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It is urged that the court should have compelled the plaintiff to elect as between the defendants, and that Circuit Court Rule 27 does not cover a case like the one at bar, where to hold one defendant must necessarily mean the release of the other. This point has been passed upon by this court in Root & McBride Co. v. Salt Ass'n, 140 Mich. 441 (103 N. W. 844), and Hoek v. Township of Allendale, 161 Mich. 571 (126 N. W. 987, 21 Am. & Eng. Ann. Cas. 118). It is admitted that one of the defendants was indebted to the plaintiff for the logs. The plaintiff brought suit against them both, and the jury determined which one of them, under the facts in the case, was liable. It would seem that such a situation comes clearly within the meaning of the rule, which provides as follows:
"(c) But, in case an action is brought against two or more defendants, the plaintiff shall not be required to discontinue as to any of them, but the jury shall show by their verdict, or the court by its finding, in a trial by the court without a jury, which of them are and which of them are not liable to the plaintiff, and judgment shall be given accordingly.”
As this case developed in the trial, the two defendants became, in effect, the real adverse parties. The plaintiff called to the stand the defendant Yund for cross-examination, under Act No. 307, Pub. Acts 1909 (5 How. Stat. [2d Ed.] $ 12865). He was crossexamined by his own counsel and counsel for the defendant Excelsior Wrapper Company, who, later in the case, in putting in proofs for the defense, recalled and examined him as a witness. At this time no announcement or statement was made that he was calling him under the statute, or for further cross-examination. No claim being made to the court at the time that he was being called, under the statute, as an adverse party, it must be presumed that he called him as his own witness, and the court did not commit error in not allowing counsel to try to impeach him as to this testimony.
We have examined the other assignments of error with reference to the charge of the court, but find no prejudicial error in the record.
The judgment is affirmed.
MCALVAY, C. J., and BROOKE, STONE, OSTRANDER, BIRD, MOORE, and STEERE, JJ., concurred.
TOWNSHIP OF BLENDON V. DE JONGE.
1. WATERS AND WATERCOURSES-DAMS OR OBSTRUCTIONS-INJUNOTIONS—MUNICIPAL CORPORATIONS. Where complainant township failed to establish a pre
scriptive right to flood the lands of defendant with water from a highway discharged through a culvert under the road, and it appeared that the natural course of drainage was down the highway, an injunction restraining the defendant from obstructing the flow of water across his
farm was properly denied. 2. SAME.
Neither the public in the construction of highways nor
private parties for the benefit of their real estate can be permitted to divert water from its natural course or flow, and upon the lands of an adjacent proprietor.
Appeal from Ottawa; Cross, J. Submitted April 16, 1914. (Docket No. 53.) Decided July 24, 1914.
Bill by the township of Blendon against Chris De Jonge for an injunction and other relief. From a decree for defendant, complainant appeals. Affirmed.
Smedley, Linsey & Lillie, for complainant.
The opinion filed by the circuit judge in this case gives a clear understanding of the situation which gave rise to this controversy:
"The township of Blendon filed the bill of complaint in this cause to restrain the defendant Chris De Jonge from erecting and maintaining a dam or ridge along the east line of the land of the defendant, which obstructs the flow of the water that passes through a culvert in the highway on the east side of said lands of the defendant, and in the township of Blendon. The defendant is the owner of the north half of the northwest quarter of section 32, and also the north half of the northeast quarter of section 31, in said township. A public highway runs north and south along the east end of the north half of the northwest quarter of section 32. On the east side of this highway is located the Southwest Blendon drain. This drain commences at the northeast corner of section 32 and runs west one-half mile to the highway which is on the east side of defendant's land; thence south on the east side of said highway 80 rods; thence west along the south line of the lands of defendant 160 rods; thence south and west to its outlet. About 20 rods north from the south line of the lands of the defendant is a private drain of the defendants which is one mile long and has its outlet in the Bosch & Hultz drain. About 20 rods north of the eastern part of this first private drain is a second private drain extending some 80 rods west and thence south to the first private drain. Directly east of this second private drain the complainant at the request of the defendant, and with his assistance, constructed a culvert through the highway and through the Southwest Blendon drain. At the time this culvert was constructed the defendant also owned the 40 acres of land on the east side of the highway, and the culvert was constructed to enable the defendant to drain his lands. The culvert was constructed in 1898. After this culvert was constructed, other drains were constructed, which collected more water into the Southwest Blendon drain. The complainant permitted Mr. J. H. Huyser to construct a culvert across the highway to empty more water into the Southwest Blendon drain. The Southwest Blendon drain was not kept cleaned out, and the result was that the drain became clogged, and the water from the public drain was forced through the culvert and upon the lands of the defendant, and his crops were ruined. At one time defendant filled the culvert with earth to prevent the water from coming through from the public drain and flooding his land. In the fall of 1911 he built a ridge or dam about as high as the roadbed of the highway, and extending north and south along the highway for 60 or 70 rods. This ridge prevents the water in the Southwest Blendon drain from flowing upon the lands of the defendant. There is no public drain that provides an outlet for the water that flows through the culvert from the Southwest Blendon drain, and the complainant has failed to establish a right by prescription to empty the water from the public drain through this culvert upon the lands of the defendant. The defendant had the right to erect the dam or ridge upon his lands to prevent the collecting of water by means of drains and culverts into the Southwest Blendon drain and draining the same upon the lands of the defendant. If it is desired to empty the water from this public drain through the culvert, a proper outlet must be provided. And the decision in this case in no manner prevents the proper authorities constructing a public drain from this culvert through this dam or ridge and across the lands of the defendant. The complainant having failed to make out a cause of action, the bill of complaint will be dismissed with costs against the complainant. A decree may be prepared accordingly.”
KUHN, J. (after stating the facts). In our opinion, the important questions to determine from this record are the natural direction of the flow of waters along the highway in question, and, if it is found that the waters do not flow in their natural course, the reason therefor. It is the claim of the complainant that the natural course of these waters is through the culvert into the private drains of defendant and then westward into the Bosch & Hultz drain. Defendant con
tends that the proper drainage is through the Southwest Blendon drain, and the reason that the water does not flow that way is that this drain has been neglected and has filled up, and the waters are thus prevented from following their natural course. The defendant testified with reference to this condition, as follows:
“Now, Mr. De Jonge, the water that comes through this bridge now upon your land and floods you out, that is water that comes from where?
"A. That comes through the bridge? "Q. Yes. "A. Well, that comes from the east side of the road.
"Q. Comes from the Southwest Blendon drain, doesn't it?
"A. Yes, from the Southwest Blendon drain.
"Q. And why does it run through the bridge, and why doesn't it follow the drain itself?
"A. Because that drain is obstructed with weeds and willows and hasn't been cleaned out in four years; it is in poor shape.
“Q. When that was cleaned out four years ago, did the water follow largely the Southwest Blendon drain and not come under through the bridge?
“A. It did. "Q. And that time had no trouble with your water? “X. No.
"Q. And if the Southwest Blendon drain were now again widened and cleaned out as it was four years ago, would you have any trouble with the water?
"A. No, when I started to build that dam the water was running partly through my private drain, about one-third, and about two-thirds through the Southwest drain. Then I drove in a stake to see how much damage it would do when I blocked up my private drain, and in the evening when they worked all day at it, the water didn't come up a quarter of an inch; it stayed right level with the stake. Then the water all had to go through the Southwest drain.
“Q. It had to go there when it couldn't go under through the bridge and over your land?
“A. Yes.” Complainant's witness Bowen testified as follows: