Title: Water Law in Michigan
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Title: Water Law in Michigan
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Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Richard Hamann's Collections - Water Law in Michigan
General Note: Box 12, Folder 10 ( Water Resources and The Law - 1958 ), Item 12
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Full Text









WATER LAW IN MICHIGAN

Theodore E. Lauer, in collaboration with
Dominic B. King and Wilbert L. Ziegler


TABLE OF CONTENTS

Page

I. INTRODUCTION .................... .425
II. SURFACE WATERS. .................. 426
A. Riparian Ownership ... ... . .. 426
1. What Land Is Riparian . . .... 426
2. Interest Required for Individual to Exercise
Riparian Rights ................. 430
3. Ownership of Land Underlying Waters ...... 432
4. Effect of Natural Modification of the Shoreline 439
B. Use of Surface Water ................ 440
1. Consumptive Use ................. 440
a. Reasonable Use Doctrine . . 440
b. Application of the Reasonable Use Test. . 442
c. Domestic Use ................. 443
d. Municipal Use. .................445
e. Prescriptive Rights to Consumptive Use of
Water. . . . . . 450
f. Remedies Against Wrongful Use . .... 453
2. Pollution . . . .... 455
a. Application of Reasonable Use Doctrine .. 456
b. Pollution as a Private or Public Nuisance 458
c. Remedies for Unreasonable Pollution . 459
d. Prescriptive Rights to Pollute . ... 461
e. State and Local Control of Pollution . .. 462
3. Detention . . . . . 465
4. Navigation, Hunting, and Fishing . ... .470
a. Waters Subject to Public Navigation . .. .470
b. Incidents of the Right to Navigation. . ... 474
c. Relative Rights of Navigator and Riparian. 476
d. State Control and Regulation . .... 479
e. Improvement of Navigable Waters ...... 482
f. Fishing, Hunting, and Trapping. . ... 486
423








WATER RESOURCES


TABLE OF CONTENTS cont'd

Page

C. Drainage of Surface Waters. . . ... 490
1. Wrongful Interference with the Existing Drainage
Pattern . . . . . 491
a. The Nature of Wrongful Interference . .. 492


(i) Streams and Lakes . . .
(a) Obstructions Impeding Flow from Upper
Lands . . . .
(b) Injury Caused by Release of Impounded
Waters or by Casting Additional Waters
into Stream . . . .
(ii) Artificial Watercourses . . .
(iii) Diffused Surface Waters . . .
b. Remedies Available to the Injured Party .
(i) Damages . . . . .
(ii) Injunctive Relief . . . .
(iii) Self-Help . . . . .
2. Rights Constituting the Existing Drainage Pattern .
a. "Natural" Rights ................
b. Rights Acquired by Grant or Lease . .
c. Rights Acquired by Condemnation . .
d. Rights Acquired by Prescription . .
e. Rights Acquired by "Estoppel" . . .
f. Rights Originating Through Judicial Declaration
of "Public Policy". . . . .


III. GROUND WATER ....................
A. Consumptive Use of Ground Water . . .
B. Pollution of Ground Water . . . .


492

492


496
498
502
505
505
508
511
512
513
514
515
517
521

522

522
523
528


IV. CONCLUSION ................... ...530













WATER LAW IN MICHIGAN


Theodore E. Lauer,* in collaboration with
Dominic B. King** and Wilbert L. Ziegler***


I. INTRODUCTION
Paradoxically, Michigan-the Water Wonderland-is on the verge
of a water crisis. Increased population, industrial expansion, the
growth of supplemental irrigation, and recreational development are
continually imposing greater demands upon the water resources of
the state. Fortunately, Michigan is well endowed with water, and
the problems which face the state are not caused by a general
scarcity of water or by drought conditions. But although the state
as a whole possesses an abundant supply of water, local shortages
are becoming evident, caused by a concentration of demands for new
or enlarged uses of water in specific areas of the state. Basically,
the solution for the problems of these affected areas is twofold: the
Development of new water supplies and the modification of the exist-
ing law to insure optimum utilization of available supplies. New
water developments and improvements in the law must wait until the
people of Michigan become fully apprised of the nature of the water
problem confronting them; in the meantime, the existing law must
furnish the basis for resolving controversies involving water use.
As shortages become more crucial, increased litigation concerning
the rights of competing water users can be expected. In view of
this impending course of events, it is highly appropriate at this
time to review the law in Michigan governing consumptive use, di-
version, pollution, and drainage of water, and also uses of water
for the purpose of navigation and recreation.
This study consists of an analysis of Michigan statutes and de-
cisions of the Michigan Supreme'Court relating to all phases of

*Legislative Analyst, Legislative Research Center, University of
Michigan Law School. Member of Missouri Bar. B.A., Millikin
University, 1953; LL.B., Washington University, 1956.
**Legislative Analyst, Legislative Research Center, University of
Michigan Law School. Member of Montana Bar. B.A., Montana
State University, 1951; LL.B., Montana State University, 1952.
***Legislative Analyst, Legislative Research Center, University of
Michigan Law School. Member of Ohio and Kentucky Bars. A.B.,
Villa Madonna College, 1953; LL.B., Cincinnati, 1956.








WATER RESOURCES


water use, both consumptive and nonconsumptive. Its major pur-
pose is to provide an understanding of the legal principles which con-
stitute the foundation upon which present water use disputes in Michi-
gan must be decided, and, more importantly, upon which future de-
velopment of water supplies and modification of the water law must
be based.

II. SURFACE WATERS
A. Riparian Ownership
The use of any body of water depends upon gaining access to
the water. Land adjoining streams and lakes clearly has a favored
natural position which enables persons owning or in possession of
this land to have ready access to the water. The ownership of lands
adjoining streams and lakes is known in the law as "riparian" owner-
ship, the word riparian originating in the latin "ripa" which means
the bank of a river or stream. 1
So important has the law considered the matter of access to
water to be, that in most states, 2 including Michigan,3 many of the
uses to which streams and lakes may be put are treated as enjoya-
ble exclusively by riparian owners. Therefore, it can safely be as-
serted that the concept of riparian ownership underlies much of the
use of the waters of streams and lakes in Michigan. To under-
stand existing lawful uses of these bodies of water it is essential to
comprehend the nature and constituent elements of riparian owner-
ship. This comprehension involves consideration of what land is ri-
parian and the interest in this land one must have in order to make
uses of adjoining bodies of water. -Also closely connected with the
question of riparian ownership is the ownership of land underlying
bodies of water and the effect upon riparian ownership of natural
modifications in the shoreline caused by the shifting of the channel
or bed of a body of water.
1. What Land Is Riparian
The Michigan courts4 have adopted the general definition of ri-
parian land, or land to which riparian rights attach, as land
1. 3 Bouvier, Law Dictionary 2964 (Itawle's 3d revision 1914).
2. VI-A American Law of Property 26.55 (1954). Some 19 states, pre-
dominantly western, have adopted the "prior appropriation" system of
water rights at least in part. Under this system riparian owners do
not have exclusive rights to the use of water.
3. See, e.g., Hilt v. Weber, 252 Mich. 198, 233 N.W. 159 (1930).
4. See, e.g., Palmer v. Dodd, 64 Mich. 474, 31 N.W. 209 (1887); Stark
v. Miller, 113 Mich. 465, 71 N.W. 876 (1897); Monroe Carp Pond Co.
v. River Raisin Paper Co., 240 Mich. 279, 215 N.W. 325 (1927); Hilt
v. Weber, supra note 3.








AND THE LAW


touching a stream or lake and in contact with its waters. 5 Two
concepts are included in this definition: (1) that of a body of water
in the form of a stream or lake and (2) that of land contiguous and
adjoining thereto.
In regard to the first concept, the Michigan Supreme Court has
defined a stream or watercourse as:

A natural stream of water fed from permanent or periodical
natural sources and usually flowing in a particular direction
in a defined channel, having a bed and banks or sides, and
usually discharging itself into some other stream or body of
water. 6

Thus, surface water from intermittent rains and melting snow which
runs through a ravine without a defined bed or channel can give rise
to no riparian rights, since it does not constitute a stream.5 On
the other hand, when the flow from several springs runs regularly
through a ravine, the added element of "living water" makes this a
watercourse, and riparian rights will attach to the land contiguous
and adjoining thereto. 8 Likewise, land bordering a lake or pond is
riparian, as it is not essential that a body of water have a current
to give rise to riparian rights. 9
Whether land contiguous to and adjoining an artificial water-
course or lake is riparian has not been decided with finality in Mich-
igan. The issue has never arisen directly, although several cases

5. 1 Farnham, Waters and Water Rights 62 (1904); 1 Wiel, Water Rights
in the Western States 768 (3d ed. 1911). Although strictly "riparian"
rights relate only to streams and the proper term for rights appertain-
ing to land ownership adjacent to lakes is "littoral" rights, nevertheless
the term "riparian" is generally used to embrace both rights as to
streams and as to lakes.
6. Grand Rapids & I.R. Co. v. Round, 220 Mich. 475, 478, 190 N.W. 248
(1922), adopting the definition found in Black, Law Dictionary 1223
(2d ed. 1910).
7. Gregory v. Bush, 64 Mich. 37, 31 N.W. 90 (1887).
8. Hilliker v. Coleman, 73 Mich. 170, 41 N.W. 219 (1889). In Rummell
v. Lamb, 100 Mich. 424, 59 N.W. 167 (1894), where water from a
flowing well ran into a township ditch dug along the course of a former
ravine or a small stream, the element of "living water" led the court
to declare the ditch a watercourse.
9. See, e.g., Richardson v. Prentiss, 48 Mich. 88, 11 N.W. 819 (1882).
In Turner v. Holland, 65 Mich. 453, 466, 33 N.W. 283 (1887), the
court said:
Water may be navigable water without a current, and it
might not be with. Neither is a current essential to
the existence of riparian rights. They may exist in
lakes or ponds where there is no current, and they
may exist where the waters are not capable of navigation.








WATER RESOURCES


have dealt with aspects of the problem. In Freeman v. Weeks, 10
which dealt with the obstruction of an artificial ditch dug and main-
tained by common consent of the landowners in the neighborhood,
Justice Cooley observed that such a ditch "ought to be governed by
the same rules that apply to other water-courses,"11 but did not
discuss riparian ownership in particular. Also, a person owning
the bed of an artificial pond has the same right to take ice from the
pond as does one owning the bed of a natural pond. 12 Further,
aside from the existence of riparian rights "ab initio" upon artificial
waters, it would appear that the mere exercise of riparian rights on
an artificial body of water will not of itself ripen into a prescrip-
tive right to have the body of water maintained, 13 although it is
clear that upon a natural body of water sufficient adverse use will
give rise to a prescriptive right. 14
The second concept contained in the definition of riparian land
is land contiguous to and adjoining a stream or lake. The Michigan
Supreme Court has declared that "riparian land must be in actual
contact with the water."15 By "actual contact" is meant such con-
tact as permits access to the water without a trespass upon the land
of another. 16 This contact must be natural and cannot be brought
about in an artificial manner, as by the digging of a ditch17 or the
trampling of cattle which lowers the bank and permits water to flow
onto land previously dry. 18 This rule is in accord with the com-
mon law which has its basis in the notion that riparian benefits are
conferred by the juree naturae" rather than by the workings of man.19
Some courts in other states than Michigan have held that two
additional criteria exist for determining whether land is riparian.
Under their decisions, for land to be riparian to a stream or lake
10. 45 Mich. 335, 7 N.W. 904 (1881). But cf. Berry v. Tinsman, 108
Mich. 672, 66 N.W. 579 (1896).
11. Freeman v. Weeks, 45 Mich. 335, 336-37, 7 N.W. 904 (1881).
12. Lorman v. Benson, 8 Mich. 18 (1860); Bigelow v. Shaw, 65 Mich. 341,
32 N.W. 800 (1887); Pere Marquette Ry. Co. v. Siegle, 260 Mich. 89,
244 N.W. 239 (1932).
13. Goodrich v. McMillan, 217 Mich. 630, 187 N.W. 368 (1922). For a
discussion of the aspects of this case dealing with reciprocal prescrip-
tive rights, see infra.
14. See, e.g., Kennedy v. Niles Water Supply Co., 173 Mich. 474, 139
N.W. 241 (1913); Suffrouw v. Brewer, 204 Mich. 370, 169 N.W. 841
(1918); Preston v. Clark, 238 Mich. 632, 214 N.W. 226 -(1927).
15. Monroe Carp Pond Co. v. River Raisen Paper Co., supra note 4 at
287.
16. Manney v. Prouse, 248 Mich. 655, 227 N.W. 685 (1929).
17. Ruggles v. Dandison, 284 Mich. 338, 279 N.W. 851 (1938).
18. Ibid.
19. Gould, Waters 148 (3d ed. 1900).








SAND THE LAW


it must be within the watershed of the stream or lake. 20 Thus any
part of a riparian plot of land which extends beyond the watershed
will not be considered riparian. A second criterion is that riparian
land is limited to the smallest riparian parcel in the chain of title.21
By this criterion, if a riparian plot is divided so that part becomes
non-riparian, the non-riparian part loses its riparian characteristics
in perpetuity. Subsequent rejoining of the non-riparian parcel to the
riparian portion does not restore riparian rights to the restored par-
cel of land. The Michigan Supreme Court, 'however, has not been
confronted with either contention, and it is uncertain whether these
additional criteria would be adopted for Michigan.
Some question has been raised, historically speaking, as to the
effect of meander lines upon whether a particular piece of land is
riparian. Meander lines originally were drawn by surveyors in
measuring public lands bordering upon navigable waters. In the
words of the United States Supreme Court:

Meander lines are run in surveying fractional portions of the
public lands bordering upon navigable rivers, not as boundaries
of the tract, but for the purpose of defining the sinuousities of
the banks of the stream, and as the means of ascertaining the
quantity of land in the fraction subject to sale, and which is
to be paid for by the purchaser.22

This measurement was necessary because the beds of navigable wa-
ters were not lands for sale to the public, but rather were re-
served in the federal government to be turned over to the particular
state upon its admission to the Union. 23 Apparently, however, me-
ander lines were usually drawn so as to leave a fairly sizable
amount of land between the line and the body of water; thus, if the
meander line were considered to be the property line, lands platted
by federal surveyors as adjacent to navigable waters were not ri-
parian because they were not in actual contact with the water.
On navigable streams and inland lakes where title to the beds
was vested in the riparian owner by state law, the Michigan Su-
preme Court has always recognized that the meander line has no ef-
fect as a boundary. 24 On the other hand, meander lines on the
20. See, e.g., VI-A American Law of Property 28.55 (1954); 2 Farnham,
Waters and Water Rights 463a (1904).
21. See, e.g., VI-A American Law of Property 28.55 (1954).
22. St. Paul & P.R. Co. v. Schurmeir, 74 U.S. (7 Wall.) 272, 286-87
(1868).
23. Barney v. Keokuk, 94 U.S. 324 (1876); United States v. Oregon, 295
U.S. 1, 55 S.Ct. 610 (1935).
24. Pere Marquette Boom Co. v. Adams, 44 Mich. 403, 6 N.W. 857
(1880); Arnold v. Brechtel, 174 Mich. 147, 140 N.W. 610 (1913);
Porter v. Selleck, 236 Mich.' 655, 211 N.W. 261 (1926). Conversely,








WATER RESOURCES


Great Lakes whose beds were retained by the state of Michigan,
were early held to denote the boundary of private ownership;Z the
land between the meander line and the water was said to be held in
trust for the public by the state. 26 This determination, however,
raised serious questions as to whether private lands which ostensi-
bly bordered on the Great Lakes were actually riparian, since they
were- not in contact with the water. In the 1930 case of Hilt v.
Weber,27 the Michigan Supreme Court resolved the matter by re-
versing its earlier decisions on the point and holding that private
lands on the Great Lakes extended to the water's edge and did not
terminate at the meander line. This decision put Michigan in har-
mony with the holdings in other states as to the effect of meander
lines upon private ownership.
2. Interest Required for Individual to Exercise Riparian Rights
Beginning with the premise that riparian rights are an incident
of riparian land, it follows that persons without any interest in ri-
parian lands cannot lawfully exercise riparian rights. The question
remains, however, as to what interest in riparian lands a person
must have before he can lawfully exercise riparian rights in the
body of water adjacent and contiguous thereto. Although it is rare-
ly, if ever, stated expressly, nevertheless it appears certain from
Michigan case law that one owning a freehold interest in riparian
land may exercise riparian rights in the waters adjacent thereto
without interference from other riparians. 28 Similarly, the holder
of a leasehold interest may lawfully exercise riparian rights. 29 On
the other hand, an easement of passage, such as a public highway,
which merely runs along the bank of a waterway, does not allow
holders or users of the easement to exercise riparian rights from


Footnote continued
it has been held that meander line is not to be considered as the edge
of the water in determining whether a particular piece of land is in
contact with the water's edge. Palmer v. Dodd, supra note 4; Stark
v. Miller, supra note 4.
25. Kavanaugh v. Baird, 241 Mich. 240, 217 N.W. 2 (1928); Staub v. Tripp,
248 Mich. 45, 226 N.W. 667 (1929); Kavanaugh v. Rabior, 222 Mich.
68, 192 N.W. 623 (1923).
26. Ibid.
27. 252 Mich. 198, 233 N.W. 159 (1930). Subsequently, the Michigan
Supreme Court reversed two of the earlier decisions on rehearing.
Kavanaugh v. Baird, 253 Mich. 631, 235 N.W. 871 (1931); Staub v.
Tripp, 253 Mich. 633, 235 N.W. 844 (1931).
28. Cf. Hilt v. Weber, supra note 3 at 218, 225.
29. Cf. Swartz v. Sherston, 299 Mich. 423, 300 N.W. 148 (1941).








AND THE LAW 431

the right-of-way30 unless its purpose is clearly to give these per-
sons access to the water. 31
SA further problem is raised when there has been a conveyance
of riparian rights separate from the riparian land. As between
grantor and grantee, these conveyances will clearly be given full ef-
feet without regard to their particular nature. 32 Where the exer-
cise of a severed riparian right is challenged by another person
owning lands riparian to the same body of water, however, whether
the courts will uphold the grantee's exercise seems to depend upon
the kind of right involved. Where the right is exclusively in the ri-
parian owner, as is one dependent upon ownership of the bed of the
water, the exercise of the right by a grantee will not be vulnerable
to attack by other riparians. Thus, the Michigan courts have ap-
proved transfers of the right to take ice from waters whose bed the
riparian grantor owned, 33 the right to hunt game and wildfowl upon
submerged lands, 34 and impliedly the right to boat and swim. 35 In
the exercise of these rights by a grantee, other riparians will not
be heard to complain, since their exercise in no way affects the en-
joyment of the other riparians' rights. On the other hand, it seems
to be the general rule, although Michigan has not as yet decided the
point, that where the right transferred is one held in common with
other riparians, as a right to make a consumptive use of the water
or to pollute the waters, either of which has a substantial potential
harmful effect upon other riparians, the exercise of such a right by
a grantee may be attacked by a riparian who would be adversely af-
fected thereby. 36
30. Bainton v. Clark Equipment Co., 210 Mich. 602, 178 N.W. 51 (1920);
Putnam v. Kinney, 248 Mich. 410, 227 N.W. 741 (1929); Cf. Winans
v. Willetts, 197 Mich. 512, 163 N.W. 993 (1917). In Meridian Town-
ship v. Palmer, 279 Mich. 586, 273 N.W. 277 (1937), where a high-
way ran along a navigable lake, it was held that the easement-holding
public gained no right in lands formed by accretion between the right-
of-way and the lake as such new lands belonged to the riparian whose
lands were subject to the easement. Therefore, the riparian owner
could rightfully erect a fence and prevent persons from entering the
waters of the lake from the road, since to do so they necessarily
trespassed over the lands formed by the accretions.
31. Backus v. City of Detroit, 49 Mich. 110, 13 N.W. 380 (1882).
32. Cf. Hall v. City of lonia, 38 Mich 493 (1878).
33. Oliver v. Olmstead, 112 Mich. 483, 70 N.W. 1036 (1897).
34. St. Helen Shooting Club v. Mogle, 234 Mich. 60, 207 N.W. 915 (1926).
In Pleasant Lake Hills Corp. v. Eppinger, 235 Mich. 174 at 178-79,
209 N.W. 152 (1926), the St. Helen case was held to have settled that
"one may convey riparian rights separate from the fee."
35. Swartz v. Sherston, supra note 29.
36. 3 Tiffany, Real Property 725 (3d ed. 1939).








432 WATER RESOURCES

Of like nature is the reservation of one or more riparian rights
by one granting riparian lands. The validity of a reservation of a
right of this nature would appear founded upon the same basis as
that of a conveyance in gross of a similar right severed from ri-
parian lands. There has not been, however, any Michigan case in-
volving the validity of a reservation of riparian rights by a grantor.
3. Ownership of Land Underlying Waters
The Michigan doctrine concerning ownership of the bed of waters
traces its origin to early English law, where title to the bed of non-
tidal waters was held by the owner of the adjacent riparian land, 37
but the crown was deemed to own the bed of all tidewaters. 38 The
English distinction between tidal and non-tidal waters, however, has
been modified by most American courts, including the Michigan
courts, to a distinction between navigable and non-navigable waters.39
The Michigan Supreme Court, consistent with the English rule as
modified, held early in, the state's history that title to the bed of
non-navigable waters is in the owner of the adjacent riparian land40
As to navigable waters, the United States Supreme Court has
held that after the Revolutionary War the title to the beds of all
navigable waters was vested in the states in which such waters were
located. 41 The court further took the position that whether the in-
dividual states chose to retain title to the bed of these navigable
waters, or allowed them to vest in riparian owners, was solely a
matter for determination by state law. 42 It was said that if the
states "choose to resign to the riparian proprietor rights which
properly belong to them in their sovereign capacity, it is not for
others to raise objections. "43 Very recently Congress has reaf-
firmed state ownership, and titles derived from state ownership, of
the beds of all navigable waters within the boundaries of each stat44
37. See Gould, Waters 46-53 (3d ed. 1900).
38. Id. at 3.
39. 2 Tiffany, Real Property 661 (3d ed. 1939).
40. Norris v. Hill, 1 Mich. 202 (1849); Hartz v. Detroit, P.&N. Ry., 153
Mich. 337, 116 N.W. 1084 (1908). Cf. Clark v. Campau, 19 Mich.
325 (1869); People v. Grand Rapids-Muskegon Power Co., 164 Mich.
121, 129 N.W. 211 (1910); Bauman v. Barendregt, 251 Mich. 67,
231 N.W. 70 (1930); Ottawa Shores Assn. v. Lechlak, 344 Mich. 366
73 N.W. 2d 840 (1955).
41. Martin v. Waddell, 16 Pet. 367 (1842).
42. Barney v. Keokuk, supra note 23.
43. Id. at 338.
44. Submerged Lands Act of 1953, 43 U.S.C.A. 1301-1315. This act
was passed primarily to nullify the determination of the Supreme Court
in the so-called "Tidelands Cases" that the title to the beds of the mar-
ginal seas was in the federal government rather than in the adjacent








AND THE LAW


Since the boundary of Michigan extends to the center of Lake Michi-
gan and to the Canadian boundary in Lakes Erie, Huron, and Su-
perior, 45 the ownership of a considerable portion of the beds of the
Great Lakes is subject to Michigan law.
The Michigan law regarding the ownership of the bed of naviga-
ble waters has developed along two distinct lines, one dealing with
the bed of inland navigable streams and lakes and the other involv-
ing the bed of the Great Lakes. The earliest pronouncement in
Michigan as to whether the title to the bed of a navigable stream is
in the state or in the riparian owner was made in the 1843 chancery
case of La Plaisance Bay Harbor Co. v. City of Monroe,46 where
Chancellor Manning held that the "bed of the stream is public prop-
erty and belongs to the State."47 When, however, seventeen years
later, the Michigan Supreme Court was presented with the same
question in Lorman v. Benson,48 the court made no mention of the
La Plaisance case, but held that the bed of a navigable stream is
owned by the riparian to the center thread thereof. The reasoning
of the court in the Lorman case was that ownership of the bed by
the riparian is not inconsistent with the public right of navigation,
and that the most beneficial use of the bed requires that its owner-
ship be vested in the riparian owner, who has immediate access
thereto. 49 As is the 'case with streams, the riparian owner on
Footnote continued
states. See United States v. California, 322 U.S. 19, 67 S. Ct.
1658 (1947), reh. den., 332 U.S. 787, 68 S.Ct. 37 (1947); United
States v. Louisiana, 339 U.S. 699, 70 S.Ct. 914 (1950); United States
v. Texas, 339 U.S. 707, 70 S.Ct. 918 (1950). These decisions were
felt by many persons to leave in doubt the ownership of all lands
underlying navigable waters, particularly those of the Great Lakes; in
part, the Submerged Lands Act was meant to terminate this doubt. A
subsequent attempt by Alabama and Rhode Island to challenge the
constitutionality of the Submerged Lands Act was unsuccessful. Ala-
bama v. Texas, 347 U.S. 272, 74 S.Ct. 481 (1954), reh. den., 347
U.S. 950, 74 S.Ct. 674 (1954).
45. Act of June 15, 1836, 2, 5 Stat. 49.
46. Walk. Ch. 155 (Mich. 1843).
47. Id. at 168.
48. 8 Mich. 18 (1860). For cases following Lorman v. Benson, see e.g.,
Ryan v. Brown, 18 Mich. 196 (1869); Fletcher v. Thunder Bay River
Boom Co., 51 Mich. 277, 16 N.W. 645 (1883); Butler v. Grand
Rapids & I.R. Co. 85 Mich. 246, 48 N.W. 569 (1891); Goff v. Cougle,
118 Mich. 307, 76 N.W. 489 (1898); People v. Grand Rapids-Muske-
gon Power Co., supra note 40; Ottawa Shores Assn. v. Lechlak,
supra note 40. Cf. Watson v. Peters, 26 Mich. 508 (1873); Sewers
v. Hacklander, 219 Mich. 143, 188 N.W. 547 (1922).
49. Some states, on the other hand, have denied the riparian owner title
to the bed of navigable streams on the theory that such ownership is
best placed in the state for the preservation of public rights. See,








WATER RESOURCES


inland navigable lakes owns the bed of the lake to the center line or
midpoint thereof. 50 Similarly, it is the rule in Michigan that the
riparian takes title to any lands which are located in that portion of
the bed owned by him. 51
The rule in Michigan that the riparian proprietor on inland wa-
ters owns the bed "usque ad filum aquae," or to the center or
"thread" of the channel, 2 is a maxim of more theoretical beauty
than practical use. The irregularity of shorelines coupled with the
varied angles at which property lines strike the edge of the water
presents serious problems for the courts when they are called upon
to determine the extent of a particular riparian's underwater owner-
ship. Although it has been stated in regard to inland lakes that no
fixed rule for the apportionment of the bed can be laid down, but
that each case must depend upon its own particular circumstances,53
in regard to streams it is possible to deduce a rule from the cases
as to the apportionment of the bed. The boundary between the
underwater lands of adjoining riparians on streams is determined by
"lines drawn at right angles with the thread of the stream, protract-
ed until they reach the ends of the shore line. "54 Where possible,
Footnote continued
e.g., Flanagan v. Philadelphia, 42 Pa. 219 (1862); Ravenswood v.
Fleming, 22 W. Va. 52 (1883). See also 1 Farnham, Waters and
Water Rights 253 (1904).
50. Grand Rapids Ice & Coal Co. v. South Grand Rapids Ice & Coal Co.,
102 Mich. 227, 60 N.W. 681 (1894); Fuller v. Bilz, 161 Mich. 589,
126 Mich. 712 (1910). Cf. Rice v. Ruddiman, 10 Mich. 125 (1862);
Webber v. Pere Marquette Boom Co., 62 Mich. 626, 30 N.W. 469
(1886); Clute v. Fisher, 65 Mich. 48, 31 N.W. 614 (1887); Putnam
v. Kinney, supra note 30; Ottawa Shores Assn. v. Lechlak, supra
note 40.
51. Grand Rapids & I.R. Co. v. Butler, 159 U.S. 87, 15 S.Ct. 91
(1895), affirming 85 Mich. 246, 48 N. W. 569 (1891); Fletcher v. Thunder
Bay River Boom Co., supra note 48; Goff v. Cougle, supra note 48;
Church v. Case, 122 Mich. 554, 81 N.W. 334 (1899). Cf. Webber v.
Pere Marquette Boom Co., supra note 50.
52. Although the term "thread of the channel" seems to indicate that part
of the channel through which the most water flows, rather than any
strict geographical center of a watercourse determined by a series of
points equidistant from the opposite edge of the water, the Michigan
law seems to be that the riparian owns to the geographical center of
the body of water. See, e.g., Grand Rapids Ice & Coal Co. v. South
Grand Rapids Ice & Coal Co., supra note 50, Ottawa Shores Assn. v.
Lechlak, supra note 40.
53. Pittsburgh & L.A. Iron Co. v. Lake Superior Iron Co., 118 Mich.
109, 76 N.W. 395 (1898). See Blodgett & Davis Lumber Co. v.
Peters, 87 Mich. 498, 49 N.W. 917 (1891), as an example of the
difficulty of ascertaining ownership of the land underlying a bay.
54. Clark v. Campau, supra note 40 at 328. See also Bay City Gas-
Light Co. v. Industrial Works, 28 Mich. 182 (1873); Campau Realty
Co. v. City of Detroit, 162 Mich. 243, 127 N.W. 365 (1910).


__








AND THE LAW


this rule is also applied to determine the extent of ownership of
land beneath inland lakes. 55
The goal in any determination of underwater ownership is to
secure an equitable distribution of the bed in relation to the amount
of shore line owned by a particular riparian. 56 The rule adopted
by the Michigan courts, set forth above, has furnished a satisfac-
tory means of obtaining this equitable distribution in most cases, al-
though at times it has been necessary to deviate from this rule to
secure a satisfactory result in cases Involving unusual fact pat-
terns. 57 The Michigan Supreme Court's awareness of the problems
involved in any apportionment of the bed of waterways has prompted
it to avoid apportioning underwater land whenever an alternative so-
lution is possible. Thus, on inland lakes, the court has refrained
from dividing the bed between riparian owners in cases involving
boating and fishing, and has ruled that any riparian may use the en-
tire area of the lake for such purposes, without regard to the
amount of underwater land owned. 58 For other purposes, however,
an apportionment 'has been made; in the taking of ice, for example,
it is important that exact boundaries be laid down to determine the
area from which each riparian may take ice. 59
Because a number of valuable rights, such as the right to take
ice and the right to erect wharves and other structures, are deter-
mined by the ownership of underwater land, it is clear that under-
water ownership is a valuable adjunct to riparian land. Therefore,
the construction of deeds as granting or withholding this ownership
has often been in issue. In determining whether the adjacent under-
water land passed to the grantee under a particular deed, 'the Michi-
gan Supreme Court has consistently favored the grantee by constru-
ing the language, if at all possible, to pass title to the underwater
land as far as the center of the stream or lake. 60 Thus, language
in a deed describing the land conveyed as "along said lake," or

55. Jones v. Lee, 77 Mich. 35, 43 N.W. 855 (1889); Grand Rapids Ice &
Coal Co. v. South Grand Rapids Ice & Coal Co., supra note 50, over-
ruling Clute v. Fisher, supra note 50.
56. Cf. Blodgett & Davis Lumber Co. v. Peters, supra note 53 at 506.
57. See, e.g., Blodgett & Davis untber Co. v. Peters, supra note 53;
Pittsburgh & L.A. Iron Co. v. Lake Superior Iron Co., supra note
53; Stuart v. Greanyea, 154 Mich. 132, 117 N.W. 655 (1908).
58. Beach v. Hayner, 207 Mich. 93, 173 N.W. 487 (1919); Swartz v.
Sherston, supra note 29; Burt v. Munger, 314 Mich. 659, 23 N.W.
2d 117 (1946).
59. See, e.g., Grand Rapids Ice & Coal Co. v. South Grand Rapids Ice
& Coal Co., supra note 50.
60. Cf. Sands v. Gambs, 106 Mich. 362, 64 N.W. 741 (1895).
61. Bauman v. Barendregt, supra note 40.








