the circuit court is right, and should be affirmed.

LONG, J., did not sit. MORSE and GRANT, JJ., concurred.

(80 Mich. 100)

CHAPEL V. SMITH et al. (Supreme Court of Michigan. April 11, 1890.) SURFACE WATER-DRAINS.

1. One who acts merely as a contractor or laborer in the construction of a tunnel, and who has no control over its maintenance, is not liable for damages to the crops of a distant land-owner, occasioned by the subsequent flow of water from the tunnel.

2. A drain commissioner has no right to maintain a drain whereby water is thrown upon a person's land, without providing a proper outlet there

for.

3. Though the capacity of a drain diverting water from its natural flowage is no greater than the drain for which it was substituted, still if for

any reason a greater amount of water flows through it, upon lands below, the one maintaining such drain is responsible for the damage caused by the increased flowage.

4. Where a drain diverting water from its natural course has fallen into disuse for some time,

one who causes it to be reopened and maintained

is liable for the consequences, as if there had been no drain before.

5. The owner of wild and unimproved land has an immediate right of action against one who diverts water from its natural flow, upon said land, though there be no present special damage.

6. Where it is claimed that plaintiff acquiesced in the construction of a tunnel which diverted water from its natural flow, and cast it upon plaintiff's land, he is entitled to the admission in evidence of everything done by him, or others in his behalf, by way of protest or remonstrance against such diversion.

7. In an action for damages from flowage, it is competent for plaintiff to show that it was practicable to drain the water in the direction of its natural outlet, and away from plaintiff's land.

Appeal from circuit court, Genesee county; WILLIAM NEWTON, Judge.

David P. Halsey and Frank B. Leland, for appellant. Lee & Aitkin and A. W. Davis, for appellees.

MORSE, J. The plaintiff sued defendants in the Genesee circuit court for damages to his premises by the opening of a tunnel through a natural embankment by reason of which a large amount of water, contrary to its natural flow, was let down upon and across his lands. The plaintiff alleged in his declaration that he was the owner of 80 acres of land, situated in Genesee county, occupied and tilled by him for farming purposes. That in 1884 said land was properly drained by good and sufficient drains, the main drain being laid out and constructed by the township drain commissioner of the width of 10 feet, and of the depth of 3% feet, and that it was amply sufficient to carry away all the water which would fall upon said land, or which would flow thereon, from all other lands naturally draining upon the same. about one mile east of plaintiff's said land there is a natural embankment or rise of land running north and south, which forms a barrier against all the water above and to the east of it; said embankment consisting of a hill, the lowest point of the crest of which is about 15 feet above the highest point reached by accumula

That

tions of water from above and the east at any time. That above and to the east of it, and easterly from said embankment, there is a large tract of several hundred acres of land, the drainage from which is naturally stopped by said natural embankment from flowing down upon said plain. tiff's said land, the water accumulating upon said tract of land situated to the east of said embankment naturally flowing off from said land in a north-easterly direction, flowing entirely away from and never touching said plaintiff's said land. That in the spring and summer of 1884, unlawfully and wrongfully, and to the great damage of said plaintiff, defendants, by themselves, their agents, and employes, dug and opened a large tunnel, filling the same with a crock tile about 23 inches in diameter, directly under and through said embankment, being a distance of about 15 rods, which was capable of emptying, and which did empty, great volumes of water, the accumulations from said tract of land to the east of said embankment, out into a fertile valley, leading directly onto said plaintiff's land, said plaintiff's land forining a part of said valley. That the result of digging said tunnel was to cast upon said plaintiff's land a large volume of water, which otherwise would not have flowed in that direction. That said tunnel did not empty into any ditch or trench, and that no means whatever were or ever had been employed to convey the water to any place beyond a few rods beyond the mouth of said tunnel. That so great was the quantity of water which flowed through said tunnel that at certain times of the year it continued flowing constantly for several days at a time. That said wrong and injury had so continued from the opening of said tunnel by defendants down to the time of the commencement of this suit. That the consequence of the digging and constructing said tunnel by said defendants was to do away with said natural barrier to the water formed by said embankment, and to cause a large quantity of water to flow down upon plaintiff's said land which otherwise would not have done so, bringing with it pieces of wood and brush and other refuse. That the water and refuse flowing and deposited upon plaintiff's said land had destroyed the crops on from 12 to 15 acres thereof for several years, and that the land had been permanently injured thereby, and the crops destroyed, to the great damage of said plaintiff. Another count charges that the depositing of said drift-wood has created an intolerable public nuisance, and has caused, by said coming down of water and drift-wood, whenever the same comes down upon his premises, an intolerable and unhealthy stench, which fills the air with malaria and impurities, and endangers the health of plaintiff and his family, and that of his neighbors in the vicinity, and which stench is an intolerable and public nuisance; and also that said land has already been permanently injured thereby, and plaintiff's ditches filled up and permanently obstructed by said refuse and sand, and the water standing on said land has caused it a permanent injury.

