Tower v. Township of Somerset

Grant, J. {after stating the facts). 1. Complainants insist that this channel which the water had worn had become a neighborhood drain within Freeman v. Weeks, 45 Mich. 335, 48 Mich. 255. This case and that have no elements in common. In that case the ditch was dug by common consent. The defendant who obstructed it assisted himself in digging it.' The parties actively acquiesced in it. In the case at bar the elements had obstructed the original sluice through which the water ran and had worn out another zigzag channel along the highway. No active steps were taken to clean out the old sluiceway, and the public authorities contented themselves with repairing the highway when the water encroached upon it in this new channel. In heavy rains some of the water continued to flow over the highway. There is no evidence that the defendants or the owners had said or done anything which recognized the new channel as conclusive upon their rights. The abutting owners simply kept silence, and the township authorities endeavored to protect the highway from the encroachments of the [200] water wherever it threatened the safety of travelers. Failing after repeated efforts to accomplish the desired results, the defendants concluded to reconstruct the old sluice. Yet it is now sought to, and the decree does, compel the township authorities to dam the surface water which runs down against the highway, so as to effectually prevent any running across the highway to the complainants’ land — not only that which could flow in the new channel, but also the excess which naturally flows across the highway, and to prevent such flowage for a distance of 40 rods. Even if the complainants could maintain an injunction at all, it could only be maintained against the quantity which flowed in the channel and not against the natural overflow. 2. Complainants insist that the natural watercourse, so diverted when all the lands belonged to one party, was continued until the title to the lands was. divided and the diversion recognized as permanent, and that they are therefore relieved from the servitude of the water. This is not a case between the owners of dominant and servient estates. The owners of the dominant estate are not parties to the bill. It is between the abutting owner owning the lower estate and the highway authorities charged with the duty of keeping the highway in reasonable repair for public travel. Complainants have obtained no right by prescription. Mathewson v. Hoffman, 77 Mich. 420, 433 (6 L. R. A. 349); Jones v. Van Bochove, 103 Mich. 101; Gould on Waters, § 279. But they insist that the highway authorities are estopped to now turn the water in the natural direction and where it had flowed prior to 1892. The channel made in 1892 at the 40-rod point, by which a portion of the water was turned into Miner pond, was closed in 1896 by the same elements.that closed the upper sluiceway in 1892. The gullies on the north side of the highway at this point do not come within 12 feet of the highway, while the gullies upon the south side come close to the highway line. All these gullies on both sides have been washed out without the action of man, but by [201] the swift rush of the water in seeking outlets. Clearly the highway authorities have no right to there construct a dam and turn all the water upon the abutting owner upon the north. Neither have they the right to enter upon land and dig a channel for the water. If the owner •of both estates had dug a channel diverting the water, ■and afterwards had sold the servient estate with the water so diverted, undoubtedly he would he estopped to again turn the water onto the servient estate. Perhaps 'he would have been estopped if the elements had worn a channel on his dominant estate, and he had afterwards sold the servient estate. But does that rule apply to municipal authorities under the facts of this case ? A party can only be estopped where the other party is misled to his Injury. The complainants were fully cognizant of the situation. They knew when they purchased the servient estate of the natural flow of water over their lands; that some of it did still flow over; that the channel was not made by man, but by the elements, that it was the duty of the •township authorities to do everything which would not injure abutting owners to render the highway safe for travel. They have not been damaged. Why should the defendant be estopped and compelled to maintain dams to prevent the flow of water into its natural course upon complainants’ lands when they can receive no damage (Hotz v. Hoyt, 135 Ill. 388; McCormick v. Kinsey, 10 Pa. Super. Ct. Rep. 607; 2 Farnham on Waters and Water Rights, p. 963), and where the township authorities have acquired no right by prescription to dam the water back upon the upper proprietor ? 3 Farnham on Waters and Water Rights, p. 2635; Tootle v. Clifton, 22 Ohio St. 247. We think this is not a case for the application of the doctrine of estoppel, and that the defendants were in the performance of a legal duty and right in the construction of this sluice. “ Highway commissioners have the right to have the surface water, falling or coming naturally upon the highway, drain through the natural and usual channel upon [202] and over the lower lands,” and may construct drains or ditches for that purpose. 2 Farnham on Waters and Water Rights, p. 969. One of the counsel apologizes for this prolix record. .We think it is unnecessarily long. In settling the case-much of the testimony and many of the remarks of counsel could have been eliminated, and much time and labor saved in the examination of the record. The habit of printing the entire stenographer’s minutes, even in chancery cases, is not to be commended. It is true that the-case is to be heard in this court de novo, but the elimination of immaterial testimony, repetitions, and arguments-of counsel, and a condensation of the record, aid the court-materially in reaching the essential facts. The costs being in the discretion of the court, it is ordered that the appellants recover only half of the cost for printing the-record. Decree reversed, and the bill dismissed. McAlvay, Blair, Montgomery, and Ostrander., JJ., concurred.