Title: Michigan Law of Water Allocation - Description by Richard Arens - Introduction
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Title: Michigan Law of Water Allocation - Description by Richard Arens - Introduction
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Spatial Coverage: North America -- United States of America -- Florida
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Abstract: Richard Hamann's Collection - Michigan Law of Water Allocation - Description by Richard Arens - Introduction
General Note: Box 12, Folder 11 ( Conservation Foundation - Symposium Papers on Water Allocation in Eastern U. S. - 1956 ), Item 3
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MICHIGAN LAW OF WATER ALLOCATION

Part I Description

by

Richard Arena, Buffalo Law School



(1) InXtoduction

Michigan's water environment is a generous one--so much so that

flooding, water-logging of lands and lake-level fluctuation count among

the serious water problems of the State. Its shore-line border of 3,000

miles is the longest of any state, and the large bodies of water east

and west affect considerably its humid continental climate. The tem-

pering influence of Lake Michigan lengthens the growing season and

makes possible, for instance, a flourishing fruit industry in the State's

southwestern corner.

Inland, 11,000 lakes and 35,000 miles of streams are a natural re-

source on which recreation and tourism, a leading industry, are built.

Ground water resources are also large, particularly in the western low-

er peninsula. As it happens, however, much of the population is concen-

trated in metropolitan areas in the southeast, where ground water is

limited, due to the thinness of the sand and gravel beds, excessive salts

or other minerals in the water, and for other reasons of geology. Michi-

gan's landscape was shaped by glacial movements. In the lower peninsula,

it is quite flat, and built up largely of glacial deposits, with winding

ridges of glacial moraines. The western part of the upper peninsula is

more rugged, with hills up to 2,000 feet.

These physical features have considerable significance for water de-

velopment and management. Before crops could be started many areas had

to be drained. Three-fourths of the municipal water systems, and many







2.-


industries, depend on ground water. Owing to lack of relief, sites

for artificial storage of streamflow are limited, particularly in the

lower peninsula's heavily settled southern half. However, nowhere are

the Great Lakes distant--one recent water-supply proposal, for instance,

would tap Lake Huron for urban aras northwest of Detroit. In this

glacial landscape, with water relatively plentiful, the physical connec-

tions and relationships of streams, lakes and ground-water sources with

one another are many and complex, and are significant factors in water

development and control activities.

As water use grows in the State, the need to understand and to

reckon with these sensitive hydrologic relationships is more evident

every year. Competition between users and between various types of

water use is increasing. Michigan's population, now at 7 million, grew

by one-third over the last 15 years; by 1975, a further increase of at

least 2 million is predicted. Not only must more public water supplies

be developed. Industrial and recreational uses also are expanding, and

supplemental irrigation is proving its value in better yields to more

and more farmers.

It is not surprising, therefore, to find the following needs stressed
I/
in a recent review of the State's water situation:

1. An expanded data-collection program in water resources, to

include more stream gaging on tributary streams in the south-

ern peninsula and trunk streams in the northern; statewide

expansion of the rain-gaging network; intensive investigation

of rainfall and runoff on small drainages; expansion of the

statewide observation-well program; continuous recording of

stream temperatures.








3-


2. Licensing and supervision of ell-drillers, with emphasis

on obtaining drilling records of water-bearing strata and

ground-water conditions.

3. Development of state water policy in order to deal with

water uses and problems in a coordinated way. As a basis

for developing sound policy, the following studies were

recommended:

A. A complete study of all existing legislation
relating to water resources and a determina-
tion of the areas where additional legislation
is needed.

B. A reconciliation of the competition for uses
of water between those uses which are necessary
for the public health and welfare and those ne-
cessary for the benefit of private interests.

C. An analysis of the uses of water is essential
for the determination of the type of supervision
and control which should be exercised by the
State and that which should be exercised by
local units of government.

As these proposals indicate, a sound water program for the State will

ultimately require legislative changes in water law. One area where these

changes night be needed is the law of water rights which over a long

period has been gradually developed by the Michigan courts in cases involv-

ing mostly the problems of an earlier econour This paper examines the

structure of the existing law in order to discover whether it is adequate

for achieving certain assumed goals of sound water-use regulation. The

conclusion of this analysis is that the law is inadequate, and that legis-

lative changes are needed. A broad outline of these changes is suggested.

The first part of the paper is a description of Michigan's law of water

rights, beginning with the law of riparian rights, which applies to water

in a "watercourse" and gives rights to use water to owners of "riparian


_ __ ___ _~~__-----~I__IC-ll




~ ---~~_-`--- ---------- ~_ _


-t



land". The paper first discusses Michigan's definition of "watercourse",

explains the concept of "riparian land" and describes rights that "ripar-

ians" acquire. Next a description of the rules applicable to "diffused

ground water" and to "diffused surface water". The remedies available to

litigants and their effect on the substantive law are then briefly considered.

Other sections deal with prescription and the possibility of acquiring rights

through purchase or contract. To complete the picture, rights of the pub-

lie in public waters, such as rights to navigation, fishing and fowling,

and the State's power to develop and regulate water -- and the extent to

which this power has been used -- are presented in brief outline.

The second part of the paper first presents an analysis of the law's

structure in terms of two assumed goals, optimum utilization of water in

the public interest and protection of private investment. The relation of

these goals to one another is considered. The main features of a policy

for regulating water development and water use are suggested. The conclud-

ing section indicates administrative techniques for carrying out this policy,

and outlines possible legislation.

(2) Riparian Rights

(a) The law of riparian rights applies only to waters in a

natural watercourse,. which has been defined 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".

Lakes and ponds are also included under this definition, for a current is

not absolutely required. Excluded are "waters on the surface of the ground

usually created by rain or snow...of a casual or vagrant character following

no definite course and having no substantial or permanent existence". No








-5-


riparian rights have been held to attach to water in a ravine originating

as rain and melting snow and not in a "defined bed or channel with banks

and sides". The contrary has been held where the ravine was the natural

outlet for a constant though varying flow of "living water" supplied by

springs. Although the stress is on natural conditions, the aid of uan

may be helpful as in one case where a township drainage ditch was called a

"watercourse" to which riparian rights attach. Not only was the ditch

partly man-made, but the presence of "living water...at all seasons" was

assured because a flowing well was drained into this depression by a land-
2/
owner farther up on the ditch.

(b) Riparian rights attach only to riparian land. Their convey-

ance separate from the land is possible and its effect shall be discussed

below. But on the whole only riparian owners can claim riparian rights,

and riparian owners are those whose land is in actual contact with the

water.! Contact must be by virtue of natural conditions. A channel dug

by man to make his land touch the water is insufficient, and so is the

water's flow around boggy places on one's marshland at points where it was
2/
trampled by cows. The extent of title one must hold is not clear. The

statement tends to be general: "...Where there is no reservation of them

(in a conveyance) riparian rights attach to lots bounded by natural water-
II/ o10a/
courses". Lessees are presumably included. But the holder of an

easement for a non-riparian purpose, such as the maintenance of a street,

is not. Bow much of a tract contiguous to a stream is riparian is

undecided as yet. Other states have adopted limits such as the watershed,

and Michigan could do so. But the courts are still free to make the place

of use merely a factor in deciding the issue of "reasonable use".

(c) While riparians as well as others may be protected at times


1


I _




,.'" "-c.. -"----------*-_------___



-6-


under the general torts law of negligence and nuisance, the focus here

is on the riparian law as the principal regulator of allocation of water

in a watercourse, which gives each riparian owner a right to make a

"reasonable use". The classic statement of the Michigan rule of reasonable
12/
use is found in unt v. Kello=, a case involving conflict between two

mill owners:

"(I)t my be remarked at the outset that ... (this case) differs
essentially from a case in which a stream has been diverted from
its natural course and turned away from a proprietor below. No
person has a right to cause such a diversion, and it is wholly a
wrongful act, for which an action will lie without proof of
special damage. It differs, also, from the case of an interfer-
ence by a stranger, who, by azy means, or for aay cause, dimin-
ishes the flow of the water; for this also is wholly wrongful,
and no question of the reasonableness of his action in causing
the diminution can possibly arise ...

