Davis v. Winslow , 51 Me. 264 ( 1863 )

The opinion of the Court was drawn up by

Dickerson, J.

Case, to recover damages sustained by the plaintiffs,- in consequence of the stoppage and detention of their logs, by means of a boom erected by the defendants across the Androscoggin river, at Milan, in the State of New Hampshire.

It was admitted that the Androscoggin river, at the place in question, was a public highway, capable of, and being used for, floating logs and timber to market, and that the defendants, being owners of sawmills, at Berlin Falls, in New Hampshire, on said river, erected, for their own convenience and the operation of their mills, the boom complained of, and that, at or about the time alleged, the defendants kept up said ’boom across said river, and thereby detained logs belonging to the plaintiffs, which were floating down said river, intermingled with logs belonging to the defendants, and thereby prevented said plaintiffs’ logs from reaching their destination at Bethel steam mills, so soon as they otherwise would have done, and that thereby the plaintiffs suffered damage.

The case comes before us on exceptions and motion by the defendants. It is conceded that the Androscoggin river, at the place in question, is a public highway, capable of, and being used for floating logs and timber to market. While there is no controversy between the respective counsel with regard to the general proposition, that obstructions to highways, whether upon the land or water, constitute nuisances which may be abated, the learned counsel for the defendants denies that this proposition is universally true, and argues that, in the case at bar, it should be applied with limitations and qualifications which arise from the particular circumstances of the occasion.

It is to be observed, that general propositions are liable to be very much modified by circumstances ; in generalibus versatur error. The difficulty oftentimes consists, not in understanding the general rule of law, but in applying it to the ever varying circumstances of particular cases. While, however, the general principles of the common law remain fixed, their adaptation to the vicissitudes of human affairs renders them sufficiently comprehensive to meet new institutions and states of .society, and new systems of intercommunication between man and man, as they unfold themselves in the progress of civilization.

This peculiarity of the common law is, perhaps, nowhere more fully exemplified than in its application to public watercourses. As human society advanced from its primeval state, navigable rivers and public streams came to be the arteries of commerce, permeating parts otherwise inaccessible, developing occult mineral resources, and bearing upon their bosom immense wealth to the more genial abodes of man. The history of our legislation, no less than the decisions of our courts, attest the solicitude of the community to make these great highways, both the means of developing the resources of the country, and of transporting, their products to more remote regions. The various mill Acts, for the encouragement of milling, and the vigilance of courts to preserve a free transit for the various raw material and manufactures of. lumber to a market, are so many proofs of this truth. " God,” says Domat, " has given us the use of the seas and rivers, which opens the communication with all the world, to use, and makes us acquainted with our fellow men in distant countries.”

The essential characteristic of highways is, that every person has an equal right, with every other person to their enjoyment, and yet this enjoyment of them by one, of necessity, to a certain extent, interferes with its use by another. Water, air and light are the gifts of Providence, designed for the common benefit of man, and every person is entitled to a reasonable use of each. A man cannot occupy a dwelling, or consume fuel for domestic purposes, at least in our large cities, without, in some degree, impairing the natural purity of the air; nor can he erect a building, or plant a tree near the house of another, without, also, in some respect, diminishing the quantity of light he enjoys. Ordinarily, these being the necessary incidents to the common enjoyment, furnish no ground of action. The use of water, from its greater specific gravity, and the countless variety of purposes for which it is appropriated, gives rise to a larger number of perplexing questions. The detention of water, by a dam for the benefit of a mill, oftentimes results in an injury to the owners of the privilege below. It does not, however, follow that for every such injury there .is a remedy. If the detention is indispensable to the owner’s reasonable eiijoyment of his rights in the common highway, and is continued no longer than is necessary for that purpose, the proprietor below is without remedy for any injury he may have suffered thereby; otherwise, the right of common use is nugatory, and the party requiring such use is himself obstructed in its exercise., Webb v. Portland Manufacturing Co., 3 Sumn., 189; Embrey v. Owen, 4 English Law and Eq., 466.

The social duty, therefore, inculcated in the maxim, sic títere tuo ut alienum non laedas, must be understood, and applied with qualification. In Inhabitants of Shrewsbury v. Smith & al., 12 Cush., 181, which was an action by a town against the owners of a dam, which had broken away and injured plaintiffs’ bridge, the Court defined this maxim to mean, that each proprietor, in exercising his own rights on his own territory, should act with reasonable skill and care to avoid injury to others, and, as an approximate rule for measuring that degree, it should be that degree of ordinary skill, care and diligence, which men of common and ordinary prudence in relation to similar subjects would exercise in the conduct of their common affairs.

Where the legal effect of an act is the subject of judicial investigation, it is not unfrequently necessary to inquire into the subject matter, occasion, object, extent and necessity of the act, together with the manner and purpose of its performance. Was the subject matter appropriate, the object lawful, the occasion suitable, the extent reasonable, the necessity imminent, or the manner prudent? As these questions shall be answered by the facts and circumstances of the particular casé, so will be the judicial determination of the legal consequences resulting from the act in question.

Reasonable use is the touchstone to which cases of this description must be subjected; and it becomes important, therefore, to examine the' decisions of Courts upon this question.

1. Of the use of water by riparian proprietors.

In Pennsylvania the question arose with regard to the respective rights of the upper and lower riparian proprietors to the use of water for milling purposes. The presiding Judge instructed the jury as follows: — "The defendant had a right to use the water as it passed through his land; if he detained it no longer than was necessary for his proper enjoyment of it, the plaintiff cannot recover; whether, if you believe, from the evidence in the case, that he did detain the water three days, at times, at other times, five days, at one time, thirteen days, in his own dam, to the injury of the plaintiff’s mill, this was longer than was necessary for the defendant’s proper enjoyment of the water, at his mill, as it passed through his land, is left for your determination. If you believe it was, you will find for the plaintiff; if you believe it was not, you will find for the defendant, unless you find that the defendant did maliciously or wantonly detain the water, or that there was some degree of-malevolence in the time or quantity of water discharged to the injury of the plaintiff’s mill; for, if you believe this, your verdict should be for the plaintiff.” The verdict was for the defendant, and exceptions were taken to this ruling on the ground that the time the water was detained was so long and unreasonable that the plaintiff was entitled to recover; but the upper Court overruled the exceptions, and sustained the ruling, alleging as the ground of their determination, "the impossibility of making even a general rule for such cases, and that the matter was fairly submitted to the jury.” Hetrich v. Deachler, 6 Barr., 32. Thurber v. Martin, 2 Gray, 394, also, was an action of tort for obstructing the natural flow of the water, and diverting it from the plaintiff’s mill. In delivering the opinion of the Court, Chief Justice Shaw thus stated the law of the case : — "Every man has the right to the reasonable use and enjoyment of a current of running water, as it flows through or along his own land, for mill purposes, having a due regard to the like reasonable use of the stream by all the proprietors above and below him. In determining what is such reasonable use, a just regard must be had to the force and magnitude of the current, its height and velocity, the state of improvement in the country in regard to mills and machinery, and the use of water as a propelling power, tbe general usage of the country in similar cases, and all other circumstances bearing upon the question of fitness and propriety in the use of the water in the particular case.”

The doctrine of Thurber v. Martin was expressly affirmed in Chandler v. Howland, 7 Gray, 350, whore the Court say that the right of riparian proprietors to the natural flow of water over their lands is " subject to such interruption as is necessary and unavoidable by the reasonable and proper use of the mill privilege above.”

In Pitts & als. v. The Lancaster Mills, 13 Met., 157, the defendants, owners of a mill and dam above an ancient mill-dam of the plaintiffs, rebuilt and raised that dam above its former height, whereby the water was wholly cut off from the plaintiff’s mill for a period of six days, greatly to his detriment. The case was submitted to the Court upon an agreed statement of facts, and a nonsuit aves ordered, the Court assigning as a reason therefor, that " this was not an unreasonable use of the Avatercourse by the defendants, and that any loss Avhich the plaintiffs temporarily sustained by it, was damnum absque injuria.” "What is a reasonable use,” the Court say, "must depend upon circumstances, such as the width and depth of the bed, the volume of Avater, the fall, previous usage, and the state of improvements in manufactures and the mechanic arts.”

