Davis v. Frankenlust Tp.

• Decision Date: 09 November 1898
• Citation: 76 N.W. 1045,118 Mich. 494
• Court: Michigan Supreme Court
• Parties: DAVIS v. FRANKENLUST TP. ET AL.

76 N.W. 1045

118 Mich. 494

DAVIS v. FRANKENLUST TP. ET AL.

Supreme Court of Michigan

November 9, 1898

Appeal from circuit court, Saginaw county, in chancery; Byron A Snow, Judge.

Bill by Richard Davis against the township of Frankenlust and others. From an order overruling a demurrer to the bill, defendants appeal. Affirmed.

Isaac A. Gilbert (James Van Kleeck, of counsel) for appellants.

Crane &amp Crane, for appellee.

MOORE J.

This is an appeal from an order overruling a demurrer to a bill of complaint. Complainant filed a bill in chancery, alleging among other things, that he was the owner of a farm, in the county of Saginaw, that bordered on the county line between Bay county and Saginaw county, and that defendants are flooding his lands with water, which is brought to his farm by means of ditches constructed by defendants, making his lands useless for farming purposes. The bill alleges defendants are yearly increasing the amount of water thrown upon his lands, and threaten to enlarge the quantity by opening and extending more ditches; that the water so discharged creates a nuisance, and has done him much damage and prays for an accounting for the damages done, and for an injunction to prevent the further flooding of his lands. The bill shows complainant's lands are in Saginaw county, while all the ditches which have been opened are upon land in Bay county, except such culverts as are made in the highway between the two counties. A general demurrer is interposed to the bill by all of the defendants. Only a portion of the reasons set up in the demurrer is discussed in the brief. It is said the township of Frankenlust cannot be made a party to a suit in Saginaw county, citing Pack v. Greenbush Tp., 62 Mich. 122, 28 N.W. 746. Whether this contention is true, where the township is a trespasser to real estate situated in another county, is not decided by the case cited. If it is true, the case can be discontinued as to the township. It is claimed the complainant has no standing in a court of equity, because the acts of which complaint is made were done more than six years before the bill was filed, and complainant has an adequate remedy at law. The bill alleges the trespass to be a continuing and increasing one. The jurisdiction to grant injunctions to prevent trespasses upon lands, though sparingly exercised, is well established, where the trespass is of a continuing nature, whose constant recurrence renders the remedy at law inadequate, unless by...