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for a series of years, it ought to be governed by the same rules that apply to other watercourses. It has often been decided both in England and America that watercourses made by the hand of man may have been created under such conditions that, so far as the rules of law and the rights of the public or of individuals are concerned, they are to be treated as if they were of natural origin. Baron Channell said of one of them, in Nuttall v. Bracewell, L. R. 2 Ex. 1: "It is a natural stream or flow of water, though flowing in an artificial channel." Other cases recognizing the doctrine are the following: Magor v. Chadwick, 11 Ad. & E. 571; Holker v. Poritt, L. R. 8 Ex. 107; Sutclife v. Booth, 32 L. J. Q. B. 136; Reading v. Althouse, 93 Pa. 400; Weatherby v. Meiklejohn, 56 Wis. 73, 13 N. W. 697. The principle is analogous to that under which other rights are acquired in real property by prescription or adverse use. If the public authorities, 572 representing the sovereign power, by a formal legislative act in 1652, took a part of the water of the Charles river and conducted it three-quarters of a mile through a new channel, and thereby made a new watercourse, satisfying by compensation or otherwise all private rights of property affected by the change, if there were any, there would be good ground for contending that thereby a watercourse was established, which should be treated at once by the courts like a natural watercourse. Certainly after a long lapse of time, and even after no more than twenty years, if this watercourse continued without change, with the acquiescence of the public authorities and of everybody interested, there is every reason, both upon principle and authority, for applying the same rules of law to it as to a natural watercourse. In the early years of the colony the towns, for many purposes, were representatives of the sovereign power as to the management and disposition of common lands and public rights in land within their boundaries: Attorney General v. Herrick, 190 Mass. 307, 76 N. E. 1045, and cases cited. It is conceivable that the mere construction of a watercourse and dedication of property to that use by all the persons whose rights of property might be affected by the change, with acceptance by the public, if public interests were involved, might give these persons the same rights in it that they would have if it were a natural watercourse. It is unnecessary to determine for every conceivable case under what conditions such rights might be created. We think, in the present case, that if the flow of water through Long Ditch for many years was such as would constitute it a natural watercourse carrying a part
of the water of the Charles river if the flow had begun without artificial aid, the jury might find that it was a watercourse to which the same rules of law apply as are applicable to natural watercourses.
As there was evidence tending to show that an important reason for digging the ditch was drainage of the meadows, and as there was other evidence relied on by the defendants, it was a question of fact for the jury whether it was ever in any proper sense a watercourse of any kind, or anything more than a ditch for carrying off surface water and draining the land through which it passed.
If this should be treated as a watercourse, the judge rightly 573 ruled that the defendant would be liable if it maintained a dam which held back the water that otherwise would have flowed through the ditch, and thus sent down the Charles river an increased quantity of water, to the injury of the riparian proprietors below. But he was wrong in telling them that, if this was a nuisance affecting all the riparian proprietors on the stream below, not affecting one person more than another, this is not the proper remedy. By an illustration he suggested that the remedy in such a case would be by indictment, and added: "If this dam did not affect the particular plaintiff more than any other owner on the stream below the locus of the dam, then perhaps this defendant might be called into some other court to answer, rather than in this in an action of tort." The plaintiff's request on this subject was as follows: "The plaintiff can recover if he proves any special damage to his land, although similar damage may have been sustained by some other riparian proprietors." This instruction should have been given. The rule is that if every riparian owner suffers damage in his property precisely like that of every other riparian owner, he may have his remedy in an action of tort: Lawrence v. Fairhaven, 5 Gray, 110; Wesson v. Washburn Iron Co., 13 Allen, 95, 90 Am. Dec. 181; Blackwell v. Old Colony R. R. Co., 122 Mass. 1. The plaintiff asked the judge to instruct the jury that "the fact that other obstructions had grown or been placed in Long Ditch, will not preclude the plaintiff from recovery if the dam erected by the defendant contributed or tended to impede the free flow of water through the ditch." The proposition of law intended to be embodied in the request is correct: Wheeler v. Worcester, 10 Allen, 591; Jackman v. Arlington Mills, 137 Mass. 277; Sherman v. Fall River Iron Works, 5 Allen, 213; Monmouth v. Gardiner, 35 Me. 247. But there was no error in refusing the
instruction, for the mere fact that the dam tended to impede the flow of water through the ditch, would not necessarily show that it would so far affect the flow of the Charles river as to cause any injury to the plaintiff's property.
It is true, as the plaintiff contends, that to maintain an action he is not obliged to show in his use of the land actual present damages. It is enough if it appears that an injurious effect is produced upon his property by the maintenance of the dam, such 574 as to diminish its value, if the defendant, by lapse of time, should acquire a right to maintain the dam: Newhall v. Ireson, 8 Cush. 595, 54 Am. Dec. 790; White v. Chapin, 12 Allen, 516; Peck v. Clark, 142 Mass. 436, 8 N. E. 335; Parker v. American Woolen Co., 195 Mass. 591, 81 N. E. 468, 10 L. R. A., N. S., 585.
