Wellman v. Blackmon

Brooke, J. (after stating the facts). In reaching the determination which he did, the circuit judge was evidently of the opinion that because possibly some portion of the dam structure lay north of the line between sections 31 and 16, the defendants would have a right to the use of the flowage of water therefrom under their grant. He was influenced to this determination, according to his opinion, through the consideration of a sketch of the premises made by the county surveyor of’ Kalkaska county, and filed with him after the closing of proofs. It is not necessary, of course, to say that to receive this paper, so brought to his attention, and to permit it to in any wise influence his determination of the matters in dispute, was wholly unwarranted. In our view of the case, however, it is immaterial whether the dam in part lies upon that portion of section 16 covered by the conveyance — 676 — to defendants or not, inasmuch as when the conveyance of August 14, 1906, was made, the common grantors of the complainant and defendants owned both parcels, and by the descriptions contained in the earlier conveyance distinctly sold to the complainant the dam in question. The language of the deed as to this is: “Also the water power and dam located on said property originally owned by Hamilton Stone and conveyed to the said first parties by warranty deed from James R. Wylie and wife.” It is quite clear that this specific grant of a definite object upon land at that time owned by the grantors must be held to control the general terms of the conveyance as to the land upon which it was supposed to be located. Long, C. J., speaking for the court in Woodbury v. Venia, 114 Mich. 257, said: “ It is a well-settled law in this State that monuments control courses and distances, and that, when monuments and measurements vary, the monuments always control; but this reference is to monuments and measurements made by the original survey.” In Gilman v. Riopelle, 18 Mich. 164, Cooley, C. J., speaking for the court, said: ‘ ‘ Where definite and permanent boundaries are given, the deed must be held to convey all the land within those boundaries, notwithstanding the quantity is much greater than that mentioned. This is on the familiar principle that the incorrect portion of the description is to be rejected where that which remains is sufficient, and that definite and permanent monuments are to control distance and quantity.” It is a significant fact that the complainant, through his attorney in fact, after the conveyances in question, continued to exercise sole control over the dam in question, made repairs upon the bridge of the highway thereon, and was not disturbed in his use thereof until the threatened action of the defendants, whereupon complainant filed his bill in this cause. — 677 — The decree of the court below is reversed, with costs of both courts, and a decree will be entered in this court, permanently enjoining the defendants in accordance with the prayer of the bill of complaint. Grant, Montgomery, Hooker, and Moore, JJ., concurred.