Simpson v. Seavey , 8 Me. 138 ( 1831 )


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  • The cause having been thus argued in writing, in vacation, the opinion of the Court was delivered at this term, by

    Mellen C. J.

    Since the commencement of the action, Hovey, one of the defendants, has deceased ; as to him, therefore, the writ is abated. Whether his death has any effect upon the action in respect to the other defendants, will be noticed presently. By inspection of the writ it appears that whatever injury the plaintiffs have sustained, has been occasioned by the two lath-mills, which have been made within the frame of the saw-mill Unity, and by the throwing of lath-edgings from them into the river, which floated down and obstructed the plaintiffs’ saw-mill. By the reported statement of facts it appears that Dickenson was a part owner of the sawmill Unity, during the time mentioned in the will; yet there is no proof that he owned any part of either of the lath-mills above mentioned 5 but it does appear that, during the said period, Dickenson occupied no part of said lath-mills : but one was wholly owned and occupied and improved by Pope, Talbot and Seavey, three of the defendants ; and the other was built and owned by the deceased Hovey. On these facts, we see no privity, in respect to the lath-mill, between Dickenson and the other three surviving defendants, which can implicate him in the transactions complained of by the plaintiffs, and subject him to damages ; of course he is considered by the court as not guilty, and judgment is to be entered in his favor for his legal costs.

    It is contended on the part of the defendants that the present action is not maintainable ; because it was brought jointly against all the defendants, and that it appears, as before mentioned, that one lath-mill was owned in severalty by Hovey; and the other in common by Pope, Talbot and Sevey; and that it follows that the lath-edgings were not owned jointly or in common by all the defendants; nor was the act of throwing them from the respective lath-mills into the river a joint act of Pope, Talbot, Seavey and Hovey. It is denied by the defendants’ counsel that several trespassers, or persons who severally do an injury to a man’s property directly or indirectly, can be sued jointly. The case of Proprietors of Kennebec Purchase v. Boulton is said by the plaintiff’s counsel to be in point. That was an action of trespass quare clausum fregit against several persons who severally pleaded not guilty. They all were *144on the plaintiff’s, close at the same time ; but they cut down trees in different places ; one defendant worked alone ; several others worked together. The cause was tried before Parsons C. J. but no objection was made because the trespassers were not proved jointly guilty, as alleged ; the only question on which any doubt seemed to arise was as to the mode of assessing damages. They were assessed severally according to the amount of each trespass, and the whole court approved of the instruction. That case is not exactly like this, and it may not be a safe guide on this occasion. In 1 Chitty's Pl. 74, it is laid down that if several persons be made defendants jointly, where the tort could not in point of law the joint, they may demur ; and if a verdict be taken against all, the judgment may be arrested or reversed on a writ of error; but the objection may be aided by the plaintiff’s taking a verdict against one only ; or if several damages be assessed against each, by entering a nolle prosequi as to one after verdict and before judgment.” He cites 2 Saund. 117, b. n. 2, arad cases there found ; one of which is this : In an action against husband and wife for that they spoke of tiie plaintiff certain scandalous words, the jury found the husband guilty and the wife not guilty ; and the plaintiff had judgment ; for though the action ought not to have been brought' against both, yet the verdict hath cured this error.” We see no sound reason why the death of Hovey should not have the same effect on the action, as though he had been living and found not guilty, inasmuch as there can be no judgment against him ; and on this principle it has become unnecessary to pursue the enquiry as to the correctness of the manner in which the action was commenced.

    The plaintiffs’ mill is more ancient than the defendants’ lath-mill 5 though as to all the purposes of a saw-mill the defendants have the prior title to the extent, and on the principles recognized in the case of Hatch v. Dwight & al. cited by plaintiffs’ counsel. But the lath-mill is a distinct concern ; and the damages sustained by the plaintiffs are of a kind which the saw-mill could not occasion ; and there is no proof or pretence that such damage existed before the lath-mill was put into operation.

    *145It is said that the plaintiffs’ mill is a nuisance, because it is maintained by a.dam extending across the river where it is navigable'in the strict legal sense of the term ; that is, where the tide ebbs and flows. This objection does not appear to be fairly sustained by the report ; it is there stated that before the dam was built the highest tides used to flow about six rods above where the dam now stands, but that common tides do not flow up within four or five rods of the dam. The report gives no particulars as to the size of the river, hut from an inspection of the plan which accompanies it, we must suppose it a small stream, inasmuch as the plans of two saw-mills, one on each side of the river, occupy very nearly one half the width of it; besides the existence of mills and dams, is itself proof of rocks and falls there. As ordinary tides do not flow within several rods of the dam, we think that because the highest used to rise so as to flow back above where the dam now stands, that such a circumstance cannot alter the principle. A small stream is suddenly raised by a heavy rain; and may also, from the nature of its banks, be filled by the tide to an unusual height, in consequence of a storm, or severe gales from the sea. But if the plaintiff’s dam, is a public nuisance for the reason above stated, does it follow that this action cannot be maintained ? In the case of Palmer v. Mulligan, cited by defendant’s counsel, Spencer J. says that it is questionable whether the plaintiff can maintain his action if his own dam is a nuisance, but Thompson J. says “how far the allegation” (that the plaintiff’s dam is a nuisance) “is founded in'fact, is not now a subject of enquiry ; this is a question between the public and the plaintiff, and cannot bo tried in this collateral way” : and Kent C. J. says, “ To obstruct this and other public uses of the river, by dams &c. would be a nuisance ; but of this question we have nothing to do in the present case.” We do not think this objection is sustained by the facts, and doubt whether if it was, it would be good in point of law.

    The last question relates to costs, and, as the damages reported are under $20, the defendant’s counsel contends that costs, equal to one quarter part of the damages, should be taxed, and no more, auu he relies on the 30th section of Stat. 1821, ch. 59, sec. 30. *146But the generality of the words “any action” must be restrained j otherwise they would include an action of trespass quare clausum, actions of covenant broken, Sic. which we have decided do not fall within the fair and consistent construction of them. So where the plaintiffs damages are reduced below $20 by means of defendant’s offset: — all these points have been settled as appears by the cases cited in the argument. In addition, it may be observed, that the plaintiffs have disclosed their title in their writ, and the question as to priority of rights is expressly presented by the report, and legally discussed by the counsel as a question of law, which seems wholly unsuitable for the jurisdiction of a justice of the peace. As the damage was occasioned by the throwing of lath-edgings from Hovey's lath-mill, and that of Pope, Talbot and Seavy in about equal proportions, and as IJovey is dead, damages against the surviving defendants, who are adjudged guilty, and such only can be the basis of judgment in the action. — We therefore order judgment to be entered against Pope, Talbot and Seavy for the sum of $8s 33, and full costs.

Document Info

Citation Numbers: 8 Me. 138

Judges: Mellen

Filed Date: 6/15/1831

Precedential Status: Precedential

Modified Date: 9/24/2021