Preston v. Clark , 238 Mich. 632 ( 1927 )

Plaintiff Preston is the owner and operator of a grist mill at the village of Hartland. Plaintiff Foltz is the owner and operator of a grist mill at Parshallville. Both mills are operated by water power. The outlet of Whalen lake furnishes these mills with their principal source of water, although there are other smaller contributing streams. These mills have used the water from this outlet for many years. In October, 1905, the outlet was lowered by drain proceedings, thereby increasing the flow of the water in the outlet. In the fall of 1923 defendants, who owned the land, constructed a dam in the outlet about 200 feet from the lake. This dam is about two feet high, which plaintiffs claim had the effect of raising the water in the lake about two feet. Plaintiffs claim this impedes the flow of the water in the outlet and diminishes the amount of water which finally reaches their mill ponds, and that they are thereby materially damaged in the operation of their mills. They filed this bill for injunctive relief. The principal defense seems to be that plaintiffs are not injured by the dam. The trial court took this view of the matter and denied plaintiffs relief, and they have appealed.

Whalen lake is a body of water covering nearly 100 acres and is fed by springs. The outlet is a small stream. The volume of water carried in the stream is not large but appears to be constant. This stream has contributed, with other streams, for upwards of 50 years in furnishing power for the mills owned by plaintiffs. The plaintiffs claim the right to have the waters of the stream flow to their mill in the same unimpeded way they have for 50 years without diversion. They claim this right by prescription. Having used the waters of the stream in its natural flow for 50 years they undoubtedly have this right.Stock v. City of Hillsdale, 155 Mich. 375; Hyatt v. Albro,121 Mich. 638; Suffrouw v. Brewer, 204 Mich. 370.

In the first case cited plaintiff made complaint that the waters of the St. Joseph river were unlawfully diverted to the detriment of his mill, and the court said in part:

"It is undeniable, however, that the complainant's rights were infringed by diverting this water, and that the value of his property — the mill at Hillsdale — was to some extent affected by this fact, and we think the rights of complainant may well be adjudged in this case."

In the second case cited the complaint was similar to the one made here, except the complaint had reference to the lowering of the outlet of the lake rather than increasing its height. The court, in granting relief, said in part:

"The complainants have the right to have the water flow naturally, without being accelerated or impeded, except to the extent that the concurrent rights of the upper riparian proprietors may effect such results. In so far as the proper use of the stream above results in inconvenience, or impedes the use of the stream by complainants, it is damnum absqueinjuria. Has the upper riparian owner the right to reclaim a portion of this lake by so accelerating the flow of the stream as to lower the water in the lake, thereby narrowing the area so as to reclaim overflowed lands? This accumulation of water from the overflow of the banks of the lake, fed by the Shiawassee river above, cannot be called surface water. West v.Taylor, 16 Or. 165 (13 P. 665); Schaefer v. Marthaler,34 Minn. 487 (26 N.W. 726, 57 Am. Rep. 73); Macomber v. Godfrey,108 Mass. 219 (11 Am. Rep. 349); Gould, Waters, § 264; Stock v.Township of Jefferson, 114 Mich. 357 (38 L.R.A. 355). The right to drain surface water is clear. Gould, Waters, § 265. But the right to drain any portion of the waters of these lakes above, which constitute the source of supply to the complainants' water-power, would unquestionably be a wrong against complainants if the water were diverted from the stream. Is it any the less an interference with the complainants' property rights if the water be precipitated in an artificial manner by means of a deepened channel through the stream itself? We think not. On the contrary, this increasing of the flow, it is alleged with much force, would work an additional injury by imperiling complainants' dam. The circuit judge was of the opinion that the flow of water would not be diminished by the deepening of the river. We think it clear, however, that by the deepening of the channel the water will be carried off more rapidly than it now is. Indeed, if it is not expected that this will be the result of the improvement, we are at a loss to understand why it was undertaken.

"The decree dismissing the bill of complaint is reversed, and a decree will be entered enjoining the proposed deepening of the river, with costs of both courts to complainants."

The third case cited holds that a prescriptive right to the flow of water can be acquired by 20 years of user, and a decree was made restoring the water of the stream to its natural channel.

But the prescriptive right of plaintiffs to have the water flow to their mills as it had for 50 years does not appear to have been seriously contested by opposing counsel, and the right seems to have been recognized by the court, as he put the case off on the theory that plaintiffs were not injured by the dam and the raising of the water in the lake.

When the dam was constructed in the outlet it raised the level of the lake about two feet. This had the effect of increasing the area of the lake to the extent of 20 feet in circumference in most places. The proof shows that adding these two feet of water would increase the pressure on the springs which fed the lake, and thereby lessen their flow. Further, by increasing the area it would increase the evaporation and percolation and thereby reduce the amount of water passing into the outlet. These propositions are convincing.

Notwithstanding this right is a limited one, it is a substantial right which plaintiffs have acquired by prescription, and they are entitled to have it protected. If plaintiffs have had an uninterrupted use of this stream for the years which the record shows, they are entitled to the continued use of it without material diminution or delay.

The trial court was of the opinion that the case was ruled byDumont v. Kellogg, 29 Mich. 420 (18 Am. Rep. 102). We do not think that case is in point because no question of prescriptive right was involved in the lower proprietor in the case cited. It was said in that case:

"It is not claimed that any question of prescription is involved, and the case is consequently to be regarded as only presenting for adjudication the relative rights of the parties at the common law to make use of the flowing waters of the stream, unaffected by any exceptional circumstances."

Complaint is made because the trial court refused to hear evidence on the question of damages. If plaintiffs have suffered damages by reason of the dam they are entitled to recover them. Woodin v. Wentworth, 57 Mich. 278. This case prescribes a rule for estimating them. See, also, Stock v. Cityof Hillsdale, supra, as damages were awarded in that case.

The decree should be reversed and one entered ordering the removal of the dam, as prayed. The record should be remanded to the trial court to take proofs on the question of damages. If plaintiffs are able to show damages under the rule laid down in the case cited the trial court should render a decree for such damages as are shown. The plaintiffs should recover costs of both courts.