"But as between two proprietors, neither of whom has acquired
superior rights to the other, it cannot be said that one 'has no
right to use the water to the prejudice of the proprietor below
him', or that he cannot lawfully 'diminish the quantity which
would descend to the proprietor below', or that 'he must so use
the water as not materially to affect the application of the
water below, or materially to diminish its quantity' ... Such
a rule could not be the law so long as equality of right between
the several proprietors was recognized, for it is manifest it
would give to the lower proprietor superior advantages over the
upper, and in many cases give him in effect a monopoly on the
stream ... As between different pMrorietors on the sage stream,
the riaht of each cnalifius that of the other1 and the estion

by the use of the water above h.m. nor whether the aantitr flow-
img ao is diminished br the use. but whether under all the cir-
cstanes of the case the use of M the w ter Ma cm is reasonable
and cosistent with a correspondent en.aent of right by the
other.

The "reasonableness" of a use is a question of fact to be decided

by a Jury; or by a Judge where an equitable remedy is sought. To aid

the fact finder, the courts from time to time have listed various factors

he should take into consideration. Among these are the surrounding cir-

cumstances such as the size and velocity of the stream; the extent of the

injury; the convenience of doing business; the needs of important manu-

facturing interests; the public necessity of cities and villages; the time
.___________________________________i








-7-


when the party first erected his works and be an to appropriate water;
iIi
increased population and the general welfare of the communities affected;
12/
the progress and improvement of hydraulic works; and the general usage of
2/
the country in similar cases. The relation between these factors has not

been spelled out and the law, though flexible, remains vague and unpredict-

able.

The law's uncertainty results not only from the vagueness of the

reasonable-use concept. As the excerpt from DM nt v. KeGLog indicates,

reasonable use is a modification of another doctrine, sometimes known as

"natural flow", which guarantees riparians the right to have the water pass

unaltered in quantity and quality. But as the Kellog case itself pointed

out, not all uses will be judged by the reasonable use concept. For example,

a total turning away of the stream is always wrongful, and does not give rise

to an issue of reasonable use. Thus, one cannot be absolutely certain to

what extent "reasonable use" applies to uses that have not yet come before

the courts. Among those that have, the flooding of land by backing up the

water or by releasing it in unusually large quantities seem generally

held to be not permissible. But where the land is not flooded, the water

under certain circumstances may be lawfully set back on the wheels of another

riparian's mill. The storage and release of water, especially when under-

taken to generate power, is permissible if "reasonable", even though it

causes some injury and -incorenience to other riparians. In Jgaa v.

McManus, which involved conflict between owners of resort hotels on a lake

and mill owners located on its outlet, the opinion discusses the extent to

which various users may control the stream regimen:
"The dwellers on the lake may not as of right permanently prevent,
and may not considerably stone the flow of water through the
outlet ,,. (and) the ... proprietor on the river may not impound
the waters in a lake in such manner as to set water back on the
surrounding property, and they my not lower the level of the water
in the lake by increasing the volume of the natural overflow."








-8-


Like storage, pollution seems governed by the reasonable-use criterion.

In Monroe Carp Pond Comea2ny v. River 1kisin Paper Comgpanvy the pollution

was caused by a paper mill. the water became so depleted of oxygen that

the carp of the lower riparian were killed. The court found the pollution

unreasonable, but pointed out that not all pollution is wrongful. A

riparian's use may render the water "unfit for many purposes for which pure

water is suitable and yet the loier proprietor may have no just cause for

complaint if its condition results from a reasonable use thereof in accord-

ance with the common right". In Dohan v. City of BirmAngham the court

summarized a number of earlier cases as follows: "... a riparian owner is

allowed reasonable use of a natural watercourse in common with other riparian

owners, even to the extent of a certain amount of pollution." And in Phillips

v. Village of Armada the opinion stated: "The sewerage of villages and

cities has become an absolute necessity for the public health. It is not

enough to condemn a use as unreasonable because such a use may pollute to

some extent waters of the stream below." Cities are treated like other

riparians not only in their right to pollute but also in their lack of im-

munity from "reasonable" pollution by others. An upper riparian's swimming

with his entire family which tended to pollute the water supply of a lower

riparian municipality has been upheld as "reasonable".

It is uncertain to what extent one has a right to divert water from

the stream. Du t v. dellon did not involve a diversion and indicated,

as has been shown, that a diversion would be unlawful. The reference may

have been to a total diversion only. While it has been held that one may

divert water onto one's own land if one returns it to the stream at a

point still on one's land without material diminution, the law is not

clear on the status of a diversion of some of a stream's water for con-

sumptive use.


______________.________________. -








-9-


Consumptive uses have not, as yet, generally been permitted except for

so-called domestic purposes, which are also allowed under the "natural

flow" rule. In fact, domestic uses are given a preference, so that in a

conflict with another reasonable user the domestic user will be protected.

Reasons for this preference can probably be found in the needs of an earlier

economy; still, to date the law has remained unaltered. Domestic purposes

include use of water for the home, for swimming and boating, and for watering

domestic animals; municipal uses have not been included. The consumptive

use of water for irrigation has been held "entirely unwarranted", at least

where the remaining water was insufficient for general domestic needs of

other riparians. However, the status of irrigation in a case where the

domestic use preference is not involved remains uncertain. There seem

to be no direct holdings employing the domestic use preference against those

who use water for power. Still, the language of the cases seems sufficiently

broad to lead one to assume that power uses would fare no better than irriga-

tion in a conflict with domestic users. In conflicts between domestic users,

the reasonable use rule presumably governs.

In a conflict between two reasonable uses, the riparian law as applied

in Michigan seems to favor not only domestic users. While the law is not too

clear and might still be interpreted otherwise, there is some indication of a

preference for the upper user. This seems to stem in part from the courts'

tendency on the whole not to apportion water between two reasonable users.

Except for cases involving the enforcement of specific water contracts, there

seems to have been no apportionment, at least not between upstream and down-

stream users. In part, a preference for the upper user also emerges from

a tendency at times to look at the upper use first, and when it is found

reasonable, to permit it, without protecting the lower user. The statement


__


i ~~_ __*1_______11_1____1__ --.1~-~1111~11- _11_1_1~--------1_1-_
II_ \








10 i


from Mnro C Po. CompanZ v. fiver Baisa Paper 22C set out above

to the effect that water may be "rendered unfit for many purposes for which

pure water is suitable and yet the lower proprietor may have no just cause

for complaint" is preceded by the remark: "The enjoyment .,. (of a riparian's

right to use water) is prior to those below him, and subsequent to those above

him ..." In People v. Hulbert the principle was put this way: "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." These statements do not necessarily imply a

preference for the upper owner. He is limited to a "reasonable use" and

if that concept always takes into account the lower owner, the above state-

ments might mean that the upper owner can take merely his share. Then the

lower owner's loss simply would be due to a proportionate cutting down of

the water available to him. While the law still might be so interpreted,

a number of decisions tend to give the upper owner all he needs when his

use is found reasonable even though the lower user's "reasonable use" is

interfered with. This seems to indicate that the upper use is held to be

"reasonable" without considering the share to which the lower user is en-

titled. Once held reasonable, the upper use receives all it needs and

the lower use must content itself with what is left. In other words, it

does not really receive a proportionate share of water. It is possible to

say, however, that the fact that the upper user seemed to receive all he

needed in a number of cases is mere coincidence. It amy have been true

in each case that all he needed simply happened not to exceed his aliquot

share, while all the lower user needed did exceed his allotment of a re-

duced supply. While this may have been the actual factual situation in

these cases, the opinions do not seem to discuss the question of aliquot

shares at all.








