Rummell v. Lamb

Hooker, J. A township ditch runs through the lands of both complainant and defendants. The evidence shows that, in a state of nature, the surface water from adjoining land flowed down the course of this ditch, spreading out several rods wide in the valley, and at places forming swamps. Three or more beaver dams are discernible along the route. Some of the land was springy, but the water did not run upon eonyilainant’s land during the dry season. During the greater part of the year, however, some water flowed there, and in wet times considerable. Defendants’ land was above that of the complainant, and was crossed [425] by a ridge running parallel witli the ditch, leaving about 12 acres south of the ridge and 1 acre south of the ditch. Six or more years ago, one Emmett, who owned land above these parties, opened a flowing well, which he drained into the ditch, after which time the complainant had living water in 'the ditch, from which he watered stock, at all seasons. The defendants dug a drain from the north towards the township ditch, cutting through the ridge, and laying tie at a depth o.f from 8 to 12 feet, with the avowed purpose of tapping the township ditch. They assert that the object was to drain the parcel south of the ridge. Complainant, fearing that the water would be diverted from his land, filed the bill in this cause to restrain ■defendants from doing so. The main controversy is one of fact, as to .whether there was such a water-course as to preclude defendants from removing the water from their premises, through another drain, to the exclusion of complainant’s right to have it flow upon his land below. We think the. circuit court was right in holding that there was, and that the defendants were properly enjoined from carrying out their project, which we are satisfied was to obtain the water for their own purposes, by depriving complainant of it. The case is ruled by Hilliker v. Coleman, 73 Mich. 170. It is suggested that defendants are willing to “lay an iron pipe, properly cemented, so as not to interfere with the flow of water in the town drain, to the injury of the complainant,” but we see no necessity for doing so. We think the' town drain adequate to drain defendants’ one acre, and we are not disposed to subject complainant to the annoyance of such an apparatus, which might easily get out of order by the action of the weather, and silently and secretly be the means of accomplishing the thing sought to be avoided, which he would have difficulty in detecting or preventing. [426] The decree of the circuit court will be affirmed, with costs. The other Justices concurred.