Robinson v. Belanger

332 Mich. 657 (1952) 52 N.W.2d 538

ROBINSON
v.
BELANGER.

Docket No. 55, Calendar No. 45,147.

Supreme Court of Michigan.

Decided April 7, 1952.

Clifford B. Dye, for plaintiff.

Howlett & Hartman, for defendants.

BUSHNELL, J.

Prior to October 14, 1942, defendant Leroy W. Belanger and wife, and Homer D. Kenyon and wife, owned jointly a tract of land in the township of Holly, Oakland county, Michigan. These parties divided their property by executing mutual deeds. Kenyon and wife acquired sole title to the easterly portion, and Belanger and wife obtained sole title to the westerly portion, on which is located a small lake. In August of 1947, plaintiff Arthur E. Robinson became the land contract purchaser of a part of the Kenyon land adjacent to and bounded on the north and west by the Belanger land.

When the parcel was originally divided there were about 150 to 175 feet of dry land between the westerly line of the Kenyon property and the margin of the Belanger lake. The conveyance from Belanger to Kenyon contains a reservation in perpetuity of all riparian rights in and to the waters of the lake lying to the west of the property conveyed.

Several years later the waters of the Belanger lake rose abnormally and spread over its eastern shore and onto a portion of the Kenyon land. Except for seasonal variations the lake level had remained fairly constant for over 40 years. By 1949 the level had risen 3 to 4 feet and the water had extended approximately 30 feet easterly of the westerly boundary of the Robinson and Kenyon properties to a depth of about 18 inches. This abnormal rise was due to the discontinuance of an adjacent railroad water tank pumping station and the construction of a county road along the westerly edge of the lake, which cut off the escape of water therefrom, either by seepage or otherwise.

Robinson testified that the waters of the lake were on his property at the time he purchased from Kenyon; that he kept a boat tied to a tree on his own property; and on 2 occasions was prevented by Belanger from fishing in the main body of the lake.

On June 23, 1948, Belanger began the construction of a dam embankment on his own land, beginning about 50 feet west of the southwest corner of Robinson's land. Before the embankment was completed, Robinson filed a bill seeking equitable relief and obtained a temporary injunction restraining Belanger from — "constructing any embankment or dike which confines the water of the lake hereinafter described from flowing upon the premises of the plaintiff or holds the surface water from flowing from the premises of the plaintiff into the said lake or excludes the plaintiff from the said lake, the said lake being at the west side of the following described property."

This injunction was served upon Belanger when the embankment was about three fourths completed. Belanger, nevertheless, continued his construction, and the embankment was completed 4 days later. The embankment so constructed rises from 4 to 5 feet above the lake level. It entirely separates the waters of the main body of the lake from those lying on Robinson's land.

An order to show cause was obtained because of Belanger's claimed violation of the temporary injunction, but that matter was held in abeyance until after the trial on the merits.

The trial judge determined that Robinson had no riparian or fishing rights in the main body of the lake west of his westerly boundary line; that the embankment which impounded his waters should be removed within 60 days; that Robinson should have $500 for his "temporary" damages; and that Belanger was guilty of contempt and should show cause why he should not be punished therefor.

A decree in conformity with these findings was entered on May 1, 1950. On May 8th the contempt matter was heard and Belanger was ordered to pay a fine of $250, or in default thereof, to be incarcerated until the same was paid, but not to exceed 15 days. Defendants appealed from the decree and from the sentence for contempt.

Robinson, who had asserted his right "to use the whole lake," filed a claim of cross appeal. He admitted in his brief filed here that he lost his right to do so because of his failure to file reasons and grounds for appeal. See Court Rules Nos 61, § 1, and 66, § 3 (1945); Dodge v. Blood, 299 Mich. 364, 369 (138 A.L.R. 322); and DesRoches v. McCreary, 315 Mich. 611, 617.

Robinson's argument for the removal of the embankment is based upon his contention that the dam obstructs the natural run-off of his surface waters.

