Harris v. Boutwell , 156 Mich. 455 ( 1909 )

Grant, J.

(after stating the facts). The land through which the Looking-Glass river runs is low with occasional elevations, on one of which the complainant’s farm buildings are situated. The Looking-Glass river drain is virtually a widening and deepening of the bed of the river, with an occasional cut for the purpose of straightening and increasing the rapidity of the flow. It is a natural stream. The fact that proceedings were taken under the statute to make it a drain does not affect the right of the public or of parties owning lands along it. Abutting owners have a right to drain land into Looking-Glass river drain (Treat v. Bates, 27 Mich. 390; Waffle v. Railroad Co., 53 N. Y. 11), but they cannot deepen the channel of a stream, serving as an outlet for a lake, to the damage of the lower owners (Kauffman v. Griesemer, 26 Pa. 407; Hyatt v. Albro, 121 Mich. 638).

Some of the complainant’s land in times of high water is usually flooded. To what extent this drain will add to that flood so as to injuriously affect complainant’s land is not clear. Except in times of high water, the Looking-Glass river drain would afford a sufficient outlet. The circuit judge evidently found that the additional flow of water caused by the Hemingway lake drain was not sufficient to injuriously affect her land, and must also have found that the drain was necessary for the public health. The circuit judge filed no opinion. Upon a careful review of the evidence, we conclude that in times of high water the proposed drain does cast an additional quantity of water upon complainant’s land. This court has said:

“ Where a drain has once been legally made, there is at least a presumption that, if necessary at all, it should be kept in reasonable order.” Barker v. Township of Vernon, 63 Mich. 516.

See, also, Sturm v. Kelly, 120 Mich. 685. No steps apparently have been taken to clean out the Looking-Glass river drain, which, as constructed, carried off the water more rapidly than did the original river.

After the parties had rested, the complainant, with her solicitor, and the defendant, without the presence of, his solicitor, entered into a written stipulation of settlement by which it was agreed that the defendant should be restrained from proceeding with the construction of the Hemingway lake drain until the Looking-Glass river drain was widened and deepened and made a sufficient outlet; that the complainant was to pay $35, the commissioner’s expense in laying out the Hemingway lake drain, and that each party should pay their own costs. The others owning lands along the Looking-Glass river drain, and claiming that they would be injuriously affected by the construction of the Hemingway lake drain, had combined to assist the complainant and bear the proportionate share of the expense of the suit. The defendant represented those who were interested in the construction of the Hemingway lake drain. This stipulation was subsequently brought to the attention of the court, and testimony taken in regard to it. The defendant and those he represented appear to have been satisfied with the settlement, provided it was legal. Evidence was introduced showing the circumstances under which it was made. The court refused to ratify the stipulation until it was signed by all the parties interested in the drain, holding that it was not binding until it was so signed. Both parties in this court ignore this stipulation, and have treated it as of no effect. We therefore have not the benefit of an argument upon it, and should not decide its validity without calling for additional briefs. We will therefore dispose of the case without determining the validity of the stipulation.

The' necessity of cleaning out the Looking-Glass river drain is apparent. The burden of taking steps to clean out that drain should not be cast upon the complainant. We think she is entitled to a decree restraining the construction of the Hemingway lake drain until the Looking-Glass river drain is cleaned out to its original depth and width, and that when this is done the defendant may proceed with the construction of the Hemingway lake drain.

A decree will be so entered. Under the circumstances, no costs will be allowed to either party in this court or in the court below.

Montgomery, Ostrander, Hooker, and Moore, JJ., concurred.