WATER RESOURCES


"along the edge of said millpond,"62 or "running to the bank or to
a stake on the bank of the river, "63 has been construed as granting
title to the adjacent underwater land as far as the center of the body
of water. 64 Although the description in the deed is by courses and
distances, and the deed appears to show a clear intention to convey
only a certain number of feet of the underwater land, the court has
nevertheless declared the title to be in the grantee to the middle of
the body of water. 65 Consequently, both a grant of land "to extend
no farther into the bay than six rods from the rear line of said
lot,"66 and a grant "continuing into Lotus Lake... 30 feet from the
low water mark thereof, "67 were construed as conveying title as
far as the center of the body of water, although the center line was
in both cases clearly beyond the limit set forth in the description.
The reasoning of the Michigan Supreme Court on this matter is typi-
fied by its language in Butler v. Grand Rapids & I. R. Co.:

It is the well recognized rule in this State that a grantee of
land bounded in the deed of conveyance by a stream takes title
to the land under the water to the center or middle thread of
the stream, in the absence of an expressed reservation ....
The legal maxim must here be borne in mind that all grants
must be construed most strongly against the grantors.... Re-
servations cannot be implied.68

Thus, it seems that nothing short of an express reservation of
underwater land to the grantor will prevent it from passing to the
grantee of the adjacent upland. The application of this rule by the
Michigan courts provides in most cases for the maximum utilization
of underwater land, since the grantee, owning the adjacent upland,
can generally derive considerably more benefit from ownership of
the underwater land than could the grantor, who in most cases
would have no access to the underwater land. When the grantor
can, however, by virtue of owning other adjacent riparian lands,
make a beneficial use of the underwater lands, a serious challenge
is raised to the argument for favoring the grantee to an almost ab-
surd degree in all cases.
62. Hartz v. Detroit, P. & N. Ry., supra note 40.
63. Moore v. Provost, 205 Mich. 687, 172 N.W. 410 (1919).
64. For other examples, see Watson v. Peters, supra note 48; Cole v.
Wells, 49 Mich. 450, 13 N.W. 813 (1882); Turner v. Holland, 65
Mich. 453, 33 N.W. 283 (1887); Butler v. Grand Rapids & I.R. Co.,
supra note 48; Holda v. Glick, 312 Mich. 394, 20 N.W. 2d 248
(1945).
65. See cases cited in notes 66 and 67 infra.
66. Richardson v. Prentiss, supra note 9.
67. Blain v. Craigie, 294 Mich. 545, 293 N.W. 745 (1940).
68. 85 Mich. 246 at 255, 48 N.W. 569 (1891).








AND THE LAW 437

In regard to the ownership of the bed of the Great Lakes, the
Michigan law has developed along the lines of the English tidewater
cases, although not without some slight confusion. Chancellor Man-
ning, in a dictum in the 1843 case of La Plaisance Bay Harbor Co.
v. City of Monroe,69 stated that title to lands underlying the Great
Lakes was in the state. However, when the issue first came before
the Michigan Supreme Court in the 1884 case of Lincoln v. Davis, 70
Justice Campbell held that offshore areas of the Great Lakes are
subject to state control and added, "I am not prepared to hold, how-
ever, that lands under water are not appurtenant to the upland so
,far as they can be used at all. "71 Twelve years later, the confu-
sion was eliminated by People v. Silberwood, 72 which adopted the
dictum of the La Plaisance case, and held that riparians on the
Great Lakes have no interest in the underwater lands. In 1898,
People v. Warner, 73 approving the holding of the Silberwood case,
went on to point out that the depth of the water was immaterial in
determining the boundary line which was at the edge of the water.
The exact boundary between riparian ownership and state owner-
ship of the Great Lakes has not been defined by the Michigan courts,
although the same opinion suggested it to be both at the high water
mark and at the low water mark. 74 Though there is doubt as to
the exact boundary, it is improbable, due to the relatively insignifi-
cant difference between high and low water marks on the Great
Lakes, that the question will ever be answered more authoritatively
than by dictum.
The state is usually described as holding title to the bed of the
Great Lakes in trust for the benefit of the public. 75 The exact con-
struction placed upon this trust by the courts, however, seems to
depend upon the nature of the case before them. Thus, in Nedtweg
v. Wallace, 76 where the court upheld a long-term lease of the re-
claimed bed of Lake St. Clair by the state to private persons, there
was a careful analysis of the trust concept. The court distinguished
69. Walk. Ch. 155 (Mich. 1843).
70. 53 Mich. 375, 19 N.W. 103 (1884).
71. Id. at 392.
72. 110 Mich. 103, 67 N.W. 1087 (1896), followed in Sherwood v. Comm'r
of State Land Office,113 Mich. 227, 71 N.W. 532 (1897).
73. 116 Mich. 228, 74 N.W. 705 (1898).
74. State v. Lake St. Clair Fishing & Shooting Club, 127 Mich. 580, 87
N.W. 117 (1901). Judge Hooker at first stated that the rule was the
high-water mark (127 Mich. 586), but later declared that the boundary
was at the low-water mark (127 Mich. 590).
75. See, e.g., State v. Lake St. Clair Fishing & Shooting Club, supra
note 74; State v. Venice of America Land Co., 160 Mich. 680, 125
N.W. 770 (1910).
76. 237 Mich. 14, 208 N.W. 51 (1927).


____ __








WATER RESOURCES


two kinds of interests held by the state in the bed of the Great Lakes:
the "jus privatum," or proprietary interest of the state, and the
"jus publicum," or interest necessary to insure to the public the en-
joyment of rights such as navigation and fishing. The court conclud-
ed that since the lease did not impair the public trust, the lands
leased were within the "jus privatum" and could properly be leased
without harming the public right. On the other hand, in State v.
Venice of America Land Co., 7 where a private person was claim-
ing by adverse possession certain lands in Lake St. Clair which
were often covered by a few inches of water, the court held the
lands to be a part of the lake bed and as such to be owned by the
state in trust for the public and not susceptible of divestment by ad-
verse possession.
For some forty-five years, the Michigan Department of Conser-
vation and its predecessors have had power to lease to private per-
sons the unpatented lake bottom lands owned by the .state of Michi-
gan. 78 With the exception of a portion of the flats of Lake St.
Clair, 79 however, the Department of Conservation had no power
until 1955 to convey any of these lands. 80 In 1955 the Michigan leg-
islature provided in the Great Lakes Submerged Lands Act81 for the
sale or lease of unpatented lake bottom lands by the Michigan De-
partment of Conservation to persons owning the adjacent riparian or
littoral upland, 82 if the sale or lease is not found to impair the pub-
lic interest83 and if application is made within three years after the
effective date of the act. 84 The consideration to be paid for the
sale or lease of these lands is to be determined by the Department
of Conservation. 85 Furthermore, the Department of Conservation
77. 160 Mich. 680, 125 N.W. 770 (1910).
78. Mich. Comp. Laws (1948) 322.401, Mich. Stat. Ann. 13.701.
79. Mich. Comp. Laws (1948) 322.402a-322.402g, Mich. Stat. Ann.
13.702(1)-13.702(7).
80. Mich. Comp. Laws (1948) 322.402, Mich. Stat. Ann. 13.702.
81. Mich. Comp. Laws (1948) 322.701-322.709, Mich. Stat. Ann.
13.700(1)-13.700(9).
82. Mich. Comp. Laws (1948) 322.704, Mich. Stat. Ann. 13.700(4).
83. Mich. Comp. Laws (1948) 322.703, Mich. Stat. Ann. 13.700(3). It
is also provided in this section that in the sale or lease of these lands
all mineral rights shall be reserved to the state of Michigan. It is
not altogether clear whether a purchaser or lessee of these lands can
subsequently acquire a lease to extract minerals front them under
the existing provisions of the Michigan statutes.
84. Mich. Comp. Laws (1948)' 322.704, Mich. Stat. Ann. 13.700(4).
The effective date of the act was October 14, 1955.
85. Mich. Comp. Laws (1948) 322.705, Mich. Stat. Ann. 13.700(5).
The only standard set out in the act for fixing the consideration is for
lands which have been filled in and are no longer submerged. These
are to be sold for their market value, less any improvements which
have been made upon them by the purchaser up to the amount of 70%
of the market value.








AND THE LAW


may lease to private persons all "of the unpatented overflowed lands,
made lands, and lake bottom lands belonging to the state of Michi-
gan or held in trust by it," for the purpose of removing oil and gas,
metallic minerals, or rock, gravel, sand and earth. 86 In the grant-
ing of these leases, preference is to be given in specified instances
to the owners of the adjacent upland. 87 From time to time, the
legislature has also passed special acts for the general sale88 or
conveyance to denominated persons89 of particular tracts of sub-
merged lands.
4. Effect of Natural Modification of the Shoreline
A further matter for consideration is the effect upon riparian
ownership of natural modifications in the shoreline due to the re-
treat or encroachment of the waters. When title to the bed is in
one person and title to the upland in another, a question arises as
to whether the rights of the parties should be affected by the natu-
ral modification of the shoreline. Thus, for example, when the
waters retreat and new upland is formed, an issue arises as to
which person owns the newly emerged land. The problem is most
acute on the Great Lakes, where title to the bed is in the state and
title to the upland is in private riparians. On inland waters, where
the riparian generally owns the bed to the middle of the stream,
this issue does not often arise as to the ownership of newly formed
bed or upland, although it seems that any modification of one shore-
line could change the property line between such riparians by dis-
placing the thread-line of the body of water.
Additional upland may be formed by accretion, which is the al-
most imperceptibly slow addition of alluvial matter to the shoreline,
or by reliction, which is the recession of the waters. If title to the
upland and to the bed are in different persons and new upland con-
tiguous to the original upland is created slowly by accretion or re-
liction, the new land becomes a part of the upland, and title attach-
es to the owner thereof. 90 On the other hand, there is indication
that where the change is rapid, the owner of the bed will retain title
86. Mich. Comp. Laws (1948) 322.427-322.428, Mich. Stat. Ann.
13.727-13.728.
87. See Mich. Comp. Laws (1948) 322.427, 322.427a, Mich. Stat. Ann.
13.727, 13.727(1).
88. Mich. Laws 1954, No. 41, p. 48, Mich. Stat. Ann. 13.790(181)-
13.790(189).
89. Mich. Pub. Acts 1955, p.819, Mich. Stat. Ann. 13.790(271)-
13.790(277); Mich. Pub.Acts. 1956, p. 42, Mich. Stat. Ann. 13.790
(281)-13.790(287).
90. People v. Warner, supra note 73; Hilt v. Weber, supra note 3;
Killmaster v. Zeidler, 269 Mich. 377, 257 N.W. 721 (1934).


1








WATER RESOURCES


to newly formed upland. 91 Further, if the newly formed land is
not contiguous with the upland, but forms an island, title remains
in the owner of the bed. 92
The upland may be diminished by erosion, which is the gradual
eating away of the bank or shore, or by avulsion, which is the sud-
den separation of a part of the upland by a change in the course
and channel of a stream. The Michigan courts have not had oppor-
tunity to speak on either of these matters, but other jurisdictions
are generally in accord that in cases of erosion where the bed and
the upland are in different persons, the owner of the upland loses
the newly flowed lands, and in cases of avulsion the original owner
retains title to the severed lands. 93 These rules are thus comple-
mentary to the rules regarding accretion and reliction.
B. Use of Surface Water
1. Consumptive Use
Among the most important uses of water are those which re-
move water from streams and lakes and return none of the water,
or only a portion of it, to the watercourses from which it was tak-
en. In this paper, uses of this nature are titled "consumptive" be-
cause they have the effect of consuming the water, thereby diminish-
ing the amount available in the watercourse for other uses. Almost
any use of the waters of a watercourse is consumptive to some ex-
tent, in that there are increased losses of water due to evaporation
and seepage. It is the nature of some uses, primarily irrigation,
that all of the water abstracted from the watercourse is consumed
and none is returned. Other consumptive uses, including most do-
mestic, municipal, and industrial uses, return at least a portion of
the water to the watercourse.
This section is concerned only with consumptive uses of the
water of lakes and streams. Other uses, such as pollution, deten-
tion of the water for power purposes, and navigation, will be con-
sidered in succeeding sections.
a. Reasonable Use Doctrine
The "riparian doctrine" of reasonable use of the water of
streams and lakes for consumptive purposes prevails in Michigan.94
91. Cf. People v. Warner, supra note 73 at 239.
92. Westonv. Dunn, 168 Mich. 563, 135 N.W. 316 (1912); Sewers v.
Hacklander, supra note 48.
93. 1 Farnham, Waters and Water Rights 69 (1904); Gates, Michigan Real
Property 640 (1915).
94. Dumont v. Kellogg, 29 Mich. 420 (1874). In this case, Justice Cooley,
writing for the court, rejected the contention that priority of appropri-
ation of water for use gives a superior right.








AND THE LAW 441

Between riparian owners on the same watercourse, the right of con-
sumptive use of each proprietor qualifies and is qualified by the
right of use of every other riparian on the stream. All riparians
have a right to some consumptive use of the water; but in each case
the crucial question is whether a riparian's use is reasonable when
correlated with the rights of other riparians. 95
In ascertaining whether a particular use is reasonable, many
factors must be taken into account. The Michigan Supreme Court
has stated that the most important criterion in determining what is
a reasonable use is a consideration of "the general usage of the
country in similar cases. "96 Other factors to be considered are
the purpose, extent, duration, necessity, and application of the use;
the nature and size of the stream and the uses for which the stream
is utilized; and the extent of the injury to one compared with the
benefit to the other caused by the use. 97 In Phillips v. Village of
Armada98 the court noted that increased population, proper sanitary
measures, and the general welfare of the affected communities are
proper factors to be considered in application of the reasonable use
test. The case further points out that the "use of a stream reason-
able at one time and one place may become unreasonable at another
time and at another place."99 These criteria emphasize that the
facts of each case are of the essence and that the reasonable use
doctrine is a flexible and somewhat obscure standard. Although this
flexibility has the virtue of permitting the courts to adjust to meet
new and changing circumstances, it is objectionable to users and
potential users who require a certain and ascertainable water supply.

95. Id. at 423-25.
96. Id. at 425. Justice Cooley said of the "general usage of the country"
that:
...in most cases this proof is the most satisfactory and
conclusive that could be adduced, being established by the
parties concerned, who understand better than any others
what is reasonable and convenient., and who would not be
likely to acquiesce in any thing which was not so.
97. See People v. Hulbert, 131 Mich. 156, 170, 91 N.W. 211 (1902),
quoting with approval language found in Red Roller Mills v. Wright,
30 Minn. 249, 15 N.W. 167 (1883). 1 Wiel, Water Rights in the
Western States 743 (3d ed. 1911), states the matter succinctly:
No one thing will determine how much water a riparian
owner is entitled to take as against other riparian owners;
it depends upon the whole evidence, and he is entitled to
offer in evidence all pertinent facts which will enable the
jury to conclude whether his use is reasonable or not.
98. 155 Mich. 260, 118 N.W. 941 (1908).
99. Id. at 262-63.








WATER RESOURCES


Application of the reasonable use doctrine is limited to riparian
lands. A use of water on non-riparian lands is wrongful if it inter-
feres with a use on riparian lands, and the question of whether the
non-riparian use is reasonable does not arise. 100 In proscribing
uses on non-riparian land, the Michigan Supreme Court has general-
ly made no distinction between whether the use is made by a ripari-
an owner or by a non-riparian, although there is some indication
that a non-riparian use made by a riparian owner will be looked
upon with more favor than a comparable use made by a non-
riparian. 101 The basis of the prohibition against using water on
non-riparian land is that it diminishes the stream and deprives the
lower riparians of part of the flow of the water, and thereby in-
vades the riparians' rights to exclusive use of the water. Closely
related to non-riparian consumptive use is the total diversion of a
watercourse into a new channel. Diversion, too, is wrongful, be-
cause it impairs the right of the lower riparian proprietor to have
,the stream flow in its usual and natural course. 102
b. Application of the Reasonable Use Test
In the foregoing section the general theory of the reasonable
use doctrine has been outlined. It may now be profitable to note
100. See Hall v. City of lonia, supra note 32; Stock v. Township of
Jefferson, 114 Mich. 357, 72 N.W. 132 (1897); Stock v. City of
Hillsdale, 155 Mich. 375, 119 N.W. 435 (1909); Kennedy v. Niles
Water Supply Co., supra note 14. Cf. Dumont v. Kellogg, supra
note 94; Hilt v. Weber, supra note 3.
101. In a dictum in Dumont v. Kellogg, supra note 94 at 422, Justice
Cooley indicated that any diminution of a stream by a non-riparian
is "wholly wrongful," and that "an action will lie without proof of
special damage." This position would make any non-riparian use
wrongful per se. In the subsequent case of City of Battle Creek v.
Goguac Resort Assn., 181 Mich. 241, 148 N.W. 441 (1914), on the
other hand, Justice Brooke and three other justices adopted the
position that a non-riparian use by a riparian owner is not wrongful
per se, but only becomes wrongful if it interferes with a use made
by another riparian. This' rule would allow riparian owners consider-
able latitude in making non-riparian uses. This case has no effect
as stare decisis, however, since it was decided by an evenly divided
court. McCrea v. Jerkatis, 320 Mich. 309, 31 N.W. 2d 63 (1948).
The other Michigan cases involving non-riparian use have not
supplied any further indication as to a distinction between non-riparian
uses made by riparian owners and similar uses made by non-ripar-
ians; in each case, special damages have been alleged.
102. Mathewson v. Hoffman, 77 Mich. 420, 43 N.W. 879 (1889); Stock v.
Township of Jefferson, supra note 100. Cf. Dumont v. Kellogg,
supra note 94; Hilliker v. Coleman, supra note 8; Rummell v. Lamb,
supra note 8; Laraway v. Williams, 201 Mich. 617, 167 N.W. 960
(1918).








AND THE LAW


some of the effects upon riparian owners of the application of the
reasonable use rule. Since the upper riparian has the first oppor-
tunity to use the waters of a stream, he obtains an advantage in the
application of the reasonable use doctrine. The court is disposed
to look to the use of the upper riparian first; and if it concludes
that the upper riparian's use is reasonable, then the court will re-
quire the lower riparian to suffer any incidental injuries and incon-
veniences which the use by the upper riparian may impose. 103 "As
the enjoyment of each must be according to his opportunity, and the
upper owner has the first chance, the lower owners must submit to
such loss as is caused by reasonable use. 104 In respect to domes-
tic uses the upper riparian takes his requirements from the stream
without regard to the lower riparian and may even consume the
stream in entirety. 105 This preferred position of the upper riparian
supplies an incentive for one wishing to have a more adequate sup-
ply of water to move closer to the source of water supply, which
has been the trend in the arid regions of the United States. "No
one familiar with the development of the use of water in this arid
part of the country can be unfamiliar with the constantly progres-
sive movement towards the sources of water supply. "10
The position of the upper riparian, however, is not always su-
perior. There are corresponding advantages which accrue to lower
riparians. Certainly, nothing less than a highly unusual fact situa-
tion will allow an upper riparian to complain because a lower ri-
parian's use of the water is unreasonable; only riparians below the
user are generally adversely affected by an excessive and unreason-
able consumptive use. In effect, this situation allows the lowest or
last riparian on any stream to use as much of the water in the
stream as he desires, provided only that he does not seriously af-
fect the level of the lake or other body into which the stream flows.
Conceivably, this use could at times amount to the entire flow of
the stream.
c. Domestic Use
As employed by the Michigan Supreme Court, the term "do-
mestic use" of water pertains to household needs such as drinking,
cooking, bathing, and waste disposal, and also to uses for watering

103. Hoxsie v. Hoxsie, 38 Mich. 77 (1878). See Preston v. Clark, 238
Mich. 632, 214 N.W. 226 (1927).
104. People v. Hulbert, supra note 97 at 165. See Monroe Carp Pond Co.
v. River Raisin Paper Co., supra note 4 at 285.
105. See text at notes 107-112, infra.
106. Wiel, "Fifty Years of Water Law," 50 Harv. L. Rev. 252 (1936).








444 WATER RESOURCES

livestock. 107 Throughout the United States domestic use of the water
of streams and lakes is generally preferred over other uses. 108 In
states where the riparian doctrine has been adopted, riparian domes-
tic use is preferred, since non-riparians have no right to make any
water use from streams and lakes. 109 In Michigan, although the
case-holdings and dicta are few, those decisions which do refer to
domestic use indicate that domestic use of water is to be preferred
to other uses. This preference means that when other uses con-
flict with a domestic use, the domestic use shall prevail.
No reported Michigan case gives the picture of an over-all do-
mestic use preference. Instead, the general pattern must be pieced
together from the few scattered decisions which have indicated, in
varying degree, that domestic use is to be preferred over other
particular uses. The clearest holding is found in the 1896 case of
Mastenbrook v. Alger, 110 where the Michigan Supreme Court ap-
proved an injunction forbidding irrigation which interfered with do-
mestic use. The stream from which the water was taken for irri-
gation was adequate only to supply the domestic needs of those per-
sons riparian to the stream; there was no excess water for other
purposes. Therefore, as the use for irrigation deprived other ri-
parians of water for their domestic needs, it was held that the irri-
gation was wrongful. The court did not, however, speak in broad
general terms in deciding the Mastenbrook case; no indication was
given that uses other than irrigation would have been enjoined in
similar circumstances. Several other cases indicate, to a some-
what lesser degree, that domestic use is to be preferred over water
uses of other kinds. 111
In People v. Hulbert, 112 where the court seems to indicate a
domestic use preference, the issue for decision involved the con-
flicting rights of two riparian domestic users. The lower user, a
municipality which the court treated as a riparian domestic user,
was prosecuting the upper riparian for allegedly polluting the

107. See, e.g., Pettibone v. Maclem, 45 Mich. 381, 8 N.W. 84 (1881);
Mastenbrook v. Alger, 110 Mich. 414, 68 N.W. 213 (1896); People
v. Hulbert, 131 Mich. 156, 91 N.W. 211 (1902).
108. VI-A American Law of Property 28.57 (1954).
109. Ibid.
110. 110 Mich. 414, 68 N.W. 213 (1896).
111. Cf. Pettibone v. Maclem, supra note 107; People v. Hulbert, supra
note 107; Kennedy v. Niles Water Supply C6., supra note 14; City of
Battle Creek v. Goguac Resort Assn., supra note 101. But see
Phillips v. Village of Armada, 155 Mich. 260, 118 N.W. 941 (1908),
where the court takes the view that pollution can, within reason, ren-
der the water of a stream unfit to drink.
112. 131 Mich. 156, 91 N.W. 211 (1902).








AND THE LAW


municipality's drinking water by swimming near the source of sup-
ply. The court applied the reasonable use test and, finding the
swimming to be a reasonable domestic use, reversed the convic-
tion of the upper riparian. In controversies between two domestic
users, therefore, the reasonable use test will be applied.
d. Municipal Use
Individual municipalities and governmental units in Michigan
have ample statutory authority to construct and maintain water sup-
ply systems. 113 Provision is also made whereby two or more
municipalities may acquire a water supply system jointly114 or form
a metropolitan district for the purpose of operating a waterworks
and supplying the municipalities within the district. 115 Municipali-
ties may be authorized to furnish water to townships and persons
outside their territorial limits or to other municipalities. 116 In
113. Mich. Const., Art. Vm, 23. Villages over 200: Mich. Comp. Laws
(1948) 71.1-71.11, Mich. Stat. Ann. 5.1409-5.1419; Mich. Comp.
Laws (1948) 41.411-41.414, Mich. Stat. Ann. 5.2411-5.2414;
Mich.Comp. Laws (1948) 123.111-123.130, Mich. Stat. Ann.
5.2511-5.2530. Fourth class cities: Mich. Comp. Laws (1948)
106.1-106.11, Mich. Stat. Ann. 5.1884-5.1894; Mich.Comp. Laws
(1948) 123.111-123.130, Mich. Stat. Ann. 5.2511-5.2530. Home
rule cities: Mich. Comp. Laws (1948) 117.4b, 117.4f, Mich. Stat.
Ann. 5.2075,5.2079; Mich. Comp. Laws (1948) 123.111-123.130,
Mich. Stat. Ann. 5.2511-5.2530. Townships: Mich. Comp. Laws
(1948) 41.721-41.737, Mich Stat. Ann. 5.2770(51)-5.2770(67);
Mich. Comp. Laws (1948) 41.411-41.414, Mich. Stat. Ann. 5.
2411-5.2414; Mich. Comp Laws (1948) 41.351-41.356, Mich. Stat.
Ann. 5.2585(1)-5.2585(6); Mich. Comp. Laws (1948) 41.391-
41.398, Mich. Stat. Ann. 5.2591-5.2598; Mich. Comp. Laws
(1948) 41.331-41. a351, Mich. Stat. Ann. 5.2599(1)-5.2599(22);
Mich. Comp. Laws (1948) 41.871.41-878, Mich. Stat. Ann. 5.
2600(1)-5.2600(8). Charter townships: Mich. Comp. Laws (1948)
42.31, Mich. Stat. Ann. 5.46(31). Counties: Mich. Comp. Laws
(1948) 46.171-46.187, Mich. Stat. Ann. 5.2767(1)-5.2767(18).
The state health commissioner has supervisory control over all
waterworks and can make rules and regulations as to the operation
of water supply systems, require reports to be submitted from time
to time, and direct that necessary changes be made in plants and
equipment. Mich. Comp. Laws (1948) 325.201-325.214, Mich.
Stat. Ann. 14.411-14.424.
114. Mich. Comp. Laws (1948) 123.151-123.155, Mich. Stat. Ann.
5. 2532(1)-5. 2532(5).
115. Metropolitan districts: Mich. Comp. Laws (1948) 119.1-119.15,
Mich. Stat. Ann. 5.2131-5.2145. Municipal authorities: Mich.
Comp. Laws (1948) 124.251-124.262, Mich. Stat. Ann. 5.2533(1)-
5.2533(12). Water supply system authorities: Mich. Comp. Laws
(1948) 124.281-124. 294, Mich. Stat. Ann. 5.2769(51)-5.2769(64).
116. Mich. Const. Art. VIII, 23, authorizes any city or village to "sell
and deliver water outside of its corporate limits in such amount as


m..








WATER RESOURCES


addition to municipally owned waterworks, privately owned public
utilities may be incorporated to furnish water to municipalities. 117
These public utilities may later be acquired by municipalities by
purchase1l8 or through the power of condemnation. 119
Footnote continued
may be determined by the legislative body of the city or village."
This constitutional provision is implemented by Mich. Comp. Laws
(1948) 123.141-123.444, Mich. Stat. Ann. 5.2581-5.2584. See
also Mich. Comp. Laws (1948) 78.24, Mich. Stat. Ann. 5.1534;
and Mich. Comp. Laws (1948) 117.4f, Mich. Stat. Ann. 5.2079,
which authorize villages and home rule cities, respectively, to place
in their charters provisions allowing water to be supplied outside
the corporate limits of the municipality. In addition, joint inter-
city water supply systems are authorized to supply other cities or
areas, Mich. Comp. Laws (1948) 123.154, Mich. Stat. Ann.
5.2532(4); and metropolitan districts with water supply systems may
supply water outside the limits of the district. Mich. Comp. Laws
(1948) 119.2, Mich. Stat. Ann. 5.2132. It should be noted, how-
ever, that it is purely discretionary with a municipality as to what
persons it will or will not supply with water outside of its corporate
limits. Nelson v. County of Wayne, 289 Mich. 284, 286 N.W. 617
(1939).
Townships and counties are authorized to contract with munici-
palities to obtain water for domestic and other purposes. Townships:
Mich. Comp. Laws (1948) 41.351, Mich. Stat. Ann. 5.2585(1);
Mich. Comp. Laws (1948) 41.391-41.398, Mich. Stat. Ann.
05.2591-5.2598; Mich. Comp. Laws (1948) 41.331-41.a351, Mich.
Stat. Ann. 5.2599(1)-5.2599(22); Mich. Comp. Laws (1948) 41.
871-41.878, Mich. Stat. Ann. 5.2600(1)-5.2600(8). Counties: Mich.
Comp. Laws (1948) 46.171, Mich. Stat. Ann. 5.2767(1).
Further, a municipality may construct its waterworks within or
without the corporate limits of the municipality. Villages: Mich.
Comp. Laws (1948) 71.8, Mich. Stat. Ann. 5.1416. Fourth class
cities: Mich. Comp. Laws (1948) 106.8, Mich. Stat. Ann. 5.1891.
Home rule cities: Mich. Comp. Laws (1948) 117.4f, Mich. Stat.
Ann. 5.2079. Metropolitan districts: Mich. Comp. Laws (1948)
119.2, Mich. Stat. Ann. 5.2132. Counties: Mich. Comp. Laws
(1948) 46.171, Mich. Stat. Ann. 5.2767(1).
117. Mich. Comp. Laws (1948) 486.51-486.318, Mich. Stat. Ann.
22.1611-22.1698, contains several enactments providing for the in-
corporation of privately owned public utilities to supply water for
"mining, milling, manufacturing, domestic, municipal and agricultur-
al purposes." Summer resort owners may form a corporation for
the purpose, inter alia, of supplying water. Mich. Comp. Laws
(1948) 455.201-455.220, Mich. Stat. Ann. 21.751-21.770.
118. Mich. Comp. Laws (1948) 123.113, Mich. Stat. Ann. 5.2513,
provides that any city or village holding stock in a water company
may acquire the water company by purchase through "an arrange-
ment with the company in which it owns stock, and with the other
stockholders thereof." Any city within or adjacent to a metropoli-
tan district may purchase' the water supply system of such district








AND THE LAW 447

The extent of a municipality's riparian rights in Michigan is un-
certain. Where a municipality is located upon a watercourse, ques-
tion exists as to whether all of the land within the municipality is
to be considered riparian for the purpose of municipal water supply.
The Michigan Supreme Court has been confronted with the issue four
times, but has not furnished a definitive solution. From the gener-
al disposition of these cases and from the dictum found in them, it
appears that in a city, as elsewhere, only those parcels or lots of
land actually adjacent to a stream or lake are considered riparian.
Therefore, the furnishing of water to city lots which do not adjoin
the watercourse is in effect a use of water on non-riparian land.
The first of the four decided cases, Hall v. City of lonia, 120
dealt with a taking of water for municipal purposes which would
have completely depleted the waters of a small stream. The lan-
guage of the case suggests that a city as an upper riparian owner
could not use the water of the stream for municipal purposes off
the riparian tract. 121 However, -the effect of this language is quali-
fied by evidence in the case that the complainant, who had original-
ly owned the stream in its entirety, had granted to the city's prede-
cessor in title only a right to use the water for mill purposes. 122
It is uncertain how much weight the court placed on the limitation
in the grant when it decided the case.
The subsequent, case of Stock v. City of Hillsdale123 involved a
taking of water by a city which reduced the flow to the complainant's
Footnote continued
through agreement, providing that the transaction has been approved
by three-fifths of the electors of both the city and the district voting
upon the issue at either a general or special election. Mich. Comp. Laws
(1948) 123. 51-123.356, Mich. Stat. Ann. 5.2534(1)-5.2534(6).
119. Power to condemn public utilities is granted expressly to home rule
cities. Mich. Comp. Laws (1948) 117.4f, Mich. Stat. Ann. 5.2079;
to cities of over 25,000 population, Mich. Comp. Laws (1948)
213.111-213.134, Mich. Stat. Ann. 8.71-8.94; and to metropoli-
tan districts, Mich. Comp. Laws (1948) 119.4, Mich. Stat. Ann.
5.2134. A similar power in other municipalities may be inferred
from various other statutory provisions. See, e.g., Mich. Comp.
Laws (1948) 213.71-213.94, Mich. Stat. Ann. 8.41-8.67, Cf.
Cleveland v. City of Detroit, 322 Mich. 172, 33 N.W. 2d 747 (1948).
120. 38 Mich. 493 (1878).
121. Id. at 500: "[The city authorities] have been mistaken in supposing
that as upper riparian owners they could absorb the stream for city
purposes."
122. Id. at 495: "Parks testifies that according to their understanding in
getting this grant, and their action under it, the water was to be
returned by them into the stream so as all to pass through the
canal or ditch referred to."
123. 155 Mich. 375, 119 N.W. 435 (1909).