- 11 -


Preston v. Clark seems to illustrate the preference for the upper

user, who built a dam to create shallow beaches for resort areas and a

spawning ground for fish. The lower owner claimed that increased evapora-

tion caused by the enlarged surface of the lake and reduced flow of springs

at the bottom of thelake brought about by increased pressure, reduced the

water power of his grist mill located on the lake's outlet. While the court

did not agree that the flow of the springs was reduced it did not reject the

possibility of increased evaporation. Nevertheless, it held that since the

upper owner's use was "reasonable", any harm to the lower owner was dam

absQue injuria. He was not granted an injunction nor was he entitled to

damages. That there is, however, some uncertainty about the scope of the

preference for the upper user, is illustrated by the court's decision in
32/
Hoxie v. Hoxie, which involved a conflict between two mill owners. Be-

cause of alleged injuries to the lower owner the trial court in a fairly de-

tailed decree had enjoined the upper owner from using more water than his

machinery required and from letting more or less than the stream's natural

flow pour over his dam into the lower owner's pond. The appellate court

remarked on the difficulty of complying with the decree in view of fluctua-

tions in the stream flow and possible changes in the machinery the upper

owner might need to make at a future time. The opinion indicated that in

cases between two mill owners an injunction generally should be granted only

in the event of intentional wrongdoing. The court also stated:

"This is no regulation of rights but it is a subordi-
nation of defendants' rights to those of complainant.
The latter must (according to injunctive decree) have
at least the natural flow of the stream during the whole
working hours of the day, and he must be protected
against any greater flow than is required for operating
defendant's present machinery. The purpose. appar-
ently, is to protect the complainant against any incidental
injuries or inconveniences that might arise from the use of


______C___l__l_____i__


I i








-12 -


the same stream for milling purposes by the proprietor above;
but this is more than he is entitled to, because he cannot have
a protection so broad without imposing upon one whose rights
are equal and coordinate the whole burden of such incidental
injuries and inconveniences."

It seems, however, that the decision imposed the "whole burden" on the

lower user insofar as the availability of an injunction was concerned.

On the other hand, the court indicated at the end of its opinion that

the lower owner might have a remedy at law. This suggests that the pre-

ference in favor of the upper owner might be cut down somewhat by an award

of damages to the lower owner making an equally reasonable use. Still, it

should be recalled that the court denied the injunction largely because the

wrong was unintentional. The suggestion of a possible legal remedy simply

might have meant that damages will be awarded if the upper use, though not

intentionally wrongful, turns out to be unreasonable. Under this interpre-

tation the Hoae case does not suggest that the lower reasonable user could

ever receive damages from a "reasonable" user upstream; or, in other words,

the upstream user's preferred position remains undisturbed.

Another preference common to all states adopting the riparian law is

the preference for the riparian against the nonriparian user, which follows

from the requirement, discussed above, that riparian rights only attach to

riparian land. An injured riparian will be protected against the use of

water by a nonriparian, who in turn will not be protected against interfer-

ing riparian uses. The issue is not whether the various uses are "reasonable"

or "unreasonable" but simply whether they take.place on riparian land. To

illustrate, the improvement of a public highway by a nonriparian which

interfered with the water power of a riparian mill has been enjoined, and

in another case a city which owned no riparian land was held to have no right

to pollute water to the injury of riparian proprietors, In one case a city.


---r~- .-~-__*_i_-__________~L~______~_~____
---~-~1~111~ ~_11~-~




~T----------



-13 -


purchased a tract of riparian land and a right of way to the city limits and

then took water "for the use of citizens generally, and to supply manufactur-

ing establishments". While the court refused to grant an injunction it

awarded damages to injured downstream riparians on the ground that the use

of the water was not primarily for the benefit of the riparian premises.

In an interesting case the City of Battle Creek objected to the bathing by

guests of a bathing resort in a lake which was the source of municipal water

supply. The trial court ruled against the bathing resort and the decision

was upheld on appeal by an equally divided court. The opinion upholding the

court below conceded in part for argument's sake that the city's sale of water

to its inhabitants was a non-riparian use. It held, nevertheless, that the

riparian resort could not complain unless it is injured. On the other hand,

the city, even if it were making a non-riparian use (as long as not injurious

to the resort) could get an injunction against unreasonable pollution by the

bathers. The case is not strong precedent, however, in view of the equal-

ly divided vote, and the many alternative grounds in the prevailing opinion.

(3) Ground Water

The general rules covering ground water in many states have been dis-

cussed in other papers of this study: so-called underground streams are

treated like other water courses. As to "percolating" waters the common

law rule provides, with some minor qualifications, that each owner of land

may take all the water he can extract from his own land regardless of pos-

sible injury to neighboring wells.

In Michigan there has been relatively little litigation with respect

to ground water. There has been no case involving an underground stream.

The courts have announced a presumption that underground water shall be

regarded as "percolating but with-respect to such "percolating after"









14 -


they do not seem to follow the common law rule and seem to adopt what some-

times is referred to as the American Bule. In Schenck v. City of Ann Arbor

neighboring ground-water users were injured by the city's pumping of water.

The court allowed the plaintiff compensation for the injury actually suffered

and allowed him to apply for equitable relief if it should become necessary

in the future. In doing so, the court took notice of the cowmon-law rule

allowing each to get all he can get, but stated that this was in a sense modi-

fied in Michigan by a rule of reasonable use. In this case the city was pump-

ing water, not simply using the natural flow of the well. Moreover the water

was pumped outside the city limits and transported to the city for municipal

use and sale to its inhabitants, so that none of the water was returned to

the ground in the vicinity where it was taken. The court's opinion stressed

these facts and then stated its position by quoting from cases in other jur-

isdictions. These quotations seem to establish the following rule of reason-

able use. One may make a reasonable use of ground water even though one

interferes with his neighbor's supply, provided such water is used for the

benefit of activities on the land from which it is taken. These may be

irrigation, domestic use, manufacturing and even mining. But when one

transports the water away from the premises for commercial sale or relatively

large-scale uses, and uses powerful pumps to draw the large volume necessary,

one can do so only if the taking of water does not interfere with the reason-

able use of others. The rule contains many potential ambiguities. How

would a conflict be resolved between two users who pump, carry their water

away from the land, and sell it? As to the "reasonable" use that is permitted

to interfere with the water supply of neighbors, may it under given circum-

stances mean that certain uses of water, or use of a large amount, would be

deemed "unreasonable", even though obtained without large-scale pumping and


-`-----C~-~ll-~ll---11-"~~1 I-- _









15 -


carried out entirely on the land from which the water was taken? If so,

what is the standard of "reasonable use" in this context? Or, does the

court rule mean that only pumping, transportation of water away from the land,

and large-scale and commercial sale are prohibited when they result in inter-

ference with the reasonable use of neighbors? If so, must all these elements

be present or is any one sufficient? Or, is use away from the land always the

crucial test? Moreover, it will be recalled that the "unreasonable" use,

whatever that may finally be taken to mean, ay not interfere with a neighbor's

"reasonable" use. In this context, is it ever possible for the non-interfering

but interfered-with neighbor's use to be "unreasonable" if he does not pump and

transport the water, and so on, but simply uses all the water he can get on his

own land for his own use?

Bernard v. City of 8t. Louis, a case which came after the Schenoc case,

does not add much to clarity the law. Here the plaintiffs were given protec-

tion against a city that pumped water hi n its city limits (not as in the

Schenck case). This water was transported partly for sale to land within the

city limits but not owned by the city. Thus, the elements of transportation,

pumping and commercial sale were all present so far as the defendant's use

was concerned. The plaintiffs, who claimed the city interfered with their

supply, owned a sanatarium to which guests cams particularly to enjoy the

supposed health-giving qualities of the water. In a sense the water was being

sold to them. It was also being pumped up to their rooms. Moreover, while

the court's statement of facts indicated that the water was taken from the

land on which it was being used, the defendant argued that it was taken from

a well not situated on the plaintiffs' land. However, the court in its

opinion did not discuss the plaintiffs' sale, pumping and possible transpor-

tation. The pumping, after all, was not drawing off water from neighboring

land on a large scale. The sale was only indirect and on a relatively small


- 1-- ----`--`--"I--------~


-~----~------


-~--~-~-







16 -


scale, and the transportation may not have been a fact. The court, in its

opinion at least, seems to have treated the plaintiffs as any neighboring

ground-water user who uses the water himself on the land from which it is

taken and who does not fall into a restricted category. But, as shall be

pointed out below, the actual disposition of the case lends itself to a

possible interpretation that the court did take the plaintiffs' pumping,

sale and possible transportation into consideration.

