Underwood v. North Wayne Scythe Co. , 38 Me. 75 ( 1854 )

Appleton J.

— This is a complaint under the statute for flowing. The declaration originally contained two counts, but during the progress of the trial, all claim for damages under the second was abandoned.

The first count alleges, that the respondents are the occupants of certain water-mills, being and standing on their land in Wayne, and on a stream in said town; for the working of which mills, said respondents, since the 14th of November, 1848, had maintained a dam on their land across said stream, by reason whereof the land of the complainant was flowed.

It appears from the evidence, that there was one dam erected and maintained in Wayne for the working of the defendants’ mills, and that this had been in existence-for more than forty years. Subsequently, and in 1821, the owners of these mills and the dam, built a dam at the outlet of the pond, and about one hundred and fifty rods above the first mentioned dam for the purpose of stopping the water when making repairs upon the lower dam. In 1849, the dam built in 1821, having gone to decay, another dam midway between the dam at the outlet of the pond and that at the mills was erected to enable them to stop the water from the mills below, while the lower dam was being repaired.

Upon this state of facts, the presiding Judge instructed the jury, that “ they would not be confined in their deliberations to the proof relative to the dam at the mills, in ascertaining whether damage had been occasioned by the overflowing of the complainant’s land by that dam; but if they should find that the damage was occasioned by the other dams, or by any one of them, as contended for by the complainant, their verdict would be for him.”

The declaration, when the cause was submitted to the jury, referred to one dam only. The instructions given related to other dams than that of which complaint was made. The rights of the parties are only to be ascertained from the record. That discloses or should disclose, the grievances suffered and on acconnt of which, damages are awarded. But the instructions permitted the jury to disregard the record, and to render a verdict for injuries resulting from causes in reference to which no complaint had been made. It is no answer to say, that the other dams were auxiliary to the main dam. If so, they were the subject of specific complaint if they were the occasion of any damage to the complainant. Nelson v. Butterfield, 21 Maine, 220. The judgment in this case would afford no protection against a complaint for injuries arising from other dams. The instructions given were erroneous, and the exceptions must be sustained. Exceptions sustained and new trial granted.

Shepley, C. J., and Tenney and Cutting, J. J., concurred.