Bryant v. Glidden , 36 Me. 36 ( 1853 )

Shepley, C. J. —

This process was commenced to recover damages alleged to have been occasioned to the complainant’s land by the respondents’ mill-dam. A former verdict decided, that the respondents had not a right to flow it without being liable to damages, if any were occasioned by an increased height of the dam. Commissioners were subsequently appointed to ascertain the amount of damages, if any, and to decide upon the other matters required by the statute. Their report having been made and not proving to be satisfactory to the complainant, he requested, that a jury might be impaneled to try the cause at the bar of the Court. The case is now presented after a verdict of that jury has been received.

For the respondents it is alleged, that the complaint is too defective to authorize any judgment to be entered upon it; — that the verdict is so defective, that no judgment can be entered upon it; and that it was found under erroneous instructions.

The complaint does not allege, that the dam was erected acrqss a stream of water not navigable. The first section of the statute, c. 126, authorizes the erection of dams across streams not navigable, to raise water for working mills. It was not the intention to authorize at the pleasure of individuals the erection of such dams across navigable streams, thereby obstructing their navigation. Such right could only be obtained by a special Act of the Legislature, which reserved to itself the right to judge of the expediency of permitting it. If it had not done so, any person might obstruct the free use of navigable waters.

The language used in the fifth section is unlimited, providing, “that any person sustaining damages in his lands by their being overflowed by a mill-dam may obtain compensation for the injury by complaint;” but this must be considered in connection with other provisions of the statute, which clearly was not designed to afford this remedy and to protect a dam from removal as a nuisance and to decide upon the manner, in which it should be used, when it could have no legal existence. The whole proceedings have reference to claims authorized by the statute and not to claims not authorized by it. The statute was not designed to make an illegal aet valid.

If a plea, alleging that the respondents had a legal right to maintain such a dam, could cure the defect in the complaint,, the parties to such proceedings might cause a dam to have a legal existence without any law authorizing it, and might require the judicial department to entertain such proceedings and put the State to the expense, of regulating a public nuisance.

It might have been the duty of the Court to have quashed these proceedings upon motion made before verdict, but the Legislature of this State has provided, that no motion in arrest of judgment shall be sustained in any civil action.

The words “ civil action,” as used in the statutes, include all legal proceedings partaking of the nature of a suit and designed to determine the rights of private parties. The Court cannot therefore refuse to enter up a judgment on account of this defect. As the testimony shows, that the dam was not in fact erected across a stream where it was navigable, there is no reason to conclude, that the proceedings can be rendered ineffectual by a writ of certiorari.

A like construction of a similar statute respecting the erection of dams appears to have been made in the case of Cogswell v. Essex Mill Corporation, 6 Pick. 94.

The verdict returned by the jury is very defective. No yearly damages are found. Nor is there any finding of “ what portion of the year such lands ought not to be flowed.” The verdict states from what time to what time the water should be no higher than to certain bolts designated; but this does not substantially determine what portion of the year the lands ought not to be flowed, for it does not appear, whether the lands would or would not be flowed by such regulated height of the water. Damages occasioned before and after the complaint was filed are assessed in one aggregate sum. The whole matter in issue is not found; and part is irregularly and incorrectly found.

It is said, that the omission to find any yearly’ damages may be regarded as equivalent to a finding, that there would be no damages in future. It is doubtful, whether a subsequent purchaser would be bound by any such constructive finding. He might be entitled to have his rights regulated according to the provisions of the statute and to have a right to petition for an increase of damages or to maintain a new process. A verdict of a jury or an accepted report of commissioners made in conformity to the provisions of the statute is alone declared to be a bar to an action.

The damages occasioned for three years before the complaint is filed may be assessed in one aggregate sum. The subsequent damages are to be “ yearly damages,” for the recovery of which the owner of the land has a lien “ from the time of the institution of the original complaint on the mill and mill-dam.” These damages cannot be found to be different in different years and be incorporated with those occasioned before the complaint was filed, as appears to have been done in this case. This course would deprive the owner of the land of his lien and other parties of rights secured to them by the statute. When yearly damages are found, the time of their commencement is determined by “ the institution of the original complaint,” and not by the. time of finding the verdict. A subsequent purchaser of the dam and mill is liable for the year’s damages becoming payable after his purchase. Lowell v. Shaw, 15 Maine, 242. If other than yearly damages were found to the time of the verdict, and yearly damages were subsequently found, the effect might be, that the complainant might recover damages twice for part of a year.

In the case of Commonwealth v. Ellis, 11 Mass. 462, the Court directed, that execution should issue for a collection of the yearly damages to the time of finding the verdict. There was no assessment of any other than yearly damages. The complaint appears to have been filed at January term, 1808, and execution to have issued for damages to the 25th of September, 1807, when there could have been no number of complete years between those times. The case affords no sanction to a finding of any other than yearly damages subsequent to the filing of the complaint.

By the provisions of the fifteenth section, the owner or occupant of the dam is forbidden to flow the lands during any portion of the time, when he is not allowed to do so by the report of the commissioners or verdict of the jury. Without any finding of such time this provision of the statute becomes ineffectual.

Although the question was not directly presented for decision, the Court expressed an opinion in the case of Cogswell v. Essex Mill Corporation, that “ a jury once empaneled under that statute would be obliged to assess yearly damages, to limit the height of the dam, and to fix the time when it is not necessary to flow the lands at all. The jury is obliged under oath to perform these duties, and any verdict, which should show that they had neglected them, would be void.”

On account of the defects already stated, the verdict in this case must be set aside, and a new trial must be granted.

As the report of the commissioners must again be presented, it will be important to consider its effect, that future instructions respecting it may be correct. '

The statute provides that it shall be given in evidence to the jury, “ subject to be impeached by evidence from either party.’’

The report states only, and it can only properly state, conclusions; and not the information obtained by personal examination and by testimony, on which those conclusions were based. If it were to have no other effect than the like testimony from others, it could have but little influence. It would exhibit merely the opinions of three intelligent persons, without any facts to sustain their opinions or to prove them to have been correct. It could not be expected to have as much weight as the testimony of the same persons, if examined as witnesses, for they could state, as witnesses, what they found to be true by examination, while they could not be permitted to relate the testimony received from others. If it were to be regarded merely as evidence; that is, as an opinion of those persons made evidence by the statute, the expensive proceedings to procure that opinion would be rendered almost useless, and the provisions of the statute requiring the appointment o commissioners would become burdensome and oppressive to the parties, without the assurance of any essential benefit. It is but reasonable to conclude, that it could not have been the intention to cause so much delay, expense and trouble to so little purpose. The language used repels a contrary conclusion. It implies that the report is to be decisive of the rights of the parties, until its decisive effect is removed by its being impeached by evidence.

To impeach, as applied to a person, is to accuse, to blame, to censure him. It includes the imputation of wrong doing. To impeach his official report or conduct is to show that^it was occasioned by some partiality, bias, prejudice, inattention to, or unfaithfulness in, the discharge of that duty; or, that it was based upon such error that the existence of such influences may be justly inferred from the extraordinary character or grossness of that error.

The word can have no less forcible meaning as used in the statute, without considering it to have required proceedings suited to occasion much delay, expense and trouble, without any important purpose or result.

Verdict set aside, and New trial granted.

Howard and Hathaway, J. J., concurred. Wells and Rice, J. J., concurred in the result.