WATER RESOURCES


mill. The Supreme Court held that the taking of water for munici-
pal purposes was wrongful:

The circuit judge properly held that the city had not the right
to divert the water as an upper riparian owner and to pump the
water out of this lake for the use of citizens generally and to
supply manufacturing establishments within its limits.... 124

A reading of the opinion leads to the belief that the city was not a
riparian at the point of diversion;125 this clearly would account for
the holding because the city's use would have been on non-riparian
lands. However, a perusal of the briefs submitted by the parties
and the opinion of the trial judge leads to the conclusion that at the
time the action was brought the city was indeed a riparian, as its
limits did embrace the place where the water was diverted. 126 For
this reason the opinion is ambiguous; a close reading impels the be-
lief that perhaps the Supreme Court failed to perceive that the city
was contiguous with the watercourse from which the water was taken,
for nowhere in the opinion is this fact mentioned, and even a state-
ment to the contrary is found. If it is true that the court was
under a misconception, then the quoted portion of the opinion could
be read to mean that the city was not an upper riparian owner and
on this basis had no right to take water for its inhabitants.
In the two most recent cases dealing with the problem of wheth-
er a city's furnishing of water to its inhabitants is a riparian use,
the court has been deadlocked by a four-to-four vote in both in-
stances. 127 The value of these cases as authority is not great,
since evenly divided decisions by the Michigan Supreme Court have
no binding effect as precedent but merely act to affirm the decision
of the lower court. 128 Both cases dealt with the lawfulness of a
124. Id. at 379.
125. Id. at 377: "A committee was appointed by the common council to
have charge of the matter of constructing a system of waterworks.
This committee purchased a tract of land upon the shore of Bawbeese
Lake and a right of way from this tract across other lands to the
city limits for the purpose of laying water mains."
126. Opinion of Trial Judge, Stock v. City of Hillsdale, Record on Appeal,
42,45 (1908):
In 1887 the limits of the City of Hillsdale were extended
so that they included the land on which this pumping
station had been erected and the members of the committee
holding the title to this property and right of way then
conveyed them to the city.
127. City of Battle Creek v. Goguac Resort Assn. supra note 101;
Loranger v. City of Flint, 185 Mich. 454, 152 N.W. 251 (1915).
128. See, e.g., McCrea v. Jerkatis, supra note 101; Zirkalos v.
Zirkalos, 326 Mich. 420, 40 N.W. 2d 313 (1949); Le Vasseur v.
Allen Electric Co., 338 Mich. 121, 61 N.W., 2d 93 (1953).








SAND THE LAW


municipal use by a city located adjacent to a watercourse. In the
earlier case, the city was seeking to enjoin pollution of the munici-
pal water supply by an upper riparian. 129 The upper riparian had
asserted that since the city was making a non-riparian use, which
was wrongful per se, it had no standing to complain; the lower
court, however, approved the use made by the city and enjoined the
acts of pollution by the upper riparian. On appeal, all of the jus-
tices seemed agreed that a non-riparian use was involved, but the
prevailing justices maintained that a non-riparian use of this nature
was not wrongful per se, but only to the extent that it interfered
with a riparian proprietor's use, which it had not done in this
case. 130 In the second evenly divided decision, the lower court had
enjoined the municipal use because it diminished the flow to com-
plainant's mill. 131 The prevailing justices agreed that this was a
non-riparian use and therefore wrongful, citing Stock v. City of
Hillsdale132 as controlling authority; the dissent contended that since
a public navigable river was involved, the city "in consonance with
... humanitarian principles"133 had a right to use a reasonable
amount of water for its inhabitants. The earlier cases were dis-
tinguished by the dissenting justices on the basis that the water-
courses involved had been "private" rather than public. 134
Taken together, these four cases are a strong indication that at
the time of their decision the Michigan Supreme Court felt that fur-
nishing water to a riparian city's inhabitants was a non-riparian use.
In its applicability for the present day, this conclusion must be qual-
ified in two respects. As a first qualification, in not one of the de-
cisions did a majority of the justices, clearly support the proposition
that a municipal use is non-riparian. All of the holdings were mud-
dled either by additional facts which might have accounted for the
holding on a different basis from the municipal use being non-
riparian, or by an evenly divided decision by the court which, how-
ever great its persuasive value, meant nothing as binding precedent.
Many important questions were left unanswered; for example, con-
ceding that a municipal use is non-riparian, it is uncertain whether
it is actionable per se by any riparian, or whether a riparian must
show actual injury before he can complain. As a second qualifica-
tion, it should be noted that the most recent of these cases was

129. City of Battle Creek v. Goguac Resort Assn., supra note 101.
130. Id. at 247, citing with approval Stratton v. Mt. Hermon Boys'
School. 216 Mass. 83, 103 N.E. 87 (1913).
131. Loranger v. City of Flint, supra note 127.
132. 155 Mich. 375, 119 N.W. 435 (1909).
133. Loranger v. City of Flint, supra note 127 at 466.
134. Id. at 466-67.








450 WATER RESOURCES

decided in 1915. Since that time, municipal uses have expanded
greatly, and it might have been expected that much new litigation on
this issue would have arisen. In the absence of such cases in the
Supreme Court, it appears very much as though municipalities have
managed to obtain a sufficient water supply through dealing with ri-
parians outside the judicial arena, thereby avoiding contest in the
courts.
e. Prescriptive Rights to Consumptive Use of Water
Michigan follows the general rule that in order to obtain a
prescriptive right to a consumptive use of water the use must be
adverse, visible, continuous, and notorious, 135 and must continue
for the requisite prescriptive period of time, which in Michigan is
fifteen years.136
In order to be adverse, a use jnust interfere with and encroach
upon the rights of another. 137 This principle clearly favors the
upper riparian proprietor. It is not possible for a lower riparian
to make a consumptive use adverse to the interests of upper ripari-
ans, for no matter how much of the water the lower riparian uses,
or whether or not he diverts the entire stream, his acts will not
affect the quantity of water flowing past the upper riparians' places
of access. Thus, a lower riparian by constant use of a quantity of
water for the prescribed period does not obtain a prescriptive right
to this amount as against upper riparians since his use does not in-
terfere with their rights. 138 Similarly, nonuse of his rights by an
upper riparian in conjunction with a present use of the water by a
lower riparian does not constitute an adverse use by the lower ri-
parian. 139 At any time the upper riparian can initiate a reasonable
use of the waters.of the stream, without regard to whether the uses
previously made by lower riparians are impaired thereby.
135. Kennedy v. Niles Water Supply Co., supra note 14; Preston v. Clark,
supra note 103. See 2 Farnham, Waters and Water Rights 534-45
(1904).
136. Mich. Comp. Laws (1948) 609.1, Mich. Stat. Ann. 27.593; Stock v.
City of Hillsdale, supra note 100. In several cases, however, the
court seems to indicate that the period is twenty years. See, e.g.,
Conklin v. Boyd, 46 Mich. 56, 9 N.W. 134 (1881); Chapel v. Smith,
80 Mich. 100, 45 N.W. 69 (1890); Suffrouw v. Brewer, supra note
14.
137. Stock v. City of Hillsdale, supra note 100; Preston v. Clark supra
note 103.
138. Preston v. Clark, supra note 103 at 638; Justice Wiest, writing the
majority opinion, pointed out that to favor the lower riparian in
such a situation "makes no distinction between a prescriptive right
by adverse user and the old and abandoned rule of first occupancy
or prior appropriation."
139. Ibid.








AND THE LAW


On the other hand, if an upper riparian diverts a stream, the
diversion immediately constitutes an adverse use against the lower
riparians who have a right to have the water continue in its natural
course. 140 Similarly, use of water on non-riparian land is ad-
verse to the rights of lower riparians. 141 In these instances, the
prescriptive period begins to run immediately upon the initiation of
the diversion or the non-riparian or unreasonable use. 142 Where a
use by an upper riparian is not wrongful per se, but merely of an
excessive nature, however, initiation of the use alone does not
cause the prescriptive period to begin to run; the lower riparian
must first be actually injured by the excessive use. 143
One Michigan case conveys the notion that unless a lower ripari-
an is actually injured by the wrongful use made by an upper ripari-
an, he can maintain no action against the upper riparian to enjoin
the improper use or to collect damages therefore. 144 A rule of this
nature would mean that although the prescriptive period had been
initiated by the wrongful use and was running against him, the lower
riparian could not protect his rights unless he could establish a
dollars-and-cents loss. This result is harsh and unjust and would
be ruinous to the interests of lower riparian proprietors. It is rea-
sonable to assume that the Michigan Supreme Court, if presented
with the issue, would grant the lower riparian an injunction or "allow
at least nominal damages for the invasion of his rights.
After the prescriptive period has run, the problem remains of
ascertaining the nature of the prescriptive right acquired. The
Michigan Supreme Court has not been entirely consistent in its deci-
sions as to how a prescriptive right is to be measured. It is fairly
clear that where water is used for a particular purpose for the pre-
scriptive period, the prescriptive right is limited to a taking of the
water for a similar purpose. 145 There is some question, however,
as to whether the water taken by prescriptive right for a specified
purpose is limited also either as to the quantity taken or the means
by which the water is taken. In Stock v. City of Hillsdale146 the
prescriptive right of the city to divert water was said to be limited

140. Mathewson v. Hoffman, supra note 102.
141. Stock v. City of Hillsdale, supra note 100, Suffrouw v. Brewer,
supra note 14.
142. See Kennedy v. Niles Water Supply Co., supra note 14. Cf. Stock
v. City of Hillsdale, supra note 100; Suffrouw v. Brewer, supra
note 14.
143. Kennedy v. Niles Water Supply Co., supra note 14.
144. Cf. City of Battle Creek v. Goguac Resort Assn., supra note 101
at 247.
145. See, e.g., Mastenbrook v. Alger, supra note 107.
146. 155 Mich. 375, 119 N.W. 435 (1909).


I _I








452 WATER RESOURCES

to the quantity taken for the prescriptive period. In the subsequent
case of Kennedy v. Niles Water Supply Co., 147 however, the quan-
tity test was rejected by a majority of the court in favor of a limi-
tation whereby the water could be taken only by the means used dur-
ing the running of the prescriptive period. In the Kennedy case the
water supply company, which held a prescriptive right to divert wa-
ter from Barron Lake for municipal purposes, was enjoined from
lowering the position of its intake pipe in the lake at a time when
the lake level had sunk to a point lower than the end of the original
intake pipe, The dissenting opinion relied upon the rule enunciated
in the Stock case, 148 but the majority insisted that the prescriptive
right related to the level at which the intake pipe had originally been
laid and implied that the quantity taken was immaterial. It seems
questionable whether the holding of the Kennedy case leads to desir-
able results; under a natural extension of this doctrine, a riparian
conceivably could lay a pipe into the deepest part of a lake, divert
a small amount of water through the pipe to non-riparian lands for
fifteen consecutive years in order to acquire a prescriptive right,
and then in the sixteenth year lawfully drain the lake dry. 149 Under
most conditions, the quantity limitation on prescriptive rights is in-
finitely preferable to the "means" limitation, and the Kennedy hold-
ing should be at least limited to its facts.
In some respects, a prescriptive right to use water is to be
preferred to a riparian right. With a prescriptive right one acquires
a fixed and relatively certain right to use water, which is not sub-
ject to the rights of other riparians, but is in fact in derogation of
their rights. For although a riparian use must always remain rea-
sonable in relation to the uses made by other riparians and is there-
fore subject to being modified from time to time, a prescriptive
right is certain and ascertainable in perpetuity. Further, the pre-
scriptive right would seem to take precedence over riparian rights
since prescription affords the first use of the water to the full ex-
tent of the prescriptive right and only thereafter may any riparian
make use of the water. If there is only sufficient water for one,
the riparian would apparently be required to yield to the prescrip-
tive right holder, although the Michigan Supreme Court has never
been presented with this issue for decision.
In one aspect, however, the prescriptive right is inferior to the
riparian right. Whereas nonuse will not impair a riparian's right
147. 173 Mich. 474, 139 N.W. 241 (1913).
148. Id. at 481.
149. Were such a case to arise, however, it is highly probable that the
Michigan Supreme Court would limit the application of the Kennedy
case to its facts and adopt a quantity limitation test in addition to
the means limitation, or would repudiate the Kennedy case entirely.








AND THE LAW


to use water, a prescriptive right may be lost by nonuse for the
prescriptive period. 150 What may be acquired by fifteen years of
adverse use may be lost by fifteen years of nonuse.
f. Remedies Against Wrongful Use
Injunction. In determining whether an injunction will be grant-
ed to preclude improper use of the water of streams and lakes, the
Michigan courts will "take into consideration not only the complain-
ant's bare legal rights, but the damage which will result to a de-
fendant from the enforcement of such legal rights, as well as the
question of delay in bringing the proceedings. "151 The considera-
tion of all these factors before granting equitable relief is known as
the "balancing of equities" doctrine. 152
Obviously it would require a strong showing on the balancing of
the equities for a court to enjoin a city from an improper use of
the water of a stream or lake. Thus, when a plaintiff delays in
bringing action while a city constructs waterworks and initiates the
wrongful use of water, and the injury which would result to the city
if the use were precluded would far exceed the injury done to plain-
tiff, an injunction will be denied and plaintiff will be left to recov-
ery of damages. 153 Where, however, a riparian acts in timely
fashion to seek an injunction against a city which is planning a
wrongful use, the Michigan Supreme Court has indicated that an in-
junction will be granted. 154
Similarly, where the health of a community is endangered, the
courts will act promptly to enjoin improper acts which pollute a
city's drinking water. 155 Seemingly cities, due to the great public
interest Involved, have a superior position in regard to equitable
relief, whether the city itself is seeking an injunction or an injunc-
tion is being sought against the city.
150. McDonald v. Sargent, 308 Mich. 341, 13 N.W. 2d 843 (1944).
151. Stock v. City of Hillsdale, supra note 100 at 381.
152. See McClintock, Equity 144 (2d ed. 1948):
In determining whether to exercise its discretion to
grant or refuse an injunction, the court should balance all
of the equities, which include not only the relative hard-
ships to the parties, but their conduct with reference to the
transaction, the nature of the interests affected, and the
relative proportion of the interests of each that will be lost
by whichever course of action is taken.
153. Stock v. City of Hillsdale, supra note 100; Loranger v. City of Flint,
supra note 127.
154. Cf. Hall v. City of lonia, supra note 32.
155. City of Battle Creek v. Goguac Resort Assn. supra note 101. But
cf. People v. Hulbert, supra note 107, where it was held not unlawful
for a riparian to bathe in the source of a city water supply.








WATER RESOURCES


Injunctive relief will apparently be more readily granted as be-
tween private individuals than as against municipalities. Injunctive,
relief has been granted, for example, to preclude holders of a pre-
scriptive right from unduly lowering the level of a lake by new
means where riparian owners on the lake would have been greatly
damaged thereby. 156 The majority opinion in that case made no
explicit mention of balancing of equities, but undoubtedly did so in
concluding that an injunction was proper. The dissent, on the other
hand, by attributing much weight to the fact that the plaintiffs de-
layed in bringing their complaint, contended that the balance of the
equities was against the plaintiffs and would have denied equitable
relief. 157
Damages. Persons with rights to make consumptive uses of
water are entitled to compensation for the actual amount of any in-
jury done to these rights by the wrongful acts of others. 158 This
compensatory award may be granted either separately, in lieu of an
injunction, or together with an injunction, and availability of this
remedy is not affected in situations where a private individual is
bringing action against a municipality. 159 Generally no compensa-
tion will be allowed complainant for an unreasonable use of water by
the defendant unless the complainant has actually been damaged, 160
although two exceptions exist to this proposition. Where the defend-
ant is a non-riparian interloper the court may allow the action and
award nominal damages even though there is no proof of actual dam-
age to the riparian. 161 Similarly, a cause of action for at least
nominal damages apparently accrues to a riparian "without proof of
special damage" where there has been a total diversion of the water-
course by another, whether the diversion is caused by a riparian or
by a non-riparian. 162
Proper Party Plaintiff. A corollary to the principle that
actual injury must be shown to obtain damages or injunction is the
proposition that the only proper person to petition for remedial ac-
tion is the individual who has been injured. 163 No other person
156. Kennedy v. Niles Water Supply Co., supra note 14.
157. Id. at 483.
158. Stock v. City of Hillsdale, supra note 100; Loranger v. City of Flint,
supra note 127.
159. Ibid.
160. Ibid.
161. Cf. Dumont v. Kellogg, supra note 94 at 422.
162. Ibid.
163. Stock v. City of Hillsdale, supra note 100; Kennedy v. Niles Water
Supply Co., supra note 14; City of Battle Creek v. Goguac Resort
Assn., supra note 101.
164. Davison v. City of Ann Arbor, 237 Mich. 453, 212 N.W. 81 (1927).








AND THE LAW


may assert the rights of an injured riparian. The Michigan courts,
of course, impose upon the complainant the burden of establishing
that there has been an invasion of his rights. 164
2. Pollution
It is manifest that any use of a stream or lake, whether con-
sumptive or nonconsumptive, will pollute the water to some degree,
although the amount may be insignificant. In addition, watercourses
are often employed for the express purpose of carrying away refuse,
wastes, and other matter; in this sense pollution can be said to be
a use of the waters of the stream. Polluting uses of this nature,
for waste disposal and waste assimilation purposes, are generally
found in connection with highly populated areas or areas of industri-
al concentration. In Michigan, therefore, the greatest pollution
problems arise in the heavily populated and industrialized southeast-
ern portion of the Lower Peninsula, although problems of lesser
magnitude are common to virtually all areas of the state.
Pollution has a dual aspect in its effect upon lower riparians
and other persons. On the one hand pollution may render the water
unfit for use by other persons. Several cases of this nature have
arisen in Michigan, as for example, Monroe Carp Pond Co. v. River
Raisin Paper Co., 165 where the paper company's pollution killed the
carp being raised in the plaintiff's pond. On the other hand the
majority of Michigan pollution cases have not dealt with an interfer-
ence with water use, but rather with the causing of offensive odors,
menaces to health, or unsightly conditions. 166 Persons complain-
ing in these cases have not been using the water, but have had their
dwelling places rendered uninhabitable or the value of other property
seriously impaired by the contamination of waters running upon or
adjacent to their premises.



165. 240 Mich. 279, 215 N.W. 325 (1927). See also Davis v. Munro, 66
Mich. 485, 33 N.W. 408 (1887); People v. Hulbert, supra note 107;
City of Battle Creek v. Goguac Resort Assn. supra note 101.
166. See: McKee v. City of Grand Rapids, 137 Mich. 200, 100 N.W. 580
(1904); Phillips v. Village of Armada, supra note 111; Onen v. Herk-
imer, 172 Mich. 593, 138 N.W. 198 (1912); Attorney General v. City
of Grand Rapids, 175 Mich. 503, 141 N.W. 890 (1913); Village of
Sand Lake v. Allen, 185 Mich. 1, 151 N.W. 705 (1915); Russell v.
Continental Sugar Co., 223 Mich. 38, 193 N.W. 842 (1923); Attorney
General v. City of Howell, 231 Mich. 401, 204 N.W. 91 (1925);
Gundy v. Village of Merrill, 250 Mich. 416, 230 N.W. 163 (1930);
Northrup v. City of Jackson, 273 Mich. 20, 262 N.W. 641 (1935);
Dohany v. City of Birmingham, 301 Mich. 30, 2 N.W. 2d 907 (1942).


I _








WATER RESOURCES


a. Application of Reasonable Use Doctrine
The reasonable use doctrine, which forms the basis for deter-
mining rights to consumptive use of water, also provides a founda-
tion for ascertaining the degree to which individuals and municipali-
ties can pollute the waters of a stream or lake. 167 Determination
of how much pollution is reasonable is a question of fact, "and
largely one of degree. "168 It is a matter in each case of weighing
the interests of the person or municipality causing the pollution
against the interests of persons or municipalities adversely affected
thereby in order to find whether the pollution is reasonable. 169 A
use reasonable at one time and place may be wholly unreasonable at
another time and place, which but emphasizes the relativity of the
right to pollute and shows that "the difficulty is in applying the facts
of the particular case to the rule. "170 For example, some of the
criteria employed in ascertaining what amount of pollution by a
municipality is lawful are the population of the municipality, the na-
ture of proper sanitary measures which could be taken, and the
over-all general welfare of the communities affected. 171
Although the Michigan Supreme Court has seemed inclined to
tolerate reasonable pollution as a necessary concomitant of water
utilization, it has been fairly restrictive in individual cases in find-
ing areas of permissible contamination. 172 Where depositing sew-
age into waters creates obnoxious and offensive odors and stenches
to the detriment of other persons, the court has held the pollution
to be unreasonable. 173 Nor can raw sewage be "thrown into the
stream in such a way as to render the water foul and unfit for

167. Individuals: City of Battle Creek v. Goguac Resort Assn. supra
note 101; Monroe Carp Pond Co. v. River Raisin Paper Co., supra
note 4. Cf. Davis v. Munro, supra note 165; People v. Hulbert,
supra note 107; Municipalities: Phillips v. Village of Armada, supra
note 111; Attorney General v. City of Grand Rapids, supra note 166;
See Onen v. Herkimer, supra note 166.
168. Attorney General v. City of Grand Rapids, supra note 166 at 542.
169. Cf. Monroe Carp Pond Co. v. River Raisin Paper Co., supra note
4.
170. Id. at 287.
171. Phillips v. Village of Armada, supra note 111 at 263.
172. See cases cited in notes 173-177, infra.
173. Phillips v. Village of Armada, supra note 111; Attorney General v.
City of Grand Rapids, supra note 166; Village of Sand Lake v. Allen,
supra note 166; Gundy v. Village of Merrill, supra note 166. Although
all decided Michigan pollution cases have involved complaints by ripar-
ian persons or municipalities, nevertheless it would seem that under
general principles of nuisance law, non-riparians adversely affected
by odors, stenches, and generally unhealthy conditions could complain.








AND THE LAW


use. "174 It is unreasonable to discharge industrial paper waste into
a river to such an extent that the water cannot purify itself by the
time it reaches lower riparians, 175 or so that there is inadequate
oxygen in the water to sustain fish life. 176 Quite properly the court
has held unreasonable the depositing of raw sewage by cities into
waters so as to pollute them and create a danger to the health of
lower riparians and other persons. 177 If sewage has not been treat-
ed prior to being dumped into the water, the court will apparently
find the resulting pollution unreasonable unless the water is able to
effect self-purification within a reasonable distance from the point of
the sewage deposit. 178
It is uncertain from the cases decided by the Michigan Supreme
Court whether a non-riparian can lawfully pollute a watercourse. Al-
though the question has never arisen directly for determination, the
court in several cases has approved polluting activity of a non-
riparian nature. 179 If the principles governing consumptive use of
water were extended to the field of pollution, it would be wrongful
per se for a non-riparian to deposit polluting matter into a stream
or lake. 180 However, to date there has been no extension of this
kind, and the court seems inclined to allow any person or munici-
pality with access to a stream or lake, or even to an artificial
watercourse such as a drain, to pollute to a reasonable degree. 181

174. Attorney General v. City of Grand Rapids, supra note 166 at 538.
See Monroe Carp Pond Co. v. River Raisin Paper Co., supra note 4.
175. "Water can purify itself up to a point, by natural processes, but there
is a limit to the pollution load that a stream can handle," United
States Department of Agriculture, Water: The Yearbook of Agricul-
ture 638 (1955). Cf. Monroe Carp Pond Co. v. River Raisin Paper
Co., supra note 4.
176. Monroe Carp Pond Co. v. River Raisin Paper Co., supra note 4.
177. Northrup v. City of Jackson, supra note 166; City of Niles v. Stream
Control Commission, 296 Mich. 650, 296 N.W. 713 (1941); Stream
Control Commission v. City of Port Huron, 305 Mich. 153, 9 N.W.
2d 41 (1943); Stream Control Commission v. City of Port Huron, 323
Mich. 541, 36 N.W. 2d 138 (1949).
178. See cases cited in note 177, supra. See also McKee v. City of
Grand Rapids, supra note 166, deposit of raw sewage insufficient to
constitute a nuisance; cf. Detroit v. Highland Park, 326 Mich. 78, 92,
39 N.W. 2d 325 (1949), where the court indicated that a municipality
has no right to deposit raw sewage in the Detroit River.
179. Cf. McKee v. City of Grand Rapids, supra note 166; Attorney Gener-
al v. City of Grand Rapids, supra note 166; Village of Sand Lake v.
Allen, supra note 166; Northrup v. City of Jackson, supra note 166;
Dohany v. City of Birmingham, supra note 166.
180. See, e.g., Stock v. City of Hillsdale, supra note 100; Kennedy v.
Niles Water Supply Co., supra note 14 at 481.
181. See cases cited in note 179, supra; Gundy v. Village of Merrill,
supra note 166.








WATER RESOURCES


Municipalities have been allowed to cast sewage from the privately
owned dwellings of their inhabitants into watercourses running within
the municipal limits, 182 although in comparable consumptive use
cases the court has limited water use to riparian lands actually
owned by the municipality. 183 In Dohany v. City of Birmingham,184
decided in 1942, the court apparently approved the reasonable use
of a stream for waste disposal by a non-riparian municipality, al-
though the municipality was enjoined from patently unreasonable pol-
luting activity. On the other hand, in an earlier case the court
treated the issue of pollution as being dependent upon riparian
rights. 185
The issue is of considerable moment, because waste disposal
facilities are essential to the continued existence of any modern
municipality. When the matter arises for determination, the court
conceivably could treat pollution as an incident of the riparian right
and limit pollution of watercourses to riparian lands and riparian
proprietors only. This approach would be welcomed by riparian
owners but would present a serious problem to non-riparian munici-
palities and to other non-riparians who are presently using the
state's watercourses for waste disposal. Another and more rational
solution would be for the court to treat waste disposal by means of
streams, lakes, and drains as being a phase of the drainage prob-
lem and therefore not limited to riparian lands. This solution would
have the merit of allowing riparians and non-riparians alike to pol-
lute to a reasonable degree and would accord judicial recognition to
what is apparently the prevailing practice.
b. Pollution as a Private or Public Nuisance
Unreasonable pollution has been denominated by the courts
either as a private or a public nuisance. 186 If the injury odcasioned
by the contamination affects only an individual riparian, the wrongful
act is a private nuisance. 187 On the other hand, if the harm

182. Phillips v. Village of Armada, supra note 111; Attorney General v.
City of Grand Rapids, supra note 166; Northrup v. City of Jackson,
supra note 166.
183. See, e.g., Stock v. City of Hillsdale, supra note 100.
184. 301 Mich. 30, 2 N.W. 2d 907 (1942).
185. Monroe Carp Pond Co. v. River Raisin Paper Co., supra note 4.
See also People v. Hulbert, supra note 107; Attorney General v.
City of Howell, supranote 166.
186. See Attorney General v. City of Grand Rapids, supra note 166, and
other cases cited in note 173, supra.
187. Monroe Carp Pond Co. v. River Raisin Paper Co., supra note 4;
Northrup v. City of Jackson, supra note 166; Village of Sand Lake v.
Allen, supra note 166; Phillips v. Village of Armada, supra note
111. But compare Gundy v. Village of Merrill, supra note 166.








AND THE LAW


extends "to such an extent as to be injurious to public health," it
constitutes a public nuisance. 188 Similarly it is a public nuisance
where the pollution affects a city water supply. 189 The basic dis-,
tinction appears to be that a public nuisance interferes not only
with property and personal rights of individual persons, but also to
a considerable degree with the rights of a community of people. 190
No mathematical formula serves to delimit the one type of nuisance
from the other. Rather, the point of distinction must be whether
i the wrongful act affects a few private rights individually, or affects
some particular right or rights of such a large segment of the popu-
lation as to menace the public health or public welfare. 191 As dif-
ficult as the distinction may be to make, it is a necessary one in
that it determines the proper party complainants, the nature and
scope of the remedy to be afforded, and also whether or not pre-
scriptive rights to pollute may be gained.
c. Remedies for Unreasonable Pollution
Proper Party Complainant. Where pollution of waters
amounts to a private nuisance, only the individual or individuals ac-
tually aggrieved may bring an action against the person causing the
pollution. 192 Where a private nuisance-as distinguished from a
public nuisance-exists, the attorney general, acting on behalf of the
people of the state, is not a proper party to complain and will not
be afforded relief. 193 The attorney general, acting on behalf of the
people of the state, is, however, the proper person to bring an ac-
tion to abate a public nuisance. 194 In addition, where a public nui-
sance exists it has been held proper for the Michigan Stream Con-
trol Commission195 to proceed, in the public interest, against a city
to require the construction of sewage treatment plants. 196 When a
188. Attorney General v. City of Grand Rapids, supra note 166 at 537.
189. City of Battle Creek v. Goguac Resort Assn. supra note 101.
190. Attorney General v. City of Grand Rapids, sipra note 166 at 535.
191. See, e.g., Attorney General v. City of Howell, supra note 166,
where a pollution caused odor annoying to three families was held
to be a private nuisance only, in as much as the pollution caused
mere discomfort and could not be shown to cause any sickness a-
among the persons affected.
192. Attorney General v. City of Howell, supra note 166.
193. Ibid.
194. Attorney General v. City of Grand Rapids, supra note 166.
195. The Stream Control Commission, created by Act 245, Michigan Laws
1929, is now the Water Resources Commission. Mich. Comp. Laws
323.1 et seq., Mich. Stat. Ann. 3.521 et seq.
196. City of Niles v. Stream Control Commission, supra note 177; Stream
Control Commission v. City of Port Huron, 305 Mich. 153, 9 N.W.
2d 41 (1943); Stream Control Commission v. City of. Port Huron, 323
Mich. 541, 36 N.W. 2d 138 (1949).








WATER RESOURCES


public nuisance exists, a private person may not bring an action for
damages or to abate the nuisance unless it causes him special dam-
age "separate and apart from that done to the public. "197 This is
but the complement of prohibiting the state from acting to abate a
purely private nuisance. As in other civil cases, the plaintiff in an
action brought against a person causing a nuisance by polluting has
the normal burden of proof by a preponderance of the evidence. If
he fails to sustain this burden, a judgment for the defendant will
result. 198
Injunctive Relief. Injunctive relief against private nuisances
is governed by the balance of convenience or comparative injury
doctrine. 199 In a case denying injunctive relief, the Michigan Su-
preme Court said in applying this principle:
It will serve no useful purpose to refer to or discuss the cases
cited by plaintiff's counsel in which such relief was granted.
Each must depend upon its own facts. The discretion exercised
in its allowance or refusal should not be arbitrary. It should
be based upon a full consideration of the right violated, the
effect of granting it upon the defendants and other interests
affected thereby, and the effect of denying it upon the plaintiff. 200
Balancing of equities is limited to situations where the plaintiff can
be essentially and substantially compensated by damages. 201 Where,
however, the injury caused by the nuisance would, if allowed to con-
tinue, be irreparable or damages would be grossly inadequate, in-
junctive relief will be granted to abate a private nuisance. 202
The comparative injury doctrine has no application when the nui-
sance is public, since as against the public welfare the individual
causing the nuisance cannot assert his private equities. Therefore,
if the existence of a public nuisance caused by pollution is
197. McKee v. City of Grand Rapids, supra note 166 at 214.
198. See Upjohn v. Richland Township, 46 Mich. 542, 9 N.W. 845 (1881);
Phillips v. Village of Armada, supra note 111; Joldersma v. Muske-
gon Development Co., 286 Mich. 520, 282 N.W. 229 (1938); Village
of Sand Lake v. Allen, supra note 166. Compare the section on
comparative use, supra, as to the burden of proof.
199. Wyoming Township v. Judge Superior Court, 158 Mich. 60, 122 N.W.
214 (1909).
200. Monroe Carp Pond Co. v. River Raisin Paper Co., supra note 4
at 289.
201. Stream Control Commission v. City of Port Huron, 305 Mich. 153,
9 N.W. 2d 41 (1943).
202. Onen v. Herkimer, supra note 166; Attorney General v. City of
Grand Rapids, supra note 166; Dohany v. City of Birmingham, supra
note 166.








AND THE LAW


established, an injunction to abate the nuisance will follow as a mat-
ter of course. 203
Damages and Self Help. As the purpose of an action to
abate a public nuisance is to protect the public interest and is not
to collect damages, the question of awarding damages in cases of
unreasonable pollution is limited to instances of private nuisance.
The damages one is entitled to recover for unreasonable pollution
are limited to the amount of actual injury established by the evi-
dence. 204 Normally the ascertainment of that amount is a jury
question. 205 And, of course, it is clear that in an appropriate case
both damages and an injunction may be awarded the complainant.
In regard to self-help to abate a nuisance, it is not clear wheth-
er the courts will approve reasonable measures directed to the
abatement of a nuisance. 206 However, it is certain that measures
of self-help too drastic in their nature, and therefore unreasonable,
will be disapproved, especially where other measures are available.
Thus, it has been held improper for a city whose waters were being
polluted by an upper riparian to divert the water completely so as
'to deprive the upper riparian of further opportunity to pollute. 207
d. Prescriptive Rights to Pollute208
As in other cases of gaining rights by prescription, pollution
of waters must be adverse and continuous for the requisite fifteen-
year period before a prescriptive right will ripen. 209 A prescrip-
tive right to pollute is limited to such uses and amounts as were
made for the full fifteen-year prescriptive period, and any increased
pollution will provide the basis of an action for damages or an in-
junction. 210
1 203. Attorney General v. City of Grand Rapids, supra note 166; Stream
Control Commission v. City of Port Huron, supra note 201; Stream
Control Commission v. City of Port Huron, 323 Mich. 541, 36 N.W.
2d 138 (1949).
204. Phillips v. Village of Armada, supra note 111; City of Battle Creek
v. Goguac Resort Assn., supra note 101.
205. Cf. Russell v. Continental Sugar Co., supra note 166.
206. Cf. Davis v. Munro, supra note 165 at 486, where the court intimates
that self help is improper and the dissenting Justice Sherwood clear-
ly states that it would be improper.
207. McKee v. City of Grand Rapids, supra note 166 at 213.
208. For a discussion at some length of the principles of prescription,
see the consumptive use section, supra.
209. Attorney General v. City of Grand Rapids, supra note 166 at 536-37.
210. Id. at 537. If, when such an injunction is to be enforced against the
excess pollution, it is found impossible to separate the wrongful
excess from the rightful use, the wrongdoer must comply by abating
the excess "even if it unavoidably extends to the total prohibition of
the user."