The defendants pleaded the general is

east of the ridge draining their lands into the eastern marsh. It also appears that in the years most complained of by plaintiff the damage was caused by heavy and unusual freshets. It also appears that at the particular time the crocks were put in by Smith and Parker the water had washed a hole through the ridge where this box tunnel had been, and that such hole was capable of discharging more water in a given time than the tunnel as now constructed. The reason of Smith's action as to this drain seems to have been this: In 1856 a plank road was built across this eastern marsh. This highway was never overflowed until 1866, or about the time the Flint & Holly Railroad was built across the same marsh to the east of the highway. The railroad company put a culvert under their embankment, and their ditches let more water down towards the highway, the lowest part of the marsh being near the place where the tunnel is. The tunnel was originally constructed by the railroad company to relieve the highway. There was some talk at the time about injury to the lower proprietors, and the railroad company wanted the township board to indemnify them against liability for such damage, Lut what was done in this regard does not clearly appear, nor is it material. In 1883 and 1884 the highway was overflowed, and Smith was called upon as drain commissioner to open a public drain through the tunnel. No documentary evidence was given on the trial as to the proceedings, but, without objection, both sides went into the matter, and it appears that the probate court, the parties interested appearing by counsel, Judge LONG acting for the people below the tunnel, appointed three special commissioners, who determined the necessity of this drain, and that the tunnel was cleaned out, and a 20-inch crock putin. I cannot see how this action can be maintained against the defendant Parker. He was employed by, and acted entirely under the direction of, the defendant Smith. The act of cleaning out the tunnel or the putting in of the crocks was not a direct trespass as against plaintiff, and no consequential wrong or injury was occasioned him thereby until nearly a year afterwards, and that so slight that he made no particular note of it. The tunnel was on the lands of Parsons, and the injury to plaintiff of which he complains was not the immediate result of Parker's work, but has rather been caused by the subsequent maintenance of this tunnel. It appears from plaintiff's own testimony that he was first injured by this tunnel in 1880, four years before the putting in of the crocks. There was a heavy freshet that year. The tunnel was dug out by Parker in June or July, 1884. In regard to the damage that year, plaintiff testifies: "Question. What damage did you sustain that year after the digging out of the tunnel? Answer. Some, but not as much as I have some other years. The tunnel was not dug out, if I remember right, when the spring rains came; but there was something on the flat that damaged some, but not so much, that year. Q. The different years since 1884,just take it along by the year, and state

