Sundays was checking the shed for overfreight and short freight and performing clerical work. There is no doubt that this could have been done on Monday except for the fact that it might have required more help, as stated. The plaintiff is not entitled to recover for Sunday service under the rule laid down in Allen v. Duffie, 43 Mich. 1; Com. v. White, 190 Mass. 578 (5 L. R. A. [N. S.] 320).

A new trial must be granted, unless the plaintiff shall remit from the judgment the further sum of $65.07. The defendant will recover costs of this court.

MCALVAY, C. J., and CARPENTER, GRANT, and BLAIR, JJ., concurred.

SALES

SCOTT v. BRUSSE.

RESCISSION-MISREPRESENTATION.

A purchaser of shares of stock cannot rescind because of misrepresentations by the seller as to its value on which he did not rely, having relied upon his own judgment and upon information received from other stockholders and officers of the corporation, nor because of false representations in an annual report of the corporation, sworn to by the seller, but not brought to the purchaser's attention before he made the purchase.

Appeal from Ottawa; Padgham, J. Submitted February 20, 1907. (Docket No. 113.) Decided June 3, 1907.

Bill by Benjamin L. Scott against William Brusse and Cornelia Brusse to set aside certain deeds. From a decree dismissing the bill, complainant appeals. Affirmed.

148 MICH.-34.

Wilkes & Stone, for complainant.

Diekema & Kollen, for defendants.

CARPENTER, J. In October, 1903, complainant transferred to defendants land in exchange for shares of stock in the Walsh-De Roo Milling & Cereal Company, a corporation doing business at Holland, Ottawa county. He brings this suit to secure a reconveyance of said land, upon the ground that fraud practiced by the first-named defendant induced him to make said transfer. An issue was framed. The case was heard, testimony being taken in open court, and a decree entered dismissing complainant's bill. That decree complainant asks us to reverse.

The testimony proves that complainant was deceived as to the value of the stock, for it was worth much less than the land exchanged for it. Did fraud for which defendants were responsible cause that deception? The charges of fraud made in complainant's bill of complaint are two in number:

(1) Certain false representations respecting the value of the stock made by said defendant William Brusse immediately before the exchange was made.

(2) Certain false representations respecting the assets and debts of the corporation made in its annual report filed in September, 1903, which report was sworn to by defendant William as secretary of said corporation."

We will consider each of these charges of fraud separately.

1. As to the alleged false representations respecting the value of the stock a careful study of the conflicting evidence convinces us that the only false representation respecting the value of the stock made by defendant William was this, viz.: He predicted that the stock would prove a profitable investment. We think that complainant was not entitled to relief on account of this statement, because in making the exchange he did not rely upon it. He at that time owned stock in the company, and had already formed a judgment as to its value. In making the

exchange in question he relied upon said judgment and upon the result of the information obtained by him from other stockholders and officers of the corporation.

2. Respecting the false representations in the annual report, it is quite clear that this report, which was sworn to by defendant William as secretary of the corporation, did contain material false representations. It is proper to say, however, that said defendant William acted in good faith in making this report. It contained false statements, because he was deceived by false entries on the books of said corporation made before he became its secretary. Complainant is not entitled to relief on account of the false statements in said report, because they were not brought to his attention before he made the purchase and they contributed in no way to deceive him.

We conclude, therefore, that the trial judge properly disposed of the case, and that the decree should be affirmed.

MCALVAY, C. J., and OSTRANDER, HOOKER, and MOORE, JJ., concurred.

On a bill to enjoin the maintenance of a milldam at an unlaw. ful height, evidence examined, and held, to show that complainant's lands were flowed throughout the year to a greater extent than they ever had been during the ordinary seasons, and that the water had been raised 20 inches above its usual height.

2. SAME-PRESCRIPTIVE RIGHTS · CREATION

PATION.

-

CONTINUOUS Occu

Occupation and use of a right of flowage or pondage, in order to create a prescriptive right, must be continuous and uninterrupted whenever necessary in the operation of the power, but need not necessarily be constant in the sense of daily occupancy or use.

Appeal from Livingston; Miner, J. Submitted April 9, 1907. (Docket No. 32.) Decided June 3, 1907.

Bill by Floyd Reason against Frank M. Peters to enjoin the maintenance of a dam at an unlawful height. From the decree rendered, both parties appeal. Remanded for further proof on the question of damages, unless defendant complies with certain conditions.

Louis E. Howlett, for complainant.

William P. Van Winkle, for defendant.

BLAIR, J. Complainant is the owner of certain farming lands in the township of Putnam, near the village of Pinckney, in said township. Defendant is the owner of a flouring mill property in the village of Pinckney. The mill was built as a water power mill in 1836, and has been in operation continuously since that time. The water power is obtained by damming Portage creek, which

flows in an easterly direction through the village of Pinckney, and a short distance north of complainant's land. The dam extends from the west side of the mill in a westerly and southwesterly direction for about 60 rods, and its lowest point is the south bank of the race for a distance of about 150 feet from the mill. The mill stands about 20 rods east of the highway, running south from the village of Pinckney. The wasteweir was about 35 or 40 rods west of the mill.

"The greatest strain is on that portion of the dam toward the southwest end. The dam angles, after it passes the wasteweir, to the south. From the waste weir to the mill it runs nearly east and west. There is more strain upon the dam at that point because it is exposed to the winds from the west more than any other place, and the great bulk of the water is right against that part of the dam, and the embankment is higher there. That was the lowest point in the ravine through which Portage creek runs, the natural water bed. The dam is higher at that point than any other from the surface of the soil. I would think it was 10 feet high at that point, wholly artificial, and, as we get farther to the west, the artificial portion of the dam is not so high. Same condition is true as you go toward the east. Between the wasteweir and the road and the bank is not high and runs off nearly on a level for some distance; then slopes gradually. The greatest strain on the dam is from the wasteweir to the west end, and, if the wind blew from the northwest, it would blow the water over against that portion of the dam.

* * *

Across the east end of the race, near the mill, there is what we call a 'weed rack,' consisting of a timber about 8 inches by 8 inches in size, and 18 or 20 feet long, laying across the race from one bank to the other, with slats fastened onto it standing up and down in the water to catch the weeds that flow down the race. That weed rack is probably 6 or 8 feet from the engine house, which is a little building built at the west side of the mill. The race or pond at that point is probably from 16 to 20 feet wide. The race was a little narrower at the west end than at the east end, and at a point where the north and south road crosses the race it was probably 14 or 16 feet wide. * * * That wasteweir was opposite the pond, and about 20 rods west of this north and south highway."