Turner v. Hart
| Decision Date | 11 July 1888 |
| Citation | 71 Mich. 128,38 N.W. 890 |
| Court | Michigan Supreme Court |
| Parties | TURNER ET AL. v. HART ET AL. |
Appeal from circuit court, Ingham county, in chancery.
Bill in chancery filed by James M. Turner and others against Arthur N. Hart and others to lower a dam, and enjoin defendants from setting back water upon complainants' land. On final hearing the circuit judge entered a decree dismissing the bill, and complainants appeal.
Complainants alleged that lands, owned by them in severalty, had been flooded by raising a dam, and asked that the dam be lowered and defendants be restrained from setting the water back on their lands. Held, that relief would not be refused for misjoinder of parties complainant, where the question was not raised by special demurrer, and the parties had taken proofs and gone to final hearing.
Cahill & Ostrander, for appellants.
Hammond & Lee and Isaac Marston, for appellees.
The bill of complaint in this cause was filed on the 14th day of October, 1884, to enjoin defendants from damming or obstructing the waters of the Grand river to the extent that it will set back the waters of the Grand and Cedar rivers so as to overflow their banks, and flood complainants' lands, and prevent the natural flowing off and subsidence of the waters of said rivers on the season of high water, and to compel the defendants to remove and abate their dam across Grand river, and to so construct and maintain the same as not to flood complainants' lands, or any part thereof. The bill sets forth that complainants are the owners in severalty of the lands therein specifically described as belonging to each of said owners, and that they lie along and adjacent to the Cedar river, so called; that the defendants are the owners of a dam across Grand river, in the city of Lansing, and usually known as the "North Lansing Dam," and which they have maintained for three years and upwards, and are now maintaining, at a head of 10 feet causing the waters of the rivers to rise to a great height, and set back into the Cedar river, an affluent of the Grand river, and to overflow the banks of the Cedar river, so that large portions of complainants' lands have been for three years overflowed, and are being again threatened with being overflowed and completely submerged whenever the waters of said rivers are at their usual and ordinary height, to the great injury and detriment of complainants. The bill further alleges "that but for the maintenance of said dam no part of your orators' or your oratrix's lands would be overflowed or submerged by the waters of said Cedar river, except small portions thereof, and for brief periods, during unusual floods and high water, but by reason of said dam the waters of said river are impeded and held back, and have been and are caused to stand for long periods of time-that is to say, during the seasons of 1882 and 1883, during the months of March, April, May, June, and July, in each year, and during the season of 1884, during the months of March, April, May, and June - over your orators' and your oratrix's lands hereinafter described, whereby they have wholly lost and continue to lose the rents, issues, and profits of said lands, to their great damage; that your orators' and your oratrix's said lands are all tillable lands, fit for cultivation, except for the flooding of the same as aforesaid, but by the reason of the maintenance of said dam, and the flooding in consequence thereof, the said lands are rendered untillable and useless for the purpose of cultivation." The bill also sets forth the particular portions of land belonging to the complainants which are flooded. Nine of the defendants answered, and admitted the existence of the dam as stated in the bill, and that they were owners thereof, and as such interested in the water-power created by such dam. They aver that the dam was constructed over 40 years ago in pursuance of lawful right and authority for that purpose duly acquired from the state of Michigan, and has ever since that time been kept up and maintained to the same height that it is now kept up and maintained; that complainants acquired their land long after the erection of the dam, and subject to the rights of the owners thereof, and their grantees, and deny that they have kept up a dam at a height of 10 feet, or any other height which is unlawful or contrary to the rights of complainants, and they deny that the lands of complainants are overflowed by reason of said dam, and they deny that they have injured complainants, or threaten any injury to them, by reason of maintaining such dam. A demurrer clause is added, praying the same benefit as if they had demurred for want of equity.
The only authority granted by the state for building a dam across Grand river at or near where this dam is located, is that conferred by act No. 98 of the Session Laws of 1843, in which John W. Burchard, his heirs and assigns, was authorized to build a dam across the Grand river, in Ingham county, on section No. 9, township 4 N., range 2 W., "not exceeding eight feet in height." It was provided in that act that "nothing herein contained shall authorize the person or persons above mentioned, or their heirs or assigns, to enter upon or flow or injure the lands of any other person, without the consent of such person." Sess. Laws 1843, p. 213. The defendants did not attempt to deduce their rights from Burchard, or from the grant by the state to him. It was wholly immaterial for them to do so, since the complainants do not deny the right of defendants to maintain a dam across Grand river, but deny their right so to construct or maintain it as to cause the water to set back and overflow their lands. The state did not authorize them to do this without the consent of the owners. There was testimony which tended to show that a dam has been maintained at the point where the present dam is located since the fall of 1843; that in 1875 the greater portion of it was swept away, and was that year rebuilt to a height of seven and one-half feet; that after that date, and until 1881, the owners had been in the habit of increasing the head of water afforded by the dam, by the use of flash-boards, from 12 to 18 inches in height. It was shown that flash-boards had always been used during certain seasons of the year upon the old dam prior to the year 1875. In 1881, repairs were made upon the dam by increasing its permanent height 12 inches intending thereby to do away with the use of flash-boards. The effect of this has been to hold the water more uniformly than it was by the use of flash-boards. The dam was also made generally tighter, and less loss occasioned by leakage. The testimony shows that the complainants had owned the several parcels of land described in the bill as belonging to each individual from eight to twenty years; that they had made improvements thereon, and brought the land under cultivation, and raised crops thereon, had put down drains by which the waters were drained into Cedar river, and had experienced no difficulty from high water, or flooding or overflow, until the repairs were made upon the dam in 1881; and from that time the water has been set back upon their lands, causing a loss of crops, the killing of native trees, and the destruction of the land for agricultural purposes. The proof is ample and convincing that, since the repairs made in 1881, the water has been, on an average, a foot higher in Cedar river along complainants' lands than it was before, destroying the drainage, and causing the water to set back and soak up the soil of complainants' lands, and rendering them wholly unfit for cultivation. Testimony was introduced of levels taken from the dam up the Grand and Cedar rivers for the purpose of showing that the waters in Cedar river were not affected and raised as far up the river, nor to such height, as claimed by the complainants. Owing to the impossibility of arriving at precisely accurate results by the use of instruments, running over a line six miles in extent, involving a great number of stations, and the adjustment, taking, and registering of levels thereat, and the many different circumstances, explainable and unexplainable, which affect the action of water when obstructed and ponded in running streams, actual tests by observation and experience afford the most satisfactory testimony upon which to rely in determining the result from such obstruction. Mill Co. v. Greer, 58 Iowa, 86, 12 N.W. 128; Brown v. Bush, 45 Pa. St. 61. Every author treating upon the subject of hydrodynamics acknowledges and points out the difference between theoretical and actual tests, and, in advancing practical rules, modify the theoretical to correspond...
To continue reading
Request your trial