Schneider v. Township of Brown

Ostrander, J. (after stating the facts). It'is clear that, extending from the ravine in either direction, there was, at the time plaintiff raised his dam, a road which was four rods wide, which might become, if it had not already become, by user a public highway. There is no record evidence of the laying out of the road. At the time plaintiff raised his dam, no úse whatever had been made of the ground through the ravine for highway purposes. It is to be presumed, we think, if any presump [54] tions may be indulged, that the highway, as laid, if one was laid, was a continuous highway, extending at a uniform width across the ravine and creek. The language of the statute supports such presumption. 2 Comp. Laws, § 4036. Travel was interrupted on the line of the highway by the formation of the ground, the presence of the creek, and the absence of a bridge or other means of crossing. Some years after the dam was raised (the precise time being uncertain, but it was probably not more than six nor less than four years), the township determined to build a bridge to connect and make continuous the highway. Plaintiff, for the township, built this bridge. As constructed, it interfered little, if any, with the use plaintiff was then making of the land. Then, for the first time, travel across the ravine on the line of the highway began. We are referred to no authority which warrants us in holding, as a matter of law, that the use of the particular ground then first begun operated to invest the public with any rights exceeding the bounds of actual user. The cases of Bumpus v. Miller, 4 Mich. 159, and McNamara v. Railway Co., 95 Mich. 545, cited by counsel for appellant, do not rule the point. There had been here, after the use of the remainder of the highway had begun, a use of the land which might be said to be inconsistent with its use other than by bridging it as a highway. Whether the township had, except by acquiescence of plaintiff, the right to bridge it, we need- not determine. There is no complaint made of that action. Counsel for appellant says that the right of defendant to build the embankment in 1902 was the same as it was in 1880. That may be conceded, and it is still necessary to show that such right existed in 1880, or to show acquiescence in the claim of the township to have such a right. The particular errors assigned, which, under the rules, we are permitted to consider, and the theories of rights asserted by counsel for the respective parties, make treatment of the case here somewhat difficult. The requests [55] to charge, above set out, are open to the criticism, not only of asserting rights of defendant which cannot be, as matter of law, sustained, but of assuming facts which are disputed. On the other hand, the position of counsel for plaintiff may or may not be consistent with the facts, depending upon what a jury may, viewing all of the testimony, find the facts to be. There is testimony in the record from which the jury might have found that there was, as early as 1869, an intended and asserted appropriation by the public of a continuous strip of land along the section line, four rods in width, known to plaintiff when he purchased his land, and never disputed, or intended to be disputed, by him — rather affirmed and confirmed by him — until he brought this suit; that use of this strip of land across the ravine was postponed until the township should erect a suitable means of crossing; that all of the proceedings on the part of the township authorities were predicated upon this claimed appropriation and right, and were without protest from plaintiff, or assertion by him of any conflicting right, and that, with a pond 11 by 17 rods in size south of the embankment, a culvert through the embankment, permitting the free flow of water, and an indefinite space north of the embankment in which water may stand, plaintiff has in fact lost no use of his mill from a diminished flow or diminished head of water, attributable to the embankment, properly constructed. While contending for more than this, we think the requests to charge preferred on the part of defendant fairly raise the point that the case should be submitted to the jury upon the theory above indicated, and that the charge as given and as questioned in the fifteenth assignment of error was not warranted. The jury had already been charged, as matter of law, that plaintiff had not by his conduct acquiesced in the proceeding to build an embankment; a portion of the charge upon which the twelfth assignment of error is based. This alleged error is not mentioned in the brief for appellant, and the matter is referred to only as explanatory of [56] what is here said and of that portion of the charge set out. If a jury should find that the embankment was built in part upon plaintiff’s land, outside the limits of the highway, of course no rights of the public in the land within the highway would warrant such a trespass. Vanderlip v. City of Grand Rapids, 73 Mich. 522 (3 L. R. A. 247). The same would be true if the embankment is so constructed that the inevitable consequence is the deposit of earth upon the logs of plaintiff in his pond, or upon the land of plaintiff, to his injury. Ferris v. Board of Education of Detroit, 122 Mich. 315. No other questions discussed, which we are at liberty to consider, are likely to arise upon a new trial. Judgment is reversed, with costs, and a new trial granted. Móore, C. J., and Grant, Blair, and Hooker, JJ., concurred.