Preston v. Clark , 238 Mich. 632 ( 1927 )

I am at variance with the opinion of Mr. Justice BIRD. The mill of plaintiff Preston is five miles distant, by the stream, from the little dam erected by defendants on their own property, and the pond at Preston's mill backs water only about three-quarters of a mile. The mill of plaintiff Foltz is below Preston's. No prescriptive right of any kind obtains in this case. Defendants, by nonuser of their riparian right to erect a dam lost nothing to plaintiffs. The prescriptive right involved in Stock v. City of Hillsdale, 155 Mich. 375, was that of an upper proprietor to divert water from the stream, and manifestly does not apply to prescriptive rights acquired by a lower against an upper riparian proprietor. Suffrouw v. Brewer, 204 Mich. 370, also involved a prescriptive right to divert water from a stream. Chapel v. Smith, 80 Mich. 100, involved a prescriptive right of an upper proprietor to drain water onto a lower. The same is true of Conklin v. Boyd,46 Mich. 56, and Gregory v. Bush, 64 Mich. 37 (8 Am. St. Rep. 797). The statement in my Brother's opinion: "If plaintiffs have had an uninterrupted use of this stream for the years which the record shows, they are entitled to the continued use of it without material diminution or delay," ignores the rights of defendants as upper riparian proprietors, and adopts a rule contrary to the overwhelming weight of modern authority.

To my mind, my Brother makes no distinction between a prescriptive right by adverse user and the old and abandoned rule of first occupancy or prior appropriation. A prescriptive right may, in this jurisdiction, be acquired by adverse user, but there is no such thing recognized here as prior appropriation or first occupancy by a lower proprietor. I think the case of Dumont v. Kellogg, 29 Mich. 420 (18 Am. Rep. 102) decisive upon every question involved in this case.

In considering the question of prescriptive right, we keep in mind the fact that the mills of plaintiffs are at least five miles below defendants' land and use of the stream by plaintiffs has not in any way encroached upon or been adverse to the riparian rights of defendants. My Brother's view, as said in the Dumont Case, would grant plaintiffs a monopoly of the stream by destroying all rights of upper riparian proprietors. No such result is permissible. Lapse of time, no matter how long, can work no such result. Plaintiffs, in their use of the water, never interfered, in the slightest degree, with defendants' riparian rights. Underlying the rule of prescriptive rights rests the presumption of a grant, and in all cases the user, in order to create a prescriptive right, must be visible, continuous, and notorious, and must continue for the period required to secure, by prescription, rights in realty. SeeRickels v. Log-owners' Booming Co., 139 Mich. 111; Kennedy v.Niles Water Supply Co., 173 Mich. 474 (43 L.R.A. [N. S.] 836). The legal principles involved in the case at bar were well settled in the leading case of Hoy v. Sterrett, 2 Watts (Pa.), 327 (27 Am. Dec. 313). The question there was whether the right of Hoy to the use of the water for his mill, as he had used it for 30 years, was such that no owner of land upon the stream above would be permitted to interfere therewith by the erection of another dam, and involved the doctrine of prior occupancy and the rule of prescriptive right. The decision aptly fits the case at bar, and the reasoning is so sound as to justify liberal quotation therefrom. We, therefore, quote:

"A person erecting a mill and dam upon a stream water, does not, by the mere prior occupation, gain an exclusive right, and cannot maintain an action against a person erecting a mill and dam above his, by which the water is in part diverted, and he is in some degree injured. * * * A contrary principle would be very pernicious, particularly in a new country; for the necessary effect will be to impair the value of all the land through which the stream passes. * * * If a thing be common, there may be an appropriation by general consent or grant. Mere priority of appropriation of running water, without such consent or grant, confers no exclusive right. It is not like the case of mere occupancy, where the first occupant takes by force of his priority of occupancy. That supposes no ownership already existing, and no right to the use already acquired. But our law annexes to the riparian proprietors the right to the use in common, as an incident to the land; and whoever seeks to found an exclusive use must establish a rightful appropriation in some manner known and admitted by the law. * * *

"On this part of the case, the court was requested to charge the jury, that if the jury believed that Hoy, and those under whom he claims, have occupied and used the water for near 40 years, the jury may, and are bound by law to presume there was a grant from the owners of the tract of land above and adjoining for using it, and the plaintiff would be entitled to recover. To this the court answer, We can see nothing in this case for a presumption such as the plaintiff requires. There was no use of any part of the land held by Sterrett for the use of Hoy's mill; no overflowing of land claimed by the defendant. * * *

