Osten v. Jerome

• Decision Date: 04 October 1892
• Citation: 53 N.W. 7,93 Mich. 196
• Court: Michigan Supreme Court
• Parties: OSTEN v. JEROME.

53 N.W. 7

93 Mich. 196

OSTEN v. JEROME.

Supreme Court of Michigan

October 4, 1892

Error to circuit court, Macomb county; ARTHUR L. CANFIELD, Judge.

Action by Charles Osten against Edwin Jerome. Judgment for plaintiff. Defendant brings error. Affirmed.

Eldredge & Spier, for appellant.

James G. Tucker, (Byron R. Erskine, of counsel,) for appellee.

MONTGOMERY J.

The plaintiff recovered a verdict and judgment against the defendant for unlawfully flowing plaintiff's lands. The plaintiff owned and occupied 40 acres in the N. 1/2 of the N.E. 1/4 of section 31, and the W. 1/2 of the W. 1/2 of the N.W. 1/4 of section 32, in the township of Warren, Macomb county. Defendant and his brother owned land on section 6, in the township of Hamtramck, adjoining section 31 on the south and the brother, Frank Jerome, owned the S.W. 1/4 of section 31, Warren. The plaintiff offered testimony tending to show that near to the dividing line of 31, in Warren, and section 6, in Hamtramck, was a ridge or rise in the ground, which constituted a natural dividing line for the drainage of all the land in the vicinity; that along the line between the two townships a drain had been constructed some years before called by plaintiff the "Base-Line Drain," and by the defendant a "roadside ditch." This ditch was shown by the defendant to have existed for many years, and to have become somewhat obstructed; nevertheless, water still continued to flow through it. Two other drains were run into this ditch, the "Fulton Drain," so called, and the "Steppenhagen Drain;" each extended from a different point westerly of section 31, and emptied into the base-line drain, the one westerly of, and the other at, a point where a culvert had been constructed. The plaintiff's contention was that the waters carried into these drains had been provided for by the base-line drain, and also that the natural drainage of the lands west and south of section 31 was to the south and east. The defendant contended that there was an old drain or ditch extending northerly from the culvert before referred to, and intercepting the "Toll Drain," so called. The Toll drain commenced on section 31, on lands owned by Frank Jerome, and extended northeasterly, intercepting another drain, called the "Extension of Bear Creek Drain," which empties into Clinton river. The plaintiff"s testimony tended to show that the defendant caused a ditch to be dug from a point on the base-line drain, where the culvert exists, to the Toll drain, thus turning the waters carried by the Fulton drain and Steppenhagen drain from the base-line ditch into the Toll drain, causing the same to overflow, and to cause the damage to the plaintiff which is complained of. Defendant claims that the damages were the result of the large flow of water caused by the unusual rains just prior to the flooding in 1889 and 1890, and also claiming that the water diverted from his lands was such surface water as naturally came to the land, and such as good husbandry required to be collected and cast upon the lands of the lower proprietor. The claim is also made by the defendant that the natural course of flowage from his land was in the direction of the Toll drain. The record contains 70 assignments of error, and all of those which are relied upon in the brief of counsel have been fully considered. We do not consider it necessary, however, to refer to each assignment in detail.

1. After the opening from the base-line ditch to the Toll drain had been made, the plaintiff constructed a dam to stop the flow of water, and was permitted to testify that this was done by permission, and under the direction, of the township officers. We are unable to see how this testimony could have worked any prejudice to the defendant. It tended to show that the plaintiff had not acted in bad faith or wantonly in constructing the dam, and to some extent bore upon his credibility as a witness; and, while it is true that the township officers had not the power to determine upon rights between the parties, the instructions of the trial judge excluded any such view, and made the determination depend upon other considerations.

2. A witness for the plaintiff was permitted to testify that the Toll drain was not large enough to carry the water conveyed into it by the cut in question, and also that, before the cut was made, it was large enough to convey the waters which would naturally come to it. There was no error in this. It was proper for the witness to express an opinion upon the subject, as no amount of description would so fully possess the jury of the situation, nor was it a question calling for expert testimony; it was but another way of describing the capacity of the ditch. Laughlin v. Railway, 62 Mich. 220, 28 N.W. 873. It appears that, by a slip, the Steppenhagen drain was in one of the questions referred to as the "Stevens Drain," but this could easily have been corrected upon cross-examination if it was desired, and it would greatly reflect upon the intelligence of the jury to infer that they were misled by any such error. We are not disposed to reverse the case on any such ground, particularly as no such specific objection was made to the testimony when offered.

3. The plaintiff offered testimony to show that the base-line ditch had afforded an outlet for the Fulton and Steppenhagen drains, and he was permitted to testify that, if the obstructions which had formed in the space of 62 rods below the culvert were removed, it would still have afforded an outlet for the waters which were by the cut in question turned into the Toll drain, and thereby, in part, cast upon the plaintiff's lands. There was no error in this; it was only another way of showing the capacity of the base-line ditch. The jury were not led to...