WATER RESOURCES


A prescriptive right to pollute waters may be gained only to the
extent that would create a private nuisance, for no right can be
acquired to create a public nuisance. 211 This is an important limi-
tation which is not applicable to prescriptive rights to other uses of
water.
e. State and Local Control of Pollution
By statutory enactment in Michigan municipalities have the
power to regulate and preserve streams and lakes within their lim-
its and to abate public nuisances.212 Each municipality in the state
has ample authority to construct, obtain, and maintain adequate sew-
age and garbage equipment and plants to alleviate the pollution of
waters through deposit of city sewage. 213 Two or more municipali-
ties may form a metropolitan district for purposes of sewage
211. Id. at 536; Gundy v.Village of Merrill, supra note 166 at 418.
212. Villages: Mich. Comp. Laws (1948) 67.1, Mich. Stat. Ann. 5.1285;
Mich. Comp. Laws (1948) 67.38, Mich. Stat. Ann. 5.1322; Mich.
Comp. Laws (1948) 67.49, Mich. Stat. Ann. 5.1333; Mich. Comp.
Laws (1948) 78.23, Mich. Stat. Ann. 5.1533; Mich. Comp. Laws
(1948) 78.24, Mich. Stat. Ann. 5.1534. Fourth class cities:
Mich. Comp. Laws (1948) 91.1, Mich. Stat. Ann. 5.1740; Mich.
Comp. Laws (1948) 94.1-94.8, Mich. Stat. Ann. 5.1757-5.1764;
Mich. Comp. Laws (1948) 97.4, Mich. Stat. Ann. 5.1779. Home
rule cities Mich. Comp. Laws (1948) 117.3, Mich. Stat. Ann.
5.2073; Mich. Comp. Laws (1948) 117.4(h), Mich. Stat. Ann.
5.2081. Charter townships: Mich. Comp. Laws (1948) 42.17,
Mich. Stat. Ann. 5.46(17).
216. Villages: Mich. Comp. Laws (1948) 78.24, Mich. Stat. Ann.
5.1534; Mich. Comp Laws (1948) 123.181, Mich. Stat. Ann.
5.2641; Mich. Comp Laws (1948) 123.241-123.253, Mich. Stat.
Ann. 5.2661-5.2673; Mich. Comp. Laws (1948) 123.261, Mich.
'Stat. Ann. 5.2681; Mich. Comp. Laws (1948) 123.201-123.220,
Mich. Stat. Ann. 5.2701-5.2720; Mich. Comp. Laws (1948) 123.
361-123.374, Mich. Stat. Ann. 5.2726(1)-5.2726(14). Cities:
Mich. Comp. Laws (1948) 123.181, Mich. Stat. Ann. 5.2641; Mich.
Comp. Laws (1948) 123.241-123.253, Mich. Stat. Ann. 5.2661-
5.2673; Mich. Comp. Laws (1948) 123.261, Mich. Stat. Ann.
5.2681; Mich. Comp. Laws (1948) 123.201-123.220, Mich. Stat.
Ann. 5.2701-5.2720; Mich. Comp. Laws (1948) 123.361-123.374,
Mich. Stat. Ann. 5.2726(1)-5.2726(14). Townships: Mich. Comp.
Laws (1948) 41.411-41.414, Mich. Stat. Ann. 5.2411-5.2414;
Mich. Comp. Laws (1948) 41.721-41.737, Mich. Stat. Ann.
5.2770(51)-5.2770(67). Counties: Mich. Comp. Laws (1948)
123.241-123.253, Mich. Stat. Ann. 5.2661-5.2673; Mich. Comp.
Laws (1948) 46.171-46.187, Mich. Stat. Ann. 5.2767(1)-5.2767(18).
Michigan municipalities have power to prevent the establishment
within their limits of sewage and garbage disposal plants by other
municipalities or public corporations. Mich. Comp. Laws (1948)
123.271-123.275, Mich. Stat. Ann. 5.2691-5.2695.








AND THE LAW


disposal with power of condemnation and financing;214 and in turn
cities are authorized to acquire and operate the disposal facilities
of metropolitan districts. 215 Two or more municipalities may in-
corporate an "authority" for purposes of taking care of their sewage
disposal needs. 216 In addition, a county may coordinate into a work-
able unit all of these systems operating within its boundaries. 217
Counties, metropolitan districts, and municipalities come within the
purview of the concept "public corporations," whereby water and
sewage disposal systems lying within two or more such public cor-
porations may, if necessary, be subject to joint operation. 218 Simi-
larly, authority is given for state institutions to make adequate con-
tracts to provide for sewage disposal. 219
At the level of state control the state health commissioner has
supervisory and regulatory control over water systems and sewage
disposal systems servicing municipalities in order to protect the pub-
lic health. 220 The commissioner is authorized to bring appropriate
action to enforce his orders. 221 In addition, the Department of Con-
servation has the duty "to prevent and guard against the pollution of
lakes and streams within the state."222
214. Mich. Comp. Laws (1948) 119.1-119.15, Mich. Stat. Ann. 1
5.2131-5.2145.
215. Mich. Comp. Laws (1948) 10123.351-123.356, Mich. Stat. Ann.
05. 2534(1)-5.2534(6).
216. Mich. Comp. Laws (1948) 1123.231-123.235, Mich. Stat. Ann.
05.2769(1)-5.2769(5); Mich. Comp. Laws (1948) 0124.281-
124.294, Mich. Stat. Ann. 5.2769(51)-5.2769(64); Mich. Comp.
Laws (1948) 1123.301-123.310, Mich. Stat. Ann. 185.2725(1)-
5.2725(10).
217. Mich. Comp. Laws (1948) 146.175a-46.187, Mich. Stat. Ann.
0 5.2767(1)- 5.2767(18). See also Mich. Comp. Laws (1948)
0123.231-123.235, Mich. Stat. Ann. 05.2769(1)-5.2769(5).
218. Mich. Comp. Laws (1948) 123.331-123.347, Mich. Stat. Ann.
05.2769(21)-5.2769(37).
219. Mich. Comp. Laws (1948) 17.71-17.76, Mich. Stat. Ann
04.191-4.196.
220. Mich. Comp. Laws (1948) 325.201-325.214, Mich. Stat. Ann.
014.411-14.424.
221. Ibid. In addition to the power to invoke legal sanctions, the State
Health Commissioner has licensing supervision over the cleaning of
septic tanks and other private sewage disposal enterprises. Mich.
Comp. Laws (1948) 0325.281-325.287, Mich. Stat. Ann.
14.434(1)-14.434(7).
222. Mich. Comp. Laws (1948) 299.3, Mich. Stat. Ann. 13.3. In ad-
dition, there are statutes making it unlawful to throw into waters
trash which is likely to injure persons, animals, birds, or fish.
Mich. Comp. Laws (1948) 307.21, Mich. Stat. Ann. 13.1671. See
also Mich. Comp. Laws (1948) 307.30, Mich. Stat. Ann. 13.1674;
Mich. Comp. Laws (1948) 750.436, Mich. Stat. Ann. 28.691.








WATER RESOURCES


Primary responsibility for control and prevention of pollution.
however, rests with the Michigan Water Resources Commission. 223
The commission has broad power to set pollution standards and to
regulate or restrict the polluting content of any waste material or
substance discharged into the state's waters. 224 It has power to in-
vestigate, inspect, and make orders to accomplish its purpose of
maintaining proper water purity. Hearings and procedural safe-
guards are set forth. 225 A recent amendment to the Water Re-
sources Commission Act authorizes the commission to take "such
steps as may be necessary to comply with the provisions" of the
Federal Water Pollution Control Act amendments of 1956. 226
The whole tenor of the Water Resources Commission Act con-
notes a standard of reasonable pollution as the guide to pollution
control. 227 However, a literal reading of section 6 of the act leads
to the view that a new and stricter standard has been substituted
for the standard of reasonable use. The section reads:
It shall be unlawful for any person to discharge or permit to
be discharged into any of the lakes, rivers, streams, or other
waters of this state any substance which is injurious to the
public health or to the conducting of any industrial enterprise
or other lawful occupation.... [ emphasis added]228
223. Mich. Comp. Laws (1948) 323.1-323.12a, Mich. Stat. Ann. 3.521-
3.532(1). This Commission superseded the Stream Control Commis-
sion. See note 201, supra.
224. Ibid. See Mich. Comp. Laws (1948) 323.5, Mich. Stat. Ann. 3.525.
225. Ibid.
226. Mich. Comp. Laws (1948) 323.201, Mich. Stat.. Ann. 3.533(1).
The reference in the state statute to the federal law is to Public
Law 660 of the 84th Congress. Other statutes dealing with the inter-
relation of the state of Michigan and the United States Government
are the acts authorizing public corporations to apply for and to accept
grants in aid from the federal government for abatement of water
pollution. Mich. Comp. Laws (1948) 141.39, Mich. Stat. Ann.
5.2766(3); Mich. Comp. Laws (1948) 323.101-323.103, Mich. Stat.
Ann. 5.2770(21)-5.2770(23).
227. See, for example, Mich. Comp. Laws (1948) 323.5, Mich. Stat. Ann.
3.525, which provides that the Commission "shall have the authority
to take all appropriate steps to prevent any pollution which is deemed
by the commission to be unreasonable...." Other sections recognize
that some pollution is allowable subject to the control of the Commis-
sion as to reasonableness. See Mich. Comp. Laws (1948) 323.7,
Mich. Stat. Ann. 3.527, which pertains to notice of violations among
other things, and talks of person who "fails to control the polluting
content or waste discharged or to be discharged into any waters of
the state." Also, Mich. Comp. Laws (1948) 323.8, Mich. Stat. Ann.
3.528, provides that whenever a person feels "aggrieved by the re-
striction of polluting content" he may ask for a hearing; being ag-
grieved by restriction certainly indicates some permissible pollution.
228. Mich. Comp. Laws (1948) 323.6, Mich. Stat. Ann. 3.526.








AND THE LAW


This language seems to prohibit any pollution injurious to the public
health or to an industry or other form of endeavor. Under previ-
ously existing law, pollution which impaired the public health was
clearly a public nuisance and could have been proscribed. However,
making it unlawful to pollute in a manner injurious to the conduct-
ing of any industrial enterprise or other lawful business appears to
repudiate the reasonable pollution test which is based upon equating
all rights of affected persons and which often results in some injury
being inflicted even though the pollution is found to be reasonable. It
is difficult to perceive how any pollution, no matter how small in
amount, would not result in some injury, however slight, to a ri-
parian conducting an industrial enterprise or other lawful business.
If a literal interpretation of this section is correct, the powers of
the commission to set standards of reasonable pollution have been
limited by the requirement that the pollution cause no injury.
However, in view of the act's purpose of regulating and controll-
ing pollution within the bounds of reasonableness, it is submitted
that the Michigan Supreme Court would interpret section 6 to mean
only that any unreasonable pollution which results in injury is unlaw-
ful. This interpretation is surely more in consonance with the in-
tent of the legislature, as evidenced by the other sections of the act,
than a strict literal reading of the section would be. Under this in-
terpretation the commission is free to adjust pollution standards to
meet the needs of the public, and recognition can be granted to the
fact that in many areas pollution is a water use as important as any
other use of the rivers and streams. Adequate safeguards exist
against extreme or unreasonable commission action in setting pollu-
tion standards, for judicial determination of the propriety of the
commission's acts is always open. Hearing and review are availa-
ble with trial de novo in the circuit court for any person believing
he is a grieved by orders of the commission. 229
3. Detention
Another nonconsumptive use of water involves the detention or
impounding of the contents of a watercourse230 by means of a dam
or other structure for the purpose of producing power, aiding navi-
gation, storing water for consumptive and other uses, or regulating
stream flow throughout the year. The flow of the watercourse is

229. See Mich. Comp. Laws (1948) 323.7, 323.8, Mich. Stat. Ann.
3.527, 3.528.
230. As it is only moving waters which may be obstructed or detained,
clearly there can be no detention of the waters of a currentless lake.
Therefore, all detention cases involved bodies of water, usually
streams, in which there is a current, however slight.








WATER RESOURCES


thereby held back, and lower riparians are deprived at times of a
portion or all of the flow of the water, due either to the simple fact
that the water is being impounded in a millpond or other artificial
body and not allowed to continue downstream, or to the increased
evaporation and seepage losses caused by the existence of the area
of backwaters created by the obstruction. 231 The effect of these
detentions is to diminish greatly or even cut off entirely the flow of
water for periods of time ranging from a few hours to several
weeks, depending upon the nature of the use for which the water is
impounded. For example, one who impounds water for power to op-
erate a mill or generating plant may, on weekends, shut down the
mill or plant and not allow any of the flow to pass downstream, im-
pounding it instead for power purposes during the following week.232
The Michigan Constitution provides that no navigable stream may
be dammed without permission of the board of supervisors of the
county in which the dam is to be situated. 233 In addition, before
the stage of water in any watercourse can be altered, as by the con-
struction of a dam, the permission of the commissioner or commis-
sioners having jurisdiction over the bridges across the watercourse
must be obtained. 234 The Michigan Conservation Commission is em
powered to make rules and regulations in regard to the construction
and maintenance of fishways or fish ladders for the passage of fish
over dams. 235 Owners of dams may be ordered by the commission
to install fishways through their dams;236 the orders may be en-
forced in the courts by the director of conservation, county prose-
cuting attorneys, or the state attorney general. 237 Dams in water-
courses may be constructed by the county board of supervisors in
the maintenance of inland lake levels;238 provision is also made for

231. An obstruction to the flow of a stream which causes the flooding of
upstream land is dealt with in Part II, C.
232. See, e.g., Middleton v. Flat River Booming Co., 27 Mich. 533
(1873); Bullard v. Saratoga Victory Mfg. Co., 77 N.Y. 525 (1879).
233. Mich. Const. Art. VIII, 14; Mich. Comp. Laws (1948) 46.21-
46.22, Mich. Stat. Ann. 5.344-5.345.
234. Mich. Comp. Laws (1948) 254.25-254.26, Mich. Stat. Ann.
99.1195, 9.1196.
235. Mich. Comp. Laws 41948) 307.1-307.7, Mich. Stat. Ann. 13.1651-
13.1657.
236. Mich. Comp. Laws (1948) 307.3, Mich. Stat. Ann. 13.1653.
237. Mich. Comp. Laws (1948) 307.4, Mich. Stat. Ann., 13.1654.
238. Mich. Comp. Laws (1948) 281.1-281.30, Mich. Stat. Ann. 8.101-
8.130; Mich. Comp. Laws (1948) 281.51-281.57, Mich. Stat. Ann.
811.211-11.217; Mich. Comp. Laws (1948) 281.101-281.121, Mich.
Stat. Ann. 11.221-11.241; Mich. Comp. Laws (1948) 281.201-
281.227, Mich. Stat. Ann. 11.271-11.298.








AND THE LAW 467

the formation of private corporations to erect dams in order to im-
prove the navigation of the rivers of the state. 239
The reasonable use test applies to the detention of the waters
of a stream, as well as to consumptive uses and pollution. There-
fore, mere detention is not in itself wrongful; it is only unreasona-
ble detention which is wrongful and which will supply the foundation
for an action seeking damages or equitable relief. The first hold-
ing to this effect in Michigan came in the 1874 landmark case of
Dumont v. Kellogg,240 which was an action for damages for the al-
leged wrongful detention of a watercourse by means of a dam which
"considerably diminished" the flow of the stream. The plaintiff, a
lower mill owner, advanced the theory that any detention of the flow
of the stream was wrongful and won a judgment in the lower court
when the jury was so instructed. The Michigan Supreme Court, in
an opinion by Justice Cooley, rejected the plaintiff's argument and
adopted the reasonable use test. The classical statement of the
reasonable use doctrine is found in Justice Cooley's opinion:
...[ A]s between different proprietors on the same stream, the
right of each qualifies that of the other, and the question always
is, not merely whether the lower proprietor suffers damage by
the use of the water above him, nor whether the quantity flow-
ing on is diminished by the use, but whether under all the cir-
cumstances of the case the use of the water by one is reason-
able and consistent with a corresponding enjoyment of right by
the other.... It is a fair participation and a reasonable use
by each that the law seeks to protect. Such interruption in the
flow "as is necessary and unavoidable by the reasonable and
proper use of the mill privilege above," cannot be the subject
of an action.241

The rule enunciatedtin Dumont v. Kellogg, that the lawfulness of a
detention of the waters of a stream is to be determined by whether
239. Mich. Comp. Laws (1948) 485.101-485.129, Mich. Stat. Ann.
22:1511-22.1538.
240. 29 Mich. 420 (1874).
241. Id. at 423-24. In the earlier case of Middleton v. Flat River Boom-
ing Co., supra note 232 at 535, is found a dictum of Justice Cooley
to the same effect. Comparing the rights of a mill-owning riparian
with the right of a log-driving interest to dam a floatable stream,
Justice Cooley said:
On such a stream it cannot be said that the right of
floatage is paramount to the use of the water for
machinery. Each right should be enjoyed with due
regard to the existence and protection of the other.


I








468 WATER RESOURCES

the detention constitutes a reasonable use, has been followed by the
Michigan Supreme Court since 1874. 242
In determining whether detention of a stream by means of a dam
or other structure is reasonable, the Michigan Supreme Court does
not accord a preference to the party who made first use of the
stream. In Dumont v. Kellogg Justice Cooley said:
...[W]e may dismiss from the mind the fact that the plaintiff
had first put the waters of a stream to practical use, since
that fact gave him no superiority in right over the defendant.
The settled doctrine now is that priority of appropriation
gives to one proprietor no superior right to that of the others,
unless it has been continued for a period of time, and under
such circumstances as would be requisite to establish rights
by prescription.243.

This rule was reasserted in 1927, when the court ruled that the fact
that plaintiff's dam had stood for fifty years before defendant's dam
was erected gave the plaintiff no basis for complaining of a reason-
able detention of the flow of the stream by the defendant. 244 Any
other result, said the court, would lead to adoption at least in part
of the prior appropriation theory.
Several of the detention cases to come before the Michigan Su-
preme Court have involved dams maintained by lumbering interests
for the purpose of furnishing occasional "floods" to aid the passage
of logs downstream. 245 When lower mill owners have demonstrated
that a detention of this nature interferes with the operation of their
mills, the court has generally held the upper dams of the lumber-
ing interests to be unreasonable, 246 especially when the log-drivers
are seeking to make navigable a stream which is naturally not of
sufficient size to float logs. 247

242. Hoxsie v. Hoxsie, supra note 103; Woodin v. Wentworth, 57 Mich.
278, 23 N.W. 813 (1885); Wooden v. Mt. Pleasant Lumber & Mfg.
Co. 106 Mich. 412, 64 N.W. 329 (1895); Neely v. Detroit Sugar Co.,
138 Mich. 469, 101 N.W. 664 (1904); Andrews v. Weckerman, 144
Mich. 199, 107 N.W. 870 (1906); Preston v. Clark, supra note 103
Cf. Thunder Bay River Booming Co., v. Speechly, 31 Mich. 336
(1875); Buchanan v. Grand River Log Co., 48 Mich. 364, 12 N.W.
490 (1882); Koopman v. Blodgett, 70 Mich. 610, 38 N.W. 649 (1888).
243. 29 Mich. 420, 422 (1874).
244. Preston v. Clark, supra note 103.
245. See, e.g., Thunder Bay River Booming Co. v. Speechly, supra note
242; Woodin v. Wentworth, supra note 242; Koopman v. Blodgett,
supra note 242. Cf. Middleton v. Flat River Booming Co., supra
note 232; Wooden v. Mount Pleasant Lumber & Mfg. Co., supra
note 242.
246. Ibid.
247. Koopman v. Blodgett, supra note 242.








AND THE LAW 469

In addition to detention which results from dams and other struc-
tures whose purpose is to impound waters, detention of a water-
course may be caused as the result of some other use of the water,
as where logs being floated downstream jam and interfere with the
stream flow, 248 or where refuse thrown into a watercourse fills up
the channel and obstructs the flow. 249 In these situations the rea-
sonable use test will prevail, although to act "reasonably" under the
circumstances may place a heavy burden upon the party causing the
obstruction. On the other hand, where an interference with stream
flow is caused by a non-riparian who is making no use of the water,
such as by the erection of bridge abutment in the watercourse, 250 it
is difficult to justify the obstruction as reasonable. However, in
any case the obstruction must cause an actual and appreciable inter-
ference before the court will give relief. 251
Remedies for the unreasonable detention of a watercourse are,
in general, the same as for other wrongful acts involving water use.
If a mill is rendered inoperative for a time by an interference with
the stream providing its water supply, the measure of damages will
be the value of the mill during the period it is adversely affected.252
In granting injunctive relief, the court is careful to determine that
the remedy at law is inadequate, 253 and that relief may be provided
in injunctive form. 254 Self-help, although recognized, is not en-
couraged by the court if resort is had to extreme measures. 255 As
with other rights to use water, fifteen years adverse use will give a
prescriptive right to detain or impound the contents of a water-
course.-"6

248. Wooden v. Mt. Pleasant Lumber & Mfg. Co., supra note 242.
249. Neely v. Detroit Sugar Co., supra note 242. Cf. Davis v. Munro,
supra note 165; Schneider v. Township of Brown, 142 Mich. 45, 105
N.W. 13 (1905), aff'd. after retrial, 153 Mich. 454, 116 N.W. 1016
(1908); Addison Flouring Mill v. Lake Shore & M.S. Ry. Co., 160
Mich. 330, 125 N.W. 347 (1910).
250. Newago Mfg. Co. v. Chicago & W.M. Ry. Co., 64 Mich. 114, 30
N.W. 910 (1887). Cf. Knight v. Barr, 130 Mich. 673, 90 N.W.
849 (1902); Andrews v. Weckerman, supra note 242. Similarly, the
construction of a highway or railroad embankment in a stream or
millpond will be difficult to find reasonable. Cf. Schneider v. Town-
ship of Brown, supra note 249; Addison Flouring Mill Co. v. Lake
Shore & M.S. Ry. Co., supra note 249.
251. Knight v. Barr, supra note 250; Andrews v. Weckerman, supra note
242.
252. Woodin v. Wentworth, supra note 242.
253. Middleton v. Flat River Booming Co., supra note 232.
254. Cf. Hoxsie v. Hoxsie, supra note 103.
255. Davis v. Munro, supra note 165.
256. Cf. McKee v. City of Grand Rapids, supra note 166; Preston v.
Clark, supra note 103.








WATER RESOURCES


One who obstructs a navigable watercourse and thereby diminish-
es the flow of water to a lower milldam cannot defend his acts on
the ground that the lower milldam was constructed unlawfully, with-
out permission of the board of supervisors, as required by the Mich-
igan Constitution. 257 The fact that the dam is maintained without
proper legal sanction is a matter solely between the proper public
officials and the owner of the milldam.
In conclusion, reasonable acts of detention and impounding of the
contents of watercourses may be done without liability to lower ri-
parians whose water uses may be impaired thereby. In determining
what is reasonable, the court appears to favor riparian water uses,
such as the maintenance of dams for power purposes; obstructions
not incident to a use of water verge upon being unreasonable per se.
Finally, a detention is not actionable simply because it interferes
with a prior use of the stream; in all cases the issue is whether
the detention is reasonable in relation to the uses which it impairs.
4. Navigation, Hunting, and Fishing
A use of water different in nature from those uses hitherto dis-
cussed is for navigation and associated activities. This section
deals with the right of members of the public to navigate upon the
various waterways of Michigan and to use these waterways in the
associated activities of fishing, hunting, and trapping. Questions as
to the extent of these rights have often come before the Michigan
courts due to the desires of individuals to use the extensive system
of waterways within the state for both commerce and recreation.
This section discusses the tests for determining whether waterways
are open to navigation by the public, the rights of the public inci-
dent to navigation, the comparative rights of riparian owners and
navigators, and the rights of the public to fish, swim, hunt, and
trap upon and adjacent to the state's waterways.
a. Waters Subject to Public Navigation
Michigan recognizes the doctrine that waters in fact capable
of use for public navigation are legally considered freely navigable
by members of the public. This doctrine has long been the English
common law rule258 and has been adopted by the other American
states. 259
257. Wooden v. Mt. Pleasant Lumber & Mfg. Co., supra note 242. The
constitutional requirement is found in Mich. Coiit., Art. VIII, 14.
258. Many authorities to this effect are cited and commented upon in 1
Farnham, Waters and Water Rights, 23e (1904). See also Phear,
Rights of Water *13 (Law Library ed. 1859); Angell, Watercourses
535-50 (7th ed. 1877). Because the early English courts, while
following the "navigable in fact, navigable in law" formula, restrict-








AND THE LAW


Much of the groundwork for the subsequent development of this
doctrine in Michigan was laid in the early case of Moore v. San-
borne260 in which Justice Martin, foreseeing that the growth and ex-
pansion of the state depended upon widespread commercial inter-
course, ruled that where there is "capacity for valuable floatage,"
a stream is subject to the right of public navigation; and navigation
may be by boats, rafts, or logs, as long as it serves some valua-
ble purpose:

The servitude of the public interest depends rather upon the
purpose for which the public requires the use of its streams,
than upon any particular mode of use-and hence, in a region
where the principal business is lumbering, or the pursuit
of any particular branch of manufacturing or trade, the public
claim to a right of passage along its streams must depend
upon their capacity for the use to which they can be made
subservient. 261

Therefore, because lumbering was an important enterprise, and the
river in question in the Moore case could float logs to market, the
court held it to be a navigable stream.
Moore v. Sanborne was decided in the spirit that in declaring a
waterway to be navigable, some valuable public purpose should be
served; each case should be determined with reference to the par-
ticular public interests involved. Consequently, it would be antici-
pated that after Moore v. Sanborne the standard of navigability would
have varied from case to case and, for example, only where lumber-
ing was important would the test have been the capacity of the water-
course to float logs. The cases immediately following Moore v.

Footnote continued
ed the use of the term "navigable waters" to tidal waters, the Amer-
ican writers, especially Farnham, appear to have been confused as
to the true state of things at the common law. Compare Chancellor
Kent's opinion in Palmer v. Mulligan, 3 Gaines *308, *318 (N.Y.
1805), and 3 Kent, Commentaries *427 (14th ed. 1896), with 1 Farn-
ham, Waters and Water Rights 23-23g (1904).
259. See, e.g., Brown v. Chadbourne, 31 Me. 9 (1849); Morgan y. King,
35 N.Y. 454 (1866) Elder v. Burrus, 25 Tenn. 358 (1845); Willow
River Club v. Wade, 100 Wis. 86, 76 N.W. 273 (1898), Cf. Trustees
of Schools v. Schroll, 120 Ill. 509, 12 N.E. 243 (1887); Cooley v.
Golden, 117 Mo. 33, 23 S.W. 100 (1893).
260. 2 Mich. 519 (1953). In Tyler v. The People, 8 Mich. 320 (1860),
the court indicated that a broad interpretation of the term "navigable
waters" should be employed in an inland state such as Michigan, and
that it should not be restricted to the narrow English meaning. See
note 258, supra.
261. 2 Mich. 519 at 525 (1853).


j 1








WATER RESOURCES


Sanborne apparently retained this philosophy in their approach. 262
Beginning with Stofflet v. Estes263 in 1895, however, the court
looked exclusively to the letter of the Moore case, ignoring its spir-
it, with the result that the test of capacity to float logs became the
standard to be applied in every case in which the navigability of a
waterway was at issue, even long after the once-great lumbering in-
terests of the state had declined. 264 The most recent case of this
nature was decided in 1943 and held that a stream only one foot
deep, which was too shallow for boats, was navigable because logs
could have been floated therein. 265
The fact that a waterway has not in the past been used by the
public does not establish conclusively that it is non-navigable. 2
As was said in Collins v. Gerhardt, 267 "It is the capacity of a
stream for public uses and not the frequency with which it is used
that determines its navigability. "268 Nor is it a bar to navigability
that during some seasons of the year there may be insufficient
water in the waterway to sustain navigation. 269 However, a stream
which is only capable of floatage after unusually heavy rains or in
time of freshet is not navigable. 270
It was suggested in Moore v. Sanborne, and was later held in
Thunder Bay River Booming Co. v. Speechly271 that the public
262. See, e.g., supra note 242. Language used in other cases is indica-
tive of the continuation of the frame of mind of Moore v. Sanborne.
See Lorman v. Benson, 8 Mich. 18 (1860); Grand Rapids Booming Co.
v. Jarvis, 30 Mich. 308 (1874); Shepard v. Gates, 50 Mich. 495,
15 N.W. 878 (1883). Cf. Toledo Liberal Shooting Co. v. Erie Shoot-
ing Club, 90 Fed. 680 (6th Cir. 1898). See also The Daniel Ball, 77
U.S. 557 (1870).
263. 104 Mich. 208, 62 N.W. 347 (1895).
264. Cole v. Dooley, 137 Mich. 419, 100 N.W. 561 (1904); Collins v.
Gerhardt, 237 Mich. 38, 211 N.W. 115 (1926); Attorney General v.
Taggart, 306 Mich. 432, 11 N.W. 2d 193 (1943). See also Ne-Bo-
Shone Assn. v. Hogarth, 81 F.2d 70 (6th Cir. 1936), affirming 7 F.
Supp. 885 (W.D. Mich. 1934). The retention of the ability of a
waterway to float logs as the test of navigability is criticized in 25
Mich. L. Rev. 654 (1927).
265. Attorney General v. Taggart, supra note 264.
266. Moore v. Sanborne, 2 Mich. 519 (1853); Collins v. Gerhardt, supra
note 264. But cf. Burroughs v. Whitwam, 59 Mich. 279, 26 N.W.
491 (1886), where the court appeared to place much weight upon the
fact that during the prior 50 years the public had not used the stream
in question.
267. 237 Mich. 38, 211 N.W. 115 (1926).
268. Id. at 45.
269. Moore v. Sanborne, supra note 266; Thunder Bay River Booming Co.
v. Speechly, supra note 242.
270. Cf. Thunder Bay River Booming Co. v. Speechly, supra note 242 at 343.
271. 31 Mich. 336 (1875). See also East Branch Sturgeon River Improve-
ment Co. v. White & Friant Lumber Co., 69 Mich. 207, 37 N.W.








AND THE LAW


easement of navigation applies only to streams which will naturally
float logs and streams which must be artificially increased in vol-
ume so that logs can be accommodated are not subject to public
navigation. However, if a stream will naturally float logs, it is
navigable for all purposes and may lawfully be increased in depth
so as to be sufficient in size for steamboats. 272
Wholly apart from any determination of the capacity of a water-
way to float logs or watercraft, for the waterway to be navigable it
must also be capable of use as a thoroughfare for water travel or
commerce. Although a waterway is of sufficient depth to float logs
or vessels, nevertheless it is not navigable if it has no inlet or out-
let large enough to support navigation, or if it is inaccessible to
commerce. 273 For example, a lake surrounded by private lands,
which is fed by springs and has no outlet, is wholly a private lake
and not subject to the easement of public navigation. 274 It is not
true, however, that a waterway must have a current in order to be
navigable. 275
Furthermore, the fact that a body of water is nominally and
physically connected with a navigable waterway does not ipso facto
make it navigable also. In Baldwin v. Erie Shooting Club276 a pri-
vately owned swamp area covered with water and contiguous with
Lake Erie was declared not to be subject to public navigation since
it was in no way usable as a highway for commerce. The fact that
the swamp was physically a part of Lake Erie, a navigable water-
way, did not preclude its being declared non-navigable private prop-
erty. Nor does the public right of navigation extend to marsh lands

Footnote continued
192 (1888); Koopman v. Blodgett, supra note 242. Cf. Burroughs v.
Whitman, supra note 266; Witheral v. Muskegon Booming Co., 68
Mich. 48, 35 N.W. 758 (1888).
272. Stofflet v. Estes, 104 Mich. 208, 62 N.W. 347 (1895).
273. Giddings v. Rogalewski, 192 Mich. 319, 158 N.W.. 951 (1916); Winans
v. Willetts, supra note 30; Putnam v. Kinney, supra note 30. Cf.
Pleasant Lake Hills Corp. v. Eppinger, 235 Mich. 174, 209 N.W.
152 (1926). In The Daniel Ball, 77 U.S. 557 at 563 (1870), where
the issue was whether Michigan's Grand River is navigable, Mr.
Justice Field said that rivers are navigable "when they are used or
susceptible of being used, in their ordinary condition, as highways
for commerce, over which trade and travel are or may be conducted
in the customary modes of trade and travel on water."
274. Giddings v. Rogalewski, supra note 273.
275. Turner v. Holland, supra note 64.
276. 127 Mich. 659, 87 N.W. 59 (1901). See also Toledo Liberal Shoot-
ing Co. v. Erie Shooting Club, supra note 262.








