McMillan v. Chi. & Nw. Ry. Co.

• Decision Date: 31 December 1924
• Docket Number: No. 5.,5.
• Citation: 201 N.W. 499,229 Mich. 366
• Parties: McMILLAN v. ETTER et al.
• Court: Michigan Supreme Court

229 Mich. 366

201 N.W. 499

McMILLAN

v.ETTER et al.

No. 5.

Supreme Court of Michigan.

Dec. 31, 1924.

Appeal from Circuit Court, Cass County; L. Burget Des Voignes, Judge.

Action by William H. McMillan against De Vern Etter and another, in which defendants asserted affirmative relief by cross-bill. Judgment for plaintiff, and defendants appeal. Affirmed.

Argued before CLARK, C. J., and McDONALD, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ.Harry C. Howard, of Kalamazoo, for appellants.

Thomas J. Cavanugh, of Paw Paw, for appellee.

STEERE, J.

This suit was commenced November 29, 1920, by plaintiff, McMillan, to enjoin defendants from rebuilding a dam or flume which had supplied water to a mill at a small hamlet, called Nicholsville, in Volinia township, Cass county. A temporary injunction was granted. Defendants answered, asking affirmative relief by cross-bill, to which McMillan answered at length. During hearing of the case, it was admitted the import of the relief asked by defendants cross-bill was for specific performance of a land contract from McMillan to defendant Etter, given the preceding March, duly witnessed and acknowledged, reading as follows:

‘It is hereby agreed by and between William H. McMillan, of the township of Volinia, Cass county, Michigan, and De Vern Etter, of the same place, as follows: First party sells to the second party all of his real estate at what is known as Nicholsville, Cass county, Michigan, to second party for the consideration of eighteen hundred dollars, said real estate consisting of some five or six acres, which will be more particularly described at time deed is made.

‘First party to furnish an abstract showing clear title. Second party pays the sum of seven hundred cash on this day, and the balance of the said eighteen hundred dollars, to wit, eleven hundred dollars, is to be paid at time of delivery of abstract and warranty deed.

‘In witness whereof the said parties have hereunto set their hands and seals, this 24th day of March, A. D. 1920.

‘Wm. H. McMillan.

‘De Vern Etter.’

Antecedent to this suit the case of Goodrich et al. v. McMillan, 217 Mich. 632, 187 N. W. 368, 26 A. L. R. 801, which related to this same right of flowage, arose between McMillan and the cottagers on Fish Lake, from which, with connecting small lakes, Dowagiac creek flowed and supplied the water for this mill. That case was commenced in 1918. It had been heard and decided in the lower court when the instant case was begun, and was soon thereafter appealed to this court. Though other parties and questions were there involved, much of the testimony is of similar import, and the following excerpt from the opinion in that case concisely gives a comprehensive view of the general situation:

‘The grantor of defendant McMillan in the regular chain of title built a mill dam of earth and timber about the year 1850 in Dowagiac river. It raised the level of several small lakes nearly 3 feet. It flowed lands to the extent of 1,600 acres. The flowage rights were acquired by prescription and have been conveyed with the mill property. The forests disappeared. The saw mill followed. The grist mill was almost abandoned when, in 1917, the dam, aged and decayed, went out after having maintained the waters of the lakes above natural level for nearly 70 years. Defendant McMillan decided not to rebuild the dam and made a tentative, if not an executed, agreement with certain owners of the flowed lands to surrender the flowage rights.’

The owners of the flowed lands were allowed to intervene as defendants in that suit and filed an answer, claiming, amongst other things, that they had contracted with McMillan to purchase from him whatever flowage rights he had or claimed. Defendants were residents of Nicholsville when the dam went out and the mill was dismantled by McMillan. Defendant Etter had lived in or near the village all his life, and was a witness for the cottagers in that case. He admitted that, before he contracted with McMillan for his property, he knew its condition, with the flume gone and the mill dismantled.