The plaintiffs had obtained an injunction in the trial court

prohibiting the city from pumping in such a way as to interfere to any

extent with the flow or with the pressure flowing from the plaintiffs'

mineral spring. In modifying this decree the appellate court stated:

"We are not satisfied, that if the city makes a reasonable use of the

percolating waters and the plaintiffs do not permit it to go to waste, there

will not nearly all the time be an ample supply for both. If there should

not be, then the plaintiffs should not be deprived of a supply of water

sufficient for their reasonable use without compensation, nor should they

be required to install new machinery without compensation.' The gist

of this modification might simply have been to provide for compensation

rather than an injunction and to make sure that the plaintiffs did not re-

ceive protection for any wasteful use of water. On the other hand, it is

possible that the court meant to imply that the "reasonable use" to whioh

the plaintiffs were entitled might under certain circumstances be less than

the use of all the water that they might need. If so, what are these cir-

cumstances? Did the court in making this suggestion treat the plaintiffs

not as pumpers, sellers and transporters of water, but rather as persons

making use of water on their own land for their own benefit? If so, the

opinion would mean that even such users might under certain circumstances

not be entitled to all they need in a conflict with a pumping, selling and


~---*IX---i*lll~--------








- 17 -


transporting user. Or, did the court suggest the possibility that the

plaintiffs might at times not be entitled to all they need only because it

treated the plaintiffs as pumpers, sellers and possible transporters? In

that event, the "reasonable use" (of the interfered-with user) here might

entitle them to less than all the water they need only because the case

involves a contest between two users in a restricted category. If so, what

led the court to put the plaintiffs in the same category as the city? Was

it the pumping alone, since it does not seem clear that there was any trans-

portation at all, and since the sale was only indirect? To conclude, all

one can be sure of at the present stage of Michigan ground-water law is that

a pumper, seller and transporter of water is limited in the extent to which

he may interfere with the ground-water supply of his neighbors. Beyond that

the case law needs further clarification.
52/
A statute dealing with ground-water use was passed prior to the

Schenck and Bernard cases, and referred to in the opinions. This statute

throws little additional light on the subject. One section of this statute

refers to "water of an artesian or flowing well" which is "unnecessarily

allowed to run to waste in a nonreasonable manner" to the damage of other

wells, and provides that this shall "be deemed a nuisance" subject to action

for abatement and damages. This section seems to apply to waste of water

only and not to situations where the actual use of water is found unreasonable.

Another section declares a use that is "unreasonable in view of the con-

dition and situation of the land" to be a nuisance. While this section does

refer to actual use of water, it is not clear what the standard of reasonable

use is. Moreover, it might be argued that "situation of the land" refers to

locale and is an indirect reference to transportation of water. On the other

hand, the word "situation" me= simply be a synonym for "condition", which


___1____1_1___1__1_____C_1___~__


--








18 -


would mean that "transportation" of water is not a factor that must always

be present in a use that is to be limited when it injures neighboring wells.

The court in referring to this statute in the Bernaf and Schenck cases did

not elaborate on these matters; it simply characterized the rule of "reason-

able use" promulgated by these opinions as "quite in harmony with" the

legislation. The statute also provides that a decree shall specify the amount

of water which may be taken daily and for the reopening of the decree if the

circumstances determining the reasonableness of the use should change.

An early case dealt with the pollution of ground water resulting from

a city's burial ground. The court, denying recovery, stated:

"Owners of the soil have no rights in sub-surface waters not
running in well defined channels, as against their neighbors
who may withdraw them by wells or other excavations. but
if withdrawing the water from one's well by an excavation on
adjoining lands will give no right of action, it is difficult
to understand how curtailing its water by a proper use of
adjoining premises can be actionable when there is no actual
intent to injure and no negligence. It is possible that
in this case the Board of Health might have acted more wisely
and more considerately but (they) are not shown to have acted
fraudulently or through caprice, or to have exceeded in any
respect their jurisdiction. If complainant is injured by their
action the injury is incidental to the exercise of a lawful
right and can therefore give no right to action".w2/

It is difficult to tell the extent to which the case is authoritative today,

since it apparently relied upon the old common law of "percolating" waters.


(4) Diffused Surface Waters

Michigan defines diffused surface waters as "waters on the surface of

the ground, usually created by rain or snow, which are of a casual or vagrant

character, following no definite course and having no substantial or permanent

existence. This is water on the surface outside the "water-course" and

riparian rights do not apply, but it is uncertain what rule would be followed

in a conflict about the right to use water involving a diffused-surface-water-

user. Michigan cases thus far seem not to have dealt directly with this type


~~'-----~I--------- ---- --- ------ -----------
"`~-1----I' I----------
~-- -








19 -


of conflict. The cases on the whole relate to drainage. In this context

Michigan has not adopted the so-called Coumon EneaW Rule followed in some

jurisdictions, according to which each owner of land may do all he can to

keep drainage water off his land, even though he causes serious injury to

his neighbor.
Instead, Michigan seems to follow the Civil Law Rule, under which

the owner of the upper estate is entitled to an "easement" for the natural

flow of surface waters across the lower neighboring lands. The owner

of an upper dominant estate, however, may not lawfully collect and concentrate

available surface waters and then proceed to discharge them by artificial

means upon an adjacent proprietor "in unusual quantities and greater (than

usual) velocity. The owner of the lower or servient estate is bound to

"receive the surface water from the upper or dominant estate (only) in its

natural flow." The owner of the upper dominant estate has therefore "no

right to construct and maintain open ditches and drains, which would collect

the water from his premises, ponds, sag-holes, or pools, and cast it in
unusual quantities upon .. .. (lower) land." Similarly, he may not

impede the flow of surface waters to their natural servient estate to the

injury of other premises. Significantly, not even public authorities en-

gaged in such public business as the improvement of a highway may, by the

diversion of the natural course of surface waters, "impose upon the land of

one person the servitude which naturally belongs upon the land of another.
While, however, the owner of the upper estate must desist from arti-

ficial interference with the flow of surface waters, he need not do so at
the expense of the abandonment of normal farming practices and ordinary

land improvement. Thus the owner of the upper estate may "in the interest

of good husbantry and in the good faith improvement and tillage of his farm









20 -


fill up sag-holes so that no water would accumulate or stay

in the ground, even if the water arising from rainfall or melting snows

should thereby, in natural processes, find its way upon the land of

(an owner of a lower estate) and incidentally increase the flow

thereon. There is little doubt that a landowner cannot complain of

the effects of ordinary drainage when engaged in by an adjoining land-

owner "in the natural and usual course of husbandry.

While the owner of the lower estate may not force the surface waters

back to the upper estate or divert them to parallel premises by dikes

or dams or other artificial means, he may, as in the case of the owner

of the upper estate, "in the interest of good husbandry, fill in

the cuts, sag-holes, washes and other holes in his premises", regardless

of the incidental effect of these operations on adjoining premises.

Beyond this he may not go. He is answerable for the flooding of neighbor-

ing land caused by the erection of artificial barriers against the natural

flow of surface waters even if his purpose in erecting such barriers is

that of reclaiming the bed of a pond on his premises, a matter presumably

viewed as beyond the scope of "ordinary husbandry".

The civil law rule, as developed in Michigan with its modifications

to permit ordinary uses of the land, seems to some extent at least to

approximate a "reasonable use" rule of drainage. On the basis of this

development, coupled with the introduction of "reasonable use" language

into diffused ground water law, one might speculate that "reasonable use"

will become the criterion for allocating water in the event of a conflict

involving the use of diffused surface water. Perhaps, gradually, "reason-

able use" in all these contexts will come to mean the same as it does under

riparian law. This would have the advantage of making it more likely that









21 -


in any conflict between diffused surface-water, diffused-ground water,

and stream-water users, where all are using essentially the same source of

supply (drawing on merely different phases of the hydrologic cycle), each

user would be given reasonable protection; but it should be emphasized
70a/
that this has not yet happened. "Reasonable use" in diffused ground

water cases is still a very ill-defined criterion, and there is little that

throws any light on how much diffused surface water may be used to the

injury of anyone else who might want to draw on the same source of supply.

