McHenry v. Ford Motor Company

• Decision Date: 13 December 1956
• Docket Number: No. 12649.,12649.
• Citation: 146 F. Supp. 896
• Parties: James G. McHENRY and Donald G. McHenry, Plaintiffs, v. FORD MOTOR COMPANY, a Delaware corporation, Defendant.
• Court: U.S. District Court — Western District of Michigan

146 F. Supp. 896

James G. McHENRY and Donald G. McHenry, Plaintiffs, v. FORD MOTOR COMPANY, a Delaware corporation, Defendant.

No. 12649.

United States District Court E. D. Michigan, S. D.

December 13, 1956.

Robert A. MacDonell, Detroit, Mich., for plaintiff.

William T. Gossett, Dearborn, Mich., Richard B. Darragh, Robert W. Scott, Lloyd T. Williams, Jr., Dearborn, Mich., of counsel, for defendant.

FREEMAN, District Judge.

In 1925, the plaintiff, James G. McHenry, an attorney, and his wife Adele H. McHenry, now deceased, were the owners of approximately 190 acres of land bordering on the Huron River in Ypsilanti Township, Washtenaw County, Michigan, which they acquired in 1918. They conveyed 155 acres of this tract of land to the defendant, Ford Motor Company, by deed dated October 5, 1925, and a portion of the remaining parcel of 35 acres was later conveyed to their son, the plaintiff Donald G. McHenry. The land so conveyed to defendant was purchased for the express purpose of flooding it with the waters of an artificial lake or reservoir to be created by a dam the defendant proposed to build downstream on the Huron River. The dam was completed in 1932.

This suit was filed April 29, 1953, in the Circuit Court for Washtenaw County, Michigan, to enjoin the alleged flooding and eroding of plaintiffs' remaining lands by the waters of defendant's reservoir; to compel restoration of plaintiffs' lands, improvements and equipment; and to recover money damages for injuries sustained. The action was removed to this court by reason of the diversity of citizenship of the parties. The deposition of the plaintiff James G. McHenry was thereupon taken and filed and it was stipulated that, if the deposition of the plaintiff Donald G. McHenry were taken, his testimony, as to matters within his knowledge, would be the same as that of his father.

This matter is before the court on defendant's motion for summary judgment under Rule 56(b) and (c) of the Federal Rules of Civil Procedure, 28 U.S.C.A. which provides in part that a party against whom a claim is asserted may move for summary judgment and that judgment "shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."

For the purposes of this motion, the facts material to the issues of law raised thereby and not in dispute, appearing from the complaint and deposition of plaintiff James G. McHenry, are as follows:

At the time of the said conveyance to defendant in 1925, McHenrys, the grantors, owned 190 acres of land, more or less, bordering on the Huron River. About 10 acres of the uplands were used by them as a country estate on which they had constructed a large stone house, garage, gatehouse and other improvements. Approximately 4 acres around the house were landscaped. The remaining acreage had been used as a dairy farm since they acquired the land in 1918. McHenry had also developed water power for his own grist mill and domestic lighting by means of a water wheel on a canal dug along the river.

Such was the condition of this tract of land when defendant purchased 155 acres thereof bordering on the river, including the water power project, by deed dated October 5, 1925, for the sum of $81,000. The 35 acres retained by the grantors included the residence and other buildings and improvements. The land so conveyed to defendant was bounded by the center line of the Huron River and by certain metes and bounds intended to be the 686-foot flow line traverse and the deed was given subject to certain conditions and restrictive covenants, including the following:

"It is contemplated by the parties hereto that a pond or lake, in connection with a dam and power plant located lower down the stream, will be formed upon said lands by waters of the Huron River impounded thereon. In addition hereto, first party also grants and conveys to second party all flowage rights, running with said property due to the flowage thereof by said pond. No building or structure shall be erected on the lands hereby conveyed, nor shall any part of said lands, or any waters thereon, be occupied or used in any manner that would render the remaining lands of the parties of the first part adjacent to or abutting upon the lands hereby conveyed unsuitable or undesirable for high-class residence purposes; nor shall said lands be used otherwise than for the purpose of flowage by the waters of such pond or lake to be formed as aforesaid. This restriction shall remain in force for a period of thirty (30) years from the date hereof.

