covered evidence. The court, in the reasons given for refusing to grant a new trial, said, upon this matter:

"The newly discovered evidence offered now was known to defendant before the trial of the case, except the two witnesses, Julia Walsh and Mary Hutchins, both of whom reside in the same town as does defendant; one being his cousin. There is no showing of diligence on defendant's part, and his affidavit in support of the motion fails to show that he is entitled to a new trial by reason of this."

Under the decisions of this court in Canfield v. City of Jackson, 112 Mich. 120 (70 N. W. 444), and Burke v. Electric Co., 147 Mich. 172 (110 N. W. 524), an examination of the affidavits in support of this motion satisfies us that defendant failed to make a sufficient showing to entitle him to a new trial, and that the court was not in error in denying the motion.

There remains for consideration the further assignment of error upon the claimed prejudicial argument of counsel for plaintiff in his closing argument to the jury. We have examined the excerpts from such argument, to which exceptions were taken, and, although we find that counsel in the heat of argument used very vigorous language, when the character of the case is considered, all the testimony bearing upon the conduct of the defendant and admissions of his relations with plaintiff, his criminal conduct in securing and paying for a criminal abortion upon her, we can understand the pressure under which counsel in the case were laboring.

Many portions of the argument excepted to were strictly legitimate. The defendant in the case testified that he was worth about $25,000, was doing a fine business, which brought him in besides his salary a net income of $2,500 a year, and it was proper for the jury to consider the matter in arriving at the damages plaintiff was entitled to in case of a recovery. Her loss of social position and the luxuries, comforts, and other things which are incident to the life of a woman who marries a man of means are properly

taken into consideration in a case of breach of promise to marry. The jury also, if the testimony of plaintiff relative to her seduction by defendant was found to be true, was entitled to give her damages on that account. The major portion of these objections referred to are of this character.

There is another objection relative to what was said by counsel as to how much the deposition of Mast cost. Upon objection by defendant he said:

"I do not say it cost money. It may have. Such things do sometimes."

While we do not approve of this language, suspicion naturally attaches to this witness by reason of the circumstances disclosed at the taking of his deposition, his fear of a prosecution and the character of his testimony, which we have discussed, and also the circumstances that it was taken near the State line in Indiana, where the attorneys were required to attend, only 40 or 50 miles from the place of this trial, where it is apparent his attendance could have been procured.

The question is whether the language complained of in the argument to the jury was so extreme as to justify a reversal-whether the defendant has been prejudiced thereby. This court has said that it is not disposed to reverse cases because of impassioned arguments, unless it clearly appears that such arguments are unwarranted by the evidence, and probably contributed to the result. In view of the moderate amount of the verdict rendered by the jury and the abundant support in the testimony for such verdict, we are satisfied that the impassioned arguments of plaintiff's attorney did not work prejudice to defendant.

We do not find that any prejudicial error was committed by the court in this case, and the judgment of the circuit court is affirmed.

MOORE, C. J., and BROOKE, OSTRANDER, and BIRD, JJ., concurred.

TEBBEL v. SPENCER ELECTRIC LIGHT & POWER CO.

In a suit between the owner of a dam and a corporation maintaining a dam lower in the stream, for injury to complainant's power by backing water into his race and for maintaining a head of more than eight feet in violation of an agreement determining their respective rights, it will be assumed, in the absence of rebutting testimony, that in measuring the head of water, the datum was obtained by finding the vertical distance from the water in the flume or place from which it was drawn to the tailwater.

2. SAME.

Upon testimony showing that the tailwater, at the time defendant secured its rights, was on a level with the floor of an old wheelhouse that remained standing at the same place and height as it always had stood, the court was justified in taking the floor as a basis of measurement.

3. SAME ESTOPPEL.

Mere neglect on defendant's part to use its entire head of water during twenty years did not estop it from claiming such right.

4. SAME.

Estoppel requires some evidence of dealing in reliance on apparent existing conditions.

5. SAME-DECREE-HEAD OF WATER.

Defendant's grant to "erect, enjoy and maintain said dam to a height as to have at no time a head of water at said dam of more than eight feet," authorized and limited its rights to a standing head of eight feet; so that if the water should flow over the crest at a depth of two, four, or six inches, a head in excess of the authorized height would be maintained, and the decree is interpreted to so regulate defendant's rights.

Appeal from Ionia; Mayne, J., presiding. Submitted April 10, 1911. (Docket No. 66.) Decided December 17, 1912.

Bill by William R. Tebbel against the Spencer Electric Light & Power Company and another to determine conflicting power rights claimed by the parties. At the death of complainant, Mary Tebbel, executrix of his estate, was substituted as complainant. From a decree for defendants, complainant appeals. Affirmed.

George E. Nichols and Locke & Sheldon, for complainant.

I. L. Hubbell and R. A. Hawley, for defendants.

BIRD, J. This contest is between two dam owners. The dams are about one-half mile apart. The complainant, who is the upper proprietor, claims that the firstnamed defendant, who is the downstream proprietor, is maintaining a head of water in excess of what it is entitled to, with the result that it backs the water into his tailrace and diminishes his power. The defendant takes the position that it can and has established its right to maintain an eight-foot head, and that, if the water standing at that level diminishes complainant's power, he, and not defendant, must bear the loss. After a very full and extended hearing, in which both sides were ably represented, the trial court denied complainant the relief which he sought and dismissed his bill, and, under defendant's prayer for affirmative relief, fixed the height the water could be raised at defendant's dam and directed the point to be ascertained and marked by a suitable monument.

The complainant's mill and dam are located on Seeley creek, near the village of Smyrna, in the county of Ionia. Seeley creek discharges its waters into Flat river. A short distance downstream from the junction of the two, the defendant's mill and dam are located. Complainant's mill and dam were built in the early 50's, and the defendant's about 10 years later. The natural fall between the two dams is about six feet. From the time defendant's

dam was built until the year 1874, approximately a sixfoot head was maintained. During these years complain

ant claims that his grantors had a head of nearly 20 feet. In the year 1873 the respective owners of these dams fell into a disagreement over the attempt of defendant's predecessor to reconstruct a portion of his dam, which had been washed out by a flood, higher than it had been theretofore maintained. The controversy found its way into court, but was adjusted by the parties themselves in March, 1874, before it came to a hearing. The terms of the compromise were a conveyance to defendant by complainant of the right to flow the lands above his dam to the extent that an eight-foot head would necessitate, and complainant received therefor, as a consideration, the sum of $1,150. This change in their respective rights lessened complainant's head two feet and increased defendant's to eight feet. Matters went along without much friction until 1904, when complainant complained to defendant that it was maintaining a head in excess of eight feet. More or less controversy between them thereafter ensued until this suit was begun in 1906.

Complainant purchased the Seeley creek property in 1880, and he claims that at that time he measured the head and found it to be 17 feet. He charges that this 17-foot head has gradually lessened until now he has only a 16-foot head, and he further charges that defendant is responsible for this diminution of his power by increasing from time to time the height of its dam and thereby increasing its head. Complainant also charges that the defendant the Belding Land & Improvement Company owns and maintains a dam on Dickson creek, which empties into Flat river some distance upstream, and that it impounds the water for a considerable period and then releases it in such large quantities that the water is driven up into his tailrace, thereby preventing his tailwater from getting away as quickly as it otherwise would. This he claims is done for the benefit and with an understanding with the defendant electric company.

The defendant electric company relies on its grant from complainant's predecessor in title by which it acquired the