It is still possible that a riparian would get no protection against a

diffused-surface-water user or a diffused-ground-water user, at least in

such instances where the latter does not pump, carry away and sell the

water.


(5) Reaedies

It now becomes important to consider to what extent the remedies

available to the plaintiff affect the substantive law of water allocation,

The Michigan substantive law of riparian rights itself does not clearly

provide whether the non-user might be awarded damages for the value of the

water he was, and is being deprived of (even if he did not actually make

use of it), or whether such a non-user could get an injunction against one

whose use is otherwise found "unreasonable". The Michigan courts in grant-

ing remedies seem to treat a non-user as not entitled to more than nominal

damages for past interference or to any injunctive relief, possibly even

in a conflict between a non-user-riparian and one making a non-riparian

use. The non-user may, however, in a case of permanent interference be

awarded prospective damages under certain circumstances. However, these

conclusions can only be tentative for there seem to be few cases dealing


__I~__I
~1_____^_1_1~ ~ ____ _~__~_~_ -1.-~----------_---.
--~-------_11__11_1_I__\









- 22 -


with the point, and even from some of these one can draw conclusions only

by inference. As to the measure of damages for past interference, it has

been expressed as "the value of the actual use for which the waters were
1?/
intended and to which they were put by the plaintiff". This would sug-

gest that a non-user can receive only nominal damages for past injury. In

case of permanent interference, the cases indicate that he would be compen-

sated for the value of the water for uses to which it may be "reasonably

expected to be applied in the near future. If the non-user seeks an

injunction it is unlikely that he will be in a position to show sufficient
iti
injury. In Buchanan v. Grand River Log Compa~y the court had this to say:

"The denial of an injunction may be justified in this case
for the reason that complainants are not, nor have they been
since defendant has been in existence, in the use and
enjoyment of their water power for milling purposes. .
The question then is this: whether complaints are entitled
to an injunction to restrain the commission of such acts
as would impede them in entering upon the use of a mill
which has long stood idle; their complaint being not that
defendant interferes with an extinct business, but that it
prevents one being established. The legal rights of com-
plainants are not any less by reason of their mill having
stood idle; if they own the dam and the site, they are
entitled to make use of them. but the fatt is an
additional reason bhy the court should be cautious in
awarding an injunction for it increases the difficulty in
laying down rules to govern the conduct of the parties when
the mill shall be put in operation The remedy at law is
far better adapted to the case and they must be left
to pursue it."

Presumably the reference to the legal remedy was to damages that would

be available after actual operation of the mill had started. The court

also might hate felt that an award of nominal damages might be sufficient

to warn the defendants that they would be held liable once plaintiffs

resumed their operation. Or, if the complainants could show that they

actually did contemplate resumption of operation, they might, perhaps,

if they so chose, have recovered for the value of the water for such

actually contemplated operations.
____________


__~C~I~_I~ ___I~~









23 -


There is still another important way in which the granting of remedies

affects the substantive water law. An injunction seems unavailable (even

though the defendant's use is considered "unreasonable") where the injunc-

tion would result in a relatively small gain to the plaintiff compared to

the loss to the defendant or the loss to the community's economy, and where

the defendant could get compensation by way of damages. The court employs

the traditional equity rule of Balancing the Conveniences. For example,
12/
in Monroe Carp Pond Company v. River Raisin Paper Comany the court found

that the defendant industries' pollution was "unreasonable" but nevertheless

denied an injunction.

"Monroe is a city of about 13,000 population. Its principal
industries are the Bills of the defendants. There are eight
of these in which about 3,000 persons are employed. Defendants'
investment in these plants is about $15,000,000. The proof
satisfied us that there is no way in which their waste can
be treated and purified on their own premises so as to
permit the plants to be operated with reasonable profit. .
The plaintiff company (on the other hand) has (only) a capital
stock of $10,000. It employs (only) from one to five men. .
It is apparent that the plaintiff may be recompensed for such
loss aa it will sustain by a denial of (injunctive)
relief. It is also apparent that the granting of it will work
a great injury entirely disproportionate to that sustained by
plaintiff, upon the defendants, and that it will also seriously
affect the prosperity of the city."

The Balancing of the Conveniences Doctrine has been employed even to deny

a riparian an injunction against uses by riparians on non-riparian land

or for non-riparian purposes.


(5) Prescription

The system of riparian rights and other Michigan water law is further

modified by the doctrine of prescription. A prescriptive right is ob-

tained where a person uses water for fifteen years and the use is "visible",

"notorious", "continuous" and "adverse" to the rights of other riparians.












These words are taken from the general law of l Poperty, dealing with

the establishment of land titles and easements. In Michigan, the right
21/ :S
of flowage, the right to use a given quantity of water, the right to
12/ 8 /
flood another's land even by the use of artificial drainage have been

held to be obtainable by prescription. The prescriptive right to use a

given quantity of water is limited to the amount consistently used or

withdrawn during the prescriptive period. In the case of flooding

another's land, the right extends to the amount of land actually

and consistently affected during the prescriptive period. Michigan

has expreely rejected the doctrine followed in other Jurisdictions

which determines the extent of the right acquired by the height of the dam.

A prescriptive right has also been obtained to have one's land free of

water. In one case an upper riparian had diverted the stream for more

than forty years, which gave him a prescriptive right. During that period

a downstream land owner reclaimed previously wet and useless land. The

court enjoined the upstream owner's attempt to divert the water, to the

injury of the reclaimed land. The theory was that the downstream owner

had acquired a reciprocal prescriptive right to have the land free of

water.

Mere continuous use for the fifteen-year period does not always es-

tablish a prescriptive right. Public policy does not permit a prescrip-

tive right to create or exploit a public nuisance, nor is it possible to

obtain a prescriptive right to interfere with navigation. Moreover, as

previously indicated, to establish a prescriptive right the use must be

"adverse". As a consequence, it has been held that a prescriptive right

cannot run upstream, since the downstream use of the water, available be-

cause upstream riparians were not using it, does not, during the period of


~1~1~ _~
I~










- 25 -


use, interfere with the "rights" of upstream owners. Sidilarly, where

the use of water is "permitted" by others having a comon right to use it,

no prescriptive right is established. However, in ennedy v. Nile Water

Supply Compan, the court seemed to indicate that a wrongful use of water

might be presumed to be adverse under certain circumstances: if a

wrongful use is made of the water of a running stream by a common proprie-

tor, as if he finally diverts the water, such use is by common consent pre-

sumed to be injurious to other cmon proprietors and therefore adverse".

One cannot be sure whether this presumption would operate in the case of

all wrongful uses.

This presumption may also help answer the question of when the prescrip-

tive period commences to run. The requirement that the use be adverse indi-

cates that the period should run from the date of "injury", rather than from

the date of couencement of use. However, the above-quoted presumption sug-

gests that in some instances at least the date of commencement of use will

be presumed to be the date of injury and therefore the actual date at which

the period begins to run. On the other hand, to the extent that no injunction

is available until the date of injury, a prescriptive period starting on

that date is indicated. Otherwise, there might be no effective way in which

a non-user could stop one from acquiring a prescriptive right.

Water rights acquired by prescription appear subject to forfeiture as a

consequence of non-use and/or the resumption of the use of the right by its

original owner for the prescriptive period. Thus, the Supreme Court of the

state has held that where an easement for flooding is "imposed by prescrip-

tion only and not by grant or reservation in the chain of title, defendants'

non-use for a period equal to that of its creation, results in its loss."


__~I


)I_~Y~I_ ____~










- 26 -


(7) Private Transfer of Water Rights

Water is not allocated only by the judiciary in the course of

deciding cases. The law also permits private parties to transfer water

rights by grant or contract. The transfer of riparian lands will effect

a transfer of the accompanying riparian rights without specifically men-

tioning them. Moreover, the transfer of land anywhere automatically trans-

fers the rights to underlying ground water. However, the right to

use water may be transferred independently of the land to which it is

"appurtenant". It is not too clear what a water user on non-riparian

land receives by a transfer of the water right alone from a single

riparian. He can enforce his right against the riparian from whom he pur-

chases. Other riparians, however, probably can bring an action at least

if they are injured, and the non-riparian purchaser probably cannot enforce

his right against the other riparians. To be sure of his right to use

water, the would-be user on non-riparian land would have to purchase from

or contract with all the riparians to whose use his is related. A

prescriptive right, on the other hand, can also be transferred without
2Y/
the land, and usually will be enforceable against third parties.

