Treat v. Pryor , 195 Mich. 102 ( 1917 )

Kuhn, C. J.

(after stating the facts). Irrespective of whether it should be said that the use of the culvert as a cattle pass can no longer be insisted upon, a reading of the record is convincing that the trial judge was right in holding that it should be maintained in the condition that it is as a waterway. The plaintiff has a right to have the water carried off from his land in the same way that it has. been carried off for 30 years or more, and the defendants have no right to retard the flow of the water by changing the conditions of the culvert or narrowing the same. We are satisfied from the evidence that the substitution of the 18-inch tubing will do this. Instances are shown when during the past 34 years the culvert was overtaxed in capacity and water backed up on the land of the plaintiff to the damage of the proprietor of the land. The civil engineers who testified — and it would not seem to need their testimony to prove — that the 18-inch tubing would not carry off the water that the pass would. Such culvert draining is generally based on maximum conditions, and not on ordinary conditions or rainfalls, and plaintiff is justified in claiming the right to have the culvert maintained as it has been for nearly 34 years, to take care, of the maximum conditions of the surface water as it has come down to the culvert during those years. Clearly the defendants. cannot adopt a new plan for carrying away the water which would set the water back upon the plaintiff’s land or retard the escape of the water therefrom. That such would result from the substitution of 18-inch tubing is, as has been said, in our opinion a legitimate conclusion from the evidence in this record.

The decree of the court below is therefore affirmed, with costs to plaintiff.

. Stone, Ostrander, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred..