"The dam went out while I owned it, west of the highway, near the middle. I repaired it and built it up some higher than it had been before. I remember when Mr. Klem was in the mill he carried the water higher than it had been before, and I remonstrated with him from time to time, and I asked Barney Lynch to let me know if he continued to carry the water dangerously high. Lynch could at any time tell the height of the water in the pond by the depth of the water in his cellar. Klem went into the mill in the fall of '96. Reason never complained to me about the water being on his land until the time we were repairing the dam.

went into the mill.

That was the next season after Klem Then he came to me and told me that the water stood back from the pond upon his land. I told him Klem had been in the habit of carrying the water too high, and that I remonstrated with him on that account. I don't remember that Reason also told me that the water backed up onto Monk's, but I understood from him that from the height to which Klem carried the water it backed up onto their land, so there was this arrangement made between Reason and me, whereby they were to put in the tile to take off this surface water and they were to build this little dam. These tile were to run along the edge of the pond, through the dam and out into the wasteweir below the dam. The tile were put in while the water was down in the pond at the time we were repairing the dam after it went out for Klem. I am quite certain the joints of these tile were not cemented together. Reason proposed to put in a little dam on the edge of the pond to keep the water from backing up on their land. I built the dam two or three feet higher than it was when I found it. You see the trouble is it was low and the northwest wind sweeps the length of it and brings the water there. We had to raise that; put stone in front of the dam to protect that part of it, the west end, and no other part, only that that is exposed to the northwest wind.

* *

*

"It was never carried as high as the time Klem carried April 19, 1897. That was Sunday night, and it was almost a cyclone from the northwest, and he carried it just as full as it could hold, and, of course, it drove down and washed the dirt off and when it once got to going away the whole business went."

Mr. Frank Johnson testified:

"I couldn't say what portion of the time we had a 14

foot head when I was operating the mill. We tried to keep it up there all the time we could. In the spring of the year when we had plenty of water, we would let it run over the wasteweir. In the spring when the water was coming in plenty, we would let it run off so as to be safe, but as the rains and water began to die away we would keep it up as near 14 feet as we could because we needed the water."

There was also evidence that the south bank of the race at the lowest point in the dam had been raised from four to six inches by depositing coal ashes there. Mr. Johnson testified that the south bank was not raised at this point while he owned the mill.

"If there are any ashes on the surface of that dam now on the south bank, then it is higher to the depth of those ashes than it was in 1883."

Mr. E. A. Mann testified that he did not remember of any ashes being put on this bank while he was there.

"If there were any there, it would raise the bank to that extent."

Complainant and Mr. Pennington testified the last day of the hearing that they dug down into this bank at several spots, 15 feet apart, and found, under an inch or so of soil, coal ashes, ranging from four inches at the east end to six inches at the west end. This testimony is undisputed. Since 1895, therefore, when Mann sold out, the dam has been raised from two to three feet, and probably more, on the west end, and from four to six inches at the lowest point in the south bank of the race. While the raising of the dam at the west end would not affect the ponding capacity of the dam, it would affect the height at which the water could be safely carried, and especially during spring floods, with high winds to drive the water against this portion of the dam. Again, during the time that Johnson and E. A. Mann were operating the mill, they were obliged to use steam power to help out the water power, while since Birkett owned the mill it has been operated by water power alone, and "it took more

power to operate the mill after the roller process was put in than it did before." The raising of the dam affected the height of water which could be safely carried in the spring and fall as well as in the summer. If the dam to

the west of the wasteweir were at the same level with the lowest point of the south bank of the race, the water could not be carried near to the top of the race bank without endangering the dam, as experience demonstrated. If the dam near the wasteweir were raised sufficiently high to withstand the assaults of the wind and waves, the race could be carried nearly bank full with safety.

