It is further ordered, adjudged and decreed that the plaintiff has a right of flowage and the right to flow the lands hereinafter described, as an appurtenance to his mill property, upon the premises above described, with a nine foot permanent head of water, to be measured by taking the vertical measurement from the bottom of the tail-water to the crest of the water at the head of the mill-race, and the right to increase said head one foot more, to be measured in the same manner, making a ten-foot head, provided the plaintiff and his grantees shall protect and save harmless from all injury all the abutting owners of land adjoining or being west of and below the mill dam of plaintiff as now constructed which may be occasioned by the rise of the additional foot of water in making such ten-foot head.

Said premises which said plaintiff has the right to flow for the purpose of his aforesaid mill with the head of water above set forth, are described as follows:

All the lands and premises of the above-named defendants and any and all of them upon sections thirteen (13) and twenty-four (24) of the Township of Burns, Shiawassee County, Michigan, which will be covered by the water as maintained, with the head of water above described, by the dam the above-named plaintiff now has, situated upon said section 24, in the Township of Burns aforesaid.

It is further ordered, adjudged and decreed that the above-named defendants owning premises abutting upon the mill pond maintained by the above-named plaintiff upon section thirteen (13) and twenty-four (24) of the Township of Burns, Shiawassee County, Michigan, are the owners of the premises covered by the water of said pond above referred to, and of the land under the water, and that their premises extend to the thread of the stream of the Shiawassee River.

It is further ordered, adjudged and decreed that the plaintiff 6hall have an easement in the nature of a right-of-way over the south ten feet of a piece of land extending from the Pontiac and Grand River Road to the Byron mill pond, so-called, and along said pond at the east side of said dam, being ten feet in width and about eighteen rods long; to be used for erecting, maintaining and repairing said dam and the banks of said mill pond, provided the plaintiff in using the same does as little damage as possible to the freehold; the land being more particularly described as bounded on the south by David Campbell's land, on the east by the Byron mill pond, on the north by the east branch of the

Shiawassee River, or what has been known as the saw-mill race, on the west by the Grand River Road, and situated on section 24 in the aforesaid Village of Byron, Michigan.

It is further ordered, adjudged and decreed that the plaintiff's right of flowage in the premises above described as aforesaid, for that purpose, and easements above referred to, are hereby quieted in the plaintiff for the purposes aforesaid.

All questions in regard to the repair, erection construction or maintenance of the bridge upon the Pontiac and Grand River Road over the mill race, are hereby reserved from the effect of this decree.

This decree shall be without costs to either the plaintiff or the defendants. SELDEN S. MINER,

Circuit Judge.

(h) Authorities Cited by Plaintiff-

Brief For Plaintiff

Two questions are raised by this appeal:

(a) The ownership of the land under the pond.

(b) The construction and maintenance of the bridge over the mil! race.

The rules of law relating to riparian rights are established in this state by:

Hartz v. Railway Co., 153 Mich. 33; 4th Ency. of Law (2nd Ed.) 836-837. A description in a conveyance of land describing the land as running to a stake on the bank of a mill pond, conveys the land up to the stake and no further.

Leinbeck v. Nye (Ohio), 24 N. E. 686; Brophy v. Richeson (Ind.) 36 N. E. 424; Eddy v. St. Mars (Vt.) 28 Am. Rep. 695; Carleton v. Cleveland (Me.) 92 Atl. 110. Deeds which described the premises as running "to the edge of the pond," and as being bounded "on the edge of the pond," in the absence of any mention of the pond or of rights in its waters, or any other statement showing a wider intent, passed title only to the low water mark of the pond.

Lynfield v. Peabody, supra. By Statute in 1855, the legislature required that mill owners construct and maintain bridges across their races when the race was constructed subsequent to the formation of the highway. Public Acts of 1855, No. 149.

This court has held that this statute merely recognized a duty existing at common law, and that the statute did not impose any new duty but only gave a sufficient remedy for neglect of a duty before existing.

Merrill v. Kalamazoo, 35 Mich. 211. In 1909 a new act was enacted in which the act of 1855 above referred to was incorporated verbatim as amended by Act 65 of the Public Acts of 1875, page 97. In 1915 an act was enacted repealing certain obsolete and inoperative laws, and among the acts so repealed was the above Act of 1855, No. 149. The act of 1909 so far as it relates to the Act of 1855, as amended, must be construed as a combination of the act of 1855, and not as a new enactment.

26 Ency. of Law (2nd Ed.) 733-734. That being the case, the repeal of the original statute, makes the entire law In that respect cease to exist, and if the Act of 1855, as amended, was obsolete and inoperative the same provisions in the revisions of 1909 are also obsolete and inoperative.

26 Ency. of Law (2nd Ed.) 737. If this statute is obsolete and inoperative, surely the common law must be equally obsolete and inoperative. There is therefore no duty or obligation upon the plaintiff in this case to construct and maintain a bridge across the race in question and that the court was powerless to declare any such duty or obligation. Railroad Co. v. Read, 16 Wal. (U. S.) 270; Camden v. Allen, 26 N. J. L. 398; Pratt v. Short, 79 N. Y. 442.