in the lake, but that the edges are low and wet, and that shallow water extends some distance into the lake, and that the bottom is soft, to a depth of many feet. The shore around the lake is in many places springy, and it appears to be the consensus of opinion that springs exist in the lake, which help to feed it. Several streams empty into this lake, the largest of which is Thornapple river, about 60 feet wide where it flows into the lake. There is much low land along this river, especially near the lake. The outlet of the lake is also called 'Thornapple River,' and it is larger than the inlet of the same name. Interested parties filed a petition with the county drain commissioner to establish a drain beginning at the outlet of the lake and extending down the stream, the avowed object of which was to lower the level of the lake four feet. Near the south bank of this lake there is a high bluff, owned by the complainants, which approaches within 50 feet or thereabouts of the water's edge. The complainants' father owned this property, consisting of a farm, and he built a dock and filled in along the shore behind it; thereby giving access to the lake, where he kept boats to let, and a steamer, which he used to transport pleasure seekers who were attracted to the place. For three decades or more he and his children, who now own the place conducted a successful resort, and spent considerable money in improvements. Among other things constructed by them to this end were a dance hall, and a larger dwelling, a boathouse, and a depot or waiting room for passengers. This was immediately in front of, and within 70 feet or thereabouts of, the house, and also immediately opposite the dock. There is about 4 feet of water at the dock at the ordinary stage of water. The drain proposed will lay bare about 66 acres of the bottom of the lake, and it will make shallows of other lake bottom now covered by 4 feet and more of water. It will correspondingly lessen the area that can be traversed by complainants' boats--especially their steamboat. The complainants own a mile and a half of the shore of the lake, with the riparian rights incident thereto, and they oppose the proposed drain, and have filed the bill in this cause to restrain its construction. The testimony shows that the interested landowners, who expect to...