Conklin v. Boyd
| Decision Date | 27 April 1881 |
| Citation | 46 Mich. 56,9 N.W. 134 |
| Court | Michigan Supreme Court |
| Parties | CONKLIN and another v. BOYD. |
An easement whereby water collecting upon land must be allowed to find an outlet, even though it overflows adjacent land may be acquired by prescription; and evidence is admissible as to the length of time it has so overflowed without objection from the adjacent proprietor.
Error to Lenawee.
C.A. & J.A. Stacy and Willis Merritt, for plaintiffs in error.
Millard & Bean, for defendant in error.
Boyd brought an action to recover damages claimed to have been suffered by reason of a trespass committed upon his lands in removing an embankment, and thereby permitting surface water to flow over his lands into a pond or reservoir thereon, from off the highway and lands of an adjoining proprietor.
The tendency of the evidence on both sides is so briefly and clearly set forth in the bill of exceptions, that we give the material parts thereof in a note herewith. [*] We also give herewith the principal portion of the instructions given the jury by the court. [d] Some very nice and interesting questions are quite likely to arise concerning the flow of surface water, and we therefore fully concur with the court below in declining to attempt to lay down any rule of universal application. Confining ourselves strictly to the facts in this case, we are of opinion that the evidence introduced on the part of the defendants tended to prove that the surface water had run from off Dewey's land over that of the plaintiff and into the pond upon his land for far more than 20 years; that the plaintiff and his grantors had knowledge of such flowage for the entire period, and that work had been done in clearing and improving the highway, the channel, and no objections made thereto.
Now without attempting to lay down any rule as to the right of an owner of an upper field to have the water that falls thereon flow off upon the lands of another below, or of the right of the latter, or the extent to which, in the improvement of his own lands for agricultural purposes, he can stop or prevent such flowage, we are of opinion that if the jury had found the facts to be as the defendant's testimony tended to prove, the plaintiff would not have been entitled to recover.
Whether a lower estate owes servitude to an upper or superior one in the first instance or not, we are of opinion, that such an easement may be acquired by prescription, and that the evidence bearing upon this subject should have been submitted to the jury. The authorities are quite fully collected and discussed in Washburn on Easements, 353 et seq., to which reference is made.
The judgment must be reversed with costs and a new trial ordered. A difficulty appears on the record but as it was not argued by counsel and will not again arise we pass no opinion thereon.
COOLEY, J., did not sit, having tried the case as special judge.
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Notes:
[*] And thereupon the counsel for the said plaintiff to maintain the issue on his part called as a witness Thomas Boyd, who, being duly sworn, gave testimony that he was the owner of the premises described in the declaration in this cause; that he was then in possession of said premises and had been since some time in the year 1873 that said premises front on the road on the north known as the La Plaisance Bay turnpike, a road running east and west or nearly so; that the lands lying north of the premises mentioned in said declaration are occupied by one Dewey; that the highway immediately north of the premises mentioned in said declaration as well as said Dewey's said land is low ground; that in times of high water Evans creek lying north of said Dewey's said land and about one-half mile north of said highway would overflow, and that in connection with the rain and melting snow would flow off south towards the land mentioned in said plaintiff's declaration and fill up a pond upon said Dewey's land immediately north of said highway; that when said Dewey's pond would become filled as aforesaid, said water would further flow across said highway and upon the land of said plaintiff mentioned in said declaration into a pond or basin of water upon the land described in the declaration in this case, some 35 or 40 rods south of said highway, and cause said last-mentioned pond to overflow a portion of the land mentioned in said declaration that the nature of the land between said Dewey's pond on the north side of said highway and said pond upon said plaintiff's land hereinbefore mentioned, was low swampy land with the exception of a ridge four or five rods south of said highway which was higher than either of said ponds and higher than the land immediately north of said highway upon said Dewey's premises; that there was no regular water-course between said Dewey's pond immediately north of said highway and said pond hereinbefore mentioned upon said premises described in said declaration where living water usually runs, but water was only there in times of high water, and then only surface water; that for the purpose of preventing said water from settling back from Evans creek into Dewey's pond and from Dewey's pond flowing upon the land mentioned in said declaration and overflowing the same, said plaintiff caused in the fall of 1877 an embankment to be made upon the premises mentioned in said declaration immediately south of said highway and south of the fence enclosing said land on the north of about 14 rods long east and west, and 12 or 15 feet wide; said bank extended east and west entirely across the swail or low lands over which in times of high water the water flowed into said pond upon the land described in said declaration; that the effect of said embankment was to keep off the water flowing from the highway and Dewey's land, as aforesaid, thereby rendering several acres of land tillable that otherwise would not be.
The original width of the road was six rods, as appears from the examination of the maps furnished from the department at Washington. The section line runs to...
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