Cranson v. Snyder

Grant, J. (after stating the facts). The case involves only surface water. The rights of the owners of dominant and servient estates are well settled in this State, and there is no occasion to refer to authorities elsewhere. They have not been in unison upon the question of surface water. Justice Campbell, in Boyd v. Conklin, 54 Mich. 583 (20 N. W. 595, 52 Am. Rep. 831), entered into a learned and exhaustive discussion of the subject. It was there held that the lower and servient estate must receive the surface waters which flow naturally from the dominant estate. This case was followed in Gregory v. Bush, 64 Mich. 37 (31 N. W. 90, 8 Am. St. Rep. 797). It was there held that the husbandman might improve his farm by filling up sag holes, pools, and basins to prevent water accumulating or remaining therein, although the result would be to cause the water to flow upon the land of the adjoining owner. It was also held that he could not by artificial drains or ditches collect waters from, these receptacles and cast them in a body upon the adjoining land. These cases were cited and approved in Leidlein v. Meyer, 95 Mich. 586 (55 N. W. 367). It was also there held that, where the owner of the lower [344] estate permits a ditch or drain to exist for 20 years and cast the water upon his land, the right to maintain the ditch was acquired by prescription. Complainant has acquired the prescriptive right to maintain the old horseshoe tile ditches, and may relay them or their equivalent in round tile. In addition, complainant is entitled to cultivate his land in the manner usual in good husbandry, although the result may be to leave furrows which will cause the surface water to pass off more rapidly than it would were the land in its natural state. This was held to be the husbandman’s right in a case where a sag had been cultivated for 20 years, and the water had been turned therefrom by a furrow into a ravine. It was held that the complainant cannot complain of such drainage in the natural and usual course of husbandry. Gregory v. Bush, 64 Mich. 42 (31 N. W. 90, 8 Am. St. Rep. 797). There is no evidence in this case from which it can be determined that a three-inch round tile will carry more water than the old three-inch horseshoe tile did, or that it will increase the rapidity of the flow. Manifestly a four-inch and a six-inch tile will carry more water, and carry it more rapidly, than a round or horseshoe three-inch tile. It is conceded that the purpose of putting in the larger tile was to carry the water off more rapidly, and that it accomplishes the purpose. We think it is clear, from the cases above cited, that the owner of a dominant estate has not the right to collect the water upon his land by means of drains or ditches and empty it in a body upon the servient estate. Complainant, therefore, in doing this, exceeded his right acquired by prescription, and his right to drainage in the usual course of good husbandry. Complainant had maintained for more than 20 years a tile drain extending upon and emptying into the lands of defendant. He was entitled to maintain this drain, and to enter upon the defendant’s lands to relay it. When the new drain was laid, complainant, by defendant’s permission, entered upon his land, and made gradual slopes [345] on the sides of tbe shallow gully through which the water xan from the drain. For 6 years defendant made no complaint of injury to his land. In the summer of 1892 the rainfall was excessive and torrential. The most of the water, as it fell, would find its way speedily from the surface of the complainant’s land to that of defendant. It is very doubtful whether the larger tile increased the flow of water to such an extent as to increase the damage. The damage, in any event, is insignificant. Under these circumstances, no costs were awarded to defendant by the court below. Defendant will recover the costs of this court. Decree affirmed. The other Justices concurred.