Village of Trenton v. Rucker

127 N.W. 39, 162 Mich. 19, 1910 Mich. LEXIS 983

• Court: Michigan Supreme Court
• Decided: July 14, 1910
• Docket: Docket No. 130
• Status: Published

Opinions

Brooke, J.

(after stating the facts). In what we have to say hereinafter, it will be borne in mind that the complainant village has no sewage system. That it is not claimed by defendant, that by reason of urban improvements, raising, grading streets, etc., therein, the natural course of the surface water has been diverted upon his land, or that the volume thereof has been increased by any act of complainant. He specifically admits in his answer that the water in question has flowed across his land from time immemorial. Under the circumstances disclosed by the record in this case, therefore, we are of opinion that the rules of law established by this court, relative to the care of surface water in rural districts, must control. A contrary holding would, it seems to us, place it within the power of any resident of a village to compel the village to enter upon the construction of a sewage system, whenever he happened to become the owner of a lot which from time immemorial had borne the servitude of carrying surface water from adjacent lands. Villages ordinarily are not wealthy enough to undertake expensive public works, and residents therein must be presumed to have taken up their homes there with a knowledge of this fact. In villages, taxes are lower and conveniences are fewer than in towns and cities. Those who choose to live in villages must bear the ordinary inconveniences incident to such residence. Treating this case as falling within the rural, rather than the urban, class, there is no difficulty in holding that the defendant is bound, under our decisions, to receive the flow of surface water from the adjacent higher land, coming in substantially its natural amount and condition. Boyd v. Conklin, 54 Mich. 583 (20 N. W. 595, 52 Am. Rep. 831); Rice v. City of Flint, 67 Mich. 401 (34 N. W. 719); Osten v. Jerome, 93 Mich. 196 (53 N. W. 7); Horton v. Sullivan, 97 Mich. 282 (56 N. W. 552); Finkbinder v. Ernst, 126 Mich. 565 (85 N. W. 1127); Cranson v. Snyder, 137 Mich. 340 (100 N. W. 674). See, also, Gregory v. Bush, 64 Mich. 37 (31 N. W. 90, 8 Am. St. Rep. 797).

It seems to be settled law in several other States that municipalities are not obliged to provide artificial drainage for surface waters. They may not, however, collect them and discharge them in unnatural volume upon private lands. Lynch v. Mayor, etc., of New York, 76 N. Y. 60 (32 Am. Rep. 271); Davis v. City of Crawfordsville, 119 Ind. 1 (21 N. E. 449, 12 Am. St. Rep. 361); Gilfeather v. City of Council Bluffs, 69 Iowa, 310 (28 N. W. 610); City of Atchison v. Challiss, 9 Kan. 603; Collins v. City of Waltham, 151 Mass. 196 (24 N. E. 327).

Clause 3 of the decree in the court below was, in any event, unwarranted by the pleadings. Defendant sought no affirmative relief. Thayer v. Lane, Walk. Ch. (Mich.) 200; Smith v. Rumsey, 33 Mich. 183; Booth v. Thompson, 49 Mich. 73 (13 N. W. 363); Andrus v. Scudder, 120 Mich. 502 (79 N. W. 794). But this is unimportant, as we are of opinion that complainant was entitled upon the hearing to a decree enjoining defendant from interfering with the natural flow of surface water over his premises, such decree to become operative only when complainant had caused all sewers {i. e., drains connected with water-closets) to be disconnected with said drain.

Inasmuch as the proceedings upon contempt, subsequent to decree, show that nothing but surface water at that time passed through the drain, a decree will be entered in this court to that effect, with costs of both courts.

Bird, C. J., and Hooker and McAlvay, JJ., concurred with Brooke, J.