By explicit constitutional enactment, Michigan has provided that

"any city or village may acquire ... public utilities for
supplying water ... (and) power to the municipality and the
inhabitants thereof; ... and may also sell and deliver ...
water outside of its corporate limits in such amount as may
be determined by the legislative body of the city or vil-
lage." 22/

State legislation has established a miscellany of water supply and power

companies, characteristically authorized to engage in such activities as

"(furnishing) water to other persons or companies for mining, manufacturing,

milling, domestic, municipal or agricultural purposes, on such rent as shall





--- -- _




27 -


be agreed upon by and between ... (them) and those desiring to obtain
2,,/
it ... Under special legislation, water rights owned by the State
22/
have been sold to private companies.


(8) Supervening Rirhts of the Public


The picture of Michigan stream and lake-water law is not complete

without some mention of supervening rights of the public at large in cer-

tain bodies of water.

(a) Navigation and floatage: Navigable streams are subject to

the public's paramount right to navigation. The right of navigation,

while e paramount, is not exclusive and cannot be exercised to the unnecessary

.. destruction of private rights or property where both can be freely and
261
fairly enjoyed". Within this limitation o no unnecessary harm to ripar-

ians, the public right to navigation is superior and riparians may not

interfere with or obstruct it.

In addition to the right to navigate vessels, the public has a right

to float logs. The Michigan lumber industry depended greatly on this means

of transportation. As a consequence, Michigan early established, in the

case of oore v. Sanborne, a public right to floatage on all waters cap-

able of floating logs:

"Strictly, at the common law, those rivers only are subject
to the servitude of the public interests, which are of commn
or public use for carriage of boats and lighters, and for
transportation of property ... Like every other rule of the
common law, this sprang from usage, and immemorial custom,
and giving to it its broadest signification, it could only
have had application to those rivers which were susceptible
of use by the public generally, for navigation, and their
adaptation to a particular use by individuals in the course of
their trade, but not to general use, would not constitute
them public highways. But in this country the public right
cannot depend upon custom or upon general use and we ac-
cordingly find that ... this rule has been extended so as...

_______________________










- 28 -


to embrace all streams upon which in their natural state,
there is capacity for valuable floatage...

It was contended ... that the capacity of a stream to float
logs and rafts, was no criterion of the public right of
servitude; but that to render a river a public highway, it
must be susceptible of navigation by boats. But this, we
apprehend, is too narrow a rule upon which, in this country,
to establish the rights of the public ... 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 ...
Upon many of our streams, although of sufficient capacity for
navigation by boats, they are never seen whilst rafts of
lumber of immense value ... are annually floated along them
to market. Accordingly, we find that a capacity to float rafts
and logs ... where the manufacture of lumber is prosecuted as
a branch of trade, is recognized as a criterion of the public
right of passage and of use ..."/

The court also held that a stream could be used for floatage even though

it did not have the capacity at all seasons, provided it had this capacity

for a time sufficient"to answer the wants of those whose business require
100/
its use".

After the Sanborne case, a number of cases tended to delimit its scope,

especially where there was a conflict between lumbermen and mill owners.

It was held that, while logs may be put into the stream up to its natural

capacity to carry them, without liability on the part of the logger for

incidental flooding of riparian lands, a logger is liable for flooding re-
101/
sulting from log jams caused by overloading the stream. In one case,

logs had been put into the river in the winter ready for driving in the

spring. As a result, the water stopped flowing and riparian mill owners

were injured. The court held that defendant "was not using the stream for
102
navigation and its act was unreasonable and unlawful". Artificial flooding

and holding back of the stream by loggers was generally not permitted. The









29 -


courts also were of the opinion that "the right of floatage (was not) para-

mount to the use of the water for machinery. Each right should be en-

joyed with due regard to the existence and protection of the other" and

it was held that during the times of the year when a stream was not

naturally capable of floating logs, the logger could not make it so by
103/
artificial means to the injury of the rights of others. Some of these

cases justified restrictions on logging by distinguishing between streams

capable of floating logs and those navigable by vessels. Several cases

also seemed to indicate that the public right was a right to floatage only

and did not extend to fishing and fowling. This limitation on Moore v.

Sanborne has been explicitly rejected in recent cases dealing with the public

right to fish, which are discussed below. Their sweeping language also

seems to reject all limitations on the Sanborne case based on a distinction

between navigable rivers and rivers merely capable of floating logs. They

are all public waters to which all public rights attach to the full extent.
104
(b) Fishing and fowling: In Collins v. Gerhardt the Michigan

court held that a river capable of floating logs may be used by the public

for fishing against the objections of riparians. The language of the de-
105
cision also included the right to fowling. In arriving at this decision,

the court took several important steps. It reiterated the Michigan rule

that a stream capable of floating logs is subject to public servitudes. It

held that the fact that the stream was no longer used for floating was not

proof of its incapacity. The capacity to float logs was held to do more

than simply make the river a passageway for logs, as some earlier decisions

had indicated. Rather, all the various rights of the public in public

waters could be exercised on such a river. The court considered the fact

that in Michigan riparians generally own the land to the center of the


-111


~---------~


---:










- 30 -


streambed, even in the case of navigable waters, and that under the common law

the right to fish and fowl went to whoever owned the bed of the stream. But

the court held that in Michigan the navigable waters originally held by the

United States and the State were always subject to a trust in favor of the

public. The United States and Michigan could not divest themselves of that

trust, and in acquiring property the riparians acquired it subject to this

trust in favor of the public, which gave the public a right to fish.
106/
In Attorney General v. Taggert the Michigan Supreme Court again

affirmed the right of the public to fish in a stream capable of floating

logs. The opinion stated:

"While the Sanborne case only disposed of the right of floatage
and did not decide that a floatable stream has the status of
waters navigable for all purposes, the public character of water
was held to be determined by reference to the public necessity
for its use. It is this broad underlying principle rather than
the narrow rule of the Sanborne case which was in effect adopted
by the court in Collins v. Gerhardt. Whatever criticism may be
made of the Collins case because of its lack of authority, we
believe it states some law and a public policy appropriate to
the character of this State ... Were the rule of Collins v.
Gerhardt not the law mapy or all of the larger fresh water
streams, or large portions of them in this State would be ef-
fectively closed to the public notwithstanding the enormous
expenses the State has been put to in stocking such streams."j'0/

Despite this broad statement of a principle of public necessity as

justifying public use, the court was careful to limit the scope of its

opinion by stating that the case "does not in any way affect very small

trout streams on private property which have not been used for logging or

for boating... nor does it cover private lakes or ponds owned by the abutting

property owners. As to such bodies of water the riparian owner has complete
108
control." This statement might be taken to express the court's view of

public necessity at the time. On the other hand the statement could be in-

terpreted as retaining some element of the water's usability for purposes


_ ~1____1 1_ __ _~_~__I I _










31 -


of transportation and through-passage as a test of whether the public's

right to fishing and fowling mny be exercised.


(9) Governmental Powera and Activities


In addition to the rights of the public to use water directly, the

Federal Government and States, local subdivisions or specially authorized

corporations under certain circumstances can regulate and develop the water

resources of the state. The Federal power is beyond the scope of this

paper; but some aspects are briefly noted in the footnote at the end of this

section. Nor can an exhaustive review of Michigan's law be undertaken here.

However, a partial review is necessary to indicate that the water rights law

summarized above is not the only law which affects Michigan's water alloca-

tion pattern. The discussion which follows will describe (A) some of the

regulatory and development activities that the state has authorized, and

(B) indicate some of the constitutional restriction on the state's power.

A. The regulation and development of water which the state has author-

ized is extensive and affects a great variety of uses. A great number of

different state and local agencies and specially authorized private compan-

ies have charge of various aspects of water use and development. Frequently,

their jurisdiction extends to only one of many interrelated problems, and

frequently various agencies have overlapping Jurisdiction over a single

area of activity. However, as shall be seen,more recent enactments do

contain some provision for carrying out a more unified and integrated ap-

proach.

