Treat v. Bates

• Decision Date: 11 July 1873
• Citation: 27 Mich. 390
• Court: Michigan Supreme Court
• Parties: Samuel M. Treat v. Daniel Bates and another

27 Mich. 390

Samuel M. Treat v. Daniel Bates and another

Supreme Court of Michigan

July 11, 1873

Heard May 15, 1873

Appeal in Chancery from Branch Circuit.

John B Shipman and Jonas H. McGowan, for complainant.

L. T N. Wilson and G. V. N. Lothrop, for defendants.

OPINION

Campbell J.

The bill was filed to restrain the defendants from restoring or maintaining a dam on the west branch of Coldwater river, and below the lands of complainant. It appears that complainant owns about five hundred acres of land lying east of the river, and having a river front of not far from three quarters of a mile, on sections 7 and 8 in town seven south, of range six west, in the town of Ovid, Branch county; the lands fronting on the river, beginning near the north line of section seven, and extending south to the line running east and west through the middle of the south-east quarter of that section, the river forming the western boundary. The dam in question is half a mile north of and below the complainant's northern boundary. There is also a mill-race leaving the river a little north of the middle of the north-east quarter of section seven, and running west of and parallel to the river, ending just below the dam, and furnishing water to the same grist and saw mill intended to be supplied by the dam. A dam was first built by Philo H. Crippen in 1848. In 1853 it was abated as a public nuisance under an indictment, while used by Silas N. Card. The evidence tends to prove that the dam was several times partially restored and torn down, before the race was made in 1861, which still continues, and is saved by the decree. In the latter part of 1868 defendants rebuilt the dam in violation of an injunction, and in the summer 1869 it was carried away during a freshet. This bill was filed shortly after, complaining of the threatened reconstruction as a nuisance to health, and an injury to complainant's lands, which had been overflowed and damaged by the dam when standing.

Complainant's house stands at the north end of his premises, and east of the river a considerable distance on section 8, and exposed during west winds to all exhalations from the dam. On the same section, and south of his house, is a large tract of low land running from north-east to south-west, approaching the river at the south end within about thirty rods, and separated from it by somewhat higher ground. A ditch runs from the southerly part of this marsh across complainant's land, striking the river at the quarter-line of section seven, called in the testimony the old ditch, and dug many years ago. Two other ditches striking the river further north at intervals of about 80 rods apart, and known as the middle and north ditches, have been dug more recently. The latter enters the river at the north line of section seven, where there is a highway, and a bridge known as Lockwood's bridge.

The middle branch of the Coldwater river enters the west branch just below the south line of section eight, and there are mills on this middle branch at some distance above the mouth. A little above the south line of section eight is a lake known as Teachout Lake, about half a mile long, of which the west branch forms the outlet. South of Teachout Lake, and connected with it by a narrow stream of about a quarter of a mile long, is another large lake, known as Big Lake. This connecting stream is crossed by a highway at a point called Long's bridge.

The overflowing of complainant's lands, against which protection is sought, is alleged to come chiefly by water setting back through the ditches into the large marsh, which it is claimed would be drained and available for various farm purposes, if not drowned. It is also alleged that the soil being underlaid by quicksand, the raising of the stream affects it injuriously by setting back water wherever the quicksand is reached. It is also claimed that the river borders are overflowed and made swampy by raising the dam.

The injury to health is claimed to arise from the overflowing of the low lands and the saturation of the soil with stagnant water, and the exposure of wet land by alternately raising and drawing down the water in running the mills.

The defense rests on a denial of most of the injurious consequences relied on, which so far as existing are claimed to be owing to other causes than the dam. A right of flowage was also relied on under deeds of former proprietors owning up to the quarter line of section seven. Those deeds conveyed this right up to that point so long as the dam should be used for hydraulic purposes, subject to the conditions that no more than ten acres of land should be covered, that the water should not be raised above the surface of the lakes, and so as not to overflow the marshes in the vicinity of the lakes. The lands north of the quarter line were purchased by complainant after those deeds were made, and in 1868, when there was no dam, and when the mills had been running by means of the race, since 1861.

One of the principal questions of fact arises concerning the effect of the dam upon the river and lands above the quarter line. Below that the rights of flowage depend on different claims; above that there is no right shown.

Upon this issue there is contradictory testimony. And the truth can only be got at by comparing the facts testified to.

The theory of the defense is that most of the overflow complained of would...