WATER RESOURCES


adjacent to a navigable waterway which are occasionally flooded in
times of high water. 277
In summarizing Michigan law in regard to the question of navi-
gation of streams and lakes by members of the public, it is clear
that for a waterway to be navigable it must be capable of floating
logs-regardless of whether logs ever were or will be floated there-
upon-and it must be capable of use as a public highway of com-
merce. This rule allows the public a liberal use of the state's
waterways, whether for profit or for sport, and in so doing confers
maximum benefits upon the state as a whole, while preserving pri-
vate property to the highest degree consistent with the public bene-
fit.
b. Incidents of the Right to Navigate
The public right to navigate upon a stream or lake clearly al-
lows members of the public to use the stream or lake as a water
highway278 for travel, for pleasure, 279 or for commercial enter-
prise. The easement of passage extends to wading upon the bed of
the waterway, 280 and to skating and other means of travel on the
ice when the water is frozen. 281
A navigator need not remain constantly in motion when using a
navigable waterway; he may moor his vessel or halt the passage of
his logs downstream. The navigator may not, however, use the
watercourse as a "parking lot" for the permanent mooring of his
vessel, 282 but may only delay his passage for temporary purposes
incidental to the use of the stream or lake as a water highway. 283
277. Hall v. Alford, 114 Mich. 165, 72 N.W. 137 (1897). Cf. State v.
Lake St. Clair Fishing & Shooting Club, supra note 74.
278. Cf. La Plaisance Bay Harbor Co. v. City of Monroe, Walk. Ch. 155,
165 (Mich. 1843).
279. In City of Grand Rapids v. Powers, 89 Mich. 94, 97, 50 N.W. 611
(1891), Justice Morse, in speaking of the Grand River, remarked
that "its navigability for pleasure is as sacred in the eye of the law
as its navigability for any other purpose."
280. Cf. Collins v. Gerhardt, supra note 264.
281. Parsons v. E. I. Du Pont de Nemours Powder Co., 198 Mich. 409,
164 N.W. 413 (1917). Cf. Richards v. Waltz, 153 Mich. 416, 117
N.W. 193 (1908); Gay v. Webster, 277 Mich. 255, 269 N.W. 164
(1936). No case has been decided determining whether the public
right of passage upon the ice of frozen streams is paramount to the
right of the riparian to remove the ice from waters whose bed he
owns.
282. Resema v Construction Materials Corp., 258 Mich. 457, 243 N.W.
24 (1932); Hall v. Wantz, 336 Mich. 112, 57 N.W. 2d 462 (1953).
Cf. Paterson v. Dust, 190 Mich. 679, 157 N.W. 353 (1916),(anchor-
ing houseboat and casting pollution into river held wrongful).
283. Rosema v. Construction Materials Corp. supra note 282. Cf. Horn
v. The People, 26 Mich. 221 (1872).








AND THE LAW


Similarly, one may temporarily boom his logs for the purpose of
facilitating their passage, 284 but not "for stopping, collecting, as-
sorting and holding or storing them, until the convenience or profit
of their owners may call for their removal for the purpose and in
the progress of manufacture."285
As it has been held that a navigator whose logs have sunk to
the bottom of a stream may remove them from the stream bed, 286
it is reasonable also to assume that a navigator would have the
same right to salvage a sunken vessel, although the Michigan Su-
preme Court has never been presented with this problem.
In the exercise of the right of navigation, members of the pub-
lic must act reasonably in relation to other navigators and persons
using the waters for activities connected with navigation. One run-
ning logs downstream to market may not boom them and obstruct
the stream so as to delay unreasonably the passage of other logs287
or the passage of vessels. 288 It is provided by statute that naviga-
tors may remove logs which obstruct streams and recover the'cost
of removal from the owner of the logs. 289 The operators of ves-
sels must likewise act reasonably in regard to the rights of others
making use of the waterway, and damages will be awarded where a

284. Cf. Watts v. Tittabawassee Boom Co., 52 Mich. 203, 208, 17 N.W.
809 (1883), where it was said: "It has always been proper to stop a
mass of logs in a river for the purpose of securing the rights of
several owners of the same, or to prevent their loss or destruction."
Booming logs in a navigable stream does not constitute a nuisance
per se. Brig "City of Erie" v. Canfield, 27 Mich. 479 (1873).
285. Cf. Grand Rapids Booming Co. v. Jarvis, supra note 262 at 320.
286. Whitman v. Muskegon Log Lifting & Operating Co., 152 Mich. 645,
116 N.W. 614 (1908).
287. Watts v. Tittabawassee Boom Co., 52 Mich. 203 17 N.W. 809
(1883); Butterfield v. Gilchrist, 53 Mich. 22, 18 N.W. 542 (1884).
Cf. Moore v. Sanborne, supra note 266; Coburn v. Muskegon Boom-
ing Co., 72 Mich. 134, 40 N.W. 198 (1888). Attorney General v.
Evart Booming Co., 34 Mich. 462 (1876), where respondent boomed
its logs in the Muskegon River pursuant to statute, and left a channel
only 20 feet wide, which restricted the passage of relator's logs, it
was held that the attorney general had no basis upon which to abate the
boom either as a purpresture or as a public nuisance; at most, the
inconvenience to relator was a private nuisance.
288. Gifford v. McArthur, 55 Mich. 535, 22 N.W. 28 (1885). Cf. Turner
v. Holland, 54 Mich. 300, 20 N.W. 51 (1884).
289. Mich. Comp. Laws (1948) 426.51-426.57, Mich Stat. Ann. 18.231-
18.237. Butterfield v. Gilchrist, supra note 287, in construing this
act, the court held that compensation would only be given for moving
the logs a necessary distance from the stream and that rolling them
back 100 feet from the water was unreasonable. See also Kroll v.
Nester, 52 Mich. 70, 17 N.W. 700 (1883).








WATER RESOURCES


vessel negligently runs into and injures a log boom290 or fishing
nets. 291

c. Relative Rights of Navigator and Riparian
The public easement of navigation is almost invariably exer-
cised upon waterways whose bed or banks are owned by private ri-
parians. 292 Conflicts therefore may arise between the interests of
the navigator and the riparian as, for example, when the riparian
erects a wharf or other structure which extends into the navigable
portion of the waterway, or when the navigator crowds the river
with logs or maneuvers his vessel so as to endanger the property
of the riparian.
The riparian's ownership of the bed of a navigable waterway is
subordinate to the rights of the public to navigate. 293 The Michi-
gan Supreme Court has recognized that a riparian "has the right to
use his land under water, the same as land above water, so long as
he does not interfere with the right of navigation. "294 Understanda-
bly, this language cannot mean that any structure built in or across
navigable waters is an unlawful interference with navigation; such an
interpretation would proscribe wharves, dams, and bridges. Instead,
it is only an unreasonable interference which is unlawful. 295 There-
fore, whether a particular structure constitutes an unlawful interfer-
ence with navigation is a question of fact, to be determined with
full reference to the circumstances. 296

290. Brig "City of Erie" v. Canfield, supra note 284.
291. Bishop v. Baldwin, 147 Mich. 22, 110 N.W. 139 (1907).
292. See Part II Riparian Rights, supra.
293. Lorman v. Benson, supra note 262; Nedtweg v. Wallace, 237 Mich.
14, 208 N.W. 51 (1927), aff'd on rehearing, 237 Mich. 37, 211 N.W.
647 (1927); Collins v. Gerhardt, supra note 264; Morgan v. Kloss ,
244 Mich. 192, 221 N.W. 113 (1928). Where a stream is only float-
able for logs and cannot accommodate boats, the court has been less
inclined to declare that the public right is paramount to the ripar-
ians's right, preferring instead to call it "concurrent." See, e.g.,
Grand Rapids Booming Co. v. Jarvis, supra note 262; Middleton v.
Flat River Booming Co., supra note 232.
294. Sewers v. Hacklander, supra note 48 at 155. See also Lorman v.
Benson, supra note 262; Rice v. Ruddiman, supra note 50; City of
Grand Rapids v. Powers, 89 Mich. 94, 50 N.W. 661 (1891); People
v. Grand Rapids-Muskegon Power Co., supra note 40; Douglas v.
Bergland, 216 Mich. 380, 185 N.W. 819 (1921).
295. Cf. Attorney General v. Evart Booming Co., 34 Mich. 462 (1876);
Brig "City of Erie" v. Canfield, 27 Mich. 479 (1873). In Pratt v.
Brown, 106 Mich. 628, 64 N.W. 583 (1895), it was held that a dam
owner may detain navigation for a reasonable time in order to repair
his dam.
296. Brig "City of Erie" v. Canfield, supra note 284.


__








AND THE LAW


Structures which unlawfully interfere with navigation have been
spoken of in terms of nuisance. 297 Since the interference is with
the public right, the nuisance is usually public in nature, and an
abatement suit must be brought only by public authorities. 298 In
order for a private person to bring an action to abate an obstruc-
tion to navigation, he must demonstrate special damage to himself
separate and distinct from that suffered by the public in general.299
The public easement extends only to navigable waters, and a
navigator cannot complain if a riparian erects structures which ob-
struct passage along the channel of a non-navigable waterway. 300
Nor, if a naturally non-navigable stream is improved and made suit-
able for navigation, may the riparian be compelled to remove struc-
tures obstructing the channel. 301
The riparian must take reasonable care to do no act which will
cause injury to persons exercising the easement of public naviga-
tion. Thus, there is a statutorily imposed duty when cutting ice to
erect barricades and danger signals to warn persons using the ice
for skating and other activities. 302 Similarly, a riparian manufac-
turer who casts heated wastes into a stream, causing the ice to be
melted or weakened, has a duty to warn skaters and others. 303
In the exercise of the public right of navigation, the navigator
must act reasonably in relation to the interests of riparians so that
damages are not caused. 304 Due care must be used in the opera-
tion of vessels so as not to collide with riparians' booms305 or
fishing nets, 306 or in winter to break up the ice which the riparian
has a right to collect and sell. 307 In the running of logs, the
297. See, e.g., Brig "City of Erie" v. Canfield, supra note 284; Lepire v.
Klenk, 169 Mich. 243, 134 N.W. 1119 (1912).
298. Potter v. Indiana & L.M. fy. Co., 95 Mich. 389, 54 N.W. 956
(1893).
299. Ibid. .Lepire v. Klenk, 169 Mich. 243, 134 N.W. 1119 (1912).
Lepire v. Klenk, 180 Mich. 481, 147 N.W. 503 (1914).
300. Cf. Ryan v. Brown, supra note 48; Koopman v. Blodgett, supra
note 242.
301. Ryan v. Brown, supra note 48.
302. Mich. Comp. Laws (1948) 752.351-752.353, Mich. Stat. Ann.
28.111-28.113; Gay v. Webster, supra note 281. In Richards v.
Waltz, supra note 281, it was held that the statute was meant for the
safety of humans and could not be invoked where a cow fell through
a hole in the ice.
303. Parsons v. E. I. Du Pont de Nemours Powder Co., supra note 281.
304. See, e.g., Grand Rapids Booming Co. v. Jarvis, supra note 262;
Whitman v. Muskegon Log Lifting & Operating Co., supra note 286.
305. Brig "City of Erie" v. Canfield, supra note 284.
306. Cf. Bishop v. Baldwin, supra note 291.
307. People's Ice Co. v. Steamer Excelsior, 44 Mich. 229, 6 N.W. 636
(1880); People's Ice Co. v. Steamer Excelsior, 43 Mich. 336, 5
N.W. 398 (1880).


1








WATER RESOURCES


navigator must act with reasonable care to keep the logs from jam-
ming and causing the flooding of riparian lands. 308 However, any
injury which results from the proper or reasonable use of the
stream by navigators must be borne by the riparian "as incident to
his situation on navigable waters. "309
Although a navigator may rightfully moor his vessel adjacent to
a riparian's land temporarily, obstructing in some degree the ri-
parian's access to the navigable waterway, 310 it is wrongful for the
riparian's access to be obstructed permanently or for unreasonably
long periods of time by booms or other structures. 311 In addition
it constitutes a trespass for a navigator to boom logs on the pri-
vately owned banks of a waterway. 312
The navigator must use a waterway in its natural condition and
may not invade the rights of riparian owners in order to improve
the waterway- for purposes of navigation. 313 Thus, it is wrongful
for a log-driving company to erect dams and impound substantial
quantities of water for sudden release to create "floods" to aid in
floating the logs downstream. 314 If a stream is naturally non-
navigable, the navigator may not, by artificial improvements, make
it navigable and thereby impose the public easement upon the ripari-
an without compensating the riparian therefore. 315 In addition, a
navigator may properly be enjoined from cutting into a privately

308. White River Log & Booming Co. v. Nelson, 45 Mich. 578, 8 N.W.
587 (1881).
309. Thunder Bay River Booming Co. v. Speechly, supra note 242 at 344.
310. Turner v. Holland, supra note 64; Lepire v. Klenk, 169 Mich. 243,
134 N.W. 1119 (1912); Lepire v. Klenk, 180 Mich. 481, 147 N.W.
503 (1914).
312. Lorman v. Benson, supra note 262; Whitman v. Muskegon Log
Lifting & Operating Co., supra note 286. In Garth Lumber &
Shingle Co. v. Johnson, 151 Mich. 205, 115 N.W. 52 (1908),
a statute which allowed navigators to boom logs upon privately
owned banks and shores without compensation was declared unconsti-
tutional.
313. In Koopman v. Blodgett, supra note 242 at 616, Justice Campbell
remarked that "there is no rule of law which will allow those who
rely on mere floatage rights to add to the burdens laid on riparian
proprietors by such an easement. In holding that a public right of
floatage exists in streams capable of furnishing valuable facilities for
moving logs cut in the vicinity, it has never been the understanding
that the public had any other rights than were furnished by the natur-
al water-way."
314. See, e.g., Thunder Bay River Booming Co. v. Speechly, supra note
242; Buchanan v. Grand River Log Co., supra note 242; Koopman v.
Blodgett, supra note 242.
315. Cf. Thunder Bay River Booming Co. v. Speechly, supra note 242.








AND THE LAW


owned riverbank in order to make the river wide enough to turn his
steamboat around. 316
d. State Control and Regulation
The State of Michigan exercises a moderate degree of control
over navigation and navigable waters within the state. Before out-
lining the nature of state controls, however, it should be noted that
where navigation is concerned, the power of the federal government
derived from the "Commerce Clause" of the United States Constitu-
tion317 is paramount to the power of the states to control navigation
and navigable waters. 318 The existence of this federal power does
not mean that the states cannot act to control the uses of navigable
waters; until Congress acts the states are free to regulate naviga-
ble waters provided there is no interference with interstate com-
merce. 319
In Michigan, although there are- regulations pertaining to the op-
eration of vessels,320 most regulation dealing with navigable waters
has involved preservation of navigation through controlling the con-
struction of dams, bridges, and other structures upon or across
navigable waters.
Article VIII, Section 14 of the Michigan Constitution provides
that no navigable stream may be bridged or dammed without the
permission of the county board of supervisors. 321 Since the language
316. Wilkinson v. Dunkley-Williams Co., 139 Mich. 621, 103 N.W. 170
(1905).
317. U.S. Const., Art I, 8, cl. 3, gives Congress power "To regulate
Commerce with foreign Nations, and among the several States, and
with the Indian Tribes."
318. See, e.g., United States v. Chicago, M., St.P. & P.R. Co., 312
U.S. 592 (1940); McMorran Milling Co. v. C.H. Little Co., 201
Mich. 301, 167 N.W. 990 (1918).
319. Cooley v. Board of Wardens, 54 U.S. 299 (1851).
320. See, e.g., Mich. Comp. Laws (1948) 408.251-408.287, Mich. Stat.
Ann. 17.71-17.108, which provides for inspection and regulation of
vessels operating on navigable waters within Michigan.
321. Article VIII, 14 reads:
No navigable stream of this state shall be either bridged
or dammed without permission granted by the board of super-
visors of the county under the provisions of law, which per-
mission shall be subject to such reasonable compensation
and other conditions as may seem best suited to safeguard
the rights and interests of the county and the municipalities
therein. No such law shall preclude the state from improv-
ing the navigation of any such stream, nor prejudice the
right of individuals to the free navigation thereof.
Legislation implementing this provision is found in Mich. Comp. Laws
(1948) 46.21-46.24, Mich.Stat. Ann. 5.344-5.347; Mich. Comp.








WATER RESOURCES


of the constitution expressly mentions only streams, it has been
held that a board of supervisors has no power to authorize the con-
struction of a bridge across a navigable lake. 322 Similarly, the
supervisors' authority does not extend to dams or bridges upon or
across navigable streams which constitute the boundaries of the
state. 323 Although the literal meaning of the constitutional provi-
sion seems to be that no bridge or dam across a navigable stream
is lawful unless approved by the board of supervisors, nevertheless
the Michigan Supreme Court in a recent opinion held that the super-
visors' approval of the construction by a state agency of a bridge
over a navigable stream was not necessary if the bridge, when com-
pleted, would not interfere with navigation. 324
In granting its permission to construct a bridge or a dam across
a navigable stream, the board of supervisors may attach reasonable
conditions to the permission. Thus, the courts have approved limit-
ing to twenty years a franchise for a toll bridge325 but have reject-
ed as unreasonable a requirement that, unless three dams were built
within a specified time, none of them should be considered lawful.326
Bridges and dams constructed with the authority and approval of the
board of supervisors are lawful, and navigators will not be heard to
complain that an approved bridge or dam interferes with the public
easement;327 in this respect the determination of the supervisors
limits the public right. In the absence of contrary evidence, a
bridge or dam across'a navigable stream will be presumed to have
been constructed with the approval of the board of supervisors. 328
Footnote continued
Laws (1948) 254.3, Mich. Stat. Ann. 9.1173. This power is pe-
culiar to the county board of supervisors and may not be delegated
to other persons or agencies. Maxwell v. Bay City Bridge Co., 41
Mich. 453, 2 N.W. 639 (1879).
322. Morgan v. Kloss, supra note 293.
323. Ryan v. Brown, supra note 48.
324. City of Dearborn v. Michigan Turnpike Authority, 344 Mich. 37, 73
N.W. 2d 544 (1955). Cf. Stofflet v. Estes, supra note 272. In
Shepard v. Gates, supra note 262, it was held that the constitutional
provision only applies to streams navigable by vessels, and has no
applicability to streams whose sole utility is for the floating of logs.
325. Grand Rapids Bridge Co. v. Prange, 35 Mich. 400 (1877).
326. People v. Grand Rapids-Muskegon Power Co., supra note 40.
327. Wood v. Rice, 24 Mich. 423 (1872). Cf. Larkin v. County of Sagi-
naw, 11 Mich. 88,(1862). In Valentine v. Berrien Springs Water-
Power Co., 128 Mich. 280, 87 N.W. 370 (1901), it was held that
a member of the public could not complain that an authorized dam
obstructed navigation because the supervisors had not compelled
locks to be constructed in the dam.
328. Pratt v. Brown, supra note 295.








AND THE LAW


In addition it would seem that where a bridge or dam was original-
ly built without the requisite permission, subsequent acts of the
supervisors can "ratify" the existence of the structure so as to make
it lawful; thus, where a drawbridge across a navigable stream was
built without permission of the supervisors, the fact that it had been
maintained for a number of years through appropriations from the
board of supervisors prevented its later being challenged as unlaw-
ful. 329 A bridge built without approval of the board of supervisors
which does not interfere with navigation will not be abated pursuant
to an action brought by a navigator; any remedial action in such in-
stances must be initiated by the board of supervisors. 330
The Michigan legislature has authorized county drain commis-
sioners or, in some circumstances, county boards of supervisors
to control the level of inland lakes when they deem it necessary for
the protection of the public health and safety and the conservation of
the natural resources of the state. 331 The statutes enacted provide
for petitions for the creation of assessment districts, 332 the deter-
mination of normal lake levels, 333 and the construction of dams,
embankments and other facilities to maintain the ascertained nor-
mal level. 334 Few cases have been decided under these statutes;335
it has been held, however, that the legislature did not mean to con-
fer exclusive jurisdiction upon the county board of supervisors in
the fixing of lake levels, but that other agencies might perform
329. Dietrich v. Schremms, 117 Mich. 298, 75 N.W. 618 (1898). Cf.
Wooden v. Mt. Pleasant Lumber & Mfg. Co., supra note 242.
330. Cf. Shepard v. Gates, supra note 262.
331. Mich. Comp. Laws (1948) 281.51-281.227, Mich. Stat. Ann.
11.211-11.298. The first statute of this nature was passed in
1911, Mich. Pub. Acts 1911 No. 202, and as revised appears in
Mich. Comp. Laws (1948) 281.1-281.30, Mich. Stat. Ann. 8.101-
8.130, which was superseded by the present enactment. The earlier
acts included the improvement or maintenance of navigation within
their purposes.
332. See, e.g., Mich. Comp. Laws (1948) 281.51, 281.52, 281.103,
281.151, 281.152, Mich. Stat. Ann. 11.211, 11.212, 11.223, 11.251,
11.252.
333. See. e.g., Mich. Comp. Laws (1948) 281.51, 281.102, 281.152,
Mich. Stat. Ann. 11.211, 11.222, 11.251.
334. See. e.g., Mich. Comp. Laws (1948) 281.53, 281.104, 281.153,
Mich. Stat. Ann. 11.213, 11.224, 11.253.
335. In re Petition of Lenawee County, 276 Mich. 591, 268 N.W. 750
(1936), was a proceeding under the 1921 Act, since superseded, and
held that the words "natural" lake level as found in the act meant
tke "normal" level. Subsequent acts have used the work "normal."
Niles v. Meeker, 219 Mich. 361, 189 N.W. 207 (1922), held that
before acts may be taken to build a dam to preserve the natural
level of an inland lake, the board of supervisors must determine the
level.








WATER RESOURCES


functions which affect the levels of inland lakes. 336 The lake level
acts seem to be used most often to aid recreational navigation or to
preserve aquatic life.
In the regulation of navigable waters the state has power to es-
tablish dock lines beyond which it is unlawful to erect structures in
navigable waters. 337 The establishment of a dock line amounts to
a finding that any structures which would extend farther into the
waterway would interfere with navigation. In each case the lawful-
ness of a dock line is a matter for factual determination. 338 There-
fore, a dock line may not be established in a non-navigable streami339
or in such a manner as to make unlawful an existing structure which
does not interfere with navigation. 340
Michigan in 1955 became a member of the Great Lakes Basin
Compact, which provides for cooperation between the states border-
ing the Great Lakes and two Canadian provinces similarly situated
in the development and use of the Great Lakes and adjoining water-
courses. 341 Although Congress has not yet given the requisite fed-
eral approval to the compact, five states other than Michigan have
entered into it through legislative enactments. 342
e. Improvement of Navigable Waters
In the Michigan Constitution of 1850 there appeared a provi-
sion prohibiting the state from engaging in "any work of internal
336. Kennedy v. Van Buren County Drain Comm'r, 189 Mich. 676, 155
N.W. 733 (1916).
337. City of Grand Rapids v. Powers, supra note 294; cf. Lincoln v. Davis,
53 Mich. 375, 19 N.W. 103 (1884); People v. Kirsch, 67 Mich. 539,
35 N.W. 157 (1887); Tittabawassee Boom Co. v. Cunning, How. N.P.
82 (Mich. 1884).
338. Cf. Ryan v. Brown, supra note 48.
339. City of Grand Rapids v. Powers, supra note 294.
340. Cf. id., where the dock line was laid out upon the bank and made
unlawful a warehouse which had stood on dry land for many years.
The court found this line to be unlawfully drawn.
341. Mich. Comp. Laws (1948) 3.651-3.655, Mich. Stat. Ann. 4.129(1)-
4.129(5). In 1954, the Michigan legislature had created a Great
Lakes Compact Commission in order to execute an agreement with
other states as to the Great Lakes development. Mich. Comp. Laws
(1948) 3.601-3.607, Mich. Stat. Ann. 4.128(1)-4.128(7).
342. Council of State Governments, Interstate Compacts, 1783-1956 45
(1956). The compact has been enacted by Illinois, Indiana, Michigan,
Minnesota, Pennsylvania, and Wisconsin; New York, Ohio, and the
Canadian provinces of Ontario and Quebec have not yet entered into
the compact. Ibid. In 1957 the New York Legislature approved the
compact, but the act was vetoed by Governor Harriman because the
governor would not, under its provisions, have been empowered to
appoint New York's representatives on the Great Lakes Commission.
Veto memorandum #124, April 18, 1957. New York Sess. Laws 1957,
p. 1960 (McKinney 1957).








AND THE LAW 483

improvement" except public wagon roads and improvements involving
the expenditure of grants to the state of land or other property. 343
This provision was incorporated in the 1850 constitution after earli-
er participation by the state in numerous enterprises and schemes
regarding waterways, railroads, and other means of transportation
had run to excess, causing high taxes and a large public indebted-
Sness, much of which the state repudiated. 344 The presence in the
constitution of this provision required works of internal improve-
ment, if they were to be made at all, to be made by private com-
panies, since the constitutional provision was held to apply to all of
the state's governmental activities, including internal improvements
by municipalities. 345 To facilitate improvements by private

343. Mich. Const. of 1850, Art. XIV, 9. The provision, in substantially
similar form, appeared in Mich. Const. of 1908, Art. X, 14. This
provision, as it applied to navigable waters, was construed in Ryer-
son v. Utley, 16 Mich. 269 (1868), and Anderson v. Hill, 54 Mich.
477, 20 N.W. 549 (1884). Cf. Wilcox v. Paddock, 65 Mich. 23, 31
N.W. 609 (1887).
344. Justice Cooley, in his opinion in People ex. rel. Bay City v. State
Treasurer, 23 Mich. 499, at 504 (1871), recounted the history of
this provision:
Our state had once before had a bitter experience of the
evils of the government connecting itself with works of in-
ternal improvement. In a time of inflation and imagined
prosperity, the state had contracted a large debt for the
construction of a system of railroads, and the people were
oppressed with heavy taxation in consequence. Moreover,
for a portion of this debt they had not received what they
bargained for, and they did not recognize their legal or
moral obligation-to pay it. The good name and fame of the
state suffered in consequence. The result of it all was that
a settled conviction fastened itself upon the minds of our
people, that works of internal improvement should be pri-
vate enterprises; that it was not within the proper province
of government to connect itself with their construction or
management, and that an imperative state policy demanded
that no more burdens should be imposed upon the people by
state authority for any such purpose. Under this conviction
they incorporated in the constitution of 1850, under the sig-
nificant title of "Finance and Taxation," several provisions
expressly prohibiting the state from being a party to, or in-
terested in, any work of internal improvement....

345. Attorney General ex rel. Brotherton v. Detroit Common Council, 148
Mich. 71,111 N.W. 860 (1907). In Manistee River Improvement Co.
v. Sands, 53 Mich. 593, 596-97, 19 N.W. 199 (1884), Justice Camp-
bell recognized the necessity for relying upon private corporations
for the improvement of the state's waterways:








WATER RESOURCES


companies, the Michigan legislature passed various acts providing
for the incorporation of companies, "inter alia," for the construc-
tion and improvement of canals and harbors in the Upper Peninsu-
la, 346 the improvement of navigable waters, 347 and the maintenance
and improvement of canals for water power development. 348
The acts for the improvement of navigation by private companies
were construed by the Michigan courts to pertain only to waters
naturally navigable and not to the creation of navigable streams out
of waters not navigable in their original condition. 349 Pursuant to
the terms of the legislative acts creating them, these companies
were allowed to charge tolls for passage upon waters whose naviga-
tion they had facilitated. 350 The collection of tolls was sustained
by the Michigan Supreme Court and by the United States Supreme
Court which held that the charging of tolls did not violate any state
or federal constitutional provision351 or that section of the Ordi-
nance of 1787 providing that the navigable waters of the Northwest

Footnote continued
Under the Constitution of this State there is no way of
providing for such cases [improvement of waterways)
without the intervention of corporations and tolls, because
the State is forbidden to make any public works at its
own expense by the express terms of the Constitution.
346. Mich. Comp. Laws (1948) 485.1-485.25, Mich. Stat. Ann. 22.1481-
22.1505.
347. Mich. Comp. Laws (1948) 485.101-485.303, Mich. Stat. Ann.
22.1511-22.1573.
348. Mich. Comp. Laws (1948) 486.1-486.22, Mich. Stat. Ann. 22.1581-
22.1602.
349. See, e.g., Clay v. Penoyer Creek Improvement Co., 34 Mich. 204
(1876). The legislature could, however, pass acts for the improve-
ment of non-navigable streams into navigable streams. Cf. Manistee
River Improvement Co. v. Sands, 53 Mich. 593, 19 N.W. 199 (1884).
350. See, e.g., Mich. Comp. Laws (1871) c.85. The tolls were actually
fixed by an administrative River Control Board under this statute.
In Nelson v. Cheboygan Navigation Co., 44 Mich. 7, 5 N.W. 998
(1880), it was held that the amount of the tolls to be charged could
not be left to the discretion of the navigation companies, but had to
be ascertained by the legislature or, apparently, by the River Control
Board. Cf. Ocqueoc Improvement Co. v. Mosher, 101 Mich. 473,
59 N.W. 664 (1894).
351. Sands v. Manistee River Improvement Co., 123 U.S. 288 (1887);
Manistee River Improvement Co. v. Sands, super note 349. In
Attorney General v. McArthur, 38 Mich. 204 (1878), it was held
that an act providing for the organization of river improvement com-
panies with three specified counties was general legislation, and there-
fore not within the constitutional prohibition regarding special legis-
lation.








AND THE LAW


Territory should remain "forever free. "352 It was indicated, how-
ever, that for a navigator to be subject to tolls, his passage must
have actually been facilitated, if only in some minor degree. 353
A statute passed in 1851 empowered county boards of super-
visors to provide for the removal of logs and other obstructions
from navigable streams. 354 The statute was construed to apply
only to obstructions recently caused and not to those of long stand-
ing;355 conceivably the removal of ancient obstructions would have
resembled an act of internal improvement.
In 1923 the Michigan Constitution was amended to include a pro-
vision empowering the legislature to "provide for the incorporation
of ports and port districts, and confer power and authority upon
them to engage in work of internal improvements in connection
therewith. "356 Pursuant to this amendment the legislature in 1925
passed a statute authorizing the organization of port districts for the
improvement of harbors and terminal facilities. 357
Subsequently, in 1945 and 1946, the remaining proscription upon
state participation in internal improvements was removed in large
degree by amending the constitution to provide that the state might
be a party to the development and improvement of the waterways of
the state, as well as to forms of transportation of all kinds, includ-
ing water transportation. 358 The removal of this restriction elimi-
nated the need for sole reliance upon private companies for the bet-
terment of the state's waterways and opened the door to a new


352. Sands v. Manistee River Improvement Co., 123 U.S. 288 (1887);
Benjamin v. Manistee River Improvement Co., 42 Mich. 628, 4 N.W.
483 (1880); Nelson v. Cheboygan Navigation Co., supra note 350;
Manistee River Improvement Co. v. Sands, supra note 349.
353. Cf. Nelson v. Cheboygan Navigation Co., supra note 350.
354. Act No. 156 of 1851, Mich. Laws 1851, No. 156, p. 231. This pro-
vision is now Mich. Comp. Laws (1948) 46.21, Mich. Stat. Ann.
5.344.
355. Gainer v. Nelson, 147 Mich. 113, 110 N.W. 511 (1907).
356. Mich. Const., Art. VIII, 30.
357. Mich. Coip. Laws (1948) 120.1-120.36, Mich. Stat. Ann. 5.2151-
5. 2189. Subsequent to the 1923 amendment an act was also passed
authorizing townships and villages to construct breakwaters and make
provision for beach erosion control. Mich. Comp. Laws (1948)
44.411-41.414, Mich. Stat. Ann. 5.2411-5.2414. See also Mich.
Comp. Laws (1948) 281.621-281.628, Mich. Stat. Ann. 13.1821-
13.1828. Prior to the passage of the amendment, however, munici-
palities had been authorized to construct wharves, piers, and other
landing facilities in harbors, lakes, and rivers; these were apparently
not counted as "internal improvements." See, e.g., Mich. Comp.
Laws (1948) 97.1-97.6, Mich. Stat. Ann. 5.1776-5.1781.
358. Mich. Const., Art. X, 14, as amended.


