Flitcraft v. Sylvan Beach Resort Co.

121 N.W. 278, 157 Mich. 84, 1909 Mich. LEXIS 958

• Court: Michigan Supreme Court
• Decided: May 26, 1909
• Docket: Docket No. 80
• Status: Published

Opinion

Hooker, J.

The defendant is a corporation organized for the purpose of owning and operating a summer resort known as the “Sylvan Beach Resort,” consisting of platted lands which lie between Lake Michigan on the west, and White Lake on the east. The defendant owns these lands in fee. The rear ends of lots abut on a strip of land called “ Coveil Park.” It consists of about seven acres covered by trees and shrubs. Lot 4 was leased to the complainant for the term of the life of the association, subject to its by-laws, at an annual rental of $20. Lessees are supplied with water from the company’s water pipes, laid in said park. Cesspools are used for sewerage. The complainant is owner of a plat of land called “A. J. Flitcraft’s subdivision of Sylvan Beach, White Lake, Michigan,” containing 52 lots. It comprises land between the two lakes named, adjoins defendant’s resort which lies south of it, and extends northward to the government channel connecting said lakes. Complainant’s property is equipped with water and sewer systems. Complainant’s premises on lot 4 of the defendant’s plat were provided with a cesspool, but, claiming that it was inadequate, he proceeded to connect his cottage on lot 4 with his own sewer system, by laying tile across Coveil Park. While digging the trench, he was forbidden to make such extension by the officers of the association, and, as he persisted, his tile were broken. Subsequently he extended both his sewer and water pipes, taking advantage of the absence of the officers of the Sylvan Beach Company. He then filed the bill in this cause for an injunction to restrain interference with his pipes. Defendants filed a cross-bill asking that complainant be restrained from using said pipes or sewer, and from digging for or laying others. From a decree for defendant, complainant has appealed.

Complainant’s counsel contend:

1. That he is entitled to a right of way for laying said pipes, on the ground of necessity.

2. That, in any event, defendants are entitled only in damages.

We are of the opinion that the complainant’s claim to a right of way for water and sewer, or either of them, is not sustained by the proof.

His other contention is within the principle of Ives v. Edison, 124 Mich. 402 (83 N. W. 120, 50 L. R. A. 134, 83 Am. St. Rep. 329).

The decree is affirmed, with costs.

Montgomery, Ostrander, Moore, and Brooke, JJ., concurred.