Ejectment: Right of Vendee of Executory Land Contract Entitled to Possession: Vendor and Purchaser

1921 Michigan law review  
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more » ... out Early Journal Content at http://about.jstor.org/participate--jstor/individuals/early-journal--content. JSTOR is a digital library of academic journals, books, and primary source objects. JSTOR helps people discover, use, and build upon a wide range of content through a powerful research and teaching platform, and preserves this content for future generations. JSTOR is part of ITHAKA, a not--for--profit organization that also includes Ithaka S+R and Portico. For more information about JSTOR, please contact support@jstor.org. RECENT IMPORTANT DECISIONS RECENT IMPORTANT DECISIONS sluice-gates whereby the ice was destroyed. The plaintiff sues for the destruction.of the ice. Held, the plaintiff being the owner of the land under the pond had the right to harvest and sell the ice formed on the pond subject to the defendant's right to the reasonable use of the water; and as the act complained of was not reasonable the defendant was liable. Taft v. Bridgeton Worsted Co. (Mass., I92I), 130 N. E. 48. The overwhelming weight of authority is in accord with the principal case to the effect that the owner of the bed of the mill-pond has, as an incident to that ownership, the right to cut the ice thereon, whenever the exercise of that right does not materially diminish the head of water to the detriment of the mill-owner. Stevens v. Kelley (I886), 78 Me. 445; Eidmiller Ice Co. v. Guthrie (I894), 42 Neb. 238; Bigelow v. Shaw (I887), 65 Mich. 34I. In Myer v. Whittaker (I878), 55 How. Pr. (N. Y.) 376, an inferior court held that the one entitled to the flowage rights owned the ice. It is apparent from the opinion therein that the court considered that this right of flowage was for all purposes absolutely and did not consider the right of flowage as being limited to all purposes necessary to operate the mill. The court in Myer v. Whittaker, supra, relied upon Mill River Woolen Mfg. Co. v. Smith (1867), 34 Conn. 462, as supporting their holding. A later Connecticut court however cited the same case as an authority for the view that title to the ice was in the riparian proprietors. Howe v. Andrews (I892), 62 Conn. 398. The whole matter seems to resolve itself into one question: what was the scope of the easement granted to the mill-owner? If the right of flowage was for all purposes necessary for the operation of the mill the right of the mill proprietor is qualified; and the owner of the soil may harvest and sell the ice so long as the mill-owner is not materially interfered with in the operation of his plant. But on the other hand if the right given is for all purposes, the mill-owner gets an absolute interest in the water subject only to the rights of riparian proprietors below and could therefore, harvest the ice. EJECTMENT-RIGHT oF VENDEE oF EXECUTORY LAND CONTRACT ENTITLED TO POSSESSION-VENDOR AND PURCHASER.-P., the vendee in an executory land contract, was ousted by D., the vendor, although not in default. P. brought ejectment. Held, equitable ownership with right to possession is sufficient to maintain ejectment. Kingsworth v. Baker, 213 Mich. 294.
doi:10.2307/1277394 fatcat:kju2562k2nf7bebhsqojsdkrty