Citation Numbers: 55 Mich. 158
Judges: Other, Sherwood
Filed Date: 10/22/1884
Status: Precedential
Modified Date: 9/8/2022
The plaintiff and defendant owned adjoining lands in the township of Berry, in the county of Shiawassee, and the plaintiff brought suit against the defendant for obstructing a natural water-course, and thereby overflowing his lands and injuring his crops. The suit was discontinued on the 16th day of December, 1881, and the parties entered into an agreement to construct a covered ditch or drain for the purpose of carrying off the accumulation of water from the plaintiff’s land, the west half of which was to be constructed and maintained by the defendant, and the east half by the plaintiff. One David D. Dunning, who was interested in having the drain constructed, also joined in the contract and agreed to build the east one-third of the defendant’s half of the same. (See contract in margin.
The defendant claimed he had given no right to open the outlet below the drain, and under the contract it was no'part of his duty to enlarge it. In this he was mistaken. He had agreed to construct the west half, and whatever was necessary to the fulfillment of his contract he was required to do. He failed and neglected to do this, and the plaintiff was therefore left to seek his redress upon the contract. This he has done, and now asks that he may recover his damages against the defendant for the injury stated in this suit. It was first tried in_ justice’s court, and the plaintiff recovered $50. On appeal to the circuit court, where the cause was tried by jury, the plaintiff again recovered.
We have examined the record carefully, and the charge given by Judge Newton in the case, and have failed to discover any error. Under proper instructions from the court, and upon proper testimony, the jury found that the defendant obstructed the natural course of the water in the stream in such manner as to occasion the injury complained of, by failing to perform his contract. They have also found the amount of damages sustained by the plaintiff, and we cannot disturb their verdict.
The judgment must be affirmed with costs.
This agreement, made and entered into this sixteenth day of December, 1881, by and between Homer B. Dunning, of the township of Perry, county of Shiawassee and State of Michigan, of the first part, and William S. Britten, of the same place, of the second part, witnesseth as follows: Whereas, the said first party is the owner in fee of the southeast quarter of section twenty-seven and the second party owns the north half of southwest quarter of section twenty-six, both in township five north, of range two east; and whereas, a suit is now ponding and undetermined between said parties for damages which said second party alleges he has sustained
And I, David D. Dunning, hereby agree, for value received, to build and maintain one-third on the east end of the west half of said box ditch, and also to pay Mr. Mason, for locating said ditch, said proportion of the expenses for locating the same, and do said work within the time above specified, and as above mentioned. The grade of the ditch from the sewer or box drain to be the same as that of the sewer, and the grade of the sewer to be the same as the natural grade of the improved land of first party through which the ditch passes.
In witness whereof we have hereunto set our hands and seals the day and date first above written.
Homer B. Dunning. [Seal.]
his
William X S. Britten. [Seal.] mark.
David D. Dunning, [Seal.]
In presence of
Hugh McCurdy.
W. II. Kilpatrick.