Michigan, in metes and bounds, as follows: Running west to the water's edge as it now exists in said mill dam; thence south according to the meanderings of the water's edge, thence east according to the meanderings of said water's edge to the mill dam; thence north to the place of beginning. Also the rights of flowage over the lands of the said parties of the first part and adjoining lands whereby he may raise and maintain the mill dam now on the lands herein before described, and raise the water in said dam to the height of eight feet from the bottom of the shute now in the said dam, with the further right to raise the same to high-water mark as the same passes over the wasteware in said dam, so that the party of the second part may keep the water up to high-water mark at all times that to him shall be convenient and desirable."

The village comprises the S. of section 9, S. W. of section 10, N. W. of section 15, and the N. of section 16. The dam is located on section 10, a few rods east of the section line between sections 9 and 10. A little more than half of the surface of the mill pond is within the village limits. The other part lies north in the township. Chestnut street in said village is one of the principal thoroughfares, and extends to the northern limits of the village in the mill pond.

In 1892 a public highway was laid out by the defendant township to connect with Chestnut street, and a wooden bridge on piles constructed over the pond and river bed. In 1901 the bridge became out of repair, and the township voted to construct a new roadway by erecting an iron bridge with a span 45 feet wide, and filling in with earth on either side. Money was duly appropriated for that purpose, and the filling commenced in 1901, by drawing dirt and dumping it through the wooden bridge. The natural channel of the river in the span of the bridge is about 19 feet wide. The fill from the south end of the bridge to the south shore of the pond is 443 feet long, and from the north end of the bridge to the north shore 53 feet. Notice was seasonably given by the complainants to the township authorities that the construction of this

road by filling in with dirt was an encroachment upon their rights and a damage to them. The township proceeded with the work, until the fills on either side left an opening or span of about 81 feet. Complainants then filed this bill to enjoin further filling and to recover damages for the fills already made.

A short distance below the highway are the bridge and track of the Grand Rapids & Indiana Railroad. That bridge is built upon piles with an opening of 124 feet between the embankments. When the dam is full the back water extends nearly a mile up the river. The highway bridge is about half a mile from the dam. The width of the pond is about 1,500 feet. The natural depth in the bed of the stream is 15 feet.

After the injunction was served, a stipulation was entered into waiving the injunction so far as to permit defendants to level off the surface of the earth embankment, fit it for travel, to erect a temporary wooden bridge over the open water between the iron bridge which had already been erected and the other enbankment, and in time replace the temporary structure with an iron bridge. The iron bridge was subsequently constructed. This stipulation reserved to the complainants all their rights to an amicable settlement or by suit either in chancery or at law. Failing to agree, complainants prosecuted the chancery suit already begun. Proofs were taken in open court, and a decree rendered for the complainants for $4,000 damages, and requiring defendants to "put in substantial stone or cement abutments at the north and south ends of the bridge, and so provide that the ends of the embankments in question will not thereafter wash away, and to within the same time remove the disused wood piles now in the water under said bridge, so that the flow of the water thereunder may be unimpeded." Upon failure to perform these affirmative acts, the preliminary injunction was to be "permanent and perpetual, without exception or qualification."

The situation may be more readily understood from the accompanying plat.

Further essential facts will be found in connection with the points decided.

Charles A. Withey (M. Brown and J. E. Richardson, of counsel), for complainants.

B. N. Savidge (C. H. Rose and J. B. Judkins, of counsel), for appellant.

GRANT, J. (after stating the facts). 1. This highway was laid out in May, 1892. The proceedings were regular. Andrews' grantors, then owning the mill site and the 10 acres above described, and perhaps certain rights of flowage of other lands, were made parties to those proceedings and damages awarded them. In the petition and other papers no reference was made to the erection of a bridge. Necessarily the construction of one was implied. The highway was of the usual width, 66 feet. The old mill-a grain mill-and the race had previously been burned. Nothing was left but the dam and a residence and barn. When the fire occurred the record fails to show. No steps were taken to question the validity of the highway proceedings. Andrews' grantors rested content with the determination of the highway commissioner and the award of damages. The first question naturally presented is: What kind of a highway did the township authorities acquire the right to construct?

The complainants Andrews have.shown no title to the land abutting the shore or the land under the water where the highway is located. If they have any right of flowage, it is by prescription, and as to that the evidence is meager. Undoubtedly the grantors of Mr. Andrews were made parties on account of their supposed right of flowage. The township thereby became a riparian owner and possessed the right to occupy this space, 66 feet wide, across the mill pond in the construction of a highway for the public. It was not limited to any particular form of structure. It was under legal obligation to leave an opening sufficient for the flow of the water at all ordinary

stages of both high and low water. Having done this, it might erect a solid embankment from the shores to the bridge over such opening. It has left one over the natural channel and current of the river and extending 60 feet outside of such channel, with an average depth of 10 feet. If such a construction is reasonable, and we think it is, and one which the interests of the public demanded, of which there is no doubt, it being one of the principal thoroughfares of the village and township, the action of the township is lawful, and any injury to the complainants is damnum absque injuria. This court said, in Dumont v. Kellogg, 29 Mich. 420:

"It is therefore not a diminution in the quantity of the water alone, or an alteration in its flow, or either or both of these circumstances combined with injury, that will give a right of action, if in view of all the circumstances, and having regard to equality of right in others, that which has been done and which causes the injury is not unreasonable. In other words, the injury that is incidental to a reasonable enjoyment of the common right can demand no redress."

The reasonableness of the use and enjoyment in each particular case is the controlling factor. Rowe v. Granite Bridge Corporation, 21 Pick. (Mass.) 344; Sprague v. City of Worcester, 13 Gray (Mass.), 193. In the latter case Chief Justice Shaw held that "all the defendants [the municipal authorities] were bound to do was to build a bridge with a waterway reasonably sufficient to carry off the water in its ordinary and usual condition, at all seasons of the year." See, also, Callender v. Marsh, 1 Pick. (Mass.) 418; Ely v. City of Rochester, 26 Barb. (N. Y.) 133; Hoxsie v. Hoxsie, 38 Mich. 77. But for the complainants' mill pond a bridge covering an opening of 45 feet would have been amply sufficient. Other bridges in the vicinity over this same stream, above and below, are built with that width of opening.

2. Without entering into details of the evidence, we are satisfied that complainants failed to make out a case for damages. It seems apparent that a space 81 feet