about how much in each year, in your opinion, you have been damaged by this overflow. A. I can hardly state; some years it would not amount to a great deal. There has not been so very much until last year," (1887.) He further states that his damage was the greatest in 1887, and next to it was the year 1880. The testimony of all the witnesses shows that there were unprecedented floods or freshets in both of these years. One witness swears that Chapel had from 3 to 5 acres of corn ruined in 1884, and that some 15 or 18 acres of his land was overflowed, but this was before the crocks were put in, and in the spring. His son also testified to damage done to hay and corn in the spring of 1884, but he gives no damage happening that year after Parker's work, and his father, the plaintiff, when brought upon the stand afterwards, was asked on cross-examination, and testified, as follows: "Question. How much were you damaged in 1884, the spring when that big freshet was? Answer. Well, sir, if I remember right, the tunnel was stopped after it caved in until the freshet was over. Q. Your boy said there was 12 or 15 acres overflowed in the spring. A. I hardly think he said that. Q. Will you swear he didn't? A. No; I wouldn't swear he didn't. Q. Will you swear there was not 15 acres overflowed on that place in the spring of 1884? A. I don't remember that there has been a spring when the water comes down from above but what it overflows,-did this year. Q. Always been 15 acres overflowed? A. Somewhere; not quite as much as last year. Q. How much was overflowed in 1883? A. I have not got any damage for 1883. I didn't look to find out what the damage was in 1883. Q. What was it in 1882? A. I had oats over on the south side, and there was that patch I spoke of that was killed out again. That same patch has been killed out pretty nearly every year since 1880. We have been flooded from two to three times a year. We had a flood this spring. Q. Did you ever since you have lived there see such a flood as there was last spring? A. I never knew it to come down so quick, hardly. It came down very much quicker than it used to. Q. Did you ever see it rain as hard? A. For a little while it did rain pretty hard, but not a great while. Q. Did you ever see it rain as hard before? A. I don't know.

99

At this time he further stated that he suffered some damage in 1885 and 1886, but that he had only stated two different damages in 1880 and 1887, when everything was killed out. There was no testimony whatever of any damage in the year 1884, after the work complained of by Smith and Parker was done. This tunnel has not been maintained by Parker since 1884, and he has no authority over it, or any dominion over the soil in which it is planted. The labor he did in cleaning it out and putting the crocks in was that of a contractor or hired man. He has not done anything since towards keeping it there, and has had no right to meddle with it in any way. By what rule of law is he to be held responsible for the damage done by it in 1887, the year for which plaintiff seeks to recover, or even for the damage done in

1885 or 1886, if any? If he can be held for these years, he can be held indefinitely, when he has no power or right to close this tunnel. Somebody may be maintaining it, but Parker is not responsible for it. If Parker had placed the tunnel upon his own land, and had power and dominion over it, so that he could maintain it or abate it as he chose, then I could see some reason and some theory in the law by which he could be held responsible for the damages occasioned by it, but I confess, as it is, I can see none. In my opinion, no cause of action was shown against Parker. No evidence was given of any permanent damage to the freehold, which the discontinuance of the flowing would not relieve, as in the case of Cubit v. O'Dett, 51 Mich. 348, 16 N. W. Rep. 679. Here the only damages claimed were for injury to crops caused by the overflow during certain years, more especially for 1887, three years after the crocks were put in this tunnel. It was, however,said in that case, at page 350: The existing ditch might be obstructed without going upon the plaintiff's land for the purpose, but as it is not upon the land of the defendants, and they are doing nothing, so far as we know, to keep it open, there may be question whether they are liable from day to day, as a man may be who maintains a nuisance on his own premises."

In Smith's case he was still drain commissioner at the time this suit was brought, and had been such officer ever since the crocks were putin. There is no doubt, from the whole evidence, that he was acting as drain commissioner when he ordered the work done. If his action was not legal and was wrongful as against plaintiff, he must be held responsible for what damage has been done him. He has had charge of this tunnel, as such drain commissioner, and must be considered as the person maintaining it. The circuit judge should have submitted to the jury the question whether more water flowed upon plaintiff's land after the work of Smith than before. It is true I think, as heretofore stated, that it was practically undisputed from the whole testimony that the capacity of the crocks were not greater than that of the box-drains for carrying water through this tunnel. In other words, as much water could have run through the boxdrains as through the crocks; and it is also true, I think, that the increase of water flowing through the tunnel, and upon plaintiff, is mainly, if not entirely, due to the fact that cat-holes and other wet places above the tunnel have been drained into this eastern marsh. But while Smith may not have increased the capacity of and did not enlarge this tunnel, when we come to the prescriptive right claimed by defendants to flow plaintiff's land by the maintenance of this tunnel we must remember that the measure of such right is not the dimension of the tunnel, but the quantity of water taken down upon his premises by it. Turner v. Hart, 38 N. W. Rep. 890, 893, 894. That a prescriptive right to flow this water upon plaintiff's land could be acquired by 20 years of adverse user seems to be settled in this state. Conklin v. Boyd, 46 Mich. 56, 9 N. W. Rep. 134; Gregory v.

