Gregory v. Bush
| Decision Date | 06 January 1887 |
| Citation | 31 N.W. 90,64 Mich. 37 |
| Court | Michigan Supreme Court |
| Parties | GREGORY v. BUSH. |
Appeal from Barry. In chancery.
Bill to enjoin defendant from further digging and tiling drains. Decree for plaintiff. Defendant appealed.
James A. Sweezey, for complainant.
C.G Holbrooks and Knappen & Van Arman, for defendant and appellant.
The parties to this suit are farmers in the township of Hastings Barry county. Their farms are separated by a highway, running north and south, complainant's premises being on the east side, and defendant's land on the west side, thereof. The complainant seeks to enjoin defendant from further digging and tiling any drains on his farm, by which the water being or falling upon his land will be conveyed to and upon the premises of complainant. His bill alleges in substance that the premises owned and occupied by him are of the value of $5,000; that the highway is his west boundary line; that south of his house and farm buildings there is a field of wheat of about fourteen acres, nine acres of which is lowland; that the land of said defendant, upon the opposite side of the highway, is above and on a higher plane than this lowland of complainant. Upon defendant's premises are several low places or sags, towards which the water from the rain-falls and melting snow runs naturally by surface descent. All the water from rain and melting snow which falls upon at least 80 acres of land finds its way into said low places, some of which are more or less swampy. The lands of said defendant, including these sags, are situated upon a higher grade than the lands and wheat-field of complainant. In times of very high water, some of the water falling and accumulating on defendant's premises runs over and under the highway and upon complainant's land but that, ordinarily, no damage is or would be done, as the water passes off by evaporation and percolation in such a manner as not to injure the premises of complainant; that there is no natural channel or run for the water that falls from rain and accumulates from melting snow on defendant's premises from said premises to complainant's; that if any water finds its way across the highway from defendant's to complainant's premises, except in cases of great rains and very high water, it is only by the process of percolation through the soil, and in a manner so gradual and slow as to do no material damage to complainant; that there is no natural channel or outlet for the escape of the waters which fall upon complainant's premises; but that all the waters from rains and snow falling on said wheat-field pass away by evaporation and percolation; that defendant, at the time of the filing of the bill, was engaged in digging and tiling a drain from his low lands and swampy places, so as to convey such water on complainant's premises, and especially on his said 14-acre wheat-field, which will result in the destruction of the growing wheat and complainant's great injury; that defendant can as easily drain off his waters in another direction, without any damage to complainant's premises; that defendant's action in the premises is taken for the purpose of willfully and maliciously injuring complainant.
Defendant's answer avers that he has lived on his farm for more than 20 years, during all of which time a ditch or drain has been maintained by him, running from his premises across the highway to the premises of complainant and his said wheat-field. This water-way existed before complainant owned or had possession of his said premises. Complainant has helped to support, maintain, and keep said ditch in repair, and has laid stone along the highway to keep it open. Such ditch has never injured complainant's premises, or caused him damage. The "wheat-field" is low and swampy land of small value and not productive. It was wild land when complainant purchased it, and, in clearing it, he burned off the surface to a depth of 12 or 18 inches.
Defendant denies that he was constructing a drain when the suit was commenced, but admits that he had been laying tile in the channel of the ditch for the purpose of covering over the ditch. This tiling did not increase the quantity of water which would flow in the ditch, but improves the value and the appearance of defendant's land. He also denies the allegation in the bill that his land can easily be drained in any other direction; and further denies any willful or malicious conduct or intention upon his part in the premises. The answer, by a demurrer clause, makes the point that complainant has adequate remedy at law for any and all the grievances alleged in his bill.
The proofs in the cause were taken in open court, and the court below granted the relief asked, perpetually enjoining the defendant "from maintaining any ditches or drains by which the surface water from rains or snows falling upon the land of defendant will be conducted to or upon the land of complainant, or conducting such water by means of tile or drain ditches to and upon said premises of said complainant."
The facts disclosed by the proofs, as we find them, are as follows: In a state of nature, the wheat-field or lowland of the complainant, which he avers was damaged by the drainage of defendant's premises, was a tamarack and whortleberry swamp, containing from seven to nine acres, and was the natural receptacle of the surface water, from rains and melting snows, accumulating upon the lands of the defendant and running through a ravine or gully on defendant's premises, and across where the highway now is, to said swamp. It also received more or less surface water from the higher lands of complainant. It is not easy of drainage, and water would stand upon it in the spring and fall, and, during high-water times, to a depth of from two to five feet, and remain until it disappeared by percolation and evaporation. Complainant commenced clearing up this swamp some 12 or 13 years before the beginning of this suit. He tried to drain it, but has not been successful in such effort. For 25 years and upwards there has been a sluice maintained in the highway at the lower point of this ravine for the water flowing therein to pass through upon the lands of complainant. It was there when he bought his farm, and he has acquiesced in it and helped to maintain it. The surface waters accumulating naturally upon defendant's land, and the natural overflow of the small sags or basins thereon, have always flowed through this culvert and upon the land of complainant. The flow of this water during these years has been accelerated somewhat by plowing a furrow at first in the ravine,and by an open drain with stone for the last 10 years, without any serious complaint on the part of complainant, or any perceptible damage to his premises. We do not think this ravine can be termed a natural water-course. It is simply an outlet for surface water at certain seasons of the year. It has no defined bed or channel, with banks and sides. It has no permanent source of supply, and no...
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