Dwinel v. Barnard , 28 Me. 554 ( 1848 )

Shepley J.

— This case is presented on a report, which states, that it was proved or admitted, that before the year 1846, a dam had been erected at the outlet of a lake called Chamberlain lake; that the waters of the Allegash stream flowed into that lake and out of it, before the dam was erected at the outlet of that lake, and thence onward to the river St. John; and that logs could be floated by such waters to the river St. John ; that the waters being obstructed by that dam, were turned from their natural channel, and caused to run through a “ cut” or channel, which had been made through a part of township numbered six, in the eleventh range, into the waters connected with Penobscot river ; so that logs could be floated from the waters above the lake, into the Penobscot river.

A map of the country makes a part of the case, and from that it appears, that the lake and streams referred to, are at that place at a great distance from tide waters. Chamberlain lake, on the map, appears to be a large body of water, some fifteen to eighteen miles in length, and from one to two miles in breadth. The Allegash stream appears to connect with the north-westerly end of that lake, and its distinctive waters to be entirely lost in it. The dam, which obstructed the flow of the waters out of that lake, and onward to the river St. John, appears to have been erected at the outlet some three miles south-easterly of the north-westerly end of the lake. From the south-easterly end of Chamberlain lake, there called lake Telos, an artificial “ cut” or channel from one to two miles in length appears to have been made, to connect those waters with waters flowing into the Penobscot river. It does not appear, by whom the dam at the outlet of the lake had been erected, nor who was the owner of the land, upon which it was erected. Or that the plaintiff had at any time any interest in it, or in the land, upon which it stood, or any connexion with it, or control of it. So far as it appears, he was wholly unconnected with it. It does not appear how long before the year 1846, it had been erected.- Nor does it appear by whom the “ cut” or channel was made, nor when it was made. It is stated in the brief statement filed by the defendants, “ that the plaintiff or those under whom he claims, in 1841, turned the whole current of said river, to flow west into lake Telos and through said sluice, into said Penobscot river or Webster pond.” The plaintiff was the owner of the land in the year ,1846, upon which that “ sluice,” “ cut” or channel had been made.

There is no proof, that the plaintiff or any former .owner of township numbered six, had at any time before the year 1846, or before the contract between these parties was made, permitted logs to be floated through the “ sluice,” or channel; or had ever before that year proposed, that any person should use it for that purpose upon payment of a toll or fixed compensation.

The defendants and other persons had during the winter of 1845 and 6, caused logs to be cut and hauled into the waters above Chamberlain lake, with the expectation and design of floating them through that “ cut” or channel into the Penobscot river. The plaintiff, apprehending that such was their design, without making any agreement with him to pay him any toll or compensation therefor, employed about fifty men and sent them to that “ cut” with directions to obstruct the outlet of the waters from the lake into the “ cut,” unless a contract was made with him to make compensation for such use of the “ cut.” Notice was given to the defendants, that their logs could not be floated through it without making compensation therefor. And on May 4, 1846, a written contract signed by the defendants was made, by which they obtained permission from the plaintiff to make use of that “ cut” to float their logs into waters connected with the Penobscot river, upon certain terms therein stated. Upon that written contract this suit has been commenced.

If the defendants had acquired the right to float their logs in the channel made upon the plaintiff’s land without his consent, the resistance and obstruction made by the plaintiff to such use of his land was unlawful, and the contract made with him to remove that unlawful obstruction must be considered as procured by duress and therefore invalid.

If on the contrary they had acquired no such right, they would become trespassers by such use of that channel without the consent of the plaintiff; and if they purchased of him a license to do such ah act upon his land, a contract made to obtain that license would be a lawful contract. It would also be made for a valuable consideration, for it would impart to the defendants a right, to which they were not before entitled, and it would deprive the plaintiff of a right, to which he was entitled.

To be relieved from the performance of their contract the defendants must show, that they had before acquired a legal right to the use of that channel to float their logs over the plaintiff’s land. The acquisition of such a right is asserted upon three separate and distinct grounds.

1. That by the erection of the dam at the outlet of Chamberlain lake and the obstruction of the flow of the waters to the river St. John, and by the opening of a “ cut” or channel to permit them to flow into the Penobscot river, all persons entitled to the use of the waters as they formerly flowed, were equally entitled to the use of them, as they flowed on May 4, 1846.

2. That the owners of the land, on which that “ cut” or channel was made, by making it and causing the waters to flow through it, dedicated it to the use of the public.

3. That the “ cut” or channel was offered to the public for use, upon the payment of a toll, and that the owner having no right to establish a toll without a grant from the Legislature therefor, any citizen might make use of it, without the payment of toll.

1. In the consideration of the first position, it will be assumed, that the defendants had a right to use the waters of the Allegash stream and of the lakes, to float their logs to a market.

Should a person obstruct the flow of the waters of a river or stream over their accustomed bed, so, that they could not be used as formerly, for the purposes of boating or of floating rafts or logs, and should turn them into a new channel, he would thereby authorize the public to make use of them in the new ■channel, as they had been accustomed to use them in their for:mer channel.

If . such were not the law, the public might be wholly deprived of their use by such wrongful act; for it might be imspossible to cause the waters to return, and to flow again over ¿their former bed.