I








WATER RESOURCES


source for financing the development of navigable waters in the pub-
lic interest. 359
f. Fishing, Hunting, and Trapping
Related to the public easement of travel upon navigable waters
is the right of members of the public to go upon waters for the pur-
pose of fishing, swimming, hunting, and trapping. These rights are
especially important in a state such as Michigan where large areas
are particularly suited to these activities, and the economy of a
sizable portion of the state is dependent upon expenditures made by
sportsmen.
Under the English common law, rights to fish, hunt, and trap
upon waters followed the ownership of the bed of the waters. 360 The
crown held title to the bed of the sea in trust for the subjects of
the realm for navigation and fishery. 361 Therefore, there existed
a public right to take fish from the sea. On the other hand, where
the beds of waters were privately owned as in the case of inland
waters, the owner of the bed held the exclusive rights of fishing,
hunting, and trapping, and members of the public held no rights in
this regard. 362 There was no connection between the existence of
the public easement of navigation and rights to fish, hunt, and trap.
Many American states have followed the common law in holding that
these rights are determined by the ownership of the bed. 363
Michigan follows the common law' in regard to the hunting of
wildfowl and wild animals and the trapping of wild animals, holding
that these rights are determined by the ownership, of the bed of the
waters. 364 On the Great Lakes, whose beds are owned by the

359. Since the passage of the 1945 and 1946 amendments, the legislature
has enacted provisions for a waterways commission to improve navi-
gable waters. (Mich. Comp. Laws (1948) 281.501-281.511, Mich.
Stat. Ann. 3.534(1)-3.534(11).) and has empowered municipalities
and other political subdivisions to' improve harbors, channels, and
other navigational facilities. (Mich. Comp. Laws (1948) 281.541-
281.543, Mich. Stat. Ann. 5.2768(11)-5.2768(13).)
360. 3 Tiffany, Real Property 936 (3d ed. 1939).
361. See, e.g., Gould, Waters 20 (3d ed. 1900).
362. Id. at 351.
363. Supra note 360.
364. Dictum in Nedtweg v. Wallace, supra note 293, and Collins v.
Gerhardt, supra note 264, would seem to indicate that the rule in
regard to hunting and trapping is the same as that in regard to fish-
ing. However, in view of the holdings of cases actually presented
with the issue of the public right to take wild game it is clear that
the Nedtweg and Collins dictum does not reflect the true state of the
law in Michigan.


486








AND THE LAW 487

State of Michigan in trust for the public, 365 the public can hunt and
trap animals and shoot wildfowl;366 but when title to the bed of the
waters is in a private riparian, these rights are reserved exclusive-
ly to the riparian and are thereby denied to the public. 367 The
Michigan Supreme Court rests its decisions in this matter upon the
theory that the right to take wild game is an incident of the owner-
ship of the land;368 it has clearly held that hunting and trapping are
not incidents of the public easement of navigation. 369
After a period of some uncertainty, the Michigan Supreme Court
departed from the path of the common law and held that the public
right to take fish extended to all navigable waters regardless of the
ownership of the bed. The derivation of this rule is of considera-
ble interest. Since the State of Michigan holds the beds of the Great
Lakes in trust for the public, members of the public are free to
take fish from those portions of the Great Lakes within the bounda-
ries of Michigan. 370 Title to the beds of inland waters, however,
is subject to private ownership, and it would appear that the court
could have found as a matter of course that fishing on inland waters
followed the ownership of the beds. As to non-navigable waters this
rule has been applied in Michigan, and members of the public have
been denied the right to fish on these waters. On non-navigable
streams the riparian owner of the bed has the exclusive right to
fish. 371 On non-navigable lakes, although non-riparian owners have
no right to take fish, any riparian owner upon the lake may fish in
any part of the lake. 372 This rule has been adopted to avoid dis-
putes as to the ownership of the beds of lakes where the task of ap-
portionment and setting boundaries is a very difficult one.
On navigable inland waters, however, although ownership of the
beds is in private riparian owners, the Michigan Supreme Court has
held that the title of the riparian is subordinate to the rights of the

365. See Part II Riparian Ownership, text at notes 319-327, supra.
366. People v. Warner, supra note 90; Ainsworth v. Hunting & Fishing
Club, 159 Mich. 61, 123 N.W. 802 (1909). Cf. Ainsworth v. Hunt-
ing & Fishing Club, 153 Mich. 185, 116 N.W. 992 (1908).
367. Sterling v. Jackson, 69 Mich. 488, 37 N.W. 845 (1888); Hall v.
Alford, supra note 277; Johnson v. Burghorn, 212 Mich. 19, 179
N.W. 225 (1920); Sewers v. Hacklander, supra note 48; St. Helen
Shooting Club v. Mogle, supra note 34.
368. Cf. Sewers v. Hacklander, supra note 48.
369. Iid.
370. Lincoln v. Davis, supra note 337; People v. Warner, supra note 90.
371. Giddings v. Rogalewski, supra note 273; Putnam v. Kinney, supra
note 30.
372. See, e.g., Beach v. Hayner, supra note 58, Manney v. Prouse,
supra note 16; Swartz v. Sherston, supra note 29; Burt v. Munger,
supra note 58.








WATER RESOURCES


public to take fish. The leading Michigan case holding that the pub-
lic has a right to fish on inland navigable waters is Collins v. Ger-
hardt373 which was decided in 1927. In the Collins case the court
reasoned that when Michigan was admitted to the Union the state
took title to the beds of all navigable waters, both inland and in the
Great Lakes. This title was impressed with a trust for the benefit
of the people of Michigan. When in 1860, in the case of Lorman v.
Benson, 374 the Michigan Supreme Court determined that title to the
bed of inland navigable waters should be vested in riparian owners,
it could not divest the state of the "jus publicum" aspect of the
ownership of the beds. 375 Therefore, when title to the beds of
navigable inland waters passed into private hands it was impressed
with the public trust; and the public has a right, as beneficiaries of
the public trust, to fish upon these inland navigable waters. Accord-
ingly, the test of the public right to navigate is also the test of the
public right to take fish. 376
The reasoning of the Michigan Supreme Court in Collins v. Ger-
hardt has been criticized as resting upon false assumptions regard-
ing the nature of he title which the state received upon its admis-
sion to the Union; nevertheless, the court reaffirmed its position
in the 1943 case of Attorney General v. Taggart.378 As the law
now stands, an inconsistency exists between the reasoning applied
to the public right of fishing and the public right of hunting and trap-
ping, for if the "public trust" argument is applicable to the taking
of fish, why does it not apply also to the taking of game?
The public interest in swimming, bathing, and similar recrea-
tional activities is closely related to the right to fish, hunt, and
trap. Although there have been no Michigan cases precisely in point,
nevertheless it appears that the law as to swimming should follow
the rules concerning fishing and boating; therefore, wherever a man
can navigate, there also can he swim. 3'9 Most swimming in Michi-
gan, however, seems to be carried on in lakes in which the swim-
mer has gained lawful access to the water by means of a public or

373. 237 Mich. 38, 211 N.W. 115 (1927).
374. 8 Mich. 18 (1860).
375. Cf. Nedtweg v. Wallace, supra note 293.
376. Ne-Bo-Shone Assn. v. Hogarth, supra note 264. The public right
of fishing in navigable waters does not, however, allow members of the
public to trespass upon riparian land for access to the water. Cf.
Douglas v. Bergland, supra note 294.
377. Note, 25 Mich. L. Rev. 654 (1927).
378. 306 Mich. 432, 11 N.W. 2d 193 (1943).
379. Cf. Collins v. Gerhardt, supra note 264, where it was held not a
trespass for a member of the public to wade upon the bed of a
navigable stream while in quest of fish.


I









AND THE LAW


private beach. Such swimming is an exercise of the riparian right
attaching to the land from which access is obtained380 rather than a
right arising out of the law relating-to navigable waters, and the
swimmer relies upon the rule that on inland lakes the riparian own-
er may use the entire area of the lake for boating and other activi-
ties.381 But where persons do wish to swim in navigable waters as
an exercise of the public right of navigation, logically they should
occupy the same legal position as persons who are fishing, hunting,
or boating.
In the interests of conservation and the regulation of the public
rights to fish and hunt, Michigan has adopted comprehensive regula-
tions governing the taking of fish and game. 382 In these it is pro-
vided that in any navigable or meandered waters of the state in which
fish have been planted or propagated at public expense, the public
shall have the right to fish during the appropriate seasons. 3B3 It is
important to note that regulations regarding the taking of fish apply
to both navigable and non-navigable waters;384 it is only where a
non-navigable body of water is entirely unconnected with other bodies
of water that the fishing regulations do not apply. 385 The theory
behind this rule is that where fish are free to swim from place to
place and possibly into navigable waters, the public has a substan-
tial interest in the fish. 38& But where the fish are confined to a
privately owned pond, whose owner has the exclusive right of taking
them, this public interest is considerably lessened.

380. See, e.g., People v. Hulbert, supra note 107; City of Battle Creek
v. Goguac Resort Assn. supra note 101. Cf. Hilt v. Weber,
supra note 3.
381. See, e.g., cases in note 58, supra.
382. Fish: Mich. Comp. Laws (1948) 308.1-300.151; Mich. Stat. Ann.
13.1491-13.1778. Game: Mich. Comp. Laws (1948) 311.1-
300.201, Mich. Stat. Ann. 13.1321-13.1485. Enforcement of the
fish and game law is provided for in Mich. Comp. Laws (4948)
300.1-300.32, Mich. Stat. Ann. 13.1211-13.1242. Further, the
legislature has made provision for both public shooting grounds,
Mich. Comp. Laws (1948) 317.271-317.297, Mich. Stat. Ann.
13.1101-13.1127, and for fish and game refuges and sanctuaries,
Mich. Comp. Laws (1948) 317.209-299.201, Mich. Stat. Ann.
13.1149-13.1205.
383. Mich. Comp. Laws (1948) 307.41,307.42, Mich. Stat. Ann.
13.1681-13.1682.
384. People v. Collison, 85 Mich. 105, 48 N.W. 292 (1891).
385. People v. Conrad, 125 Mich. 1, 83 N.W. 1012 (1900).
386. In People v. Collison, supra note 384, the theory was advanced that
the ownership of fish is in the public before they are caught, and
that fishing is a privilege accorded by the state rather than a private
right. See also Mich. Comp. Laws (1948) 307.71-307.72, Mich.
Stat. Ann. 13.1721-13.1722.


..--W








WATER RESOURCES


C. Drainage of Surface Waters
As has occurred in the history of all states where rainfall is
ample, in Michigan one of the first water problems to arise was
how to dispose of the collective remnants of rainfall and melting
snows which otherwise water-logged valuable fields and pastures and
formed bogs and sinkholes which were impossible to cultivate. All
landowners, both rural and municipal, desired to channel the water
from their land into the nearest stream or lake in order to be rid
of what doubtless seemed to them a minor pestilence. The problem
was further complicated by the fact that one of the earliest uses of
water was the detention of streams for power purposes by means of
milldams; the dams not only interfered with the flow of the streams,
but also created large millponds which cast water back onto previ-
ously unflooded lands. Consequently, the Michigan courts were on
many occasions confronted with problems involving the drainage of
water, and a large body of both case and statute law relating to
drainage has been developed in Michigan.
Originally, water from rains and melting snow followed the natu-
ral course of least resistance upon the Michigan landscape as it
made its way, impelled by gravity, from the higher land areas into
the Great Lakes or, in a few areas of the state, into the network
of rivers forming part of the great Mississippi valley drainage sys-
tem. However, as mankind improved the land through farming,
road-building, and the construction of cities and factories, the natu-
ral drainage pattern was repeatedly modified. In this section empha-
sis is placed upon these artificial modifications in the natural course
of drainage; the modifications may be wrongful in that they interfere
with legally recognized rights and duties, or they may have become
established over the course of time as a part of the legally protect-
ed drainage pattern and thereby be lawful and create new rights and
duties.
The existing, legally protected course of drainage takes one of
three forms: (1) it may be of only intermittent flow and not con-
tained in a defined channel, but instead flowing generally upon the
surface of the ground, in which case it is denominated "diffused sur-
face water"; (2) it may be of regular occurrence and confined to a
natural channel or body, such as a stream or lake; or (3) it may be
confined to an artificial channel, such as a drainage ditch. These
three forms of drainage have two important features in common:
first, they involve water on the earth's surface, as distinguished
from subsurface or ground water; and second, they involve water
flowing from higher to lower levels impelled by the force of gravity.
Interference with these forms of drainage usually takes one of three








AND THE LAW


forms: (1) the flow of water may be obstructed, thereby impeding
its passage from higher lands; (2) the flow may be increased, as by
adding to the amount east upon particular lands or by changing the
direction of the flow so as to cast water upon lands previously un-
affected; or (3) the flow may be artificially concentrated, as by chan-
neling diffused surface water into a ditch which casts its flow upon
adjoining lands, or by withholding the flow of water and releasing it
only periodically in large amounts.
This section discusses in some detail the Michigan case and
statute law dealing with the drainage of water. The first part deals
with wrongful interference with the legally protected drainage pat-
tern and with the remedies available to those whose rights are ad-
versely affected by such interference. The second part examines
the manner in which changes may lawfully be made in the existing
drainage pattern.
1. Wrongful Interference with the Existing Drainage Pattern
a. The Nature of Wrongful Interference
As a general proposition, it is wrongful for one to disturb the
existing pattern of drainage and thereby obstruct the flow of water
from another's lands, or cast upon the lands of another more water
than would naturally flow thereupon, or cause an unusual concentra-
tion of water in the course of drainage. However, as will be shown,
rights which disturb the existing pattern may be created; neverthe-
less, in the absence of such rights the general proposition is valid.
Therefore, to state the general rule more specifically, it is wrong-
ful to disturb the existing, legally protected pattern of drainage.
The notion of the "existing pattern of drainage" should include
not only that part of the over-all drainage pattern which was created
by nature, but also whatever part of the pattern that the works of
man have imposed. Thus, the general proposition applies equally to
all types of drainage: to man-made drainage ditches which are law-
fully maintained as well as to natural streams.
Instances of disturbance of the existing pattern of drainage are,
in the following discussion, collected for convenience under the par-
ticular form of drainage involved: streams and lakes, artificial
watercourses, and diffused surface waters. Under each of these
headings will be considered obstruction of flow, increased flow, and
concentration of flow.








WATER RESOURCES


(i) Streams and Lakes
(a) Obstructions Impeding Flow from Upper Lands
Dams. 387 From the earliest times it seems to have been as-
sumed in cases before the Michigan courts, without argument to the
contrary, that it is wrongful to obstruct the waters of a stream by
means of a dam and cause them to back up and flood the lands of
others. Thus, in the, earliest recorded Michigan case involving an
action for flooding of lands caused by a dam obstructing the flow of
a stream, White v. Forbes, 388 reported in Walker's Chancery Re-
ports in 1843, the argument of the defendant was not that he might
lawfully maintain a dam which flooded the lands of another; instead,
the defendant seemed to have conceded that such flooding was wrong-
ful and argued that the amount of complainant's lands which had been
flooded was so small that relief should be denied by the court. The
first case of flooding lands by the maintenance of a dam to come
before the Michigan Supreme Court was decided in 1862, 389 and in
that case, as in virtually all other Michigan cases of a similar na-
ture since decided, it was assumed by the court and by all parties
to the cause that such flooding was wrongful. 390

387. Dams may not be constructed upon navigable streams without the per-
mission of the county board of supervisors. Mich. Const. Art. VIII,
14. Dams are further discussed in Part II, B3, supra, and Part
II,B4d, supra.
388. Walk. Ch. 112 (Mich. 1843).
389. Caldwell v. Gale, 11 Mich. 77 (1862).
390. In the following cases, all of which involve some additional legal
question, the Michigan Supreme Court apparently based its decision
upon the assumption that it is wrongful to maintain a dam which casts
water back onto the lands of others: White v. Forbes, Walk. Ch.
112 (Mich. 1843); Caldwell v. Gale, supra note 389; Kilgore v.
Hascall, 21 Mich. 502 (1870); Morrill v. Mackman, 24 Mich. 279
(1872); Treat v. Bates, 27 Mich. 390 (1873); Fox v. Holcomb, 32
Mich. 494 (1875); Hathaway v. Mitchell, 34 Mich. 164 (1876);
Ryerson v. Brown, 35 Mich. 333 (1877); Fitch v. Constantine
Hydraulic Co., 44 Mich. 74,6 N.W. 91 (1880); Cobb v. Slimmer,
45 Mich. 176, 7 N.W. 806 (1881); Blake v. Cornwell,65 Mich. 467,
32 N.W. 803 (1887); Davis v. Munro, supra note 165; Winchell v.
Clark, 68 Mich. 64, 35 N.W. 907 (1888); Richards v. Peter, 70
Mich. 286, 38 N.W. 278 (1888); Turner v. Hart, 71 Mich. 128, 38
N.W. 890 (1888); Miller v. Cornwell, 71 Mich. 270, 38 N.W. 912
(1888); Thorn v. Maurer, 85 Mich. 569, 48 N.W. 640 (1891); Shearer
v. Middleton, 88 Mich. 621, 50 N.W. 737 (1891); Cornwell Mfg. Co.
v. Swift, 89 Mich. 503, 50 N.W. 1001 (1891); Williams v. Barber,
104 Mich. 31, 62 N.W. 155 (1895); A.P. Cook Co. v. Beard, 108
Mich. 17, 65 N.W. 518 (1895); Carley v. Jennings, 131 Mich, 385,
91 N.W. 634 (1902); Pluchak v. Crawford, 137 Mich. 509, 100 N.W. 765
(1904); Michigan Paper Co. v. Kalamazoo Valley Electric Co., 141









AND THE LAW


In the only reported Michigan cases where it has been argued
that a particular flooding caused by a dam setting back the waters
of a stream was not unlawful, the existence of a general rule to the
effect that it is wrongful to maintain a dam which causes the lands
of others to be flooded has been readily conceded, but it has been
insisted that in the specific case at bar the flooding caused by the
defendant was privileged. 391 Thus, for example, it has been as-
serted that the lumbering interests of the state were of such great
public importance as to outweigh the interests of landowners whose
lands might incidentally be flooded by dams maintained to facilitate
Footnote continued
Mich. 48, 104 N.W. 387 (1905); Allen v. Thornapple Electric Co.,
144 Mich. 370, 108 N.W. 79 (1906); Miller v. Bank of Belleville,
148 Mich. 339, 111 N.W. 1062 (1907); Reason v. Peters, 148 Mich.
532, 112 N.W. 117 (1907); Hass v. McManus, 161 Mich. 372, 126
N.W. 462 (1910); Long v. Schroeder, 162 Mich. 690, 127 N.W. 811
(1910); Walton Cranberry Co. v. Seamon, 171 Mich. 98 137 N.W.
147 (1912); Sheffield Car. Co. v. Constantine Hydraulic Co., 171
Mich. 423, 137 N.W. 305 (1912); Brockway v. Hydraulic Power &
Light Co., 175 Mich. 339, 141 N.W. 693 (1913); Holcomb v. Alpena
Power Co., 175 Mich. 500, 141 N.W. 534 (1913); Morrison v.
Queen City Electric Light & Power Co., 181 Mich. 624, 148 N.W.
354 (1914); Bacon v. Walden, 186 Mich. 139, 152 N.W. 1061
(1915); Long v. Schroeder, 191 Mich. 147, 157 N.W. 399 (1919);
Holcomb v. Alpena Powei Co., 198 Mich. 165, 164 N.W. 470
(1917); Potter v. Dundee Hydraulic Power Co., 198 Mich. 585, 165
N.W. 689 (1917); Murphy v. Big Rapids Water Power Co., 204 Mich.
511, 170 N.W. 644 (1919) Krieg v. Kaufman, 206 Mich. 622, 173
N.W. 338 (1919); Holcomb v. Alpena Power Co., 215 Mich.-382, 184
N.W. 587 (1921); Niles v. Meeker, supra note 335; Davenport v.
Centerville Water & Electric Co., 222 Mich. 181, 192 N.W. 705
(1923); McMillan v. Etter, 229 Mich. 366, 201 N.W. 499 (1924);
Gillespie v. Dunn, 246 Mich. 415, 224 N.W. 374 (1929); Stuart v.
Finnish Co-op Assn., 277 Mich. 144, 269 N.W. 122 (1936); Halstead
v. Young, 282 Mich. 558, 276 N.W. 703 (1937); Marr v. Hemenny,
297 Mich. 311, 297 N.W. 504 (1941); McDonald v. Sargent, supra
note 150; Kraft v. Miller, 314 Mich. 390, 22 N.W. 2d 857 (1946).
The dam owner need not own the land upon which the dam stands be-
fore an action can be brought against him for flooding. Brockway v.
Hydraulic Power & Light Co., supra. In Stuart v. Finnish Co-op
Assn., supra, the defendant, by constructing a dam at the outlet to
one lake, thereby raising the water in that lake, also caused the
water level to rise in another lake "not visibly connected" with
defendant's lake. Presumably the raising of the first lake affected
the ground water table and caused the level of the second to rise.
An injunction was granted against maintenance by defendant of the
dam.
391. Stone v. Roscommon Lumber Co., 59 Mich. 24, 26 N.W. 216 (1886);
cf. Allen v. Thornapple Electric Co., 144 Mich. 370, 108 N.W. 79
(1906). See also discussion, infra.


I








494 WATER RESOURCES

the running of logs in the state's streams. 392 The Michigan Su-
preme Court has flatly rejected these arguments as an attempt to
encroach upon the rights of individuals.
As it is wrongful to maintain in a stream a dam which obstructs
the flow of water so as to cause the flooding of others' lands, so it
is equally wrongful to maintain a dam which floods the mill of an-
ether, thereby interfering with its operation. 393 In principle, there
seems no distinction between setting back the waters of a stream or
lake onto the lands of another and setting them back onto the mill
wheel or buildings of another; both are examples of flooding without
right. Further it has been held that it is wrongful for a dam owner
to manipulate in an unreasonable fashion the level of the waters on
the river above the dam, thereby interfering with the formation of
ice in winter, although such mani ulation does not cause any actual
flooding of the lands of others.3
Other obstructions. 395 It is wrongful to create any obstruction
other than a dam which sets back the waters of a stream or lake

392. Stone v. Roscommon Lumber Co., supra note 391.
393. Richards v. Peter, 70 Mich. 286, 38 N.W. 278 (1888); Pluchak v.
Crawford, 137 Mich. 509, 100 N.W. 765 (1904); Michigan Paper Co.
v. Kalamazoo Valley Electric Co., 141 Mich. 48, 104 N.W. 387
(1905); Sheffield Car Co. v. Constantine Hydraulic Co., 171 Mich.
423, 137 N.W. 305 (1912). Cf. Murphy v. Big Rapids Water Power
Co., 204 Mich. 511, 170 N.W. 644 (1919), where defendant's dam
backed up water to "kill" plaintiff's springs, and defendant was order-
ed to pay plaintiff $1500 or lower its dam.
394. Pere Marquette Ry. Co. v. Siegle, supra note 12. See also Gillespie
v. Dunn, 246 Mich. 415, 224 N.W. 374 (1929), in which it was held
that there cannot be a "natural" level in a millpond, because the level
of the millpond must fluctuate to operate the mill. Therefore, per-
sons owning a subdivision adjacent to a millpond existing by pre-
scriptive right could not compel the dam owner to maintain the mill-
pond at any specific level, although the fluctuation of the water level
apparently reduced the value of their property.
No person may alter the stage of any watercourse without the
permission of the commissioners having jurisdiction over bridges and
culverts across the watercourse. Mich. Comp. Laws (1948) 254.25,
Mich. Stat. Ann. 9.1195. Persons obtaining permission must bear
the expense of any necessary alterations in bridges and culverts.
Ibid.
395. In regard to obstructions of watercourses which interfere with navi-
gation, see Part II, B4c, supra. The power of the county board of
supervisors to remove logs, booms, and rafts which obstruct navi-
bable streams seems to be for the sole purpose of protecting navi-
gation and not in order to protect private lands from flooding. Mich.
Comp. Laws (1948) 46.21, Mich. Stat. Ann. 5.344. See also Mich.
Comp. Laws (1948) 426.51 et seq., Mich. Stat. Ann. 18.231 et









AND THE LAW 495

and thereby causes the flooding of the lands of others. Such ob-
struction may be intentional, as where logs are boomed in a stream
or rocks are thrown into the bed of the stream, or unintentional, as
in the case of log jams.
Where the obstruction is intentionally caused, the person creat-
ing the obstruction will be held liable for damages caused by flood-
ing without any showing of additional fault. 396 It is only necessary
for the injured party to show the intentional act which caused the ob-
struction and that damage resulted from the consequential flooding.
On the other hand, where the obstruction is not intentially cre-
ated, negligence must be proved in order to recover. This rule has
been applied both in cases of log jams397 and in an instance in
which a city's storm sewers carried refuse into a creek and caused
it to become obstructed, thereby setting back the water onto adjoin-
ing lands. 38 Where a person has unintentially and non-negligently
Footnote continued
seq., providing for removal by private persons of obstructions to
streams such as booms and logs; apparently this provision also is
solely to aid in navigation.
396. Grand Rapids Booming Co. v. Jarvis, supra note 262, and Baumgart-
ner v. Sturgeon River Boom Co., 120 Mich. 321, 79 N.W. 566 (1899),
involved instances of intentional log-booming which caused flooding of
adjacent lands by obstructing the flow of the stream. (Cf. Mich. Comp.
Laws (1948) 426.57, Mich. Stat. Ann. 18.237, which provides that
logs may be boomed in navigable rivers so long as there is no inter-
ference with the navigation therein.) In Carley v. Jennings, 131 Mich.
385, 91 N.W. 634 (1902), the defendant, in retaliation for the com-
plainant's act in diverting a part of the flow of a stream so that it
flooded defendant's lands, obstructed the remainder of the stream
with stones, casting the waters back onto the lands of the complain-
ant. The court affirmed a decree enjoining the obstruction of the
stream; it went on to say, however, that both parties were acting
wrongfully, the complainant for originally diverting the flow of the
water, and the defendant for refusing to bear the "natural servitude"
imposed upon his lands for the passage of the waters of the stream.
See Mich. Comp. Laws (1948) 230.4, Mich. Stat. Ann. 9.334,
which makes it a misdemeanor to willfully obstruct the navigation
of any river or stream.
397. White River Log & Booming Co. v. Nelson, supra note 308, (1881);
Bauman v. Pere Marquette Boom Co., 66 Mich. 544, 33 N.W. 538
(1887); Witheral v. Muskegon Booming Co., supra note 271; Bellaire
v. Worchester Lumber Co., 177 Mich. 222, 143 N.W. 63 (1913).
Cf. Macumber v. White River Log & Booming Co., 52 Mich. 195,
17 N.W. 806 (1883); Anderson v. Thunder Bay Boom Co., 57 Mich.
216, 23 N.W. 776 (1885). In the Witheral case, the court pointed
out that the right of navigation does not extend to the highest water-
mark; therefore the defendant booming company could not, with im-
punity, raise the water level in a stream to its highest natural level.
398. A.L. Lakey Co. v. City of Kalamazoo, 138 Mich. 644, 101 N.W.
841 (1904).


__








WATER RESOURCES


caused an obstruction, however, it is incumbent upon him to remove
it within a reasonable time or he will be held liable in damages for
the prolonged flooding of adjacent lands. 399

(b) Injury Caused by Release of Impounded Waters or by
Casting Additional Waters into Stream
Where impounded waters are voluntarily released from a dam
upon a stream, and injury is caused through flooding the lands or
damaging the structures of lower owners, the dam owner will not be
held liable unless the releasing of the water is found to have been
unreasonable, thereby constituting negligence. The rule of reason-
ableness applies both to releasing water from power dams400 and to
releasing water from other dams maintained to facilitate the floating
of logs downstream. 401 It is clear, however, that a dam owner
will not be held liable for allowing the entire flow of the stream to
pass downstream in time of freshet although the quantity of water
may be so great as to threaten floods or endanger dams below. 402
In this regard upper dam owners are said not to be "insurers" of
lower dams. 403
When a dam breaks, casting large quantities of water down a
stream, great havoc may result to the lands located along the
stream. Although the rule in other states appears to be that where
a dam in a stream breaks and causes injury to lower owners the
dam owner is liable only if he had been negligent in the construc-
tion or maintenance of the dam,404 the Michigan Supreme Court has
not declared with finality whether the Michigan dam owner is subject

399. Witheral v. Muskegon Booming Co., supra note 271. In the Witheral
case and in Anderson v. Thunder Bay River Booming Co., 61 Mich.
489, 28 N.W. 518 (1886), the court pointed out that flooding of ad-
jacent lands cannot be said to be one of the normal incidents of the
right of navigation. See also Bauman v. Pere Marquette Boom Co.,
supra note 397, where the defendant was held liable for causing flood-
ing by negligently driving additional logs onto an already existing log
jam.
400. Taylor v. Indiana & Michigan Electric Co., 184 Mich. 578, 151 N.W.
739 (1915); Merkel v. Consumers Power Co., 220 Mich. 128, 189
N. W. 997 (1922). In Rockford Paper Mills, Inc. v. City of Rockford,
311 Mich. 100, 18 N.W. 2d 379 (1945), water was released from a
dam maintained for the purpose of a city water supply and allegedly
caused the destruction of a lower dam. The rule of reasonableness
was applied by the court in exonerating the defendant city.
401. Buchanan v. Grand River Log Co., supra note 242; Howard v.
Bellows, 148 Mich. 410, 111 N.W. 1047 (1907).
402. Cf. Rockford Paper Mills, Inc. v. City of Rockford, supra note 400.
403. Id. at 106.
404. See, e.g., City Water Power Co. v. City of Fergus Falls, 113 Mirn.
33. 128 N.W. 817 (1910).








AND THE LAW


to strict liability when his dam breaks or is liable only if fault is
shown. Only three decisions have been reported in Michigan in
which the action was for damages for injury caused to property by
the breaking of a dam. In two of these, the plaintiff pleaded and
proved that the defendant had been negligent in the construction of
his dam. 405 These cases did not answer the question of whether
the absolute liability rule applies in Michigan, since in them the de-
fendant would have been liable under either theory. 406 However, in
the 1945 decision of Robinson v. Township of Wyoming,407 it ap-
pears that the Michigan court may have opened the door to absolute
liability. There the plaintiff proceeded and won his case upon a
theory of trespass, relying upon the old and largely discredited
rule408 that an invasion of one's property by an instrumentality
under the control of another is actionable, whether or not intention-
al or negligent. 409
One may not gather water from other sources and cast it into a
watercourse in such large quantities that the capacity of the water-
course is thereby exceeded and the lands of adjoining owners flood-
ed. 410 Acts of this nature entail a disturbance of the existing
405. Darling v. Thompson, 108 Mich. 215, 65 N.W. 754 (1896); Lapeer
County Road Com'rs v. Markley, 260 Mich. 455, 245 N.W. 496
(1932). In Scott v. Longwell, 139 Mich. 12, 102 N.W. 230 (1905),
water escaped from defendant's mill-race and damaged the plaintiff's
lands; the plaintiff proved negligence and won his case.
406. Cf. Scott v. Longwell, supra note 405.
407. 312 Mich. 14, 19 N.W. 2d 469 (1945).
408. See, e.g., Restatement, Torts 166 (1934), which provides that the
instrumentality must be "extrahazardous" before recovery can be had
under the trespass theory.
409. The decision in the Robinson case may be explained upon the basis
that the defendant township could not, under Michigan law, have been
held liable for the negligence of its officers. See, e.g., Ferris v.
Board of Education, 122 Mich. 315, 81 N.W. 98 (1899). Therefore,
the only possible means of recovery for the plaintiff was to base the
action upon trespass. Although a just result may have been reached
in this particular case, nevertheless, a questionable precedent was
established which may cause a good deal of difficulty in the future.
410. Bruggink v. Thomas, 125 Mich. 9, 83 N.W. 1019 (1900) (proposal
to empty drainage ditch into watercourse of insufficient size to carry
off drain waters); Richards v. City of Ann Arbor, 152 Mich. 15,
115 N.W, 1047 (1908) (defendant city cast storm waters into a creek
whose size was wholly inadequate to carry them off); Smafield v.
Smith, 153 Mich. 270, 116 N.W. 990 (1908) (flooding lands by
emptying drainage ditch into creek of insufficient size). Cf.
Mathewson v. Hoffman, supra note 102; A.L. Lakey Co. v. City
of Kalamazoo, supra note 398; Rickels v. Log-Owners' Booming Co.,
139 Mich. 111, 102 N.W. 652 (1905). The Mathewson and Rickels
cases involved the issue of returning to the original watercourse
waters which had for a period of time been diverted therefrom.