A Watercourse is a Stream of Water Ordinarily Flowing in a certain direction, through a defined channel, with bed and banks; the size of the stream is not material: Maxwell v. Shirts, 27 Ind. App. 529, 87 Am. St. Rep. 268. As to whether a watercourse may be artificial as well as natural, see Hawley v. Sheldon, 64 Vt. 491, 33 Am. St. Rep. 941; Missouri Pacific Ry. Co. v. Keys, 55 Kan. 205, 49 Am. St. Rep. 249; Diana Shooting Club v. Lamoreux, 114 Wis. 44, 91 Am. St. Rep. 898. Where the flow of a stream has been diverted from its natural channel, or obstructed by a permanent dam, and this has continued for the time necessary to establish a prescriptive right, the riparian owners along the stream, who have improved their property with reference to the change and in reliance on the continuance thereof, acquire a reciprocal right to have the artificial conditions remain undisturbed: Kray v. Muggli, 84 Minn. 90, 87 Am. St. Rep. 332. As to the liability to riparian proprietors of one who overflows their land by constructing a dam, see Allen v. Thornapple Electric Co., 144 Mich. 370, 115 Am. St. Rep. 453; Rankin v. Harrisonburg, 104 Va. 524, 113 Am. St. Rep. 1050; note to Mizell v. McGowan, 85 Am. St. Rep. 711.
DRIGGS v. BUSH.
[152 Mich. 53, 115 N. W. 985.]
STATUTE OF FRAUDS.-Part Payment, to Take a Contract for the Sale of goods out of the statute of frauds, need not be in money. (p. 391.)
STATUTE OF FRAUDS-Part Payment.-The Baling of Hay by the Purchaser Thereof, in pursuance of an oral contract of sale, constitutes a sufficient part payment to take the transaction out of the statute of frauds. (p. 393.)
SALE-Damages for Breach of Contract.-Vendors of Goods Who have repudiated the sale and refuse to make a delivery cannot urge, in a suit against them by the vendee to recover damages, that the title to the goods has passed by delivery and receipt. (p. 393.)
Anderson & Warner, for the appellants.
Barnard & Lewis, for the appellees.
53 MONTGOMERY, J. The plaintiff is a buyer of hay, and through his agents, Homer B. McWilliams and John Van Horn, made a contract with the defendants, who own and operate two farms in Van Buren county, and who were the joint owners of the hay crop thereon, for the purchase of twenty-four tons of hay or more, at the option of the defendants. The contract was by parol, and as appears by the testimony offered on behalf of the plaintiff, was as follows: 54 "Mr. Dean said, 'I want ten dollars a ton, and you bale the hay.' We finally bought all of the hay for ten dollars a ton and we to do the baling and we were to take the hay the first cars we could get at Gobleville after the hay was baled.”
The testimony of the other witness for plaintiff does not. vary materially from this, he stating: "We were to pay him ten dollars a ton for it, and we was to pay for the baling." It was also a part of the agreement that the defendants. were to draw the hay to Gobleville and place the same on board cars. After the contract was made, the plaintiff sent
balers to the premises of the defendants, who baled the hay, the defendants being present and assisting in the work. The price paid for baling the hay was one dollar and ten cents per ton, or thirty-three dollars and fifty-five cents, that being the regular price for such services. The defendants subsequently refused performance of the contract, and this action was brought to recover damages for the breach. Plaintiff was permitted to recover below the difference between the purchase price of the hay and its actual market price at the date when delivery was contemplated. Defendants bring error, and contend that the contract was void under the statute of frauds, and has never been validated, and this presents the principal question for our consideration.
Our statute of frauds, 3 Compiled Laws, section 9516, reads as follows: "No contract for the sale of any goods, wares or merchandise, for the price of fifty dollars or more, shall be valid, unless the purchaser shall accept and receive part of the goods sold, or shall give something in earnest, to bind the bargain or in part payment, or unless some note or memorandum in writing of the bargain be made, and signed by the party to be charged thereby or by some person thereunto by him lawfully authorized."
It is obvious that at the time this contract was made there was no such delivery or part payment as satisfied the terms of this statute. But as this statute does not require the payment or acceptance to be at the time of the 55 making of the contract, as is the case in New York and some other states (see 1 Mechem on Sales, sec. 419), it is competent for the parties to validate their contract by any act which amounts to a delivery and acceptance or to a payment. The circuit judge was of the opinion that when the hay was baled by the plaintiff's agents upon the premises of the defendants and with their co-operation, this constituted such a delivery and acceptance as would answer the requirements of the statute of frauds.
It is strenuously insisted that there was no such delivery or acceptance, and plaintiff's counsel do not seek to maintain that there was. Without passing directly upon the question, therefore, in this case, we may assume that there was no such completed delivery as the statute requires, and that the defendants still retained the title to the property after the same was baled. We are not concerned with the correctness of the reasoning of the circuit judge if the correct result was reached. The question occurs, therefore, whether the expenditure of one dollar and ten cents per ton upon this hay, which re