After the instant suit came to issue and was heard in part, the court continued it until an opinion should be handed down in the Goodrich Case, when hearing was resumed on October 12, 1922, and the case submitted.

The property owned by McMillan at Nicholsville consisted of five or six acres, lying adjacent to and on the west side of Main street, and Dowagiac creek flowed westerly through the north portion of it. On the property were a store building, dwelling house, barn, and chicken coop, and a mill building farther west and north, on Water street, adjacent to the creek. Much of the northerly portion east of the mill was covered by a millpond before 1917, which disappeared when the dam went out.

McMillan only testified at the first partial hearing, being incapacitated, when the final hearing was had, by a serious illness with which he died soon thereafter. His testimony taken early in the hearing described his property and the use he made of it, particularly the water power and mill; told of the flume and dam going out in March, 1917, and his abandonment of them thereafter, soon dismantling the mill and selling the mill machinery, shafting, and other mill equipment to a party in Chicago, and its removal, leaving nothing but the empty and abandoned building; started to tell of the litigation begun by the cottagers on the lake to compel him to restore the dam in which he and the owners of formerly flooded lands were associated as defendants, but was stopped by objection from arranged to sell them his rights of floodage. It was later shown, however, that he early negotiated to sell the owners of the reclaimed land whatever water power rights he might have in that connection. In June, 1917, he gave them a 60-day option to purchase the same, signing the following receipt:

‘June 21, 1917. Received of Arthur Wright $200 for 60 days' option on flowage rights east of section line running north and south between sections 11 and 12, Volinia township.

‘William McMillan. $200.’

The $200 was paid McMillan by a check from White, who was one of the association of owners of land reclaimed after the dam went out, who negotiated with McMillan for his right. Most of the evidence relative to his selling his floodage rights to them is parol. Much of the oral testimony on that subject was admitted against objection and error assigned on its admission. It was shown that $50 more was paid McMillan on the purchase, or option, and testified by several witnesses that, owing to the trouble over his rights between him and the cottagers, which resulted in the Goodrich Case, wherein they were associated as defendants, he gave them an agreement to extend the time until that case was disposed of. This was claimed to have been in writing, and one of the contracting parties testified it was by a side memorandum on one of the papers signed by McMillan which passed between them that it was given to him, but, after dilligent search, ‘looking through my papers that I had at home-everything I have there-I couldn't locate it anywhere.’ He was not very clear as to its contents, but insisted that it said ‘the time would be extended indefinitely. * * * As I recall this last paper on which that marginal note was written was on the printed stationery of Mr. McMillan.’ It was shown that during the summer of 1917 McMillan stubbornly refused the importunities and demands of the cottagrers that he rebuild the dam and restore the level of the lakes above, and said he had sold his rights to the farmers owning the previously flooded land; that, when the cottagers built a new dam above where his was, he took help with him and tore it out, for which they had him arrested, their difficulties culminating in the Goodrich Case, in which he and the intervening defendants were closely allied. On August 3, 1922, he and his wife executed and gave to those shore owners, 18 in number, with whom he had previously negotiated and been allied in the Goodrich litigation, a carefully drawn instrument with full recitals, conveying to them all and every right which he and his wife had acquired and then owned--

‘to overflow and land, whether owned by the second parties or others, by reason of the maintenance of a dam at the point aforesaid, and all and every right which they acquired and now have to raise the water, by any means, so that it will be maintained in the mill pond, Fish Lake, or any of the lakes connected therewith at a point higher than its natural level when the country was in a state of nature. And the first parties hereby abandon forever all rights which they acquired to maintain a dam, overflow land, or to take water from the lakes above mentioned in sufficient quantities to run the grist mill, by means of a conveyance from Fanny N. Wright to William H. McMillan, dated May 5, 1893,’ etc.

In the meantime, defendant Etter had put of record his contract of March 24, 1920, under which he claimed ownership of the water power rights in question as...