here the rule of mutuality applies. Upon that objection alone the demurrer should have been sustained. In this view of the case it becomes unimportant to consider the other grounds of demurrer.

The remedy by specific performance is inappropriate, and the order overruling defendants' demurrer is reversed, with costs. A decree may be entered in this court sustaining the demurrer and dismissing the bill, without prejudice, of course, to any proceedings at law complainant may desire to take.

MOORE, MCALVAY, BROOKE, KUHN, STONE, OSTRANDER, and BIRD, JJ., concurred.

scriptive right from long use was entitled to impound the water.

3. SAME-PRESCRIPTION.

Prescriptive rights arising from the maintenance of a dam cannot be increased by raising the crest of the dam or by maintaining a tighter and more perfect dam at the same height, thus forming a greater obstruction to the flow of water and increasing pondage.

Appeal from Antrim; Lamb, J., presiding. Submitted January 24, 1913. (Docket No. 24.) Decided May 28, 1913.

Bill by Samuel Brockway and others against the Hydraulic Power & Light Company to restrain defendant from flooding lands of complainants. From a decree for complainants, defendant appeals. Affirmed.

Covell & Cross and Thomas D. Meggison, for complainants.

Fitch R. Williams (E. N. Clink and C. L. Bailey, of counsel), for defendant.

STEERE, C. J. This is an injunction suit involving the alleged flooding of lands by damming. It was heard on pleadings and proofs, taken in open court, and comes here on an appeal from a decree of the circuit court of Antrim county in chancery in favor of most of the complainants, requiring the defendant to lower the wasteweir of its dam on Intermediate river 24 inches, and restraining it from maintaining said dam at any greater height. The bill of complaint is filed by 12 riparian owners whose lands, amounting to several hundred acres, have a water frontage upon Intermediate lake of several miles in extent. Complainant Brockway owns and has occupied for many years a small island, containing about 112 acres of land, located about a mile from the south extremity of Intermediate lake, on which he has erected various buildings and maintained a summer resort. This lake is long and narrow, its outlet being Intermediate river, which is one of the connecting links in a continuous chain of lakes and streams extending nearly across Antrim county, with an outlet into Grand Traverse Bay at Elk Rapids. Defendant, a Michigan corporation, maintains an electric lighting plant in the village of Bellaire, and obtains water power developed at a dam on Intermediate river located from 11/8 miles to 114 miles below the lake and about 214 miles from Brockway's island. Defendant's predecessors erected a dam, in the year 1881, upon said river at the location of the present dam, constructed of sand and gravel, with a plank and timber curb at the spillway, with a height of eight feet of water at the dam and by cutting a tailrace across the neck of land at a lower point in the river secured a head of 912 feet of water at the wheel-pit. About ten years before the trial of this cause repairs were made on the flume and raceweir of that dam so as to carry a head of 13 feet at the wheel. In 1904 the head of water is shown to have been 12 feet. In the year 1906 the dam in controversy was built upon the side of the old dam, and, by the use of an eight-inch flashboard at the spillway, together with dredging in the river below, a head of 16 feet 4 inches was obtained.

The bill of complaint was filed in this cause in 1908, and alleges, among other things, that this new dam, wasteweir, and flashboards erected within the preceding year and a half raised the water very materially above the level of the old millpond in the river and so high as to raise Intermediate lake above its normal level, causing it to overflow and seriously damage large areas of land owned by the complainants in and on the borders of said lake.

Defendant, answering, denies that the new dam was built any higher than the old, or that it retarded the flow of water from Intermediate lake and through the river to any greater extent than did the old dam, or caused the water to rise and overflow the lands of complainants to any greater extent than formerly, and again raises the point, previously raised by a demurrer which was overruled, that the bill of complaint contains no allegation that defendant owned or controlled said dam.

It is now urged and argued in defendant's brief, as a defect fatal to complainant's case, that ownership of the dam by defendant is neither alleged nor proven. If ownership and title to the realty and technical proof of the same, were essential to the issue involved, this question might require more serious consideration. Complainant's claim of injury is not based on what defendant owned, but on what it did and is doing. The pleadings and proofs on both sides fairly present such issue. The bill of complaint alleges that:

"Defendant is possessed of a certain parcel of land

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upon

situated in the village of Bellaire which is located an electric light and power plant, with millpond, millrace, wasteweir, and the necessary equipment to operate the said electric light and power plant by water power. Said dam is located on said river about one mile below said lake.

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That the said defendant's dam and the wasteweir therein has been built much higher than the old dam and wasteweir causing the waters of said stream to rise in the pond formed by defendant's said dam to a height of five or six feet above the level of the waters of said old millpond, and the defendant's said dam is so constructed that by the use of flashboards, etc., by reason of the construction and maintenance of said dam and the raising of the waters of said stream in said pond, as aforesaid, the waters of said Intermediate lake have been raised considerably above their normal level and caused to overflow and flood large areas of land lying along the border of said Intermediate lake which were not previously flooded," etc.

repeatedly throughout the bill of complaint designating the dam in question as "defendant's dam" and stating what defendant had done in that connection.

Defendant, in its answer

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"Admits that the Hydraulic Light & Power Company is a corporation, etc., that it is possessed of a certain parcel of land situated in the village of Bellaire; but denies that upon said land so possessed there is a millpond, millrace, and wasteweir; admits that it has an electric light and power plant and necessary equipment to operate said light and power plant by water power; admits that the water power used to operate said plant is obtained by damming a stream known as Intermediate river which is the outlet of a body of water situated in said county; denies that it owns the land upon which said dam, millpond, millrace, and wasteweir are situated."

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And

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"This defendant, further answering, alleges and so charges the fact to be that it has built, at the expense of many thousands of dollars, a large and up-to-date water power, electric power house, fully equipped with all necessary machinery for generating electricity; that if defendant should be decreed by this court to lower its dam it would suffer a loss of many thousands of dollars through loss of power; that it has carried a head of water not to exceed 16 feet at its present dam and, by so doing, with the amount of head obtained by dredging the stream below, and the normal level of Intermediate lake, has not raised the water of Intermediate lake, so called, as alleged by complainants in their bill."

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The respective pleaders appear to be in harmony in designating the dam, over which this controversy arose, as belonging to defendant and in applying their respective averments of what defendant did or did not do to this identical dam, and the proofs are along the line of their allegations. It is fairly shown by the pleadings and proofs that defendant is in possession