Glidden v. Beaverton Power Co.

• Decision Date: 07 June 1923
• Docket Number: No. 105.,105.
• Citation: 223 Mich. 383,193 N.W. 862
• Parties: GLIDDEN et al. v. BEAVERTON POWER CO.
• Court: Michigan Supreme Court

223 Mich. 383

193 N.W. 862

GLIDDEN et al.

v.BEAVERTON POWER CO.

No. 105.

Supreme Court of Michigan.

June 7, 1923.

Error to Circuit Court, Gladwin County; Guy E. Smith, Judge.

Action by Enoch Glidden and another against the Beaverton Power Company. Judgment for defendant, and plaintiffs bring error. Affirmed.

Argued before WIEST, C. J., and FELLOWS, McDONALD, CLARK, BIRD, SHARPE, and STEERE, JJ.Kinnane & Leibrand, of Bay City, for appellants.

Campbell & Foster, of Gladwin, for appellee.

STEERE, J.

Defendant owns and controls a development of hydraulic power, known as the ‘Ross dam,’ located in the city of Beaverton, Gladwin county, on the Tobacco river, about a quarter of a mile below its confluence with the Cedar. Plaintiffs own a piece of land located at and to the north and west of the junction of those streams, bordering on both, and consisting of about 4 1/2 acres, described as all that part of the northeast quarter of section 12, in township 17 north, range 2 west, that lies east of the county road and west and north of the Cedar and Tobacco rivers, in the city of Beaverton, Gladwin county, Mich. They brought this action to recover for damage done said land by flooding imputed to defendant's dam.

Defendant, under a plea of the general issue, gave notice of claimed flowage rights over plaintiffs' land acquired from their predecessors in the chain of title. The nature and extent of those rights are the issue involved.

Plaintiffs, who are old residents in that locality, bought this piece of land in 1914 from Charles W. Barrett, who gave them a warranty deed containing no reservations or exceptions. Barrett acquired his title to the property from Mrs. Leo Ross by a deed dated May 2, 1911, and duly recorded on May 6, 1911, containing the following description and reservation:

‘All that part of the north half of the northeast quarter of section twelve (12) in township seventeen (17) north of range two (2) west that lies east of the county road and west and north of the Cedar, Tobacco rivers, in the city of Beaverton, Michigan, excepting and reserving to first parties, their heirs and assigns in perpetuity, all flowage and riparian rights of every kind, including the rights to overflow and flood with water any part of said land which may be overflowed by reason of the construction and maintenance of any dam at Beaverton, Michigan.’

The testimony was largely documentary. Plaintiffs introduced oral evidence that since they purchased this 4 1/2-acre tract the height of the Ross dam and level of the water upon which the tract bordered had been raised 8 feet or more to near the level of their yard and buildings, seriously damaging the same. Defendant introduced no testimony upon that issue, but at conclusion of the testimony defendant's counsel moved for a directed verdict in its favor, based particularly on the documentary and recorded evidence of title claimed to establish its right of flowage over this land. The trial court so held, and directed a verdict for defendant. Plaintiffs bring the case here on writ of error to review the decision of the court on that issue.

Both parties appear to trace their respective titles to a common source through the same deeds to Leo Ross, wife of Ronald Ross. The language quoted from the deed of Leo Ross to Barrett, dated May 2, 1911, makes evident that he acquired no riparian or flowage rights to this land which it was in her power to except from the deed, or reserve to herself. Plaintiffs could acquire no flowage or riparian rights which she had reserved, through their deed from Barrett executed three years later than her recorded deed to him. A reason for her reservation in the Barrett deed appears in a deed of the property given her by Jacob Schwartz and wife, dated May 1, 1911, and recorded June 6, 1911, which contains the following description and exceptions:

‘All that part of the north half of the northeast quarter of section twelve in township seventeen north of range two west, that lies east of the county road and west and north of the Cedar and Tobacco rivers, in the city of Beaverton, Michigan. Excepting and reserving to first parties, their heirs and assigns in perpetuity, all flowage and riparian rights of every kind including the right to overflow and flood with water any part of said land which may be overflowed by reason of the construction and maintenance of an artificial dam having a twenty-foot head of water at Beaverton, Michigan.’

