Gerrish v. Brown , 51 Me. 256 ( 1863 )

The opinion of the Court was drawn up by

Rice, J.

This case comes before us on a quasi report. It is not presented in conformity with the statute, and might, therefore, with propriety, be dismissed. It, however, involves questions of much importance, not only to the parties immediately interested, but to many other citizens of the State. Eor the purpose, therefore, of enabling those interested to adjust matters in controversy intelligently between themselves, or to present the points in issue before a Court and jury, we proceed briefly to consider the case as though the facts, which the evidence tended to prove, had actually been established by proof.

It would thus appear, that the Androscoggin river at the points whereon the mills of the respective parties are located, and between them, though not technically a navigable stream, is of sufficient capacity to float logs, rafts, &c., or, in other words, is a floatable stream, and, as such, by the law of this State, is deemed a public highway.

The plaintiffs are owners of a steam sawmill situated at Bethel, on the bank of said river, which is supplied with logs floated down the same, and secured by moans of piers and booms in that portion of the river which flows between Town’s island and the south shore thereof, and also in a place of deposit, consisting of about four acres of land, owned by them, and upon which logs may be floated at high water. To facilitate the process of catching and securing logs, the plaintiffs have also constructed sheer, or guide booms, to be used temporarily, running from the head of Town’s island to Clark’s island, and from thence to the north shore of the X’iver.

The defendants are the proprietors of an extensive millixxg establishment at Berlin Falls, some tweixty miles above, on the same river, where they manxxfacture large qxxaxitities of lumber, the waste from which they cast iixto the stream, below their mills, to be floated away as it may, by the current.

The complaiixt of the plaintiffs is, that large quantities of this waste material, from the defendants’’ mill, comes down upon the stream, intermingled with their logs, runs into their boom, aixd greatly obstructs the moving of logs therein, and also prevents them from swinging a side boom on the bank of said river, opposite the place of deposit on their own land, to hold logs for the use of their mill, while the logs of other owixers are being passed by.

The question is, whether the plaintiffs, without fault on their part, suffer injury from the unauthorized acts of the defondaixts. To determine this involves both law and facts. We can xxow only indicate the rule of law applicable to the case. The facts must be settled hereafter.

The plaintiffs’ mill, not being a water mill, does not fall within the protection of the Mill Act. No question iixvolving the right of flowage is presented. The questioxx presented involves, simply, the legitimate use of the river, by the parties, as a public highway.

This subject, as it bears upon the specific questions at issue between these parties, .has very x'ecently received a somewhat extended and careful examinatioxx by this Court, in Dwinel v. Veazie, 50 Maine, 479.

It was therein decided, with special reference to casting luto the water,-to be floated away, edgings and other waste materials from sawmills, that 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 judgment of the law. They cannot bo made the receptacles of waste materials, filth, nor trash, nor the depositories of valuable property even, so as to obstruct their use as public highways. All such obstructions, in the eye of the law, are deemed unreasonable.

If, therefore, a person obstructs a stream which is by law a public highway, by casting therein waste material, filth or trash, or by depositing material of any description, except as connected' with the reasonable use of such stream as a highway, or by direct authority of law, he does it at his peril; it is a public nuisance for which he.would be liable to an indictment, and to an action at law by any individual who should be specially damaged thereby.

A person who should cast, at random, filth or trash into a dock, of waste materials into a public river, to float or sink, as it may, without guidance or direction, can in no just sense be said to be in the use of such dock or river for purposes of navigation. The term navigation, as applied to waters which are used as highways, imports something different; it denotes the transportation of ships or materials, from place to place, under intelligent direction or guidance, and not the use of such waters as a mere receptacle of filth, or as a place for the. deposit of .worthless materials.

If, therefore, the defendants elect to cast the slabs, edgings, or other waste of their mills, into the river, to be floated away by the stream, they do so at their peril, and must see to it that they do not thereby obstruct the navigation of the river, nor infringe upon the rights of private individuals.

So, too, with regard to the plaintiffs. Like other citizens they may use the river as a highway for purposes of navigation, .and, as incident to this right of navigation, the ternporary obstruction of portions of the river, while preparing their materials for transportation, or in securing them at the termination of their transit, would constitute no violation of law. In this respect, public streams are governed by the same general rules of law as are 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, or the like, is allowed, from the necessity of the case; but a systematic and continued encroachment upon the street, though for the purpose of carrying on a lawful business, is unjustifiable. People v. Cunningham, 1 Denio, 524.

For such purpose, and as incident to the reasonable use of the river for running and securing logs, parties may use temporary sheer, or guide booms, to direct the logs or lumber into proper places,' in which to detain them for use. Dwinel v. Veazie, before cited.

But they are not authorized, by the construction of piers and booms, to convert navigable streams into permanent places of deposit for logs or other materials, so as thereby to obstruct the navigation of such streams or rivers. If the plaintiffs have done so in this case, and have thereby contributed to the production of the injury of which they complain, so far they are remediless, as the Court will not interfere, when both parties are acting in violation of law, to determine which is the more culpable.

Whether the plaintiffs have been injured, by the unauthorized acts of the defendants, in the enjoyment of structures which they have a right to place upon the river, or in their use of the river as a highway, we are unable to determine from the case reported. We therefore remand the case to the county court to be tried in conformity with the legal principles above stated, in case the parties shall be unable to adjust their differences without the further interposition of a court and jury. Case to stand for trial.

Appleton, C. J., Davis, Kent, Walton and Dickerson, JJ., concurred.