* * * * * *

"The parties of the first part reserve for themselves and for the personal use of the persons who shall be owners of, and shall reside upon, any part of their remaining lands abutting on the lands hereby conveyed, the right at all times of ingress and egress to and from any waters upon any part of said lands, from and to any part of their remaining lands abutting upon or adjacent to the lands hereby conveyed, together with the right to go upon and use said pond or lake and the waters thereof for the purposes of boating, bathing, fishing, hunting, the same as any riparian owner on the banks of a natural lake or navigable stream."

The deed to defendant was drafted by the grantors' attorney, assisted by Mr. McHenry, himself an attorney, following discussions and suggestions as to terms and provisions by agents for both parties.

Defendant's proposed dam referred to in the deed was constructed over a mile downstream from plaintiffs' land and was completed in 1932. The impounded waters reached the 686-foot contour level in 1933. Plaintiffs' remaining 35 acres of uplands are bounded in part by such waters for a distance of 5549.13 feet along the 686-foot flow line traverse and such land was soft, porous and easily eroded. The waters of defendant's reservoir had been washing away and undercutting plaintiffs' retained lands ever since the waters were impounded and, when this suit was filed in 1953, about 12 acres of such retained land, with trees, shrubbery, fences and some pump houses, with attachments, had been washed away and rendered worthless. The foundations of the residence building are threatened with collapse and, except for 5 or 6 acres, the remaining land is of no value for farming or residence purposes and, according to the complaint, is unsalable, although plaintiffs had never offered the land for sale.

The plaintiff James G. McHenry complained to defendant about the erosion several times in 1933 to no avail and in 1947 he and his attorney wrote letters to defendant as a result of which defendant's agents inspected the property and stated that the lands ought to be "fixed up," which would cost an enormous sum of money, from which Mr. McHenry inferred and was led to believe that defendant would do something about the situation.

When asked as to his reasons for the restriction in the deed as to the use of the land by the grantee, James G. McHenry testified that he "didn't want them to put something in there that would militate against the use" of the two houses on the land, that he also contemplated selling some lots since the remaining acreage was no longer suitable for farming and that "we didn't want a landing field on the place."

Defendant has done nothing with regard to its dam not contemplated by the parties and did nothing in connection with the dam that increased the natural action of the waters in the reservoir.

The complaint alleges that defendant owes plaintiffs a duty to maintain its reservoir of water in such manner as not to damage plaintiffs' adjacent land and that because of defendant's negligence (which is unspecified) the waters of the reservoir, by wave action, percolation, soaking, attrition and freezing, have eroded and damaged and are continuing to erode and damage plaintiffs' lands and that such flowage and erosion of plaintiffs' lands constitute a continuing trespass.

In support of its motion for summary judgment, defendant contends:

I. The plaintiffs expressly granted flowage rights to the defendant, which rights preclude any liability to the plaintiffs for the natural action of the impounded water.

II. Absent negligence; a reservoir owner is not liable to riparian owners for damages caused by the natural action of waters impounded in the manner consented to by the riparian owners.

III. The defendant has acquired by prescription the right to abut its waters against the plaintiffs' lands with all the natural consequences thereof.

IV. The plaintiffs' claims are barred by laches and the statute of limitations.

The gist of plaintiffs' action is that the following restrictive use covenant in the deed:

"* * * nor shall any part of said lands, or any waters thereon, be occupied or used in any manner that would render the remaining lands of the parties of the first part adjacent to or abutting upon the lands hereby conveyed unsuitable or undesirable for high-class residence purposes; nor shall said lands be used otherwise than for the purpose of flowage * * *."

was intended to impose liability on the grantee for erosion of plaintiffs' retained land without being in derogation of the grant of flowage and also that the rule of absolute liability as stated in the early English case of Rylands v. Fletcher, L.R. 1 Ex. 265, L.R. 3 HL 300, applies in Michigan and to the facts and circumstances of this case.

Defendant argues that the covenant invoked by plaintiffs cannot be construed as a limitation on the grant of flowage so as to make the grantee liable for erosion of plaintiffs' land by natural action of the impounded waters because such a construction would nullify and destroy the grant and that the rule of absolute liability pronounced in Rylands v. Fletcher is not applicable here and does not pertain in Michigan. Defendant contends that...