But if a person without right should open a “ cut,” “ sluice” ■or channel on his own land, and thereby divert the waters of ■ a. stream, river, or lake, from their natural and accustomed course, without causing any obstruction elsewhere, the public ■would not thereby become entitled to their use over his land. ’They would not be entitled to enter upon his land and to use the waters in his canal, channel, or sluice, made perhaps for the purpose of operating valuable machinery, because some -other person had obstructed the flow and egress of the waters from a distant point of such stream, river, or lake. If this ■were not the law, the person who had opened such channel or sluice, on his own land, could never be relieved of the burden rand liability to pay all damages occasioned by it, without repairing the wrong and removing the cause of injury, occasioned by others, as well as that occasioned by himself. This would make him suffer for injuries occasioned by others, for whose ■ conduct he had never become responsible. He might with little expense, be able to fill up or obstruct the channel made by himself, and thus be relieved from all liability to the payment <pf damages, for making it. But this he could never do, if the public immediately became entitled to its use.

And he might never become lawfully entitled to enter upon the lands of others, and to. remove obstructions, occasioned by them at a distant point on such stream, river, or lake ; for no person could lawfully enter upon the lands of others, to remove such obstruction as a nuisance, who was not injured by its existence.

The person who diverts the waters of a stream, river, or lake, from their natural bed, is held responsible for all damages occasioned by his own acts. But the law does not make him responsible for the acts of others performed at a distant point on the same stream, river or lake. And he can no more be made responsible for them by being obliged to yield to the public the use of his private channel, than he can by an action at law. The injustice of it would be as great and glaring in the one case as in the other.

The application of these principles of law to the facts presented in this case, shows, that the defendants had not acquired a legal right to float their logs over the plaintiff’s land without his consent, by reason of the dam and obstruction of the waters at the outlet of the lake and of the opening of the channel across the land of the plaintiff.

The plaintiff did not erect that dam. Did not own the land, upon which it stood. Did not obstruct the natural flow of the waters at that outlet. Cannot be held responsible for acts, which he did not perform or cause to be performed. Cannot be required to make compensation for such unlawful acts of others by allowing the defendants or others to use or enter upon his own lands, any more, than he can be required to do it by an action at law.

The defendants or others injured by the erection of the dam at the outlet of the lake, or by the opening of the channel on the land of the plaintiff, may obtain redress by an action at law to recover damages of those, who have occasioned such injury. Or they may remove the dam and obstruct or fill up the channel as nuisances. The right to abate the-channel as a nuisance does not authorize the use of it for the* accomplishment of valuable purposes of a very different kind.. If a person could in all cases use a channel made and used* by another on his own land for the diversion of the waters of a stream or river from their natural bed in the same manner- and for the same purposes, for which he might lawfully use them in the stream itself, the most valuable mills and manufactories might be thereby immediately destroyed.

2. The facts presented are entirely insufficient to prove, that the channel made upon the plaintiff’s land had been dedicated to the public for use. It does not appear to have been used by any person for any purpose before the year 1846. The law does not require the lapse of any particular time to authorize the inference of a dedication. But there must be evidence, that the owner offered it and designed to do so for public or common use. There is no- testimony tending to prove that the channel on the plaintiff’s land was at any time offered for public or common use without compensation.

3. To establish a toll, the channel, way, passage, or other easement, must be exposed and offered for the use of all, who may have occasion to use it, for a settled and established compensation. It must have become such a common channel, way, or passage, by the consent or acts of the owner, that he cannot maintain trespass against any person, who may use it paying the established toll. Evén such a use of property and exaction of compensation, is not regarded as illegal by the owner of a wharf. But there is no proof of such an exposition of the channel for public use, at an established price. No proof, that the plaintiff or the former owners of the land, ever offered the use of the channel to all persons disposed to use it, or to any persons, except those, who had caused logs to be cut upon the presumption, that they might in some way be enabled to float them through that channel. No toll, in the sense in which that word is used in the law, has been established or exacted or attempted to be; while compensation has been claimed, and that claim has been enforced for a license to float logs through the channel. In the case of Wadsworth v. Smith, 2 Fairf. 278, this Court decided, that “ a proprietor may open a passage through his land for his own accommodation and may permit others to pass it under an agreement for compensation, which agreement being founded on a valuable consideration, to wit: the injury done to the freehold, may be enforced at law. He may improve his watercourse by dams, locks or otherwise, and withhold their use from all, who will not make him a reasonable compensation.” Upon the same principles he may make a new watercourse upon his land and withhold its use from all those, who will not make compensation, and authorize its use by those, who will. And contracts for such use will be lawful and valid. Those, who may be injured by the opening of such new watercourse, may abate it as a nuisance, or recover damages for that injury in an action at law. But they cannot become legally entitled to use it, because the owner of the land had no legal right to open it.

It is only by the misapprehension or by the confounding of principles, which distinguish one class of cases from another in some respects similar, that the defendants can be relieved upon the facts presented from the performance of their contract. To relieve them from its performance, the Court should be able to state clearly the principle, upon which their contract was held to be illegal, but no such principle has been presented.

The defendants by their contract, among other stipulations, promised “to pay one half of all expenses incurred by said Dwinel, in bringing up to said cut from Bangor about fifty men to protect and guard said cut, and all expenses in connexion therewith.” The report states, that the men were there detained some days after the defendants’ logs were passed through, to prevent others’ logs from being passed through. And the Court are by the agreement to determine to what extent, the defendants are by their contract liable to pay those expenses.

It could not have been the intention of the parties to make the defendants liable for the payment of the time and expenses for the support of men, for an indefinite and unlimited time after their own business had been fully completed.

It doubtless was the intention to make them pay one half of all expenses, so long, as it became necessary to watch their operations. They will not therefore be responsible for any expenses incurred for the compensation or support of the men, or for their detention after their own logs had been floated through the channel.

The defendants are to be defaulted, and the action is to be continued for the assessment of damages.