Shearer v. Middleton
| Decision Date | 21 December 1891 |
| Citation | 88 Mich. 621,50 N.W. 737 |
| Court | Michigan Supreme Court |
| Parties | SHEARER v. MIDDLETON. |
Error to circuit court, Montcalm county; VERNON H. SMITH, Judge.
Action by Joseph J. Shearer against Edward Middleton to recover damages occasioned by the overflowing of land. Verdict and judgment for plaintiff. Defendant brings error. Reversed.
Ellsworth & Rarden and John Lewis, for appellant.
W E. Hoyt, for appellee.
In this case it is claimed by the plaintiff and conceded by the defendant that the plaintiff has been the legal owner of the land described in the declaration for more than 15 years last past, and that he is still the legal owner of said land. It is claimed on the part of the defendant that he has acquired the right to flow such land by prescription, by flowing the same in the same manner and to the same extent for more than 30 years last past; that immediately prior to the commencement of this suit the defendant had occupied so much of the lands by flowage for more than 15 years openly adversely, peaceably, uninterruptedly, and hostilely, and thereby acquired a good and legal title to so much thereof as he occupied at the time of the commencement of the suit. The plaintiff claims that within the 15 years immediately prior to the commencement of the suit the defendant had raised the water at his dam, and flowed more of said lands than formerly; and the real issue on the trial was whether the defendant had raised the head of water at his dam below said lands, and thereby increased the flowage of water over the lands of the plaintiff, within 15 years immediately prior to the commencement of the suit. After the testimony was closed, and after the plaintiff's attorney had made his opening argument to the jury, and after Mr. Lewis, on behalf of the defendant, had made his argument to the jury, Mr. Ells worth, of counsel for the defendant moved the court for a verdict for the defendant, because the declaration only alleged that the waters of Flat river were forced back on the plaintiff's land, and claimed the evidence showed that the waters of Flat river were not forced back there, which motion was overruled by the court, to which ruling the defendant excepted. The court then permitted the counsel for plaintiff to amend his declaration so that it would allege, in addition to the allegations therein contained, that the water upon the land of the plaintiff is held back and kept there by reason of the maintenance of the dam of the defendant, and his land injured thereby; to which ruling the counsel for defendant excepted. The original declaration alleges, after setting up the maintaining of the dam across the Flat river, that "by means thereof the said defendant hath, ever since the 14th day of February, 1882, obstructed and stopped the natural course of the water of the said stream, and thereby hath caused the water of the said stream to overflow, and drown the plaintiff's meadow and arable lands." The amendment was allowed to cover the fact in proof that the land of plaintiff was low and wet, and that water from said land was drained into Flat river before the dam was raised, and that the effect of such raising of the dam was to hold this water back, and to prevent it from running off. It was an incident of the wrong complained of in the original declaration,-that is, the obstructing the waters of Flat river by the dam. It was not the introduction of a new cause of action. The cause of action was the maintaining of a dam and obstructing the flow of the waters of Flat river, and causing them to set back, to plaintiff's injury. The amendment alleged an additional injury from the same cause. The assignment of error based upon this ruling of the court is overruled.
The court permitted the plaintiff to introduce testimony which tended to show that the mill-dam was erected, and the waters of Flat river ponded thereby, for the purpose, among other things, of operating a grist-mill owned by defendant, and that the dam had been maintained at that point for milling purposes for more than 20 years. It was an undisputed fact that during all the time the dam had been erected it had set back and ponded the water upon the premises of plaintiff, and upon premises further back from the river than his. But the plaintiff claimed, and introduced testimony tending to show, that within 15 years last past the water had been raised by the defendant and set back over the land of the plaintiff to a greater extent than formerly. It appears that the mill operated by defendant down to 1871, which was more than 15 years before the commencement of the suit, was a gristmill, in which stones were used to grind the wheat and other grain. That year he built a new mill, from 300 to 400 feet further down the river than the other mill, and nearly 50 rods distant from the dam, and dug a race from the same bank to the new mill, and then put in rollers to manufacture flour for market, increasing the capacity of his mill, from time to time, by the addition of new rollers. The plaintiff did not prove any direct act of defendant in adding to the height of his dam, but sought to establish that fact by proving that the water overflowed his land to a greater extent than formerly; and he testified that such increased overflow had occurred within 10 years before the suit brought. For the purpose of proving that the defendant had raised the height of his dam he was permitted to introduce testimony, against defendant's objection, to show what the capacity of defendant's grist-mill was when he was grinding with stone, and also what it is with rollers, and claimed that the jury would be authorized to draw an inference from such increase of capacity that defendant obtained such increase of capacity by raising his dam and so increasing his waterpower. The plaintiff did not show that the defendant had used his full power when grinding with stone. Indeed, it appeared that at that time he owned only one-half of the water-power created by the dam, and that he has since acquired the whole power created thereby; nor did he show that the same wheels were in use, nor the same machinery, nor that it would require a greater head to run his rollermills than it did of stone, nor that he had not acquired a greater head of water standing in the same level of the pond by moving his mill further down the river. It is plain that such testimony, without supplying all the necessary data by which the conclusion that the dam was necessarily raised when he increased the capacity, was misleading, and entirely unreliable, and should not have been submitted for the purpose claimed.
Henry M. Calkins was a witness whom plaintiff had produced to establish the fact of water having been raised so as to overflow more of plaintiff's land than formerly. Calkins was a surveyor, and testified, when first called to the stand, that he had made surveys of the premises, and produced a map which he had made, and which was introduced in evidence. He also testified that he had a high-water mark at the flume when defendant had a full head of water and also a corresponding mark at a bridge, which was on or near the plaintiff's land; and in this way he could tell when the water was drawn down in the pond. A witness introduced by defendant, who worked for him in his old mill from 1861 to 1864, testified in chief to the high-water mark in the flume at that time, and who said he could not see as it is maintained any higher than it was then. On cross-examination by plaintiff's counsel he was interrogated as to the number of feet head, and said that sometimes they had eight feet head and sometimes a little more, but his ordinary high-water mark was eight feet; and he did not know how many feet head they had now. The defendant introduced no testimony to show what head they had at the old mill, nor at the new mill. After the defendant had introduced his testimony and rested, the plaintiff recalled the witness Calkins, and proposed to show what measurements he had made at the Middleton dam, with reference to determining the head of water. This was objected to by defendant's counsel, and the record then shows as follows: ...
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