2. Of the use of highways upon land and water.

In the several eases, Veazie v. Dwinel, and Dwinel v. Veazie, 50 Maine, 479, this Court held, 1st, that it was not lawful for a mill OAvner to obstruct, with the waste from his mill, a channel made by another mill OAvner, as a passage way for rafts, logs, and lumber, from the former’s mill on the Penobscot river, to and through the sluice, in the latter’s mill-dam, and 2d, that the latter had no right to permanently obstruct this channel by a boom across it, design'ed to guide his logs into a neAV channel made by the former, though he might lawfully use this neAV channel as a passage way for his logs, and erect temporary guide booms for that purpose. These cases Avcre submitted to the Court, Avho gave this construction to the rights of the respective parties, as a reasonable use of the Penobscot river as a public highway for running logs.

In Gerrish & al. v. Brown & al., ante p. 256, it was held that, if a person obstruct a stream which is by law a public highway, by casting therein waste materials, filth or trash, or by depositing materials of any description, except as 'connected with the reasonable use of said stream or highway, or by direct authority of law, he does it at his peril, and is guilty of causing a public nuisance. In that case, the Court say, " the plaintiff, like any other citizen, may use the river as a highway for the purposes of navigation, and, as incident to the right of navigation, the temporary obstruction of portions of the river while preparing these materials for ’transportation, or in securing them at the termination of their transit, would not constitute a violation of law. In this respect, public streams are governed’ by the same general rule, as highways upon land.”

A temporary occupation of a street, or highway, by persons engaged in building, or in receiving or delivering goods from stores, or warehouses, is lawful from the necessities of the case, while a persistent and continuous obstruction of a street beyond what is required for a reasonable use of it, even for such purposes, is unjustifiable. People v. Cunningham, 1 Denio, 526; Commonwealth v. Passmore, 1 Searg. & Rawle, 219.

In Graves v. Shattuck & al., 35 N. H., 268, the plaintiff was obstructed by the defendants, while in the act of removing a building through one of the public streets of Nashua, and brought his action to recover damages occasioned by this act of the defendants. The right of the plaintiff, to encumber the street for such purpose, was put in issue, and the jury returned a verdict for the plaintiff, the presiding Judge according to the plaintiff that right, in his instructions to the jury. Exceptions were taken to this ruling, but the Court above sustained the instructions, and say, " the doctrine of all the cases on this subject that we have examined seems to be in accordance with the instructions below, that the law justifies obstructions of a partial and temporary character from the necessity of the case, and for the convenience of workmen, when these obstructions occur in the customary, or contemplated use of the highway, and that the question of their necessity, and of the customary, or contemplated use, is one for the consideration and determination of the jury, under all Ihe circumstances of each particular case.”

3. Of the test of reasonable use.

A person is required so to conduct in the exercise of his own rights, and in the use of his own property, as not to do an injury by his misconduct, or by the want of ordinary care to the rights or property of another. What is reasonable care, or due care, depends, in every case, on the subject matter to which the care is to be applied, and the circumstance attending the subject matter at the time, when care is to be applied. Negligence consists in the omitting to do something that a reasonable man would do, or in doing something that a reasonable man would not do, causing, unintentionally, mischief to another. A party who takes reasonable care to guard against accidents, arising from ordinary causes, is not liable for accidents arising from extraordinary causes.

The test of exemption from liability for injuries arising from the use of one’s own property is the legitimate use or appropriation of the property in a reasonable, usual and proper manner, without any negligence, unskilfulness or malice. Noyes v. Shepherd, 30 Maine, 178; Sullivan v. Scripture, 3 Allen, 566; 1 Hilliard on Torts, 131, § 38.

4. Of the essential elements of a nuisance.

If one, for his own benefit, violates the rights of another, it is a nuisance; and if this consists in the violation of a public right, indictment is the appropriate remedy for its vindication and redress. Neither express malice, nor a disposition, or desire to cause damage to another, as in case of malicious mischief, is necessary to the completion of the of-fence. It is a nuisance if one wilfully seeks and pursues Ms own private advantage, regardless of the rights of others and in plain violation of them; it is a wrong done. And, as every man must be presumed to intend all the necessary, natural and ordinary consequences of his own acts, it is a wilful and intended wrong; it is malice in the eye of the law, and no other malice need be proved to show the act to be a nuisance.

Highways, whether on land or water, are designed for the accommodation of the public, for travel or transportation, and any unauthorized or unreasonable obstruction thereof is a public nuisance in the eye of the law. They cannot be made the receptacles of waste materials, filth or trash, nor the depositories of valuable property so as unreasonably to obstruct their use as highways. Commonwealth v. Temple, 14 Gray, 69; Dwinel v. Veazie and Veazie v. Dwinel, 50 Maine, 479; Knox v. Chaloner, 42 Maine, 150.