WATER RESOURCES


pattern of drainage in that the flow of diffused surface water or the
flow of a watercourse from another watershed is diverted into the
affected watercouse. 411

(ii) Artificial Watercourses
The predominant form of artificial watercourse in Michigan is
the ditch or drain constructed for the purpose of implementing the
drainage of surface waters from agricultural and other lands. One
of the primary agricultural problems involving water in Michigan,
where there is ample rainfall and the topography is relatively flat,
has been the disposal of excess surface water, which, if not re-
moved from the land, would form bogs and shallow lakes, thereby
impairing the use of the land for most crops.
So important has it been to drain agricultural lands that drain-
age has become a public matter, and most extensive drains are of
public character. The Michigan legislature has enacted a number
of provisions in regard to the establishment and operation of public
drains and drainage districts; these provisions are contained in the
Drain Code412 which has been recodified as recently as 1956.413
The basic unit for the construction and maintenance of drains is
the county drainage district, which may comprise a part or all of
any county 414 In addition drainage districts may be organized
on an intercounty basis, 415 and existing districts may be consoli-
dated.416 The Drain Code contains extensive provisions for the or-
ganization417 and financing418 of these districts and also for the
411. Another aspect of this problem is presented in Hyatt v. Albro, 121
Mich. 638, 80 N.W. 641 (1899), where it was held wrongful to
accelerate the flow of water in a stream by deepening the bed,
thereby endangering dams on the river below. Cf. Harris v. Bout-
well, 156 Mich. 455, 122 N.W. 179 (1909). Mich. Comp. Laws
(1948) 254.25, Mich. Stat. Ann. 9.1195, provides that no stream
may be deepened or have its stage of water altered unless a permit
is first secured from the highway commissioners having jurisdiction
over bridges spanning the affected portion of the stream.
412. Mich. Comp. Laws (1948) 280.1-280.623, Mich. Stat. Ann.
11.1001-11.1623.
413. Mich. Laws 1956, No. 40.
414. Mich. Comp. Laws (1948) 280.51-280.54, Mich. Stat. Ann.
11.1051-11.1054.
415. Mich. Comp. Laws (1948) 280.101-280.106, Mich. Stat. Ann.
11.1101-11.1106.
416. Mich. Comp. Laws (1948) 280.441-280.448, Mich. Stat. Ann.
11.1441-11.1448.
417. Mich. Comp. Laws (1948) 280.51-280.54, 280.101-280.106,
280.461-280.489, 280.539, 280.511-280.538, 280.490, Mich. Stat.
Ann. 11.1051-11.1054, 11.1101-11.1106, 11.1461-11.1490,
11.1511-11.1539.
418. Mich. Comp. Laws (1948) 280.241-280.248, 280.261-280.280,
Mich. Stat. Ann. 11.1241-11.1248, 11.1261-11.1280.








AND THE LAW


creation of water management districts for the construction and op-
eration of drainage and flood control projects which extend over all
or part of three or more counties. 419 The officer primarily re-
sponsible for the construction and maintenance of drains is the coun-
ty drain commissioner, who is elected by the voters of the county to
serve a two-year term.420
As previously noted,421 under the Michigan Constitution of 1850
the state was forbidden to engage in works of internal improvement,
with the exception of public wagon roads, and in the "expenditure of
grants to the state of land or other property."422 This provision,
which was retained in the 1908 constitutional revision, 42 was held
to apply to political subdivisions of the state as well as to the state
government itself. 424 The drain laws were challenged at an early
date as authorizing works of internal improvement and therefore be-
ing inconsistent with the constitutional provision. 425 The courts,
however, justified the construction of drains as being necessary
to protect the public health, and therefore an exercise of an inher-
ent governmental power, not subject to the internal improvement
prohibition.426 The amendment in 1945 and 1946 of the constitution-
al provision removed the restriction upon state participation in the
construction and maintenance of drains and drainage projects.427
Where a drain is lawfully maintained, it is wrongful to obstruct
it so as to interfere with its function, without regard to whether it

419. Mich. Comp. Laws (1948) 280.551-280.583, Mich. Stat. Ann.
11. 1551-11.1583.
420. Mich. Comp. Laws (1948) 280.21-280.31, Mich Stat. Ann.
11.1021-11.1031.
421. See Part II, B4e, supra.
422. Mich. Const. of 1850, Art. XIV, 9.
423. Mich. Const. of 1908, Art. X, 14, prior to 1945 and 1946 amend-
ments.
424. See, e.g., Oakland County Drain Com'r v. City of Royal Oak, 306
Mich. 124, 10 N.W. 2d 435 (1943).
425. See, e.g., Kinnie v. Bare, 68 Mich. 625, 36 N.W. 672 (1888).
426. Ibid.; Gillett v. McLaughlin, 69 Mich. 547, 37 N.W. 551 (1888);
Smith v. Carlow, 114 Mich. 67, 72 N.W. 22 (1897); Brady v.
Hayward, 114 Mich. 326, 72 N.W. 233 (1897); Attorney General v.
McClear, 146 Mich. 45, 109 N.W. 27 (1906); City of Highland
Park v. Oakland County Drain Com'r, 312 Mich. 407, 20 N.W. 2d
253 (1945).
427. Mich. Const., Art. X, 14, as amended in 1946, expressly mentions
drainage and the protection and improvement of lands within the
state as permissible internal improvements. A previous amendment
in 1945 had achieved a partial abrogation of the limitation on internal
improvements.








WATER RESOURCES


is a public428 or private429 drain. In addition, when a person in-
terferes with a drain whose purpose it is to carry waters collected
from the surface of a highway, a statutory penalty attaches.430 The
construction or maintenance of a ditch or drain, whether public431
or private, 432 which casts water directly onto the lands of private
persons, is wrongful. Similarly, it is wrongful to overload the

428. Mich. Comp. Laws (1948) 280.421, Mich. Stat. Ann. 11.1421, pro-
vides that persons who obstruct public drains shall be liable for the
cost of removing the obstruction. Mich Comp. Laws (1948) 280.602,
Mich. Stat. Ann. 11.1602, provides that willful obstruction of a
drain may be punished by a fine of not more than $100.00, and in
default of payment of the fine the offender may be imprisoned in the
county jail for not more than ninety days. See City of Coldwater v.
Tucker, 36 Mich. 474 (1877). Likewise, it is wrongful to obstruct
a gutter alongside a city street so as to cause flooding of adjoining
property. Tatman v. City of Benton Harbor, 115 Mich. 695, 74
N.W. 187 (1898); Morley v. Village of Buchanan, 124 Mich. 128,
82 N.W. 802 (1900). Cf. Rice v. City of Flint, 67 Mich. 401, 34
N.W. 719 (1887).
429. Freeman v. Weeks, 45 Mich. 335, 7 N.W. 904 (1881); Enright v.
Hartsig, 46 Mich. 469, 9 N.W. 496 (1881); Freeman v. Weeks, 48
Mich. 255, 12 N.W. 215 (1882); Gregory v. Bush, supra note 7;
Leidlein v. Meyer, 95 Mich. 586, 55 N.W. 367 (1893); Glenn v.
Line, 155 Mich. 608, 119 N.W. 1097 (1909); Samyn v. Tacey, 337
Mich. 296, 60 N.W. 2d 152 (1953). Cf. Hume v. Grand Trunk W.R.
Co., 192 Mich. 225, 158 N.W. 840 (1916); Clark v. Detroit & M.R.
Co., 204 Mich. 121, 169 N.W. 863 (1918).
430. Mich. Comp. Laws (1948) 230.4, Mich. Stat. Ann. 9.334. See
Highway Com'rs of Eagle Twp. v. Ely, 54 Mich. 173, 19 N.W. 940
(1884); Hines v. Darling, 99 Mich. 47, 57 N.W. 1081 (1894). Cf.
Com'r of Highways v. Sperling, 120 Mich. 493, 79 N.W. 693 (1899);
Miller v. Harmer, 173 Mich. 560, 139 N.W. 276 (1913).
431. Pennoyer v. City of Saginaw, 8 Mich. 534 (1860); Cubit v. O'Dett,
S51 Mich. 347, 16 N.W. 679 (1883); Davis v. Township of Franken-
lust, 118 Mich. 494, 76 N.W. 1045 (1898); McAskill v. Township of
Hancock, 129 Mich. 74, 88 N.W. 78 (1901); Township of Merritt v.
Harp. 131 Mich. 174, 91 N.W. 156 (1902); Township of Merritt v.
Harp. 141 Mich. 233, 104 N.W. 587 (1905); Miller v. Harmer,
supra note 430. Cf. Conrad v. Smith, 32 Mich. 429 (1875); Parker
v. Fields, 48 Mich. 250, 12 N.W. 194 (1882); Breen v. Hyde, 130
Mich. 1, 89 N.W. 732 (1902); Steele v. City of lonia, 209 Mich.
595, 177 N.W. 259 (1920).
432. Parker v. Fields, supra note 431; Yerex v. Eineder, 86 Mich. 24,
48 N.W. 875 (1891); Breen v. Hyde, supra note 431; Carley v.
Jennings, supra note 396; Cranson v. Snyder, 137 Mich. 340, 100
N.W. 674 (1904); Page v. Huckins, 150 Mich. 103, 113 N.W. 577
(1907); Feuerstein v. Richter, 154 Mich. 312, 117 N.W. 740 (1908);
Cronin v. Payne, 157 Mich. 104, 121 N.W. 290 (1909); Miskotten v.
Drenten, 318 Mich. 538, 29 N.W. 2d 91 (1947).








AND THE LAW


capacity of a lawfully constructed drain so as to cause the flooding
of adjoining lands. 43
In regard to highway ditches in particular, it has been held that
highway commissioners have no power to construct ditches which
drain lands other than the highway. 434 Certain statutory procedures
are prescribed for the construction of a highway ditch;45 the high-
way commissioners need not conform to these procedures to clean
out a ditch,436 but cannot extend a ditch without conforming to the
statutory procedures.437 The highway commissioners may direct
the water from drainage ditches into the watercourses which form
the natural channels of drainage within the particular area. 438 Fur-
ther, a landowner may not complain if the highway commissioners
choose to place a drain on his side of the highway instead of the op-
posite side, or if a drain on the opposite side of the highway is
abandoned and a new one dug on his side. 439
Municipal liability for flooding from artificial watercourses. A
number of the Michigan cases involving flooding due to artificial
watercourses have involved sewers, gutters, and ditches constructed
and maintained by municipalities. The question of municipal liabili-
ty has arisen on numerous occasions, with the result that the Mich-
igan Supreme Court has had the opportunity to spell out in some de-
tail the immunities and liabilities of municipalities in this regard.
Where a municipality allows a sewer or a ditch to flow directly
onto privately owned lands, the landowner has been allowed to re-
cover where such flooding was the natural result of the construction
of the sewer or ditch. 44 Similarly, where the modification of the
433. Osten v. Jerome, 93 Mich. 196, 53 N.W. 7 (1892); Harris v. Bout-
well, supra note 411. Cf. Scott v. Longwell, supra note 405. Nor
may one having a right to maintain a ditch of specified dimensions
across the lands of another rightfully deepen the ditch in excess of
those dimensions. Elliott v. Carter, 140 Mich. 303, 103 N.W. 600
(1905).
434. Conrad v. Smith, 32 Mich. 429 (1875). Statutory provisions author-
izing the construction of drains for highways are found in Mich. Comp.
Laws (1948) 235.1-235.8a, Mich. Rev. Stat. 9.431-9.439.
435. Mich. Comp. Laws (1948) 235.1-235.8a, Mich. Stat. Ann. 9.431-
9.439.
436. Township of Merritt v. Harp, 141 Mich. 233, 104 N.W. 587 (1905).
437. Ibid.
438. Tower v. Township of Somerset, 143 Mich. 195, 106 N.W. 874
(1906).
439. Dean v. Millard, 151 Mich. 582, 115 N.W. 739 (1908).
440. Ashley v. City of Port Huron, 35 Mich. 296 (1877); McAskill v.
Township of Hancock, supra note 431; Donaldson v. City of Marshall,
247 Mich. 357, 225 N.W. 529 (1929). Cf. Steele v. City of lonia,
supra note 431. But see Village of Trenton v. Rucker, 162 Mich.
19, 127 N.W. 39 (1910).








WATER RESOURCES


grade of a street has blocked a gutter so as to-divert the water
therein onto private lands, the landowner has been allowed to re-
cover against the municipality. 441
Municipal sewers which overflow onto the surface of the ground
and then flood private lands, due to faulty construction of the sew-
ers442 or to failure of the municipality to maintain the sewers prop-
erly,443 form the basis for an action in damages by an injured land-
owner against the municipality. On the other hand, where sewers
have backed up and flooded basements, due to improper construction
of the sewer by the municipality, the earlier view of the Michigan
court was that the city was not liable. 444 However, in a second
case thirty years later, which involved a similar fact situation, the
court distinguished the earlier decision and held that the city was
liable where, due to its misfeasance, modifications were made in a
sewer line which caused the basement of a private owner to be
flooded. 445
(iii) Diffused Surface Waters
Generally speaking, two rules exist in the United States in re-
gard to the drainage of diffused surface waters from higher to lower
lands. About one-half of the states have adopted some version of
the "common law" rule, under which diffused surface waters are
treated as a common enemy which each landowner may dispose of
in any way available to him. 446 A landowner may construct dams
or embankments so as to throw the water back onto other lands or
may concentrate or accelerate the flow and cast it upon any adjoin-
ing lands. The "common law" rule has been modified in some
states so as to include disposal of diffused surface waters by rea-
sonable means only. The "civil law" rule as to drainage of diffused
surface waters is recognized in the other half of the states. 447 By
this rule, lower lands are subject to a servitude to receive diffused
surface waters flowing naturally from upper lands, but only so long
as the natural conditions of flow are not modified by the upper
441. Rice v. City of Flint, supra note 428; Morley v. Village of Buchanan,
supra note 428. Cf. Hembling v. City of sBig Rapids, 89 Mich. 1,
50 N.W. 741 (1891). A city or village is not, however, required to
construct gutters or storm sewers for the benefit of its inhabitants.
Cf. Village of Trenton v. Rucker, supra note 440.
442. Seaman v. City of Marshall, 116 Mich. 327, 74 N.W.. 484, (1898).
443. Cf. Ashley v. City of Port Huron, 35 Mich. 296, 299 (1877).
444. Dermont v. Mayor of Detroit, 4 Mich. 435 (1857).
445. Defer v. City of Detroit, 67 Mich. 346, 34 N.W. 680 (1887).
446. VI American Law of Property 28.63 (1954); 3 Tiffany, Real Prop-
erty 743 (3d ed. 1939).
447. Ibid.








AND THE LAW


owner. Michigan has adopted the civil law rule, thereby retaining
the natural pattern of drainage of diffused surface waters instead of
allowing each landowner to dictate whether in his particular case it
would not be more advantageous to modify the natural pattern.
In accord with the rule as to natural and artificial watercours-
es, it is clear from the reported Michigan cases that the owner of
a lower estate cannot rightfully obstruct the natural flow of diffused
surface waters from an upper estate;448 the lower estate is under a
"natural servitude" to receive such waters. 449 Similarly, one can-
not rightfully obstruct drainage from lands which were not naturally
dominant, but have become so by the gaining of a prescriptive
right. 450 The natural right of drainage cannot be lost by simple
nonusej451 thus, the fact that for a number of years the owner of
the dominant tenement has reduced the flow of water across the
servient tenement does not in any way restrict his right to allow the
full amount of diffused surface water to flow onto the servient tene-
ment. 452
The lower owner, while subject to the flow of natural diffused
surface water drainage, may not have diverted upon him more water
than would naturally drain onto his lands. 453 Nor may one cast
water onto a non-servient tenement which had previously received no
flow of diffused surface waters. 454 Similarly, where one has a
448. Boyd v. Conklin, 54 Mich. 583, 20 N.W. 595 (1884); Leidlein v.
Meyer, supra note 429; Horton v. Sullivan, 97 Mich. 282, 56 N.W.
552 (1893); Village of Trenton v. Rucker, supra note 440; Feldkamp
v. Ernst, 177 Mich. 550, 143 N.W. 887 (1913); Village of Sand Lake
v. Allen, supra note 166; Crane v. Valley Land Co., 203 Mich. 353,
169 N.W. 18 (1918); Robinson v. ,Belanger, 332 Mich. 657, 52 N.W.
2d 538 (1952). Cf. Hume v. Grand Trunk Western R. Co., supra
note 429. However, the servient owner may construct and maintain
between the two estates a wall which does not interfere with the
drainage of surface water. Robinson v. Belanger, supra.
449. Cf. Boyd v. Conklin, supra note 448 at 592-93.
450. Treat v. Pryor, 195 Mich. 102, 161 N.W. 826 (1917). Cf. Conklin
v. Boyd, supra note 136.
451. Smith v. Barrett, 159 Mich. 325, 123 N.W. 1091 (1909).
452. Ibid.
453. Yerex v. Eineder, supra note 432; O'Connor v. Hogan, 140 Mich.
613, 104 N.W. 29 (1905); Pezo v. County of Tuscola, 284 Mich. 369,
279 N.W. 864 (1938).
454. Morgan v. Meuth, 60 Mich. 238, 27 N.W. 509 (1886); Rice v. City
of Flint, supra note 428; Chapel v. Smith, supra note 136; Morley
v. Village of Buchanan, supra note 428; McAskill v. Township of
Hancock, supra note 431; Cronin v. Payne, supra note 432. Cf.
Finkbinder v. Ernst, 126 Mich. 565, 85 N.W. 1127 (1901); Fink-
binder v. Ernst, 135 Mich. 226, 100 N.W. 180 (1903). Also in
this regard should be mentioned the eaves-drip cases, involving








WATER RESOURCES


right to cast a specified amount of water onto the lands of another,
he cannot cast additional quantities of water thereupon. 455
One qualification exists to the rule of natural drainage. If the
owner of the dominant tenement, in the practice of "good husbandry"
fills up sag-holes or low spots on his land, so that water which
would have drained into them now flows onto the servient tenement,
the lower owner cannot complain. 456
The upper owner has no right to concentrate the natural amount
of diffused surface water so that it flows onto the servient estate at
only one place, instead of in a diffused manner. 457 The common
form of such concentration is to collect the water into a pipe or ditch
which then channels the water onto the lower estate. 458
Public highways are governed by the same rules as are .private
lands in regard to the drainage of diffused surface waters. There-
fore, in the construction or maintenance of a public highway it is
Footnote continued
water running from city rooftops onto the lands of adjoining owners.
Here the Michigan court has rejected the civil law or "rural"
approach which imposes servitudes upon lower-lying lands, and in-
stead has adopted a "reasonable use" approach, holding that negli-
gence of the defendant is the basis for recovery of damages. Under-
wood v. Waldron, 33 Mich. 232 (1876); Barry v. Peterson, 48 Mich.
263, 12 N.W. 181 (1882). The casting of snow onto the lands of a
neighbor may be analogized to this rule. See Barry v. Peterson,
supra.
455. Gregory v. Bush, supra note 7; Chapel v. Smith, supra note 136;
Cranson v. Snyder, supra note 432; Elliott v. Carter, supra note
433; Page v. Huckins, supra note 432; Fraam v. Covell, 170 Mich.
366, 136 N.W. 505 (1912); Peacock v. Stinchcomb, 189 Mich. 301,
155 N.W. 349 (1915); Donaldson v. City of Marshall, supra note
440; Miller v. Zahn, 264 Mich. 306, 249 N.W. 862 (1933); Turnbull
v. Roseland Park Cemetery Assn., 341 Mich. 677, 68 N.W. 2d
753 (1955). Cf. Township of Merritt v. Harp, supra note 436; Perry
v. Reed, 147 Mich. 146, 110 N.W. 529 (1907); Smith v. Barrett,
supra note 451; Cudner v. Clement, 165 Mich. 455, 131 N.W. 130
(1911); Voorhies v. Pratt, 200 Mich. 91, 166 N.W. 844 (1918). In
Offley v. Garlinger, 161 Mich. 351, 126 N.W. 434 (1910), where de-
fendant cast increased amounts of surface water onto a highway, from
which it drained orito the lands of plaintiff, it was held that the pres-
ence of the intervening lands did not preclude awarding injunctive
relief to plaintiff.
456. Launstein v. Launstein, 150 Mich. 524, 114 N.W. 383 (1907). This
case is discussed further at notes 561 et seq. infra. Cf. Cranson
v. Snyder, supra note 432. Cf. Gregory v. Bush, supra note 7.
457. Carley v. Jennings, supra note 396; Cranson v. Snyder, supra
note 432; Page v. Huckins, supra note 432; Fraam v. Covell, supra
note 455; Peacock v. Stinchcomb, supra note 455; Miller v. Zahn,
supra note 455; Ruehs v. Schantz, 309 Mich. 245, 15 N.W. 2d 148
(1944); Miskotten v. Drenten, supra note 432.
458. See, e.g., Cranson v. Snyder, supra note 432.








AND THE LAW


wrongful to cast diffused surface waters from the highway onto the
lands of private individuals in any manner other than they would have
flowed naturally. 459 This includes the concentration of flow onto
private lands of originally diffused surface waters draining from a
highway. 460 Although no highway commissioner may divert the natu-
ral course of diffused surface water "so as to impose upon the land
of one person the servitude which naturally belongs upon the land of
another,"461 highway commissioners do have a right to have drain-
age of diffused surface water from the highway follow the usual and
natural course and channels through which other surface water
flows. 462 In a vein of reasoning complementary to the above rules,
it has been held wrongful for a private individual to cast diffused
surface water from his lands onto a public highway. 463
b. Remedies Available to the Injured Party
Two distinct remedies are available to one. whose lands are
flooded by another's wrongful interference with the legally protected
drainage pattern. The injured person may seek redress in the
courts, asking for damages for the harm done or that the wrong-
doer be enjoined from continuing his acts. Further, the injured
person may rely upon his own prowess and resort to self-help to
compel a cessation of the wrongful acts.
(i) Damages
Generally speaking, awards of damages for injuries to lands due
to flooding or casting of water caused by interference with the law-
ful drainage pattern are governed by rules similar to those em-
ployed in awarding damages in other instances of injury to lands.
Thus, the purpose of damages is to compensate for the injury sus-
tained. 464 Damages must be "clearly deducible from the evidence,
as a result of the grievance complained of. "465 The jury's award,
459. Township of Blendon v. De Jonge, 181 Mich. 575, 148 N.W. 253
(1914); Sweeney v. Road Com'rs, 293 Mich. 624, 292 N.W. 506
(1940); Bennett v. County of Eaton, 340 Mich. 330, 65 N.W. 2d
794 (1954).
460. Breen v. Hyde, supra note 431.
461. Cubit v. O'Dett, supra note 431; Smith v. Township of Eaton, 138
Mich. 511, 513-514, 101 N.W. 661 (1904).
462. Tower v. Township of Somerset, supra note 438, Maynard v. Haw-
ley, 331 Mich. 123, 49 N.W. 2d 92 (1951).
463. Cf. Township of Merritt v. Harp, 131 Mich. 174, 91 N.W. 156
(1902).
464. Morrison v. Queen City Electric Light & Power Co., 193 Mich. 604,
160 N.W. 434 (1916).
465. Richards v. Peter, supra note 393 at 291. Nor is it objectionable
that damages are "consequential." In Grand Rapids Booming Co.








WATER RESOURCES


however, must not exceed the maximum amount claimed by the plain-
tiff. 466 Upon appeal, an award of damages supported by ample tes-
timony should be upheld,467 while an award "manifestly against the
great weight of the evidence" will be reduced by the upper court or
remanded for a new trial.468
A statutory limitation exists in Michigan upon damages recover-
able in actions for flooding due to a dam maintained for manufactur-
ing or milling purposes. Unless the plaintiff wins an award of fifty
dollars or more in damages, he can recover no more costs in the
action than the amount of damages awarded. 469 Thus a plaintiff
winning only six cents in damages would be forced to bear the costs
in the action. 470 Clearly, this statute discourages "nuisance" ac-
tions by injured landowners, thereby avoiding harassment of persons
who maintain dams for manufacturing or milling purposes. On the
other hand, however, it imposes an unjust burden upon landowners,
who must pay costs in any action for damages brought to keep the
statute of limitations from running in the wrongdoer's favor for the
acquisition of a prescriptive right, when the amount of injury caused
by the flooding is not sufficient to allow recovery of more than fifty
dollars in damages.471
When flooding or casting of water occurs, the injured person is
under a "duty" to take reasonable measures to minimize the amount
of the injury. 472 Expenses incurred in "honest" attempts to reduce
the injury caused by the flooding or casting of water may be recov-
ered from the wrongdoer. 473

Footnote continued
v. Jarvis, supra note 262 at 325, Justice Christiancy said: "It is no
objection against the recovery of damages that they are consequential,
unless they are at the same time too remote, trivial or uncertain,
or result from some justifiable act. All damages for injuries are
consequential."
466. Bellaire v. Worcester Lumber Co., supra note 397.
467. Sheffield Car. Co. v. Constantine Hydraulic Co., supra note 393.
468. Colwell v. Alpena Power Co., 178 Mich. 183, 185, 144 N.W. 516
(1913).
469. Mich. Comp. Laws (1948) 647.9, Mich. Stat. Ann. 27.2527.
470. Statutes of this nature appear not to be violative of constitutional
provisions. Cf. Green v. Liter, 12 U.S. (8 Cranch) 229 (1814);
Gordon v. Longest, 41 U.S. (16 Pet.) 97 (1842).
471. The imposition upon owners of flooded lands is reduced somewhat,
however, by the fact that the continuous depreciation of the dollar
has reached the point where fifty dollars' damage may be inflicted
by only the slightest flooding.
472. Richards v. Peter, supra note 393; Morrison v. Queen City Electric
Light & Power Co., supra note 449.
473. Morrison v. Queen City Electric Light & Power Co., supra note
464.








AND THE LAW


Where flooding or other injury to lands caused by interference
with the legally recognized drainage pattern is of a permanent na-
ture, the measure of damages is the reduction in the value of the
lands caused by the injury. 474 In determining the amount of dam-
ages for a permanent injury to lands, the amount paid for the lands
by the plaintiff is not conclusive as to their value but is only evi-
dence of this fact.475 Amounts paid by the defendant to neighbor-
ing landowners in settlement of their claims or in the purchase of
flowage rights is also evidence of the damage done to plaintiff's
lands. 476 When damages for permanent injury to lands are being
determined, the value of crops destroyed in the course of the flood-
ing should not be included. 477
In computing damages for temporary flooding, the rental value
of the lands affected is the usual measure if no permanent injury
has been inflicted by the flooding. 78 However, if crops or struc-
tures upon the land are injured or destroyed by the flooding, the
award should include their value.479 The amounts actually expended
474. Holcomb v. Alpena Power Co., 198 Mich. 165, 164 N.W. 470 (1917).
In a subsequent appeal in this case, damages for permanent flooding
of plaintiff's lands were set at $3,820. Holcomb v. Alpena Power
Co., 215 Mich. 382, 184 N.W. 587 (1921). See also Blake v. Corn-
well, 65 Mich. 467, 32 N.W. 803 (1887) ($1000 awarded for perma-
nent flooding of about forty acres of land); Richards v. Peter, supra
note 393, ($3005 awarded for flooding of mill); Miller v. Cornwell,
71 Mich. 270, 38 N.W. 912 (1888) ($1500 awarded for permanent
flooding); Allen v. Thornapple Electric Co., supra note 391 ($1000
award for permanent flooding reduced to $690 because it was dis-
cerned that the land would not be totally worthless, but could be
used for some farming.)
475. Morrison v. Queen City Electric Light & Power Co., supra note
464.
476. Ibid.
477. Holcomb v. Alpena Power Co., 215 Mich. 382, 184 N.W. 587 (1921).
478. Reason v. Peters, 148 Mich. 532, 112 N.W. 117 (1907); Potter v.
Dundee Hydraulic Power Co., 198 Mich. 585, 165 N.W. 689 (1917).
In the Pottei case, where plaintiff's forty acres had been flooded for
four years, in determining the amount of damages to be awarded, the
court looked to the rental value of similar lands, the value of the
lands per acre, the kind and quality of crops grown upon the lands,
the uses plaintiff was able to make of the lands in the years of
flooding, and whether the lands were well drained, or if they were
naturally flooded each year. An award of $4 per acre per year was
given, amounting in all to $640. In Robinson v. Belanger, supra
note 448, $500 was held not excessive for the temporary obstruction,
lasting several months, of the flow of diffused surface waters from
plaintiff's land.
479. Thorn v. Maurer, 85 Mich. 569, 48 N.W. 640 (1891) (6 cents dam-
ages for injuries to growing crops caused by flooding due to defend-
ant's dam); Colwell v. Alpena Power Co., supra note 468 ($913








WATER RESOURCES


in restoring the land to the condition in which it was prior to the
flooding is evidence of the amount of damages which should be
awarded. 480
The Michigan Supreme Court has upheld judgments awarded by
the lower court in alternative form, providing that if the defendant
ceased the flooding, damages would be limited to a temporary basis,
but that if the flooding were allowed to continue, the damages would
be measured by the amount of permanent injury to the lands. 481
(ii) Injunctive Relief
In most of the Michigan cases involving actions for wrongful in-
terference with the lawful drainage pattern, the injured party has
asked that the wrongdoer be enjoined from continuing the acts or
maintaining the structures which caused water to be cast upon the
injured party's lands. Unlike damages, the granting of injunctive
relief is discretionary with the court, and in most instances the
upper court will not interfere with the exercise of discretion by the
lower court.
Clearly, equitable relief may be granted when waters are
wrongfully cast onto the lands of others. 482 In determining in a
particular case whether to grant equitable relief or to leave the com-
plainant to his remedy at law for damages, the court examines all
of the factors involved in the case. As Justice Champlin said in
Turner v. Hart,483 where complainants sought to have abated a dam
Footnote continued
awarded for injury to growing timber caused by flooding); Merkel v.
Consumers Power Co., supra note 400 ($1200 for damages to lands
and growing crops by flooding); Lapeer County Road Com'rs. v.
Markley, supra note 405 ($7,855.68 awarded for roadway washed out
when dam burst.)
480. Lapeer County Road Com'rs. v. Markley, supra note 405. In this
case, defendant's negligently constructed dam washed out, carrying
away a portion of the roadway below the dam. $7,855.68 was ex-
pended in repairing the roadway and plaintiff Road Commissioners
gained judgment for this amount.
481. In Allen v. Thornapple Electric Co., supra note 391, the decree
was framed in the alternative: defendant could either lower its dam
and pay $150 for the injury caused by the temporary flooding, or
not lower the dam and pay $690 for permanent damages. In other
instances decrees have been framed giving the defendant a choice
between paying damages of a permanent nature or lowering his dam.
Murphy v. Big Rapids Water Power Co., supra note 393; Krieg v.
Kaufman, 206 Mich. 622, 173 N.W. 338 (1919).
482. See, e.g., White v. Forbes, Walk. Ch. 112 (1843); Treat v. Bates,
27 Mich. 390 (1873); Stuart v. Finnish Co-op Assn., 277 Mich. 144,
269 N.W. 122 (1936).
483. 71 Mich. 128, 38 N.W. 890 (1888).








AND THE LAW


which threatened to inundate 300 acres of their land:
It is not always a matter of course to grant relief in such
cases, in a court of equity, when the law side of the court
is open for legal redress. The extent of the injury, its
character, the comparative values of the properties affected,
and other considerations which may present themselves under
the varying circumstances, ought to be duly weighed, and
relief afforded or withheld, as equity and good conscience
require. 484

Thus the court weighs the potential injury to complainant against the
injury to the defendant which would be inflicted if an injunction were
granted requiring an abatement of defendant's activity. Of course,
where the complainant has not been legally damaged, no injunction
will issue because complainant in fact has no cause of action.485
Where the injury to the complainant is comparatively small as, for
example, the flooding of only a quarter-acre of farm land,8
and the granting of an injunction against the flooding will work a
great deal of harm upon the defendant, an injunction will not be
granted, and complainant will be left to his remedy at law.487 This
does not mean, however, that wherever a wrongdoer stands to lose
heavily by the granting of an injunction, no injunction will be is-
sued;488 instead, the court will in every case look to determine
whether the injury which would be inflicted upon the defendant by the
granting of an injunction is disproportionately large when compared
with the injury suffered by the complainant.
The courts, in determining whether in a particular case injunc-
tive relief should be granted, also consider whether the complain-
ant's remedy at law would be adequate. If the complainant would be

484. Id. at 139. In Stone v. Roscommon Lumber Co., supra note 391 at
31, defendant insisted, and the court apparently agreed, thatto have
injunctive relief the complainant had to show:
First, that a serious injury has been done or threatened
to his property by the defendants; second, that the in-
jury is in its nature irremediable, and one for which he
could not be compensated in damages; third, that the in-
jury was done or threatened by the defendants; fourth,
that complainant moved promptly, and was guilty of no
laches.
485. Pezo v. County of Tuscola, supra note 453.
486. See Fox v. Holcomb, 32 Mich. 494 (1875).
487. Ibid.; Howard v. Bellows, supra note 401; Sheffield Car Co. v. Con-
stantine Hydraulic Co., supra note 393; Kraft v. Miller, 314 Mich.
390, 22 N.W. 857 (1946).
488. Cf. Turner v. Hart, 71 Mich. 128, 38 N.W. 890 (1888); Pluchak
v. Crawford, supra note 393.