Bush, 64 Mich. 37, 31 N. W. Rep. 90. But, like any other right gained by adverse user, it must be limited by the extent of the user, and the right to discharge a drain upon the lands of another cannot be acquired by 20 years' user, unless the drain be one and the same, and the use thereof uninterrupted during the whole period. Cotton v. Manufacturing Co., 13 Metc. 429. Therefore the drain or blind ditch put in by Parsons does not count at all, and is of no importance in this case. The tunnel builded by the railroad company in 1866 was put in without right, and there is testimony tending to show that in 1883 and 1884, if not before, the same had gotten out of repair and fallen into disuse. If this should, upon another trial of this case, be found to be a fact, the question of adverse user would be out of the case, and the only matter to be determined would be the lawfulness of Smith's action in the premises, and, if unlawful, the damages resulting therefrom. It must be conceded that by this tunnel the water was diverted from its natural flow and thrown upon plaintiff's land without right. The circuit judge thought, and so held, that this tunnel, having discharged the waters of this eastern marsh into the Seavor drain, which had existed for more than 20 years, the plaintiff could not now dispute the right which had grown up by adverse user. In this he was in error. this he was in error. The question of adverse user should have been submitted to the jury. If there was no drain there when Smith put the crocks in,-if the railroad company had abandoned it, or it had fallen into disuse for any length of time,-the continuity of the use had been broken, and Smith must be considered as responsible, the same as if no tunnel had ever existed through this ridge. If the tunnel had been continuously maintained by the railroad company since 1866, then it was for. the jury to determine whether, since the intermeddling of Smith, the flow of water had been increased upon plaintiff's land.

Plaintiff's counsel claim that no prescriptive right to maintain this tunnel is shown, because Chapel could not complain of it until some special damage had been done him; that the land being wild and unoccupied, and a willow swamp, until 1877 or 1878, and no special damage accruing to him until 1880, the adverse use of this tunnel did not commence until then; that the injury not being direct, but consequential, his right of action must be founded upon special damage, and the bar against such right could not commence to run until some special damage was occasioned by the tunnel. We think the plaintiff or his grantors had a right of action when the tunnel was first put through this ridge by the railroad company, if by such tunnel any water was diverted from its natural flow, and thereby thrown upon his premises, no matter what was then the condition of his lands, though, entitled only to nominal damages, the right of action would exist; and no one would have the right, without redress, to flood the wild lands of another, or to add to the water upon them, because no present special damage could be shown.

