Prescott v. Curtis , 42 Me. 64 ( 1856 )

Tenney, C. J.

Under R. S., c. 126, § 6, the complaint shall contain such a description of the land, alleged to be overflowed, and injured, and such a statement of the damage, that the record of the case shall show, with sufficient certainty, the matter which shall have been heard and determined therein. The complaint in this case contains a specific statement of every thing required by this provision.

The Court overruled a motion made by the respondents, to dismiss the complaint, because it is not alleged therein, that the lands described were overflowed, by reason of the head of water, made necessary to work the respondents’ mills; and because it did not contain the allegation, that the respondents built their dam and mills on their own land, or on land of another with his consent. Such allegations are not required in terms by the statute of 1841, c. 126, as they were by that of 1821, c. 45. And on an examination and comparison of the two statutes, the change was obviously intended. The motion was properly overruled.

The respondents pleaded in bar, that the complainant’s lands were not overflowed, by reason of the head of water raised by the respondents’ dam. The Judge ruled substantially, that whether it were so or not, was not an issue, which could be there tried,,by the jury; but one, that must be determined by the commissioners to be subsequently appointed by the Court, under the statute, if tried at all.

By R. S., c. 126, § 9, the respondents may plead, that the complainant has no right, title or estate in the lands alleged to be flowed; or that he has a right to maintain such a dam, and flow the lands for an agreed price, or without any compensation; or any other matter, which may show that the complainant cannot maintain his suit; but he shall not plead in bar of the complaint, that the land described therein is not injured by such dam.

The only ground for the complaint under the statute is, that the complainant has sustained damages in his lands by their being overflowed by a mill-dam. Sect. 5. If the lands have not been overflowed by the mill-dam alleged in the complaint, they have not been injured by such dam. But the respondent is precluded from pleading that the land is not injured by such dam; consequently, that it was not overflowed thereby.

It is said by the Court, in Nelson v. Butterfield, 21 Maine, 220, “ but there can be no doubt, that it was the intention of the Legislature of this State, to require that defence (that the complainant had not been injured,) to be first made before the commissioners, whose report may be impeached, and this question, among others, may then be regularly presented to a jury for a decision.”

The respondents, in another plea, claimed to be exonerated from liability, under an alleged prescriptive right to flow the lands, described in the complaint, without the payment of damages, which the Judge instructed the jury, could not be acquired, unless it appeared that the complainant had suffered injury or sustained damages by the flowing relied upon to sustain this defence; that such damage must be proved. This principle is well settled by a series of decisions in this State, and affirmed in a recent case. Underwood v. North Wayne Scythe Co. 41 Maine, 291.

The plea of the respondents, last referred to, is peculiar in its form and character, in this, that it is alleged that they had flowed for upwards of twenty years before the date of the complaint, doing the same damage, if any, that had been done, within the three years, which was the subject of the complaint. Whether damage was done within three years before the origin of the complaint, was not a question to be settled at the trial, by the jury; but the damage for the twenty years and upwards must have been shown absolutely, in order to make out the prescriptive right. Exceptions overruled.

Hathaway, Appleton, May and Goodenow, J. J., concurred.