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not give a remedy. It would seem that the court had heretofore been of opinion that creditors of the seller have an adequate remedy at law. And the opinions referred to cannot be harmonized with the theory that the goods sold constitute a trust fund for creditors.
If the effect of these decisions is not that the purchaser of the goods is liable to the creditors of the seller to the extent of the value of the goods, and that such creditors have such, and only such, remedies as, independent of the particular statute, are afforded by law, then I have misunderstood them. If my Brother MCALVAY'S conclusions are sustained, we come to this proposition, viz.: Any creditor of a seller of a stock of goods in bulk may, at his election, pursue the buyer at law, or pursue the goods or their proceeds in equity, without having secured a judgment at law; equitable jurisdiction being grounded upon the statute itself.
How, in practice, can such a proposition be sustained? If the first creditor who acts files a bill in equity, are other creditors thereby deprived of the right to pursue the purchaser in actions at law? If, in a particular case, some creditor institutes garnishment proceedings or attachment and garnishment proceedings, and some creditor later files a bill in equity, will the equity court administer so much of the fund as shall remain after the plaintiff in the law action is satisfied, or will it dislodge the plaintiff in the law case and oblige all creditors to accept an equitable division of the property or of its proceeds? These are questions which at once suggest themselves.
The statute either leaves creditors to such remedies as existed when the law was passed or else it provided a new remedy. If it provided a new remedy, it did so in the words:
who shall not conform to the provisions of this act shall, upon application of
any of the creditors of the seller,
become a receiver and be held accountable to such creditors for all the goods, wares, merchandise, and fixtures that have come into his possession by virtue of such sale."
If it provided a new rèmedy, it is necessarily an exclusive remedy. The unlawful sale is void. The goods, as to his creditors, belong to the vendor. The vendee is a receiver "accountable to such creditors for all the goods
that have come into his possession by virtue of such sale."
In my opinion, it would have been logical if in the initial case presented this court had agreed with the contention of the appellant and had held that the legislative intention, in case the law was disobeyed, was to make the buyer a trustee for creditors of the seller, responsible to all creditors alike for the value of the goods. Such a holding and such a construction of the act would affirm the idea of a new and complete remedy under the statute and preclude the idea that the swift creditor may recoup himself, even to the extent of the entire value of the goods sold, in garnishment or other proceedings at law. But the court rejected this construction of the act and in so doing, I repeat, necessarily decided that no new remedy was given by the statute. Independent of statute, a simple contract creditor has no remedy in equity.
If the construction then placed upon the act was wrong, it can be remedied by overruling the decision and those which followed it. I do not favor such a course, believing the remedy at law to be fairly adequate.
One other proposition remains to be considered, and that is whether the bill can be sustained as a judgment creditor's bill, upon the ground that it was impossible by reason of the debtor's absence to obtain a judgment. It was filed upon no such theory, but according to a theory which I have stated. Moreover, there is not here present as there was in Earle v. Kent Circuit Judge, 92 Mich. 285 (2 N. W. 615), the fact that the demand could not be satisfied by an action at law. Plaintiff might have proceeded by attachment and garnishment.
The decree should be reversed, and the bill dismissed, with costs of both courts to appellant.
CITY OF BATTLE CREEK V. GOGUAC RESORT
: 1. WATERS AND WATERCOURSES - RIPARIAN RIGHTS - CITIES WATER SUPPLY. Where complainant, a municipal corporation, purchased
land on the border of a small lake for the purpose of constructing a system of water supply, and the vendor made the conveyance with knowledge of the intention to expend money in building a pumping station, neither he nor his assignee or successor in title was entitled to pollute the waters of the lake by using his adjacent resort
for bathing purposes. 2. SAME-DAMAGES-DIVERSION-MUNICIPAL CORPORATIONS.
The right of a riparian owner in the water of an inland
lake is usufructuary only, but the diversion for municipal purposes will not be restrained, unless the use results in
injury to the complaining proprietor. 3. SAME.
The grantee of the proprietor who made the sale to such
municipality could not complain of any use which would be valid, as to original grantor, and also, would be enjoined from polluting the water in any manner which the grantor could not himself do.
4. SAME-DRINKING PURPOSES—INJUNCTION.
Pollution of the water of a lake by bathing is an unreason
able and unlawful use as to a city which is entitled to
Appeal from Calhoun; North, J. Submitted April 25, 1913. (Docket No. 88.) Decided July 24, 1914.
Bill by the city of Battle Creek against the Goguac Resort Association, Limited, and others for an injunction. From a decree for complainant, defendants appeal. Affirmed.
D. C. Salisbury (0. S. Clark, of counsel), for complainant.
Stewart & Sabin, for defendants.
BIRD, J. The complainant, as well as the defendant association, are riparian owners on Lake Goguac. This lake is near the city of Battle Creek, and covers 360 acres, and is fed by subterranean springs. Complainant purchased a parcel of land bordering on the lake in 1886, and commenced to take therefrom its water supply in 1887. From that time on, its consumption of the water increased, until it reached upwards of 3,000,000 gallons per day at the time this suit was filed. The defendant association is the owner of lands bordering on the lake adjoining those of complainants. It maintains a summer resort and bathing beach during the summer months. Complainant has for some time objected to the bathing at the resort, on the theory that it polluted and rendered the water unfit for the use of its inhabitants. Its protests were not heeded by the association, nor by the other defendants who own and manage it. In order to enforce what it conceived to be its rights, this bill was filed to perpetually restrain the defendants from operating their bathing beach. The chancellor who heard the case granted the relief prayed, and the defendants have appealed. The most serious question raised by defendants is that the complainant has no such right to the use of the water as entitled it to the relief granted.
Both complainant and defendants are riparian owners, and as such, in common with others, they own the bed of the lake, and by virtue of such ownership both have a right to a reasonable use of its waters for domestic, agricultural, and mechanical purposes. Clute v. Fisher, 65 Mich. 48 (31 N. W. 614); 40 Cyc. p. 635. Unless the complainant can show that it has some right other than that which arises by reason of riparian ownership, it has no greater right in the waters than have the defendants. As a riparian owner, the complainant has no right to divert the water for the purpose of selling it to the inhabitants of Battle Creek. Stock v. City of Hillsdale, 155 Mich. 375 (119 N. W. 435); Smith v. City of Rochester, 92 N. Y. 463 (44 Am. Rep. 393); Ulbricht v. Water Co., 86 Ala. 587 (6 South. 78, 4 L. R. A. 572, 11 Am. St. Rep. 72); Lord v. Water Co., 135 Pa. 122 (19 Atl. 1007, 8 L. R. A. 202, 20 Am. St. Rep. 864); Sparks Manfg. Co. v. Town of Newton, 57 N. J. Eq. 367 (41 Atl. 385).
The question therefore gets around to this: Whether one riparian owner is entitled to equitable relief as against another riparian owner, to aid him in diverting the water to uses other than for riparian purposes. If this were a suit by complainant to protect its right to some reasonable use of the water incidental to its riparian ownership, it would present a different question, but when it seeks relief of this character to facilitate its business of unlawfully diverting the water, it prays for relief to which it is not entitled as a mere riparian owner. But counsel