As the first flooding of complainant's lands by the waters of the pond in 1896 was occasioned by Klem carrying the water at an unusual and dangerous height, it is reasonable to suppose that, with a higher dam, defendant's carrying the water at an unusual height has caused the flooding for the years since the little dam was destroyed. The evidence as to the head of water at the mill or the lowest point in the dam is not very satisfactory. No levels or exact measurements appear to have been taken, either at the mill or elsewhere. The defendant testified that there was 13 feet and 8 inches head when he bought the mill. Birkett testified:

"The race bank on the south side isn't more than 6 inches higher than the 14 feet. I have had the water in the race high enough so it would trickle over the south bank. That point is the lowest point in the entire dam, and there is a good stiff sod there, so the water wouldn't cut in. The race bank was never changed any, or raised, to my knowledge. I have been there since I owned the mill, and, as far as I could see, the banks are the same and the flume is the same. While I say that 14 or 15 feet was the highest head or high water mark, I would think if it was lowered to 11 or 12 feet running head that would be about the lowest that they could hold it and do business. I think that about 12 feet running head would be the limit, so that I put the limit between high and low running head at approximately 2 feet. If you get below that, you couldn't successfully operate the mill. During the time I owned the mill it was operated during all the

months of the year and during the time they had sufficient water it was kept up to 14 feet head. In dry times the water would go down, and then in seasons of more rain or wetter times, the water would be held up again."

The extent of the right of flowage by prescription is not measured by the height of the dam but by the extent of the use of the lands flowed, and the burden of proving the extent of such use

"Is upon the defendants to show that they have for a period of 15 years, at least, each year flowed complainants' lands to the height complained of and established by their proofs, and that such use of complainants' lands by flowage has been adverse, uninterrupted, peaceable, open and notorious." Turner v. Hart, 71 Mich. 128.

See, also, Chapel v. Smith, 80 Mich. 100; Osten v. Jerome, 93 Mich. 196; A. P. Cook Co. v. Beard, 108 Mich. 17; Pluchak v. Crawford, 137 Mich. 509.

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Occupation and a use of a right of flowage or pondage, in order to create a prescriptive right, need not be constant in the sense of a daily occupancy or use. It must be continuous and uninterrupted, but not necessarily constant. It is necessarily an irregular use, depending upon season and rainfall; and it is sufficient if the use be the ordinary use and be resorted to without interruption whenever necessary in the operation of the power." Cornwell Manfg. Co. v. Swift, 89 Mich. 503.

season.

The ordinary use must be determined by the ordinary Fluctuation in the height of the water caused either by extraordinary rainfalls or freshets would not enlarge the right, nor would fluctuation caused by unusual drouths diminish the right. Allen v. Electric Co., 144 Mich. 370; Johnson v. Boorman, 63 Wis. 268. The defendant failed to show by a preponderance of the evidence that he was not flowing complainant's land to a greater extent than it had previously been flowed each year for 15 consecutive years with the ordinary use of the milldam during ordinary seasons, and the complainant, in our opinion, did prove, by a preponderance of the evidence, that his lands were flowed throughout the year to a

greater extent than they ever had been during the ordinary seasons, and that the water has been raised 20 inches above its usual height.

In view of the limited extent of the injury and the number affected who have a right to complain, its character, the comparative values of the properties, and other considerations presented by the record, we agree with the circuit judge that a decree for such damages as complainant has and will in the future suffer in consequence of defendant's acts would be more appropriate to this case than a decree to lower the dam or permanently remove flashboards. We also agree that complainant's damages were considerably overestimated by him, both in his bill of complaint and in his testimony, and that there is no satisfactory basis in this record for determining the amount of such damages.

Under the circumstances, we think it best to remand the record to the circuit court for the taking of further testimony as to complainant's permanent damages, unless defendant prefers to reduce the ponding capacity of the dam, by removal of flashboards, 20 inches, in which event complainant's damages will be the rental value of the lands wrongfully overflowed and injured by such overflow for the period defendant has overflowed them, and a decree will be entered in the circuit court as the case may then appear. Complainant will recover costs of this court.

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