1. In the field of navigation a large number of agencies and specially

authorized companies have been in charge of many interrelated functions.

Very early a number of statutes empowered private companies to improve









32 -


waterways for logging and transportation and to construct canals and har-
109/
bors. These companies were given wide powers, including the power to

condemn, divert water, flood lands and charge tolls, and only in some
U0/
instances did the exercise of these powers require state approval.

The improvement of non-navigable and navigable streams may also be car-

ried out by special port districts, which have as their principal

functionthe improving of harbors. Municipalities may acquire, construct

and maintain wharves, piers, docks and similar facilities. The State

Waterways Commission, too, has the power to construct, acquire and main-

tain harbors, channels and facilities for vessels on navigable waters.

It is instructed to cooperate with local and federal authorities operating

in the same field. Some state statutes directly regulate logging and the

alteration and obstruction of streams. But stream alteration and construc-
114/
tion also can be controlled by municipalities. Soil conservation dis-

tricts, too, play a general role. Their purpose in conserving the soil

is deemed to include the prevention of impairment of dams and reservoirs

and the maintenance of the navigability of rivers and harbors. As to

bridging and damning of navigable waterways, Michigan's constitution spe-

cifically authorizes the enactment of statutes providing for necessary con-

structions. Not only approval of the State Highway Commission is required,
116/
but also that of the County Board of Supervisors.

2. In the field of water supply and water power, legislation has

authorized the formation of municipal water supply systems and the

creation of water supply and power companies. The statutes creating

water supply and power companies have varied somewhat over the years.

The first such company was simply a membership corporation that could

distribute water power only to its members, but later statutes









- 33 -


provided for the.sale of water "to other persons for mining,
118/
milling, domestic, municipal or agricultural purposes", and

while earlier statutes were purely for purposes of supplying water, the

more recent enactments have authorized the generation of hydro-electric
.i2/
power. All the statutes have given the companies some power to im-

prove the source of supply. At times this has included the power to di-

vert water, usually subject to the approval of the Board of County Super-

visors. A section in one of the statutes which attempted to grant the
120/
power of eminent domain was held unconstitutional in a case which will
121/
be discussed below.

As was indicated in the discussion of transfer of water rights, the

Michigan constitution provides that "any city or village may acquire, own

or operate ... public utilities for supplying water ... (and) power to the

municipality and the inhabitants thereof ... and may also sell and deliver
122/
... water outside of its corporate limits .." Legislation has author-

ized municipalities to create inter-city supply systems and special authori-

ties for that purpose, to acquire property beyond city limits by purchase

and condemnation, to acquire private water works, to purchase water from

water-supply companies, and to sell water within or outside the city.
124/
Townships and villages have been given similar powers and the County

Board of Supervisors may establish water supply and sewage disposal facili-
125/
ties to serve various local units of government.

3. Pollution control is in the hands of the State Health Commissioner,

the Water Resources Commission and public corporations, such as counties,

cities, villages, townships and metropolitan districts. The State Health

Commissioner has supervisory and regulatory control over sewerage disposal

and supply of drinking water in order to insure uncontaminated water to the


1 ___ ~_I~I~J__ _


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126/
public. The Water Resources Commission can regulate or prohibit the

pollution of "waters of the State and the Great Lakes". The law makes

it unlawful to discharge into the waters of the State substances which are

injurious to the public health or which would destroy bird or animal life
127a/
or fish. Under a recent enactment, public corporations may accept

grants of aid for the construction or improvements aiding the prevention

and abatement of pollution. Under this law public corporations arq fur-

ther authorized to enter into contracts for the disposal of sewerage so as

to abate or reduce pollution. The drainage law, which is discussed below,

also makes provisions for sewerage disposal and pollution control.

4. Because of the large areas in the state that are plagued by too

much water, drainage is one of the major concerns of Michigan water legis-

lation. This legislation provides for the establishment of county and

inter-county drainage districts under the supervision of county drainage

commissioners or a drainage board, in the case of inter-county drains, con-

sisting of various county commissioners and the director of agriculture.

The procedures provided for require a good deal of initiative and approval

from local and special interests groups. Initiation of the establishment

of a district and the construction of drains is largely by application of

interested freeholders and public corporations. Generally, after the com-

missioner on a drainage board has decided to establish a district, a further

petition by freeholders is necessary to initiate the specific project,

unless public corporations willing to pay two-thirds of the cost do so.

Still, further approval is generally needed by a board of determination

consisting of disinterested freeholders who pass on the necessity of the

project for the public health, welfare and convenience. Cost is normally

apportioned according to the benefit received and special assessments are

levied. Proceedings leading to the construction of the drain, the
r,, ., ~ i fr ,









35 -


determination of the compensation to be paid and the fixing of tax assess-

ments are all subject to quasi-judicial or judicial review. A somewhat

different procedure is followed where the cost is to be borne entirely by

public corporations. There are further provisions against obstructing
130/
and polluting drains. In case of pollution, the State Commissioner of

Health may approve treatment proposals and other improvements or he may

petition the probate court to order such improvements.

The drainage statutes primarily benefit agriculture and certain govern-

mental functions such as the construction of streets and highways. Drainage

may, however, affect the whole interrelationship of water resources and uses.

But except for a provision against interference with navigation, this inter-

relationship is largely not taken into account by the statutes thus far

mentioned nor are state agencies, concerned with water resources, authorized

to participate in decisions affecting drainage construction except in a very

limited way,

A recently adopted statute offers an opportunity to avoid these

defects in certain instances by providing for a more comprehensive attack

on drainage and flood-control problems. This statute authorizes the estab-

lishment of a "water management district" for undertaking projects relating

to flood control and drainage affecting all or part of three or more coun-

ties and necessary for the public health, safety, or welfare. Three or

more public corporations may effect the organization of such a district

by petitioning the state director of agriculture. Supervising the activi-

ties of each such district is a water-management commission composed of

representatives of more diversified interests than generally participate

in the affairs of a drainage district. A water-management commission is

to include the drain commission of each county within the district, a









36 -


representative appointed by the board of supervisors of each such county,

representatives of each city or village, one director of a soil conservation

district located within the water-management district, and the State direc-

tor of agriculture. Plans proposed by the commission must receive the

approval of the Michigan Water Resources Commission and must be brought

to the notice of the State Highway Commissioner and the Director of the

State Department of Conservation.

The range of authorized activities which may be carried on by a water-

management district is also broader than that permitted a drainage district.

The water-management commission is authorized to cooperate with federal

agencies carrying on work for the prevention of soil erosion and for flood

control, to sell surplus water developed in the course of its projects, to

lease district-owned lands for agriculture and other purposes, to cooperate

with soil conservation districts in the control of soil erosion, and to

develop and operate recreational facilities on district-owned land either

independently or in cooperation with other agencies of the state.

5. Michigan legislation also contains many intricate procedures for

the establishment and maintenance of inland lake levels. This activity

is carried out by various agencies jointly or separately. Some of these

agencies are the State Conservation Commission, the county board of super-

visors and the drainage commissioner. Some activities here too provide for

petition by interested landholders and the legislation contains extensive

requirements for approval by interested parties.

6. The law thus far reviewed contains very few provisions for

coordinated control and development. It encourages rather a piecemeal pro-

gram reflecting the needs of localities and special interest groups. There

are, however, some recent provisions tending in another direction. The


__ __









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enabling law for water-management districts already mentioned is a step

toward comprehensive control. The establishment of the Michigan Water

Resources Commission also indicates some recognition of the need for co-

ordination. In addition to its power to control pollution, the Commission

can make surveys of the use of water in the State and advise in planning

for flood control and drainage. Michigan has also ratified the Great

Lakes Basin Compact which declares as its purpose, "the orderly, integrated

and comprehensive development, use and conservation of water resources of

the Basin". The Compact establishes a permanent consultative

commission composed of representatives of each of the signatory states.

