McDonald v. Sargent , 308 Mich. 341 ( 1944 )

A creek outlet to Brill's Lake in Jackson county crosses plaintiffs' farm. There was a dam across the creek below plaintiffs' property but it was washed away sometime between the years 1901 and 1905, and not rebuilt until 1930. Plaintiffs claim the rebuilt dam retards flowage of water in the creek, causes their low land to be saturated with spill water therefrom and rendered useless for pasturage purposes and filed the bill herein to enjoin such floodage and have damages for injuries sustained. Defendant, by answer, denied the claimed floodage by the rebuilt dam beyond that, if any, occasioned by the former dam and that, by old grants and acquired prescriptive rights, plaintiffs are without remedy. By reply, plaintiffs denied the claimed grants and averred that prescriptive right, if any, was lost by nonuser between the time the old dam went out and the new one was erected, a period of 25 years.

We find no grant of right of floodage of plaintiffs' land and the easement, if any, was only by prescription. Was such prescriptive easement lost by nonuser for 25 years between the time the old dam went out and the new dam was installed? After the old dam went out the low land of plaintiffs afforded pasture for cattle; at times the grass thereon was cut by a mowing machine and removed by a wagon driven upon the premises. No prescriptive easement was acquired after erection of the new dam. Plaintiffs' low land has been wet since construction of the new dam and has become boggy and unfit even for pasturage purposes, and such now continuous condition is attributable, in part, to water cast thereon by the new dam. At the most defendants' claimed casement, in its origin and existence under the old dam, rested upon a servitude imposed on plaintiffs' land by prescription. For 25 years plaintiffs' low land was free from exercise by defendants or their predecessors of any such servitude and, under the circumstances here disclosed, we hold that where the easement was imposed by prescription only, and not by grant or reservation in chain of title, defendants' nonuser for a period equal to that of its creation results in its loss. In some States, statutes so provide, but in Michigan there is no such statute, nor is one needed, for here we go to the common law.

This court, in cases involving easements by grant, in stating the rule relative thereto, has sometimes mentioned the rule we now apply to easements by prescription. But inasmuch as it was not necessary to decision in such cases we treat it as dicta and, therefore, consider the point here presented as of first impression in this jurisdiction.

In 17 Am. Jur. p. 1026, on the subject of Easements, it is stated:

"The cases are agreed that at least where a right of way or other easement is created by grant, deed, or reservation, no duty is thereby cast upon the owner of the dominant estate thus created to make use thereof or enjoy the same as a condition to the right to retain his interest therein; the mere nonuser of an easement will not extinguish it. In fact, it is held that even nonuser for the length of the prescriptive period does not operate to extinguish an easement created by grant, deed, or reservation. A distinction has been made, however, between easements created by grant and those created by prescription. As to easements of the latter character, it has been held that possession by the owner of the servient estate for the statutory prescriptive period will operate to extinguish the easement without showing that such possession was hostile or adverse."

Nonuser, as applied to the facts in the case at bar, is not to be confused with nonuser by claimed abandonment. Upon the subject of nonuser see 2 Thompson on Real Property (Perm. Ed.), § 702;Rhodes v. Whitehead, 27 Tex. 304 (84 Am. Dec. 631); Browne v. Trustees of Methodist Episcopal Church, 37 Md. 108; Cox v.Forrest, 60 Md. 74. We do not spend time upon the refinements indulged in some cases in construing abandonment of an easement for here we have an instance of nonuser and the intention, if any, of the dominant proprietor is not involved. If the easement by prescription is not lost by nonuser for a period of 25 years it might continue indefinitely and purchasers of the claimed servient estate, without notice, be bound thereby. Such a rule would render purchase of premises somewhat precarious and we decline to adopt it. There is nothing sacrosanct about a prescriptive easement. In this State it is no more than an unopposed, continuous trespass for 15 years. A servitude easement imposed by prescriptive user for 15 years is lost by nonuser during a like period of 15 years.

The evidence upon the question of damages is wholly unsatisfactory and we cannot, upon this record, award any damages.

The decree in the circuit court is reversed and a decree will be entered in this court permanently enjoining defendants from causing water from the creek to pass therefrom upon plaintiffs' land by reason of the dam or other obstruction. Plaintiffs will recover costs.

NORTH, C.J., and STARR, BUTZEL, BUSHNELL, SHARPE, BOYLES, and REID, JJ., concurred.