Inhabitants of Monmouth v. Gardiner , 35 Me. 247 ( 1853 )

Hathaway, J.

— In cases for flowing lands by mill owners, the remedy for the proprietor of the land is provided by the statute, and an action at common law cannot be maintained. Statute c. 126, § 28. Stowell v. Flagg, 11 Mass. 314. The defendant had the right to flow the land of the proprietors as provided by law, and in 1843, he acquired the unconditional right to flow it, so far as they were concerned. But that did not authorize him to obstruct or injure the public highway, which the plaintiffs were legally bound to keep in a condition safe and convenient for travelers.

The public have but an easement in the land upon which the road is made. The town is obliged by law to keep the road in repair, and cannot have the benefit of the statute remedy for flowing. Calais v. Dyer, 7 Greenl. 155.

In the case last cited, Mellen, C. J. intimated, that an action on the case would be an appropriate mode of redress for the town. ■

The easement in the land, over which the road was made, must have been either paid for or given to the public at the time; or the road could not have been legally established. Although the title in the soil remained in him from whom the use was taken, yet the public acquired the right to pass over the surface, in the state in which it was, when first made a public road. Callender v. Marsh, 1 Pick. 430. The statute does not justify or excuse the erection of a dam in such manner as to overflow a public highway already appropriated and in actual use. Commonwealth v. Stevens, 10 Pick. 247.

It would present a remarkable conflict of legislation, for one statute to authorize an indictment against a town for a defective highway, while another statute authorized an individual to render it defective.

If additional rights of flowing lands, in such cases, are deemed necessary, it is for the Legislature, not for the Court, to grant them.

The Court does not perceive any error in the instructions given by the Judge who presided at the trial, or in his refusal to instruct as requested.

This action was brought up, on the plaintiffs’ appeal from a judgment, in the late District Court, on demurrer filed, by consent of parties, with an agreement to waive the same, and the defendant claims costs after the appeal, under the statute, c. 97, § 15, because the plaintiff did not recover more than two hundred dollars. By recurring to the statute it will be perceived that such an appeal is embraced in the exceptions, in that section of the Act, and not in the enacting clause. He is not therefore entitled to costs.

According to the decisions of the Court in Sutherland v. Jackson, 32 Maine, 80, and Morrison v. Kittredge, 32 Maine, 100, the plaintiffs are entitled to recover full costs.

The plaintiffs’ exceptions are sustained.

The defendant’s exceptions are overruled.

Judgment for the plaintiffs, on the verdict, with full costs.

Wells and Howard, J. J., concurred. Shepley, C. J., concurred in the result.