It is to collect, correlate, interpret, and report on data relevant to the

utilization of the water-resources of the region; and to recommend methods

of implementing the purposes of the Compact. The Commission is to consider

the necessity and desirability of public works, and of means for improving

navigation facilities and fisheries; and it is to recommend the adoption of

uniform laws and additional inter-state agreements. By the terms of the

Compact, the signatories agree to act on the recommendations of the Commis-

sion relating to stabilization of lake levels, control of pollution,

erosion and floods, hydroelectric development, and water diversion.


B. 1. Michigan's constitution contains a number of limitations on

the power to regulate and develop water resources. Some of the more im-

portant are mentioned here. Among these the one that probably is at least

in part responsible for Michigan's highly decentralized development program

and the carrying out of development by private corporations is the provision

in the 1850 and 1908 constitutions which prohibited the State from

engaging in, or being interested in, or a party to, any work of internal

improvement. Police power activities were excepted but these were largely









38-


the concern of local governments. Thus, many functions were left either

to local government or to specially authorized public corporations. In 1946

the constitutional prohibition was amended to read as follows:

"The state shall not be a party to, nor be interested in any work of
internal improvement, nor engage in carrying on any such work, except:

1) in the development, improvement, or control of, or aiding in
thedevelopment, improvement, and control of... harbors of
refuge, waterways...

2) In the development, improvement, and control of rivers,
streams, and lakes and waterlevels, for purposes of drain-
age, public health, control of flood waters, and soil
erosion..." 138

While this provision does not explicitly provide for improvements for the

general purpose of achieving the most beneficial utilization of state water

resources, it is perhaps broad enough to authorize almost any type of

project.

2. The Michigan constitution allows the usual regulation of the use

of property, including rights to water, under the police power, as well as

certain special provisions, and it provides that if the State's activity

amounts to a taking of property compensation must be paid. Rights to the

use of water are property rights but some regulation without compensation

has been upheld, largely in the field of water transportation, Examples

of measures upheld are those regulating the floating of logs, those pro-

viding for the construction of improvement and prohibiting the obstruction

of streams, and those providing for the charging of tolls on streams

improved pursuant to state authorization. As stated by the Michigan

Supreme Court:

"The navigable waters of the territory (of Michigan) were placed
on the same footing with the navigable waters of the United States,
the use of which is forever free, but which are nevertheless sub-
ject to State control and regulation, and may be improved by the
states, or bridged or dammed under their legislation whenever the








- 39 -


convenience of trade, traffic and travel in all its infinite
forms shall seem to require it . The state may therefore
improve the natural highways by water, and they may improve
the intersecting highways even though the result may be that the
use of the highways by water may thereby to some extent me impeded.
Free navigation ... does not necessarily mean navigation of the
streams in their natural condition unobstructed and unimpeded." 142/

Moreover, in recent cases the state anti-pollution law seems to have been
143/
regarded as a proper police-power measure. These cases are not too

authoritative, however, since no basic constitutional question seems to

have been argued.

On the other hand, the erection of a bridge which interfered with a
144/
riparian's use of his property has been held to constitute a taking.

So has the fixing by the city of a dockline which included part of a

riparian's upland premises. Nor has a city been permitted to improve

a highway so as to cause interference with the flow of water to a riparian's
146/
mill. In Stock v. Township of Jefferson, the court's opinion was very

definite on this point:

"It is urged ... that complainant's7 right to maintain his dam
and to use the water that would naturally come to his mill must
give way to the right of the public to improve the highways, to
drain lands, and to generally improve the country. It is suf-
ficient reply to this argument to say that it has long been the
fundamental law of the land that a man is not to be deprived of
his property without due process of law, and without compensation."

Similar expressions can be found in a number of cases dealing with the

pollution of water by cities and possible municipal interference with ri-

parian rights resulting from using lakes and streams as a source of water
147/
supply. In People v. Hulbert the court held that a city under its

police power cannot stop bathing by riparians on inland lakes in order to
l48j
insure a pure water supply. In Dohany v. City of Birmingham the court

stated:


__II ___


_ ~ __









40 -


"No public necessity warrants a city in injuring the rights of
riparian owners by polluting a stream with its sewers, such
rights are protected by the Constitution and can not be taken
away, except by due process of law".

However, a legislative finding of public need might possibly enlarge the

scope of municipal powers, at least over navigable waters. In Loringer v.

City of Flint the court, by an equally divided vote, upheld a ruling

below that the city could not take all its water supply from a navigable

stream to the injury of other riparians. Half the judges held that a city

has a superior right but even the opinion that opposed the city's taking

without compensation stated: "It is possible the time may come when the

permanent necessity of a city to use the water of a navigable stream for

domestic purposes will become so pressing that legislative action will be

justified changing the rule now existing. ..."

3. In addition to limitations on the police power, the Michigan

constitution contains the usual restriction that even when the property

is taken and compensation is paid through condemnation, the condemnation

must be for a public purpose. The constitution adds further somewhat un-

usual restriction that the taking must be justified and limited by public

necessity. The prevailing practice in other states is to consider the issue

of necessity a legislative matter, but the Michigan constitution gives the

final say to the fact-finders in a condemnation proceeding. These pass not

only on the question of whether the particular property is needed for the

entire project, but also on the need for the entire project itself. The

project does not have to be indispensable or imperative but it must be suf-

ficiently convenient and beneficial to the public to warrant the expense.

Michigan statutes authorizing condemnation frequently provide that the con-

demning agency make a finding that the taking is required by public

necessity. Where an agency has specifically made such a finding, it









41 -


constitutes rima facie evidence.

The rule that condemnation be for a public purpose and required by

public necessity has resulted in invalidation of condemnation of land for
151
flooding to serve the needs of a mill; and in the invalidation of legis-

lation which did not contain specific limitations on the power to condemn.

For example, in one statute a transportation corporation was empowered to
122/
condemn for transportation purposes and the improvement of navigation,

but the state did not specifically limit the power to these public purposes.

The court found that since the general powers of the corporation included

the creation and selling of water power, the power to condemn might be so

used for this purpose. In holding the statute unconstitutional the court

commented: "The taking is not limited to what is required by the public

necessities in the improvement of the navigability of the stream, and the

law contains no provision by which the taking can be limited to such ne-
1
cessities. It has also been held that condemnation by the state for

purposes of conveying property to the United States is unconstitutional.

4. To complete this brief summary, a few remarks are added on the

measure of damages in Michigan condemnation proceedings. These damages

often are not merely the owner's actual loss. He is entitled to be com-

pensated for "the most profitable and advantageous use" that can be made
15/ 1.561
of the land. In City of Allegan v. Vonasek the trial court sought

to circumscribe this rule somewhat by charging the jury as follows:

"Evidence has been offered ... that certain parcels of land were
more valuable because they could be used as part of a plan for
the construction of a hydro-electric plant... it must appear that
it is reasonably probable that all other lands necessary for such
projects could be acquired by the one owning the land and who
seeks damages for such use; there must be something more than a
possibility... there must be a reasonable probability ... and
such probable use must be one that affects the market value
under normal conditions." I/


I-


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The Supreme Court modified this instruction by adopting the theory

of the Virginia Court in Rankin v. Harrisonbur

"Although no one of the riparian proprietors owns the banks on
both sides of the stream, nor has the right to erect a dam across
it, and no two or more of them as co-tenants, owns said banks or
have the right to erect a dam across it, yet each owns an inter-
est in the power furnished by the stream, although not actually
applied, which may be united in one ownership, or be held as co-
tenants and this interest cannot be taken for public use without
making just compensation to the owner thereof'". 1

The Court added, however, that the Rankin case must be followed in such a

way as to limit consideration to "such uses as may be applied in the immed-

iate future". And when the case again came before the Appellate Court it

held that the value of the land for the city's use could not be taken into

consideration and that the fact that the city owned some of the land needed

to erect a private power plant was evidence that the land of those seeking

damages could not be used for power purposes because it is improbable that

a private person could take from the city lands that it had acquired for a

public purpose. At least as far as the circumstances of this case are con-

cerned, the Supreme Court's position ultimately did not seem to differ
really from that originally adopted by the trial court
greatly from that originally adopted by the trial court.


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