Jacob Schwartz acquired title to this tract with other property under a deed given him by Miles J. Purcell, trustee of William Ross and Ronald Ross, bankrupts, dated April 4, and recorded April 6, 1908. The record shows this deed given by order of the bankruptcy court in acceptance of bid No. 1 of Jacob Schwartz, reading as follows:

‘L. For the sawmills, elevator, barn, shingle mill and post mill, power and electric light plant and contracts, dam and flowage rights, water power plant, telephones, property and contracts, and on a number of city lots, by Jacob Schwartz, $13,240.00.’

The 4 1/2-acres involved here is included in piece or parcel of land described in paragraph 5 of the trustee's deed as the ‘north half of the northeast quarter of section twelve in town seventeen north of range two west,’ excepting therefrom a small parcel of land in the northwest corner, described by metes and bounds, previously sold to Esther Ann Mitchall, and also certain rights, conditions, and reservations contained in a deed given by the Ross Bros. in 1902 to the Pere Marquette Railway Company, neither of which affect the land involved here. Paragraph 11 of the trustee's deed also contains the following description of rights conveyed:

‘All rights of flowage or riparian rights, including the right to overflow or flood or saturate with water by the construction and maintenance of an artificial dam or otherwise in perpetuity along the Tobacco river in the township of Tobacco and also all rights of flowage along any of the branches of the Tobacco river in the township of Beaverton, and also rights of flowage along the Cedar river in the townships of Buckeye, Beaverton and Tobacco. It is the intention to convey all rights to which Ross Bros. have heretofore acquired or to which they may be entitled in the flowage or otherwise along said stream in the said township as above referred to. It being the intention to hereby convey each, every and all of the interest of whatever kind or character which William Ross or Ronald Ross had in the right to flow lands upon the Tobacco river or its tributaries, and all riparian rights of whatever kind or character pertaining to the right to flow or use lands for the purpose of flowage along the Tobacco river or its tributaries, hereby conveying all the uses which appertain to the dam site at Beaverton, Michigan.’

At the time Ross Bros. went into bankruptcy they had operated extensively in that locality for many years. They had owned and developed this water power site, and held title to a large acreage along the shores above it. Plaintiff Enoch Glidden testified he had worked for them on that river 30 years before. They were adjudged bankrupts in 1907, and the following spring Purcell, as trustee in bankruptcy, sold Schwartz the water power development and business at Beaverton. This included the dam and pond immediately above, the land upon which they rested and flowage rights appertaining to the development.

In December, 1909, Purcell, as trustee in bankruptcy of William Ross, sold to Leo Ross, of Beaverton, wife of Ronald Ross, all the flowage and riparian rights belonging to said estate upon either side of the Tobacco river between its intersection with the western boundary of the city of Beaverton and the western boundary of section 16 in town 17 north of range 1 west. Having acquired William Ross's right of flowage above the dam Mrs. Ross purchased from Schwartz this water power property, and received from him a deed therefore dated September 5, 1911, containing various descriptions. By paragraph 2 he conveyed to her all that part of lot 2 of section 7 in town 17 north of range 1 west, except a portion platted as Riverside addition to Beaverton, and by paragraph 3 all that part of lot numbered 3 of section 7 in town 17 north of range 1 west lying north of the plat of Beaverton, following in description the government survey which shows the west half of northwest quarter of section 7 in town 17 north of range 1 west was divided into lots 2 and 3, the former being north and east of Tobacco river and the latter south and west of it, the river, with its general course east and west, having various windings in that locality leading it in different directions.

Paragraph 4 of the deed conveys that part of the southeast quarter of the southeast quarter of section 1 in town 17 north of range 2 west lying east of the Cedar river. Said lots 2 and 3 in section 7 are adjacent to the north half of the northeast quarter of section 12 in the same township (17 north, range 2 west). By the description in paragraph 5 said north half of the northeast quarter of section 12 is conveyed with the same description and exception as in the deed from Purcell to Schwartz, followed by four other exceptions, with somewhat lengthy descriptions and statements; these exceptions being the tract out of the northwest corner, ‘containing one acre,’ before sold to Esther Ann Mitchall, a parcel with a lengthy description, before sold to the Saginaw Milling Company, and two other descriptions as follows:

‘And excepting also a parcel described as follows: All that part of the north half of the northwest quarter of said section twelve, town seventeen north of range two west that lies east of the county road and west and north of the Cedar and Tobacco river, being land conveyed by Jacob Schwartz to Leo Ross May 1, 1911 (being the 4 1/2 acres involved here). Also excepting a parcel described as follows: Commencing on the north...