I








WATER RESOURCES


required to bring a multiplicity of actions at law because of continu-
ally recurring flooding, the injury is considered irremediable at law,
and equitable relief is in order. 489
In early Michigan cases, when the courts were prone to grant
injunctions, if at all possible, upon a basis of nuisance, great
weight was given to allegations that the flooding of complainant's
lands by defendant created a condition of "general unhealthiness," or
would "generate disease," and this factor prompted the granting of
injunctions against further flooding. 40 Later cases scrutinized the
matter more closely, and in Blake v. Cornwell491 Justice Champlin
rejected the assertion that flooding had caused sickness in complain-
ant's family because no causal connection was proved. As late as
1890, however, the Michigan Supreme Court still spoke of flooding
that "fills the air with malaria and impurities. ,"492
Where the complainant, seeking an injunction, comes into court
with less than a proper motive, he will be denied equitable relief
and left to his remedy at law. For example, it was sufficient basis
to deny an injunction that complainant had been given title to flooded
lands by an electric company for the purpose of enjoining the main-
tenance by a rival electric company of a dam which flooded the
lands. 493 Also, where complainant purchased flooded lands as a
speculative venture and attempted to coerce the dam owner, by
threats of injunction, to pay several times the value of the lands for
flowage rights thereto, complainant's subsequent bill to enjoin main-
tenance of the dam was dismissed.494
If the complainant leads the defendant to believe that money dam-
ages will be adequate if the defendant's contemplated dam or other
structure causes complainant's lands to be flooded, and then stands
by without objection while defendant expends large sums in construc-
tion, complainant will not be granted injunctive relief if in fact his
lands are flooded thereby. 495 In such an instance, the complainant

489. Stone v. Roscommon Iumber Co., supra note 391; Koopman v. Blod-
gett, supra note 242; Davis v. Township of Frankenlust, supra note
431.
490. See, e.g., White v. Forbes, supra note 482; Beach v. The People,
11 Mich. 106 (1862); Treat v. Bates, supra note 482.
491. 65 Mich. 467, 32 N.W. 803 (1887).
492. Chapel v. Smith, supra note 136 at 103.
493. Morrison v. Queen City Electric Light & Power Co., supra note 464.
But cf. Feldkamp v. Ernst, supra note 448.
494. Edwards v. Allouez Mining Co., 38 Mich. 46 (1878).
495. Miller v. Cornwell, supra note 474; Morrison v. Queen City Electric
Light & Power Co., 181 Mich. 624, 148 N.W. 354 (1914). In Blake
v. Cornwell, supra note 474, there was added the factor that com-
plainant,had allowed his minor sons to work for defendant in the con-
struction of the dam.








AND THE LAW 511

is said to have "acquiesced" in the construction of defendant's dam
or other structure and thereby barred himself from equitable re-
lief.496 A complainant will be denied an injunction ordering the
lowering of a dam which floods his lands where on several previous
occasions he has recovered damages from the dam owner in actions
at law, thereby leading the dam owner to believe that complainant
would be satisfied with damages in the future.497
The courts will not grant injunctive relief for wrongful interfer-
ence with the drainage pattern if the nature of the interference is
such that no injunction can be adequately framed so as to denote
with precision which acts are forbidden, thereby necessitating con-
stant oversight and supervision by the court.498 In these instances,
the complainant will be left to his remedy at law.
(iii) Self-Help
Upon several occasions cases have come before the Michigan
SSupreme Court involving wrongful interference with the existing drain-
age pattern, in which the injured person has not initially chosen to
seek redress in the courts, but has attempted personally to remedy
the matter. If the interference with the drainage pattern is actually
wrongful, the injured person may lawfully resort to self-help to pre-
vent further injury to himself, instead of seeking relief in the court
It is essential, however, for the measures which the injured person
takes to be reasonable in their nature.499
Where a dam or an embankment has been constructed which
wrongfully casts diffused surface water or the water of a stream
onto the lands of another, the injured person may enter upon the
lands where the dam or embankment is situated and remove the

496. See, e.g., Stone v. Roscommon Lumber Co., supra note 391.
497. Holcomb v. Alpena Power Co., 198 Mich. 165, 164 N.W. 470 (1917).
In Miller v. Cornwell, supra note 474, injunctive relief was denied
where complainant had previously brought an action for damages, in
which it was agreed to arbitrate, but had subsequently refused to pro-
ceed, claiming that the scope of arbitration was broader than contem-
plated. In Feldkamp v. Ernst, supra note 448, the fact that complain-
ant had brought a previous action for damages, which was dismissed
before a complaint was filed, did not bar subsequent injunctive relief
against defendant in the maintenance of a dam which flooded com-
plainant's lands.
498. See, e.g., Bradfield v. Dewell, 48 Mich. 9, 11 N.W. 760 (1882);
Buchanan v. Grand River Log Co., supra note 242.
499. See Davis v. Munro, supra note 165, where defendant's acts of self
help in wrongfully obstructing the flow of a stream were not re-
dressed by the court because they were in response to acts of plaintiff
which were in themselves unlawful. The court abstained from grant-
ing any relief to either party.


1








WATER RESOURCES


offending structure. 500 Also, a person may clearly remove from
his own land a dam which is not rightfully there. 501
One upon whose lands water is wrongfully being cast may em-
ploy a more mild form of self-help by constructing an embankment
which holds back the water. 502 Such an embankment may obstruct
the flow of all waters from the land of the wrongdoer onto the land
of the injured person although some of the waters naturally would
flow there, since the injured person is not required to distinguish
between those waters which are rightfully flowing onto his land and
those which are being cast there wrongfully. 503
Where a public ditch or drain causes wrongful flooding, the
right of self-help is limited, and the injured person must resort to
the courts for relief, instead of obstructing the ditch or employing
similar measures. 504 Likewise, where access to one's lands is
cut off by a public ditch, he may not fill in the ditch, but he will
be allowed to construct a bridge across it. 505 On the other hand,
where drain water from a highway is sought to be channeled into a
private drain whose size is insufficient to carry the water away, the
private owner may construct an embankment to stop the flow of
water from the highway. 506
2. Rights Constituting the Existing Drainage Pattern
The previous discussion has dealt with wrongful interference
with the existing legally protected drainage pattern and the remedies
which exist therefore. This section rounds out the examination of
Michigan drainage law by inquiring into the structure of the existing
drainage pattern from the viewpoint of the origin of the rights which
constitute it.
A sizable portion of the legally recognized drainage pattern is
composed of "natural" rights of drainage based upon conformity to
the course or channel followed by running water in the primitive or
natural state existing before the countryside was settled. The
500. Conklin v. Boyd, supra note 136 (embankment); Boyd v. Conklin,
supra note 448 (embankment); Winchell v. Clark, 68 Mich. 64, 35
N.W. 907 (1888) (dam in stream).
501. Day v. Walden, 46 Mich. 575, 10 N.W. 26 (1881).
502. Finkbinder v. Ernst, 126 Mich. 565, 85 N.W. 1127 (1901); Cranson
v. Snyder, supra note 432. In McCracken v. MacNeal, 169 Mich.
414, 135 N.W. 461 (1912), defendants obstructed an underground
drain which was wrongfully casting water onto their lands. Cf.
Village of Sand Lake v. Allen, supra note 166.
503. 0' Connor v. Hogan, supra note 453.
504. Miller v. Harmer, supra note 430.
505. Highway Com'r. of Eagle Twp. v. Ely, supra note 430.
506. Township of Blendon v. De Jonge, supra note 459.








AND THE LAW


remainder of the legally recognized drainage pattern is made up of
rights to continue artificial modifications in the natural drainage pat-
tern brought about by man-made changes or im rovements in the
landscape. These rights are created by means of the legal proce-
dures of grant, condemnation, prescription, "e toppel," and also by
judicial declaration of "public policy." In the allowing discussion
each of these rights, both natural and artificial is discussed as to
its creation, its nature, its measurement, and how it may be lost.
a. "Natural" Rights
A basic characteristic of surface water, whether confined to
channels or diffused, is that it follows the cou se of least resist-
ance in its passage from higher land areas to lhe lakes or seas.
The course of flow, where not modified by the activities of man-
kind, has been described in this paper as the natural drainage pat-
tern" and is governed by the topographical land forms created by
erosion, weathering, and other geological forces. The legal order
may recognize and protect the natural drainage pattern, or it may
recognize some other pattern of drainage create d by particular modi-
fications in the pre-existing natural drainage pattern.
All jurisdictions have afforded legal recognition and protection
to the natural drainage pattern where streams ;nd lakes are con-
cerned; no person may turn back a stream upoi an upper riparian.
Although some states, as mentioned previously have adopted differ-
ent rules as to diffused surface water than as to streams, 50 Michi-
gan courts grant legal recognition to the nature l pattern of drainage
for both streams and diffused surface waters aike. 508 Thus where
surface waters in Michigan follow the natural t pography in flowing
from the lands of one person to the lands of a other, the holder of
the upper lands has a right to the unimpeded c ntinuation of this
flow; this right is described by the courts as ubjecting the lower
lands to a "natural servitude. "509 The natural servitude extends
only to the quantity of water which flows due t precipitation, natu-
ral springs, and other non-artificial water sou ces, and does not
include man-made additions to this natural qua tity. 510 Therefore
507. See test at note 446, supra.
508. Diffused surface waters: see, e.g., Boyd v. Conklin, supra note
448; Leidlein v. Meyer, supra note 429, Streams: see, e.g., Carley
v. Jennings, supra note 396; the cases cited in note 390 supra,
assume as the basis for relief granted that the natural drainage pat-
tern of streams is legally recognized and protected.
509. Boyd v. Conklin, supra note 448; Leidlein v. Meyer, supra note 429;
Finkbinder v. Ernst, supra note 502; Carley v. Jennings, supra note
396.
510. Cf. Yerex v. Eineder, supra note 432; Pezo v. County of Tuscola,
supra note 453.








WATER RESOURCES


the upper owner may not, upon the basis of the natural servitude,
cast additional quantities of water down upon the servient tenement.
Although the majority of Michigan cases dealing with wrongful
interference with the drainage pattern have involved the natural
drainage pattern, nevertheless there has been no close analysis of
the natural servitude in any of the numerous cases in which it has
formed the basis for relief granted or denied. Instead, it seems
in these cases to have been implicitly understood that this right of
continued natural drainage exists and that it will be afforded protec-
tion by the courts. 511
b. Rights Acquired by Grant or Lease
A portion of the rights constituting the existing drainage pattern
have originated through voluntary conveyances, as by a grant, a
lease, a license, or conceivably by a contract. 512 Similarly, modi-
fications may be made in the existing pattern by means of further
conveyances of this nature. Although rights to modify the flow of
diffused surface waters and to maintain ditches and drains may be
conveyed, the majority of Michigan cases involving rights of this
kind have been concerned with flowage rights relative to the mainte-
nance of dams in watercourses.
Clearly, the owner of lands may grant513 or lease514 to an-
other a right to flow the lands by means of a milldam. Similarly,
a right to maintain a ditch or drain may be conferred by "con-
tract,"515 by grant,516 or by a simple license.517
The grant of a right of flowage may be appurtenant to some par-
ticular use or to some particular structure, such as a mill, 518or
it may be given in gross. 519 Of course, where a flowage easement
is given in gross, the fact that the mill in connection with which the

511. Therefore the great majority of cases in which the natural servitude
has formed a basis for relief have not mentioned the existence of
this servitude, but have simply assumed that interference with the
natural drainage pattern is wrongful. See text at notes 388-392,
supra.
512. Cf. City of Coldwater v.- Tucker, supra note 428, involving a "contract"
by which the city maintained a ditch through Tucker' s lands.
513. See, e.g., Kilgore v. Hascall, 21 Mich. 502 (1870).
514. See, e.g., Morrill v. Mackman, 24 Mich. 279 (1872). Here the court
discussed the relationship between lessor and lessee as being one of
landlord and tenant.
515. City of Coldwater v. Tucker, supra note 428.
516. Cf. McCracken v. MacNeal, supra note 502.
517. Voorhies v. Pratt, supra note 465.
518. Day v. Walden, supra note 501.
519. Kilgore v. Hascall, supra note 513.








AND THE LAW


easement has been used is destroyed by fire does not affect the
existence of the flowage easement, 520 although a flowage easement
which is appurtenant to a mill is extinguished by the destruction of
themill. 521 Occasionally, where a right of flowage and a right to
construct and maintain a dam have been granted in the same instru-
ment, a problem arises as to whether the flowage right so granted
is appurtenant to the dam. If the flowage easement has been grant-
ed in fee simple, the court will not infer that it was meant to be
appurtenant, and only plain language in the instrument can restrict
an easement so granted. 522
Nonuse alone, over an extended period of time will not act to
extinguish a right acquired by grant to flow lands523 or to maintain
a drainage ditch across lands. 524 In addition to nonuse there must
be "an intention to release the servient estate and extinguish the
easement."525 Where drains are maintained by parol license, the
licensor may terminate the license at will, and the license becomes
terminated as a matter of law if the licensor conveys the lands to
another. 526
The grant of a flowage right may provide that a specified area
of land may be flowed by the grantee, or it may provide that the
grantee may flow whatever amount of land which will be flooded by
a dam at a given location with a "head" of a specified number of
feet. The "head" of water of a dam, according to the accepted defi-
nition, is ascertained "by measuring the vertical distance from the
water in the flume or place from which it is drawn, to the tail-
water."527 In more common terms, the "head" is the height from
the level of the water in the steam immediately below the dam to
the level of the water in the millpond.
c. Rights Acquired by Condemnation
The power of eminent domain, or condemnation, belongs to the

520. Hathaway v. Mitchell,34 Mich. 164 (1876).
521. Day v. Walden, supra note 501. But cf. McMillan v. Etter, 229
Mich. 366, 201 N.W. 499 (1924), which indicates that flowage rights
seemingly appurtenant to a dam may be retained by the grantor when
the dam and the land upon which it is situated are sold.
522. Hathawayv. Mitchell, supra note 520.
523. Tebbel v. Spencer Electric Light & Power Co., 173 Mich. 136, 138
N.W. 1073 (1912); Glidden v. Beaverton Power Co., 223 Mich. 383,
193 N.W. 862 (1923). Cf. Day v. Walden, supra note 501.
524. Samyn v. Tacey, supra note 429.
525. Kraft v. Miller, supra note 487 at 401.
526. Voorhies v. Pratt, supra note 455.
527. Tebbel v. Spencer Electric Light & Power Co., supra note 523 at
140. Cf. Shearer v. Middleton, 88 Mich. 621, 50 N.W. 737 (1891).











AND THE LAW 517

There are no Michigan cases involving the nature of drainage
rights acquired by condemnation, although doubtless they are simi-
lar in quality and other aspects to rights voluntarily conveyed. Con-
ceivably, lands or easements could be condemned for a temporary
period as appurtenances to projected dams or drainage ditches, and
when the dams or ditches were abandoned or destroyed at some fu-
ture date, the easement would be extinguished or the land would re-
vert to the person from whom acquired. The usual practice, how-
roa oamc in h tfn pnnnlemn in fpp aimnlp nhrnlute sn that there








WATER RESOURCES


528
State of Michigan as an attribute of its sovereignty. 528 In addition,
Michigan municipalities, territorial divisions, special purpose dis-
tricts, and public utilities have been granted by statute the power
to condemn lands in order to modify the existing drainage pattern
for public purposes through the creation of drains and ditches, or by
gaining flowage rights. 529 The state or any of its subdivisions pos-
sessing the power of condemnation must exercise this power, if at
all, only for its own purposes. 530 Thus, the state cannot exercise
its power of condemnation for the benefit of the federal govern-
ment. 531
Although there is a general agreement among the courts of the
various states that the power of condemnation must be exercised
only for public purposes, and cannot be used for private purposes,
nevertheless there is a lack of accord as to what constitutes a pub-
lic purpose. The Michigan Supreme Court held in the 1877 case of
Ryerson v. Brown532 that a statute which allowed private mill own-
ers to condemn hands for flowage was unconstitutional because it
provided for condemnation for private instead of public purposes.
Subsequently an act allowing a private water power company to con-
demn lands for a dam and flowage was held unconstitutional for the
same reason because, the erection of the projected dam, the water
power company could use it entirely for a private purpose. 533 The
courts of other states, taking a less restrictive view of what con-
stitutes a public purpose, have allowed private mill owners to con-
demn lands for flowage where the legislature has so provided. 534
528. People v. Humphrey, 23 Mich. 471 (1871). In Georgia v. Chatta-
nooga, 264 U.S. 472, 480, 44 S.Ct. 369 (1924), Mr. Justice Butler
observed "The power of eminent domain is an attribute of sovereignty,
and inheres in every independent State."
529. See, e.g., Mich. Comp. Laws (1948) 67.24-67.34, Mich. Stat. Ann.
5.1308-5.1318 (granting villages the right of condemnation in the
establishment of sewer districts); Mich. Comp. Laws (1948) 280.75,
Mich. Stat. Ann. 11.1075 (empowering county drain commissioner
to condemn right of way for drains); Mich. Comp. Laws (1948)
486.251-486.254, Mich. Stat. Ann. 22.1671-22.1674 (empowering
public gas and electric utilities to condemn lands for the damming
and improvement of streams).
530. Cf. People v. Humphrey, supra note 528.
531. Ibid., holding that the state of Michigan could not condemn lands for
the purpose of turning them over to the United States for federally
maintained lighthouses.
532. 35 Mich. 333 (1877).
533. Berrien Springs Water-Power Co. v. Berrien Circuit Judge, 133
Mich. 48, 94 N.W. 379 (1903).
534. See, e.g., Hazen v. Essex Company, 12 Cush. 475 (Mass. 1853).
Although there are no Michigan 'cases in point, the courts of other
states have declared private irrigation ditches and ditches for drain-
ing private swamp lands to be public in purpose, and have approved










518 WATER RESOURCES

notorious so that the owner of the land has notice that the prescrip-
tive period is running against him,537 and it must be exercised
under a claim of right. 538
Prescriptive rights modifying the pre-existing drainage pattern
may be of several different kinds. Michigan cases have involved
prescriptive rights of flowage by 'means of a dam, 539 prescriptive
rights to cast additional surface waters upon or to channel them
through the lands of others, 540 prescriptive rights to keep others
from casting surface waters onto what formerly was a servient tene-








AND THE LAW


ascertaining the scope of a prescriptive right to drain lands through
a ditch or culvert, the amount of land drained is not used as the
standard but the court speaks instead of the size of the ditch or
culvert, 45 or of the quantity of water flowing through the ditch or
culvert. 546 Where a prescriptive right exists for a particular use,
it may not rightfully be employed for another use; thus, a ditch
maintained by prescriptive right which led from a lake to supply a
mill with water for power could not be used for the purpose of low-
ering the lake level after the mill had been abandoned. 547
The matter of reciprocal prescriptive rights or easements has
arisen for determination in two Michigan cases, the second of which
strongly circumscribed the holding of the first. Reciprocal pre-
scriptive rights or easements arise when, during the period of ad-
verse use, not only is a right gained to modify the previously exist-
ing drainage pattern, but the person subject to this right in turn
gains a right that there shall not be a return to the previously exist-
ing drained pattern. In the earlier Michigan case, Mathewson v.
Hoffman, the defendant had entirely diverted the flow of the Lit-
tle Portage River for some forty years, thereby gaining a prescrip-
tive right to continue the diversion. The complainants, who were
landowners below the point of diversion, put the former bed of the
river to agricultural use during this period. The defendant then
proposed to return the river to its original channel; complainants
sought to enjoin such return. The Michigan Supreme Court af-
firmed a decree granting the injunction, on the basis that while the
defendant was gaining a prescriptive right to divert the river, the
complainants were gaining a corresponding right to be free of the
flow of the river. The new channel of the river, said the court,
had become the legally recognized channel, which the defendant
could not rightfully modify to the complainants' detriment. 549 Thus
the Mathewson case recognized the doctrine of reciprocal prescrip-
tive rights as being applicable in Michigan. In the subsequent case
of Goodrich v. McMillan, 550 however, the court restricted this
545. Elliott v. Carter, supra note 433; Peacock v. Stinchcomb, supra note
455; Treat v. Pryor, supra note 450. Cf. Cranson v. Snyder, supra
note 432.
546. Chapel v. Smith, supra note 136; Launstein v. Launstein, supra
note 456.
547. Flynn v. Service, supra note 540.
548. 77 Mich. 420, 43 N.W. 879 (1889).
549. Id. at 434.
550. 217 Mich. 630, 187 N.W. 368 (1922). The holding of the Goodrich
case was approved in Pere Marquette Ry. Co. v. Siegle, supra note
12 at 93, which involved not reciprocal prescriptive rights, but in-
stead a "priority" in favor of plaintiff's use and the "reciprocal sub-
ordination of defendants' rights to those of plaintiff."








WATER RESOURCES


doctrine to the fact situation of the Mathewson case. In the Good-
rich case the defendant erected a dam whose millpond wrongfully
flooded complainants' lands. Complainants did not seek to have the
flowage abated, but treated the existence of the pond as a boon and
erected cottages around it so as to use the pond for boating and
other activities. Both the pond and the surrounding cottages had
existed for longer than the prescriptive period when defendant aban-
doned the dam, which collapsed, allowing the waters of the pond to
escape. The complainants entered upon defendant's land and rebuilt
the dam, which the defendant then destroyed. At this point com-
plainants sought relief in equity to compel defendant to maintain the
dam at its prior location and height; the reciprocal prescriptive
right theory was argued in behalf of the complainants. 551 In affirm-
ing a decree denying relief, the Michigan Supreme Court rejected
the doctrine as inapplicable to the factual situation because the com-
plainants had not made an adverse use of the flowed lands. 552
Therefore, since the only prescriptive right ran in favor of the de-
fendant, he could remove the dam at his pleasure. The Mathewson
case, cited by complainants, was simply said not to be in point.
The distinction between the Mathewson and Goodrich cases is tenu-
ous at most; attempts to spell out a significant legal difference are
futile. The cases may be resolved, if at all, only upon the basis
that during the thirty-three years which elapsed between the cases
the court's view of reciprocal prescriptive rights changed substan-
tially,553 or upon the basis that in the Mathewson case the com-
plainants asked for a negative injunction, which the courts will cus-
tomarily grant, while the Goodrich case was further complicated by
the fact that the complainants asked for a positive injunction to re-
quire the defendant to build and maintain a dam, which injunction the
courts will very seldom grant since its enforcement would require
constant oversight by the court. 554
A prescriptive right which modifies the pre-existing drainage
pattern may be extinguished by continuous nonuse for a time equal
in length to the prescriptive period. 555 In a case of this kind,
551. Complainants relied heavily upon the celebrated Minnesota case of
Kray v. Muggli, 84 Minn. 90, 86 N.W. 882 (1901), which had held,
in a fact situation very similar to that of the Goodrich case, that re-
ciprocal prescriptive rights existed. The Michigan court rejected
Kray v. Muggli as contrary to the great weight of authority.
552. Supra note 550 at 634.
553. Cf. Smith v. Barrett, supra note 451, where, in a case roughly re-
sembling Mathewson v. Hoffman, the question of reciprocal prescrip-
tive rights was not raised, but the court inferred that if the question
had been raised it would have found such rights to exist.
554. See text supported by note 498, supra.
555. McDonald v. Sargent, supra note 150; Kraft v. Miller, supra note
487.








AND THE LAW 521

where a dam flooding lands by prescriptive right was washed away,
a rebuilding of the dam some twenty-five years later was en-
joined. 556 A prescriptive right may be lost in less time than the
prescriptive period by abandonment of the right, as by the intention-
al abandonment of the instrumentality in connection with which the
right is used, or by the destruction of the instrumentality after
which no apparent intention to rebuild it exists. 557
e. Rights Acquired by "Estoppel"
Where a person makes representations upon which other persons
rely and act to their detriment, he will not afterward be allowed to
deny the truth of those representations although the acts of other
persons dependent upon them may constitute an invasion of his rights.
This rule is known as the doctrine of "equitable estoppel" because
the person making the representations is stopped from asserting
his rights against others.558
The doctrine of equitable estoppel has been applied by the Mich-
igan Supreme Court in several cases involving drainage rights.
Where one aids in the construction of a drainage ditch across his
lands and allows the ditch to exist for a number of years thereafter,
leading others to believe that they may rightfully drain their lands
through the ditch, he may not later complain of the ditch's existence
and ask that the courts aid him in removing it. 559 Similarly, if one
has petitioned for a street improvement which will modify the grade
of the street in front of his premises and has without complaint
paid the assessment thereupon after completion of the improvement,
he will not be heard to complain that the improvement should be
enjoined because it interferes with the drainage of diffused surface
water from his property. 560

556. McDonald v. Sargent, supra note 150.
557. Chapel v. Smith, supra note 136 (underground drain was apparently
abandoned after it caved in); Flynn v. Service, supra note 540 (de-
struction of mill for which prescriptively maintained ditch was used).
Cf. Samyn v. Tacey, supra note 429.
558. Equitable estoppel, which bars any judicial remedy, should not be con-
fused with the doctrine of "acquiescence," which may bar equitable
relief only. See text at notes 470-472, supra.
559. Freeman v. Weeks, 45 Mich. 335, 7 N.W. 904 (1881), reversed on
other grounds after retrial, 48 Mich. 255, 12 N.W. 215 (1882);
Enright v. Hartsig, supra note 429. Cf. Morrill v. Mackman, 24
Mich. 279 (1872). In Cornwell Mfg. Co. v. Swift, supra note 535,
where defendant remained silent while plaintiff invested $40,000 in
constructing a dam upon land to which defendant held flowage rights,
the court held in a close decision, 3-2, that the doctrine of equitable
estoppel should not be applied. Champlin, C.J., and Morse, J., dis-
sented forcefully.
560. Hembling v. City of Big Rapids, supra note 441.








WATER RESOURCES


f. Rights Originating Through Judicial Declaration of "Public
Policy"
In a number of actions for relief from interference with the
existing drainage pattern, the defendants have argued that they oc-
cupied a special position or were performing a preferred function
which was of such public importance that the court should make an
exception to the general rule and declare that the interference they
had caused was not unlawful. The lumbering interests used this
argument at an early date in attempting to justify flooding of private
lands when logs were run downstream to market. The Supreme
Court of Michigan rejected these arguments, conceding that lumber-
ing interests were indeed highly important, but holding that private
rights were paramount. 561 Likewise, the Michigan court has re-
jected claims made by both public utilities562 and public officials563
that their interference with the existing drainage pattern were some-
how privileged because done in the public interest.
As between neighboring farmers although one may not justify
draining a swamp564 or sag-holes565 and channeling the water there-
from onto his neighbor's lands under the guise of "good husbandry,"
nevertheless the Michigan Supreme Court has held that one may fill
in the sag-holes in the practice of good husbandry. The owner of
lower lands may not complain that this act has increased the amount
of diffused surface water flowing from the upper lands. 566

III. GROUND WATER
When compared with surface water problems, the legal prob-
lems relating to ground water567 are greatly limited in scope. The
nature of ground water hardly allows for problems of navigation, use

561. Middleton v. Flat River Booming Co., 27 Mich. 533 (1873); Stone v.
Roscommon Lumber Co., supra note 391; Witheral v. Muskegon
Booming Co., supra note 271.
562. Taylor v. Indiana & Michigan Electric Co., supra note 400; Merkel
v. Consumers Power Co., supra note 400.
563. Cubit v. O'Dett, supra note 431; Breen v. Hyde, supra note 431.
564. Yerex v. Eineder, supra note 432.
565. Gregory v. Bush, supra note 7. See also Osten v. Jerome, supra
note 433; Finkbinder v. Ernst, supra note 502.
566. Launstein v. Launstein, supra note 456. Cf. Gregory v. Bush,
supra note 7; Breen v. Hyde, supra note 431, Cranson v. Snyder,
supra note 432.
567. Ground water, or water occurring beneath the surface of the earth,
is also known as "subsurface water," or "subterranean water," or
"underground water."








AND THE LAW


for power, 568 or drainage569 to arise. The legal aspect of ground
water therefore resolves itself into a twofold consideration of the
consumptive use of ground water and the pollution of ground water.
This statement is not meant to intimate, however, that ground water
does not constitute a very important element of the total water sup-
ply. Indeed, a great number of domestic, municipal, industrial, and
other users employ ground water rather than water from surface
sources, 570 and there is strong indication that use of ground water
will rapidly increase in the years to come. 571 Consequently, al-
though litigation in Michigan relating to ground water has not been
extensive, the principles laid down in the few existing cases are of
great importance, in that they have contributed to the present status
of ground water uses, and further in that they will shape the course
of future development.
A. Consumptive Use of Ground Water
Virtually all uses of ground water are consumptive in nature,
since they abstract water from the subterranean reservoir- for use,
and do not return it to that place. Return of ground water to its
source has long been considered a practical impossibility, although
recently there has been discussion of recharging ground water reser-
voirs by mechanical and other means. Therefore, the depletion of
ground water resources for virtually any type of use will be far in
excess of what the depletion would be in a comparable situation in-
volving surface water sources, where any surplus remaining after
use can be returned to the source.
Generally speaking, the court decisions and other legal litera-
ture have divided ground water into two categories: underground
streams and percolating, or diffused, ground water. 572 So far as
underground streams are concerned, the rules governing the use of
water from surface watercourses are applicable. 573 Since, how-
ever, it is virtually impossible to establish the existence of an under-
ground stream, in the great majority of ground water cases the
source of the water supply involved has been considered to be

568. Conceivably, the water flowing from an artesian well could be used
for power purposes, although there is very little evidence of using
these waters as a power source.
569. But cf. Stuart v. Finnish Co-op Assn., supra note 482, where appar-
ently by raising the ground water table through raising the level of
a lake, the waters of a neighboring lake, "not visibly connected"
with the first lake, were caused to rise and flood lands.
570. See, e.g., Thomas, The Conservation of Ground Water c.1 (1951).
571. Ibid.
572. See, e.g., VI-A American Law of Property 28.55, 28.65 (1954).
573. Ibid. See, e.g., Chasemore v. Richards, 7 H. L. Cas. 349, 11 Eng.
Rep. 140 (1859).


I








WATER RESOURCES


percolating ground water. 574 The Michigan Supreme Court has re-
ferred to this distinction between underground streams and percolat-
ing ground water, 575 and has indicated that all underground water
will be presumed to be of a percolating nature, 576 thereby clearly
putting the burden of proof in this issue upon the person alleging the
existence of an underground stream; on the other hand the Michigan
court has never been confronted with a case in which an under-
ground stream has been contended to exist.
Two basic legal doctrines exist as to the use of percolating
ground water. Under the English common law rule, 577 which was
first enunciated in the 1843 Court of Exchequer Chamber decision
of Acton v. Blundell, 578 it is held that a landowner can lawfully
draw off any amount of ground water, for whatever use, at his
pleasure, upon the principle that the owner of the soil is also the
owner of everything beneath the soil as well. If neighboring owners'
springs or wells are dried up by such abstraction of the water, this
is "damnum absque injuria," since it is said that a landowner has
"no right" against any use or abuse of ground water by his neighbor.
This statement, of course, discloses the inherent contradiction in
the English rule: although a man owns absolutely all of the ground
water beneath his land, he cannot complain if someone else removes
it.
Opposed to the English rule of ground water use is the doctrine
of reasonable use, which has developed in the United States to re-
lieve some of the incongruous hardships and waste inflicted by the
strict English rule. 579 The ground water doctrine of reasonable
use, which is also known as the "American rule,"' is similar to the
reasonable use doctrine as applied to watercourses; its basis is the
weighing of the interests of the conflicting users in order to formu-
late the most equitable means of settling controversies over the use
of water.
One statute and four Michigan Supreme Court decisions repre-
sent all of the existing Michigan law which bears directly upon the
legal rules determining proper use of percolating ground water.
Taken together, the statute and these cases present no more than
scattered fragments of the total picture of ground water use, and
any study of the present status of ground water use law in Michigan
574. Supra note 572.
575. Upjohn v. Richland Township, supra note 198 at 549.
576. Schenk v. City of Ann Arbor, 196 Mich. 75, 81, 163 N.W. 109
(1917).
577. See, e.g., VI-A American Law of Property 28.65 (1954);
578. 12 M. & W. 324, 152 Eng. Rep. 1223 (1843).
579. Supra note 577.




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