"Surface waters are commonly understood to be waters on the surface of the ground, usually created by rain or snow, which are of a casual or vagrant character, following no definite course and having no substantial or permanent existence." Fenmode, Inc., v. Aetna Casualty & Surety Co., 303 Mich. 188, 192.

"The law is well settled in this State and elsewhere that the natural flowage of surface water from an upper estate is a servitude which the owner of the lower estate must bear, and he cannot hold it back by dikes or dam its natural channels of drainage to the injury of the owner of the upper estate." Crane v. Valley Land Co., 203 Mich. 353, 359.

We share the difficulty encountered by the trial judge in drawing any distinction between the waters of the lake extending onto Robinson's land and the surface water which flows into the lake. The standing lake waters do not fall within the definition of "surface waters." The present lake level appears to be permanent. Although the standing water is lake water, it also includes the accumulated flowage of surface water. It is apparent, therefore, that the embankment, which confines the water on Robinson's land, does obstruct the normal, natural flow and run-off of surface water from plaintiff's upper land.

Although in equity cases we hear the matter de novo, Kahn v. Friedman, 329 Mich. 164, we should, nevertheless, accord great weight to the findings of fact of the trial judge who not only saw and heard the witnesses, but also inspected the premises. Browne v. Winslow, 95 Mich. 441; Gillison v. Cressman, 100 Mich. 591, 597.

There is competent evidence to support the finding that the embankment interferes with the flow of surface water.

The trial judge ordered the removal of the entire embankment. Belanger contends that placing a drain or culvert in the embankment would be sufficient to remedy the situation which he created. The trial judge observed:

"The mere placing of a culvert under said embankment will not suffice. If the water in that part of the lake which is now on the plaintiff's property is to remain fresh and capable of supporting marine life as it was prior to the building of the embankment, and to be other than a stagnant pool it must be a natural part of the lake as it was prior to the building of the embankment so that the blowing of the wind to and for may prevent stagnation."

However, plaintiff's theory upon which his claim for relief was based was his right to drainage of his surface water. A culvert or cut in the embankment of sufficient size would provide that relief.

Belanger also claims that Robinson has not suffered any compensable damage by reason of the construction of the embankment. Reason v. Peters, 148 Mich. 532 and Holcomb v. Alpena Power Co., 198 Mich. 165, and authorities therein cited.

The testimony shows that the water on plaintiff's land became stagnant and that the objectionable odor of stagnant and slimy water extends over his property. Plaintiff's vendor, Keuyon, testified that the embankment was unsightly and destroyed property values. One of plaintiff's witnesses testified that he buried dead fish that were taken from the property after the embankment was built. We are not inclined to disagree with the amount of damages fixed by the trial judge.

Belanger insists that he was not guilty of contempt of court. He argues that the summons in the instant case was served after the injunction. It was held in Sullings v. Goodyear Dental Vulcanite Co., 36 Mich. 313, that: "In general a party is bound by an order for injunction of which he has notice, though no writ is taken out." He also complains about the fact that the injunction was issued by Judge Hartrick and that Judge Holland found him guilty of contempt after Judge Hartrick had held that "the injunction is good as of the date of the service of summons." The record also shows, however, that Judge Hartrick had just previously stated that he would not pass on the claimed violation of the injunction. Belanger, relying on a narrow construction of the language of the temporary injunction, argues that he did not violate any of its prohibitions.

The intent of the injunction and the situation sought to be controlled thereby must have been equally clear to all the parties. There is no question but that Belanger avowedly and contemptuously ignored the mandate of the injunction. We therefore hold that the sentence imposed upon him for such violation was proper.

In the light of our determination, it may be necessary to take additional testimony in order to ascertain the size and nature of the culvert or cut in the embankment, required to preserve Robinson's right to drainage of his surface water.

The cause, therefore, is remanded to the circuit court for such purpose and for an entry of a modified decree in the light of this opinion and for the further enforcement thereof. Costs in both courts to plaintiff.

NORTH, C.J., and DETHMERS, BUTZEL, CARR, SHARPE, BOYLES, and REID, JJ., concurred.