"This principle of presumption is introduced in analogy to the act of limitations; and to raise the presumption of a grant, the enjoyment must have been adverse; * * * Hoy built his mill on his own land, and swelled the water on his own land. Sterrett had no reason to complain of Hoy, nor was there a time when he had a right of action against him. Nor can he, with any propriety, be said to have acquiesced in the enjoyment of the water by Hoy. He cannot be said to have granted a right, about which it would have been an impertinent interference to utter a complaint. Hoy could not have been restrained by any legal process from the enjoyment of the right in the manner he had been accustomed. How can Sterrett be presumed to grant that which Hoy had a right to do independent of his grant. There is nothing unreasonable in requiring Hoy, when he erected his mill, to erect it with a view to the capacity of the stream and the rights of his neighbors. And it must be presumed he had done so, as by prior occupation alone he acquires no right. It is said the doctrine is necessary to promote peace, and it is admitted that the general principle of presumption is so; but it is also equally necessary to promote justice and fair dealing among neighbours. It amounts to this, that when the riparian owner above is unable, which is frequently the case, to improve and use the water on his own land, he must be deprived of a right incident to his land, and which may constitute its principal value. * * *

"The rights of riparian owners must be adjusted in the same manner as if each mill had been erected at the same time; lapse of time not having given any superior right to either party."

This is exactly in line with Dumont v. Kellogg, supra, and I have found no decision in this State contrary thereto. Plaintiffs have no right to monopolize this stream under the rule of prescription, for that right rests upon adverse user, and nothing of that kind ever spanned the five miles between the mills of plaintiffs and defendants' riparian rights. Early cases may be found supporting the first occupancy or prior appropriation view when exercised for the prescriptive period. Such cases, however, do not follow the common law and are not in accord with the overwhelming weight of modern authority.

In 2 Farnham on Waters, § 536, the rule, applicable here, is well stated:

"The riparian owner receives the water as it flows to him by natural right, and in so doing he does not interfere with the rights of any other owner on the stream; and he can gain no prescriptive right to have the flow continue by the fact that he has received it without interruption by the upper owner for the prescriptive period. It may be that the upper owner has had no use for the water, but the mere fact, that he had none, and did not attempt to make any use of it, cannot deprive him of any of his rights or entitle the lower owner to insist that the flow shall continue uninterrupted, in case the upper owner finds use for the water."

And also in section 537:

"In order to ripen into a prescriptive right the use must be under claim of right, and adverse."

In the case at bar there has been no diversion of the water but merely a ponding within the former bed limits of the lake. But, it is said, this has increased the area of the lake by shallow covering of its former beach and has raised the surface of the lake and thereby occasioned greater evaporation of its waters, percolation, and also interference with the flow of the springs in the bed of the lake. If defendants' dam serves in a reasonable way a useful purpose, the matters just mentioned are but incidents, accompanying every ponding of water; for all spread of water will accelerate evaporation and permit percolation, but affords no ground for an injunction or a right of action for damages, for they fall within the rule damnumabsque injuria.

The evidence shows the lake is fed by springs located on the shore above the rise of water caused by the dam, with one exception. One witness said he saw a spring in the lake, but what effect the raising of the water had on that spring was not shown. We may not assume there are other springs in the bottom of the lake, and, on such an assumption, base another to the effect that the rise of the water has decreased the flow of such springs. We think the fountain head of a spring has something to do with the vent thereof, and decline to rest an affirmative finding on an unsupported assumption of fact and a questionable theory. Defendants owned the land on both sides of the stream at the outlet from the lake and some of the lake shore and placed the dam to raise the water in the lake partly to its old level to afford spawning ground for fish, and shallow beaches for resort purposes. Such use of the water was a beneficial one to defendants, let the water come down the stream as before after the raise in the lake was once accomplished, and was a reasonable and rightful exercise of their riparian rights, so far as plaintiffs, as lower riparian proprietors, are concerned. If the upper riparian proprietors on the lake have reason to complain they have a right to their day in court but are not parties to this suit. The public authorities are not parties, and what we have said concludes no public action.

The decree in the circuit restricted the height of the dam, and defendants not having appealed, we may not lift the restraint. Plaintiffs made no case. We have had no brief for defendants, and for that reason they are not granted costs.

The decree in the circuit is affirmed.

SHARPE, C.J., and SNOW, STEERE, FELLOWS, CLARK, and McDONALD, JJ., concurred with WIEST, J.