
    Kilgore vs. Hascall, Administrator.
    Error to Kalamazoo Circuit.
   Opinion by

Campbell, Ch J,

Plaintiff brought suit 'against defendant’s intestate, Caroline A. Hascall, for flowing certain of his lands by means of a dam on a parcel of land further down the stream. The defence justified, under a deed from Kilgore, which was claimed to authorize the flowage. Kilgore owned a tract of land west of the Kalamazoo and Three Rivers Plank Road. A stream called Portage Creek, ran northerly through these lands, and a branch called the Little Portage, flowed easterly through the same tract, and joined Portage Creek on the premises and near the plank road, In March, Kilgore conveyed to Deborah B. Allcott, a mill site and water privilege on the Little Portage, and also the same right and privilege erect a dam at or below the entrance of the Small Portage, and carry the water by a race, etc. The dam which caused the flowage complained of, was built on the Big Portage, considerably further down stream than Kilgore’s north line, and set the water back, but not beyond or up to the north bank ot the Little Portage, and there was no race or other work connected with it built on Kilgore’s land.— Plaintiff claimed that there was no right to flow his land unless the dam and races were also built- upon it.

Held, That the ruling of the Court below that the deed authorized the flowing,if necessary,was correct. The conveyance was intended to grant a water power to which the race and dam were mere incidents, and the grantee was not compelled to use all the privilege granted unless she chose, but might erect the dam on her own premises. In effect the plaintiff makes complaint that he has not been damaged as much as he might have been by the flowing, which he had authorized by deed.

Judgmeut of the Court below affirmed with costs.  