Strout v. Millbridge Co. , 45 Me. 76 ( 1858 )

The opinion of the Court was drawn up by

Rice, J.

This is a complaint for flowage, instituted under the Mill Act, c. 126, R. S. of 1841, and comes up on Report.

At common law, the mill-owner was not authorized to erect and maintain his dam, in such a manner as to flow the lands of proprietors above his mill, on the same stream. Goubolt, 59; Cro. Jac. 556. Such a structure, by which the land of another would be overflowed, would be a nuisance. Com. Dig., Action on Case, A.

But, by section first, c. 126, R. S. of 1841, it is provided that any man may erect and maintain a water-mill, and a dam to raise water for working it, upon and across any stream that is not navigable, upon the terms and conditions, and subject to the regulations therein expressed.

The evidence reported shows that the dam, by which the flowage complained of has been occasioned, was erected by the defendant corporation across a stream where the tide ebbs and flows, and which is navigable for sea-going vessels. This fact is admitted.

It is, however, contended that the fact that the stream is navigable does not preclude the complainant from recovering his damages for flowage in this form of procedure, under the provision of section five of the statute, above referred to; that section being general in its terms, and applying to all persons who may sustain damages in his lands, by their being overflowed by a mill-dam,

The first section of c. 126 authorises 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. Bryant v. Glidden, 36 Maine, 36.

The unlimited language used in the fifth section of that statute must be considered in connection with other provisions of the. statute. The whole proceedings have reference to claims authorized by the statute, and not to claims not authorized by it. lb.

The case not falling within the mill Act, the parties are to have their rights determined by the principles of the common law, unless, that rule has been changed by the interposition of the Legislature.

The defendants are a corporation, and were originally incorporated under the name of the “Salt Water. Falls Company.” Chapter 151, Private Laws of 1836.

By this Act, the corporation was authorized to build; maintain, repair and rebuild, a dam and bridge, either separately or connected,, as may be thought necessary, across the Narraguagus river, in the town of Harrington, and at a place called Salt Water Falls, and, under certain restrictions, provided in said Act, the company is authorized to flow the water by means of said dam, and to use and improve the same for propelling mills, factories and for other purposes.

By section nine, of the same Act, it is provided, if any person or persons shall suffer damage by the exercise of any of the powers herein granted to said corporation, and the amount of such damage cannot be agreed upon by the parties, or some suitable person or persons, agreed upon to estimate the same, the Court of Common Pleas, for the county of Washington, shall, on application of the party aggrieved, cause said damage to be estimated by three disinterested freeholders of the same county: — Provided, however, that if either party be dissatisfied with the award of said committee, such party shall be entitled to trial by jury, in the manner other like cases are determined.

By c. 107, Special Laws of 1848, the Salt Water Falls Company were allowed to take the corporate name of the “ Millbridge Company,” with all the rights and privileges conferred on said Salt Water Falls Company by Act to incorporate the same.

Whether parties, who have sustained damage in consequence of their lands having been overflowed, by the operation of the works of the defendant corporation, are restricted to the remedies provided in the above Act of incorporation, it is not proper for us to determine at this time. The case, as presented, is not within the provisions of c. 126, R. S., 1841.

According to the agreement of the parties, a nonsuit must be entered.

Tenney, C. J., Hathaway, Appleton, Cutting, and Goodenow, J. J., concurred.