A. P. Cook Co. v. Beard

Montgomery, J. Complainant is the owner and in possession of nearly the entire of sections 29 and 32 of the township of Columbia, Jackson county, and files this bill to restrain defendants from overflowing these lands. Vineyard lake consists of two arms called the “Upper Vineyard Lake” and “Lower Vineyard Lake,” and covers a portion of sections 33,- 28, 29, and 32. The south branch of the river Raisin enters Upper Vineyard lake, and furnishes the outlet of Lower Vineyard lake to the north, and runs thence substantially northwest to and beyond the mill and mill-dam of defendants. The lowlands of complainant. consist of about 150 acres on section 29, and about 72 acres on section 32. , These lands are very slightly above the natural level of the river and lake at high-water mark, according to the claim of complainant. The defendants and their grantors have maintained a mill-dam at the point on the outlet of Vineyard lake where the one in question is now situated for upwards of 50 years. They have not acquired the right by purchase to flow the lands of complainant, but have acquired the right by prescription to maintain a dam at this place. The question involved is whether they have, by increasing the ponding capacity of their mill pond, caused a greater flow of water upon these lands of complainant than has existed for the prescriptive period. The contention of complainant is that they have increased the ponding capacity of their mill-dam by causing a rise of the dam 18 inches to 2 feet, while defendants contend that there has been substantially no change in that respect. The circuit judge found as a fact that the ponding capacity had been increased 8 inches, and decreed that the defendants be required to immediately reduce the ponding capacity so that the height of the 19 water in the pond should be 8 inches less than the same was maintained at the time of the filing of the bill and at the time of the hearing. The complainant, not deeming this relief adequate, and conceiving that a greater reduction of the ponding capacity was justified under the proofs, . has appealed. The defendants have not appealed. The question involved is purely one of fact, and the testimony taken and returned to this court is too voluminous to admit of quoting from it at length. A careful reading of the testimony has satisfied us that the defendants have exceeded their prescriptive right of flowage substantially to the extent claimed by the complainant, and the decree of the circuit court should be so modified as to require the defendants to reduce the ponding capacity of their dam so that it will not and cannot maintain the water in the pond as high as it now can and does, by 18 inches, instead of 8 inches, as provided in said decree. In other respects the decree should be affirmed. Complainant will recover costs. The other Justices concurred.