But plaintiff's counsel are correct in their

further claim that the "right obtained by prescription is commensurate only with the right enjoyed, and that the extent of the enjoyment measures the right, and the privilege cannot be enlarged to the prejudice of another. Every increase in the volume of water turned upon the lower proprietors creates a new cause of action." It follows, therefore, that, in any event, if by the maintenance of this tunnel by Smith, as drain commissioner, more water has been thrown upon plaintiff's land than has flowed through it for 20 years before, Smith is liable for the damages occasioned by such increased flowage, if the tunnel was not legally laid out as a town. ship drain; and he may also be liable if it was laid in conformity to the statute, if thereby the plaintiff was damaged by neglect to provide him with a proper outlet of the waters thrown upon his premises. If he has wrongfully maintained it, he is liable. If the tunnel was not legally laid as a public drain, then he is certainly liable for the damage done, if any, by reason of its construction and maintenance. If it is a legal drain, and properly laid, then the question would arise whether such drain could be established and maintained to the detriment of plaintiff without his consent. The plaintiff himself swears that when Smith was putting the crocks in, or about to do so, he protested against it. Smith said to him: "Smith says to me, after we had talked awhile, he says: 'Now, if you will just keep quiet and hold on, you fellows, I will get a couple of hundred dollars, and help you dig out the outlet from below.' The consequence was I never appeared, and supposed he would do it. I supposed he would do that, and that would have satisfied me if he had dug the outlet. I think that was during the early part of 1884." If Smith, as drain commissioner, had given plaintiff a proper outlet, there would probably have been no trouble. Certain it is that the drain commissioner could not, under the law, in laying a public drain, empty water that did not belong to Chapel upon him without providing a proper outlet to take it off his premises. If he did so, he would be responsible for the damages. Cubit v. O'Dett, 51 Mich. 351, 16 N. W. Rep. 679; Ashley v. Port Huron, 35 Mich. 296. The case should therefore have gone to the jury upon the question of Chapel's damage, and whether or not plaintiff had consented to this diversion of the water from its natural flow. If any claim of acquiescence is made by defendants upon another trial, everything done by plaintiff or others in his behalf, by way of protest or remonstrance against such diversion, would be admissible. Proper testimony of this kind was erroneously ruled out in the court below. The court during the trial made this remark: “It is a strange doctrine that the court should be kept a week at a time trying an action of trespass on the case for damages when the cause of complaint took place twenty odd years ago; it is a very singular doctrine." This remark would have been highly improper if the questions of fact had been submitted to the jury. As the court directed a verdict, however, in keeping with this remark, no separate damage

was done by it. It was, I think, competent to show that, when Smith put in this tunnel, the surveyor considered it practicable, and that it was practicable to take the water off this marsh and highway in the direction of its natural outlet and away from plaintiff's land, and that the railroad officials were willing that the proposed drain should go under or through the embankment of their road. The judgment of the court below will be affirmed as to defendant Parker, with costs of both courts in his favor, and reversed as to the defendant Smith, with costs of this court, and a new trial granted as against him. LONG, J., did not sit. The other justices concurred.

(80 Mich. 124)

PETERS et al. v. CARTIER et al. (Supreme Court of Michigan. April 11, 1890.) VENDOR AND VENDEE-BONA FIDE PURCHASERQUITCLAIM DEED.

1. H. sold and conveyed to complainant certain lands, on which the latter executed mortgages. By mistake in registration, the record of the deed did not show all the land embraced therein, but the record of the mortgages did. D., seeing the mistake, secured from H. a quitclaim deed of the land omitted in the record and sold it to defendant, but refused to warrant the title, and the quitclaim deed showed on its face only a nominal consideration. Defendant, who lived near by, had understood that the land was included in the sale to complainant, and knew of the mortgages executed by him, and recorded, which, on investigation, would have shown that his grantor had no title. Held, that defendant was not a bona fide purchaser.

2. Purchasers who take by quitclaim deed are not bona fide purchasers, and take only the interest which their grantors had.

Appeal from circuit court, Mason county, in chancery; J. B. JUDKINS, Judge. J. B. McMahon, for appellant. Dovel, Smith & Smurthwaite, for appellees.

GRANT, J. On May 26, 1883, one William G. Hinman, being the owner in fee of the land in dispute, and other lands, sold and conveyed them by waranty deed to complainant Richard G. Peters. The consideration was $20,000. The whole number of acres conveyed was 1,160. They were situated in sections 26, 27, 28, 33, 34, 35, and 36, township 20 N., range 15 W., and section 3, township 19 N., range 15 W., Mason county. They comprised all the lands he owned in that vicinity, and were known among lumbermen as the "Pierce & Hinman Lands." June 1, 1883, the deed was recorded in the office of the register of deeds for Mason county. By the neglect or oversight of the register, the N. % of the N. E. 4 and the S. W. of the S. E. 4 of section 34 were omitted from the record. May 30, 1883, Peters executed a mortgage upon all the lands described in the Hinman deed, and other lands also, for $50,000. This mortgage was recorded June 1, 1883, and the record contained a description of the land here in controversy. here in controversy. This mortgage contained some defects, not material to the issue in this case; and December 24, 1883, Peters and his wife executed another mortgage to correct them. This mortgage covered the same lands as the first, and was recorded January 4, 1884. After the