The authorities relied upon by the learned counsel for the plaintiffs are not essentially in conflict with the general current of decisions to which we have adverted. Wadsworth v. Smith, 11 Maine, 278, was a case of a private stream, and the general statement of Parris, J., with regard to the rights of parties to the use of navigable rivers was not elicited by the question at issue, and, taken in its strictly literal sense, is not entirely accurate. In Brown v. Chadbourn, 31 Maine, 26, it was held that a riparian proprietor has no right permanently to obstruct a public stream by a dam, and that, if he builds such a dam, he is required to construct and maintain a passage way by it.

So in Knox v. Chaloner, 42 Maine, 150, a dam over such a stream was held to be a nuisance. Cole v. Sproul, 35 Maine, 169, and Sutherland v. Jackson, 32 Maine, 80, were cases of the obstruction of private ways by the erection of buildings. In Brown v. Watson, 47 Maine, 161, the defendant obstructed the public highway by wantonly felling trees across it. In these, and the other case? cited by the plaintiffs’ counsel to this point, the obstructions consisted of permanent erections, such as buildings or dams and the like, and were in no respect necessary to the use of the several highways, for the purposes of travel or transportation.

The general doctrine to be deduced from the authorities we have collated in reference to the use of navigable rivers, or public streams, as public highways, is, that each person has an equal right to their reasonable use. What constitutes reasonable use depends upon the circumstances of each particular case; and no positive rule of law can be laid down to define and regulate such use, with entire precision, so various are the subjects and occasions for it, and so diversified the relations of parties therein interested. In determining the question of reasonable use, regard must be had to the subject matter of the use, the occasion and manner of its application, its object, extent, necessity, and duration, and the established usage of the country. The size of the stream, also, the fall of water, its volume* velocity and prospective rise or fall, are important elements to be taken into the account. The same promptness and efficiency would not be expected of the owner of logs thrown promiscuously into the stream, in respect to their management, as would be required of a shipmaster in navigating his ship. Every person has an undoubted right to use a public highway, whether upon the land or water, for all legitimate purposes of travel and transportation; and if, in doing so, while in the exercise of ordinary care, he necessarily and unavoidably impede or obstruct another temporarily, he does not thereby become a wrongdoer, his acts are not illegal, and he creates no nuisance for which an action can be maintained.

Firemen, in extinguishing fires, builders, in erecting or removing buildings, teamsters, in hauling logs or masts to market, truckmen, in loading or delivering merchandize, shipmasters and boatmen, in receiving, transporting and delivering their cargoes, raftsmen, in managing their rafts, river drivers, in running logs, and mill owners, in securing them, oftentimes, of necessity, require so much of a highway as temporarily to obstruct it; -but, in such cases, they must' so conduct themselves as to discommode others as little as is reasonably practicable, and remove the obstruction or impediment within a reasonable time, having regard ter the circumstances of the case; and, when they have done .this, the law holds them harmless.

' The defendants, as owners of the upper mills, had a right to the reasonable use of the river, not only to float their logs, but also to arrest and detain them at their mill. The current was deep, broad and rapid, and the quantity of logs borne along by it was very large. Their logs had been intermingled with the plaintiffs’ by the mutual act of the parties and in accordance with the established usage of the country. The means to be employed by the defendants in the wort of separation and detention, and the time, mode, necessity and extent of their use of the river for these purposes, were subjects properly addressed to the practical judgment of the jury, under all the evidence in the case; and it was the right of the defendants to have them so presented. *

The case finds, that the whole question of the reasonable use of the river was agreed to be submitted to the jury, and the presiding J udge instructed them that they might determine this question.

This was a waiver by both parties of their right to except to the instructions of the. Judge upon the subject of the reasonable use of the river. Whether, therefore, those instructions were correct or erroneous in this respect, is not necessary for us to determine, since the parties, by their own act, have precluded themselves from the right to question their correctness; nor were they material to the issue, as the reasonableness or unreasonableness of the detention of the plaintiffs’ logs by the defendants was left to the jury to determine.

After a careful examination of the evidence we are unable to discover sufficient ground for setting aside the verdict, as prayed for in the defendants’ motion.

Exceptions and motion overruled, and Judgment on the verdict.

Appleton, C. J., Cutting, Davis, Walton and Babbows, JJ., concurred.