
    WOODEN v. MT. PLEASANT LUMBER & MANUFACTURING CO.
    1. Waters — Obstruction or Stream — Rights or Mill Owner.
    One who is not injured by the maintenance of a dam by means of which a mill is operated cannot, when sued by the mill owner for obstructing the natural flow of the stream to the mill,- defend by setting up that the dam was constructed without proper authority from the board of supervisors, under 1 How. Stat. § 494.
    2. 'Same.
    A log owner who fills the bed of a stream with logs in winter, when it is not navigable, thereby interrupting the natural flow of the water, is liable in damages to a lower proprietor who is injured thereby.
    Error to Isabella; Daboll, J., presiding.
    Submitted June 18, 1895.
    Decided September 26, 1895.
    Case by Sarah B. Wooden against the Mt. Pleasant Lumber & Manufacturing Company for the unlawful obstruction of a stream. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    Plaintiff owns a grist mill, propelled by water power, created by a dam across the river Chippewa. The dam was built in 1870, without any authority from the board of supervisors. In 1873 the then owner presented a petition to the board, in which he set forth the construction of the dam, the building of a chute or apron for the passage of logs and ñsh, and asked that the dam be declared by the board to be such a dam ias was required by law, and that it be allowed to remain as then constructed, and he be vested with the, rights and privileges granted to owners of dams under the law. The board adopted a resolution in accordance with the prayer of the petitioner.,
    The defendant, during the winter, put logs into the river and along its banks, about four miles above tbe dam, ready for driving in the spring. Tbe banks were low. Rollways were made, and logs piled upon them the whole width of the stream. Plaintiff claims that tbe effect of this was to stop the flow of tbe water so as to destroy tbe supply for her mill. This suit was instituted to recover damages for such unlawful act. Tbe defense was (1) that tbe dam was built without authority, and that tbe proceedings before tbe board of supervisors were void, because tbe petition was not in compliance with the statute, and that no notices of tbe petition were shown to have been posted in tbe several townships before tbe hearing; and (2) that the defendant banked its logs in the usual and a reasonable manner, and therefore is not liable for obstructing tbe flow.
    I. A. Faneher, for appellant.
    
      Free Estee (M. Brown, of counsel), for appellee.
   Grant, J.

(after stating the facts). Tbe defendant is not in position to raise tbe question of tbe regularity of the proceedings before the board of supervisors. No interference with its right of navigation for tbe purpose of running logs is claimed. Tbe plaintiff obtained tbe right of flowage over all tbe land affected thereby. Her business is a lawful one. The defendant is not injured by her act. It was not at tbe time engaged in navigation. Tbe stream at that time was covered with ice and snow, and could not be navigable until spring, after tbe ice and snow bad melted. Land-owners are entitled to the natural flow of the water, subject to such interference as is caused by tbe use of tbe stream for navigation in tbe usual manner. Even if plaintiff’s dam was constructed without proper authority, defendant, could not maintain a direct action to abate it as either a public or a private nuisance so long as defendant is not injured thereby. Gould, Waters, § 364; Brown v. Perkins, 12 Gray, 89. Much less will defendant be permitted to attack it collaterally.

Briefly stated, the second def ense is that a log owner may lawfully fill the bed of a stream with logs in winter, when it is not navigable, and obstruct 'the natural flow of the water for months, depriving land-owners below of its natural use, and flooding the lands above. The proposition carries with it its own refutation, and no argument can make it clearer. Land and mill owners are entitled to the natural flow of the water, subject to the reasonable use for the purposes qf navigation. Had these logs been placed in the river when it was navigable, for the purpose of running them, a different question would arise, which need not now be discussed, as it is not before us. The defendant was not using the stream for navigation, and its act was unreasonable and unlawful. As applied to the facts of this case, the instruction of the court below that the plaintiff was entitled to the natural flow of the water, so as not to injure her business, was correct.

Judgment affirmed.

McGrath, C. J., Montgomery and Hooker, JJ., concurred. Long, J., did not sit.  