Andrews v. Weckerman

Gbant, J. (after stating the facts). 1. This highway was laid out in May, 1892. The proceedings were regular. Andrews’ grantors, then owning the mill site and the 10 acres above described, and perhaps certain rights of flowage of other lands, were made parties to those proceedings and damages awarded them. In the petition and other papers no reference was made to the erection of a bridge. Necessarily the construction of one was implied. The highway was of the usual width, 66 feet. The old mill — a grain mill — and the race had previously been burned. Nothing was left but the dam and a residence and barn. When the fire occurred the record fails to show. No steps were taken to question the validity of the highway proceedings. Andrews’ grantors rested content with the determination of the highway commissioner and the award of damages. The first question naturally presented is: What kind of a highway did the township authorities acquire the right to construct ? The complainants Andrews have.shown no title to the land abutting the shore or the land under the water where the highway is located. If they have any right of flowage, it is by prescription, and as to that the evidence is meager. Undoubtedly the grantors of Mr. Andrews were made parties on account of their supposed right of flowage. The township thereby became a riparian owner and possessed the right to occupy this space, 66 feet wide, across the mill pond in the construction of a highway for the public. It was not limited to any .particular form of structure. It was under legal obligation to leave an opening sufficient for the flow of the water at all ordinary [205] stages of both high and low water. Having done this,- it might erect a solid embankment from the shores to the bridge over such opening. It has left one over the natur-' al channel and current of the river and extending 60 feet outside of such channel, with an average depth of 10 feet. If such a construction is reasonable, and we think it is, and one which the interests of the public demanded, of which there is no doubt, it being one of the principal thoroughfares of the village and township, the action of the township is lawful, and any injury to the complainants is damnum absque injuria. This court said, in Dumont v. Kellogg, 29 Mich. 420: “ It is therefore not a diminution in the quantity of the water alone, or an alteration in its flow, or either or both of these circumstances combined with injury, that will. give a right of action, if in view of all the circumstances, and having regard to equality of right in others, that which has been done and which causes the injury is not unreasonable. In other words, the injury that is incidental to a reasonable enjoyment of the common right can demand no redress.” The reasonableness of the use and enjoyment in each particular case is the controlling factor. Rowe v. Granite Bridge Corporation, 21 Pick. (Mass.) 344; Sprague v. City of Worcester, 13 Gray (Mass.), 193. In the latter case Chief Justice Shaw held that “all the defendants [the municipal authorities] were bound to do was to build a bridge with a waterway reasonably sufficient to carry off the water in its ordinary and usual condition, at all seasons of the year.” See, also, Callender v. Marsh, 1 Pick. (Mass.) 418; Ely v. City of Rochester, 26 Barb. (N. Y.) 133; Hoxsie v. Hoxsie, 38 Mich. 77. But for the complainants’ mill pond a bridge covering an opening of 45 feet would have been amply sufficient. Other bridges in the vicinity over this same stream, above and below, are built with that width of opening. 2. Without entering into details of the evidence, we are satisfied that complainants failed to make out a case for damages. It seems apparent that a space 81 feet [206] wide, extending over the natural channel, and on an average 10 feet deep, will take the water from above the bridge as rapidly as it will be drawn off through the raceway for use of the complainant company. Actual measurements and experiments, which are better evidence than the testimony of alleged experts, demonstrate that the pond above the bridge lowers as fast as that below when the water is drawn off at the raceway. Furthermore, it appears from the complainants’ own evidence that there had been no lack of water for the use of the electric company until the summer of 1904, two years after these embankments and bridge were constructed. It is conclusively established that that was due solely to the unprecedented drought of that season. The electric company had put in an engine in case of emergency, but it had no occasion to use it until that summer. Clearly the electric company had suffered no damage from the act of the township, but only from the act of God. In view of these facts, we may well believe the testimony of the witness who testified that in January, 1903, Mr. Andrews said “that he had suffered no damage as yet, and did not know that he ever would.” The record fails to show how far the south embankment extends beyond that of the railroad. It evidently is but a short distance. An examination of the plat shows that whatever current ther„e may have been in this pond against the railroad embankment is not impeded to coiúplainants’ injury by the highway embankment directly west of it and only about 100 feet distant. It is also shown that this stream, like other small streams, grows less year by year. ' Of this courts will take judicial notice. Hilliker v. Coleman, 73 Mich. 170. 3. The two complainants, the Andrews and the company, have no interests and have suffered no damage in common which entitle them to maintain suit jointly therefor. The complainants Andrews have no interest in the damage suffered by the electric company. The electric company has no interest in the damage to the freehold of [207] complainants Andrews. The fact that the complainants Andrews are stockholders of the electric company is immaterial. The company is a distinct entity. The term •of the lease is not given. For all that appears it may be '99 years, or a perpetual lease. Complainants Andrews, owning the fee, would not be responsible to the electric company for any injury done to its leasehold by the township authorities. The action of the township authorities, if damage did result, would form no defense to an action upon the lease. If the electric company brought suit against the township for damages, the injury to the freehold would not affect the measure of damages to be given the leasehold interest. The measure of damages in the one case would be different from that in the other. Complainants may have had a common interest in procuring an injunction to restrain the obstruction of the flow of the water; the electric company, because it was interested in maintaining the flow of the water for immediate use; the owners of the fee, because they were interested in maintaining its flow for future use after the termination of the lease. The stipulation removed from the consideration of the court this common interest, and left only for future adjustment by suit or otherwise the question of damages. For this a suit at law would have been the only remedy, in which the complainants could not have been joined. The fee owners can suffer no damage from a diminution of the water until the expiration of the lease. The life of the lease and its terms are important in determining the injury to the freehold. If complainants desired to continue this suit in force for the determination of damages to each, it was incumbent upon them to show what dajnage each had suffered, and to have a decree for each specific amount. There is no data from which to apportion damages, even if any were suffered. Decree reversed, and bill dismissed, with costs of both courts. Montgomery, Ostrander, Hooker, and Moore, JJ., -concurred.