Township of Blendon v. De Jonge

Kuhn, J. (after stating the facts). In our opinion, the important questions to determine from this record are the natural direction of the flow of waters along the highway in question, and, if it is found that the waters do not flow in their natural course, the reason therefor. It is the claim of the complainant that the natural course of these waters is through the culvert into the private drains of defendant and then westward into the Bosch & Hultz drain. Defendant con [578] tends that the proper drainage is through the Southwest Blendon drain, and the reason that the water does not flow that way is that this drain has been neglected and has filled up, and the waters are thus prevented from following their natural course. The defendant testified with reference to this condition, as follows: “Now, Mr. De Jonge, the water that comes through this bridge now upon your land and floods you out, that is water that comes from where? “A. That comes through the bridge? “Q. Yes. “A. Well, that comes from the east side of the road. “Q. Comes from the Southwest Blendon drain, doesn’t it? “A. Yes, from the Southwest Blendon drain. “Q. And why does it run through the bridge, and why doesn’t it follow the drain itself? “A. Because that drain is obstructed with weeds and willows and hasn’t been cleaned out in four years; it is in poor shape. “Q. When that was cleaned out four years ago, did the water follow largely the Southwest Blendon drain and not come under through the bridge? “A. It did. “Q. And that time had no trouble with your water? “A. No. “Q. And if the Southwest Blendon drain were now again widened and cleaned out as it was four years ago, would you have any trouble with the water? “A. No, when I started to build that dam the water was running partly through my private drain, about one-third, and about two-thirds through the Southwest drain. Then I drove in a stake to see how much damage it would do when I blocked up my private drain, and in the evening when they worked all day at it, the water didn’t come up a quarter of an inch; it stayed right level with the stake. Then the water all had to go through the Southwest drain. “Q. It had to go there when it couldn’t go under through the bridge and over your land? “A. Yes.” Complainant’s witness Bowen testified as follows: [579] “There is a public drain lying along the south side of my 40 called the Southwest Blendon drain. It doesn’t carry off the water because it is not wide enough. It is deep enough. - ' - “Q. But not wide enough? “A. The water cannot go away; it just fills up and stays that way. “Q. It isn’t cleaned out, is that the reason? “A. No, just filled up and stayed that way. “Q. Because there'isn’t enough fall, or what is it? “A. No place where it can go to. “Q. Because the sand has filled it in? “A. No, it just stayed there, nice and clean; the water just stayed there. “Q. What I am trying to find out.why is it that the water from your land there doesn’t go through the Southwest Blendon drain? “A. Well, it can’t. “Q. Why not? “A. There ain’t no room for it; it don’t want to go west. “Q. It goes onto Chris De Jonge’s land? “A. That is just the only place. “Q. That is west, isn’t it? “A. Yes, that is a little west. “Q. If this Southwest Blendon drain was widened and cleaned out, wouldn’t that take the water? “A. Well, of course it would.” Mr. Fellows, the county drain commissioner, testified: “These are private drains, two or three of them that run into the Southwest Blendon drain. It brings in oceans of sand from the fill and makes great bars and shuts up the flow of the Southwest’drain. The water goes over the top onto Mr. De Jonge’s land and down the Bosch & Hultz drain.” After the defendant built the ridge, no steps were taken to clean out the Southwest Blendon drain, but an attempt was made to change the private drain of the defendant into a public drain. To this the defendant objected unless the outlet of the Bosch & Hultz drain should be enlarged sufficiently to take care of the increased flow of water, and stated: [580] “Q. Would you be willing, if the outlet of the Hultz, the Bosch & Hultz drain is opened, to have your private drain made into a public one, so that Huyser and Bowens can get rid of their water? “A. Yes, sir; if they widen the Hultz drain in proportion. “Q. So as to get rid of the water? (‘A. Yes.” A study of this record is convincing that if the Southwest Blendon drain were properly cleaned out the natural flow of the waters along the highway under ordinary conditions would be taken care of, and that unless this is done the waters are forced onto the defendant’s land, where they have no sufficient outlet, which results in damage to the defendant. We agree with the circuit judge: “That the complainant has failed to establish a right by prescription to empty the water from the public drain through this culvert upon the lands of the defendant.” Under these circumstances, neither the public, nor a private individual, where waters gather through neglect to take the proper steps to cause them to flow along their natural course, can turn the waters upon the lands of another, to his damage. In Elliott v. Carter, 140 Mich. 303, 305 (103 N. W. 600), this court said: “That neither the public, in constructing highways, nor private parties for the benefit of their own lands, can turn water from its natural course onto the lands of another, is well settled. 2 Farnham on Waters & Water Rights, 960; McAskill v. Township of Hancock, 129 Mich. 74 [88 N. W. 78], 55 L. R. A. 738); Breen v. Hyde, 130 Mich. 1 [89 N. W. 732], and authorities there cited; Smith v. Township of Eaton, 138 Mich. 511 [101 N. W. 661].” The decree is affirmed, with costs to the defendant. McAlvay, C. J., and Brooke, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.