State v. Godfrey , 12 Me. 361 ( 1835 )

Weston C. J.

'delivered the opinion of the Court.

■ The defendants justify the act, charged as a nuisance, under a statute to incorporate the Penobscot Mill Dam Company, and also as riparian proprietors. The first question raised has reference to the limits prescribed by their charter. The language is, “ between the foot of Rose’s or Treat’s falls in Bangor, and McMahon’s falls in Eddington.” That which lies between one given place and another, is something distinct from the place given on either side. Perhaps no word in our language has a more precise and definite meaning, than between. It indicates an intermediate space, which excludes, and cannot include that to which it refers. If land is granted between one township and another, both are excluded from the grant. If land is conveyed, lying between lot number one and number three, it could not be pretended that either of these lots passed by the deed.

The force and effect of this term is so well understood, that we have been referred to but one case, in which any attempt has been made to give it a different meaning. In Revere v. Leonard & al. 1 Mass. 91, it was contended by counsel that, if the words of the grant could, not be otherwise satisfied, it would be reasonable and equitable to construe the words in the deed in question, “ between the slitting mill and the forge dam,” so as to include the forge dam ; but the whole court were of opinion that these words did not admit of that construction.

We have been referred to a class of cases, in which there has been much discussion, as to the computation of time from one day or date to another. Many of them are noticed in Windsor v. China, 4 Greenl. 298, cited in the argument. There is a want of uniformity in the decisions, whether the date or the day of the date, shall or shall not be included in the estimate. The analogy between these cases, and the one before us, is not sufficiently strong to give them an authoritative application, and if it was, their want of uniformity is such, as to afford us little aid in determining the point under consideration.

It is urged that the foot of McMahon’s falls not being in express terms made the boundary in that direction, as the foot of Treat’s falls is in the other, the implication arising from the omission is, that the legislature did not intend to limit the corporation to the lower part of McMahon’s falls. If the corporation had been authorized to make their erections between those falls, both would have been excluded. The public object contemplated avowedly was, to improve the navigation of the river. To do this the more perfectly, it might be necessary to flow out Treat’s falls ; and this affords a sufficient reason for authorizing the corporation to erect a dam below them, and to appoint the foot as a boundary there, which did not apply to McMahon’s above. If the use of the term foot was necessary to include Treat’s falls within their limits, of which we think there can be no reasonable doubt, it was equally necessary to designate the head of McMahon’s falls, to include them within the charter. If the whole of the falls, given for the commencement and termination of their limits, were constructively included, there was no occasion for referring them expressly to the foot of Treat’s. But by using that term, it is fairly to be understood, that in the judgment of the legislature, those falls "would not otherwise have been included. The same reason, which induced them to designate the foot of Treat’s, would have suggested the necessity of referring to the head of McMahon’s, if they intended to extend the limits thus far in that direction.

Nor do we perceive that the subject matter, or the object contemplated, calls for a different construction, if we were at liberty to depart from the plain meaning of the language used. The power was conferred on the corporation, “ for the purpose of flowing the water a sufficient height, for the safe and convenient passage of rafts and boats, from the foot of Ayer’s falls in Orono, to Bangor.” Although the corporation are authorized to erect more than one dam within their limits ; yet, one across the river would create a water power quite sufficient for all their purposes. It is hardly probable that more than one was within their plan of operations, as the whole real and personal estate, they were permitted to hold, was not to exceed two hundred thousand dollars. If erected below Treat’s fells, it would flow them out, and if below McMahon’s, it would have the same effect upon them, if the dam was of sufficient height; but if above both, they -would both be left unimproved. However much we may regret the error committed by the corporation, in erecting their dam without their chartered limits; yet such appears to be the fact, upon the finding of the jury, holding, as we feel constrained to do, that the foot of .McMahon’s falls is the point, to which they are restricted in that direction.

This renders the inquiry, as to the correctness of the ninth instruction, which has been made the subject of complaint, unimportant. If an impediment to the navigation, during the progress of their erections, was essential to their operations, and therefore warranted, as is contended, by necessary implication, no such implied power could attach to the operations of the corporation, or of individuals under them,- beyond their chartered limits.

If the erection of the dam was an annoyance to the right of the public, to navigate the river, as the jury have found, the defendants are guilty, unless justified by the charter, under which they claim to have acted; and the burthen of proof is thrown upon them to make out this justification. They proceeded under the statute at their peril. If they erred, their justification fails, although they may have intended to keep within their limits, and although reasonable doubts might have existed as to their extent. And the jury, in our judgment, were properly instructed to this effect.

The Judge was requested to instruct the jury, that the indictment charging the nuisance as in Bangor, the defendants could not be found guilty of erecting that part of the dam, which is in Eddington, nor of that part which is in Bangor, unless it was of itself a nuisance. This he declined, intending to reserve the question.

Sergeant BLatvkins, in his treatise upon pleas of the crown, book 2, ch. 46, <§> 34, lays it down as a settled rule of law, that a place, laid only for a venue in an indictment,'is no way material upon evidence, and that proof of the offence in any other place in the same county maintains the indictment, as well as if it had been proved in the very same place. But he further states, that where a certain place is made part of the description of the fact, which is charged against the defendant,' the least variance as to such place, between, the evidence and the indictment, is fatal. Blackstone regards a mistake in the place unimportant, unless where it is laid, not merely as a venue, but as part of the description of the offence. 4 Bl. Com; 306. In the King v. Hammond, 1 Strange, 44, the defendant was indicted for a nuisance in the common highway, without any averment, describing from, or to what points the way passed ; and the court upon demurrer held it unnecessary, deeming it sufficient, that it was charged in the highway generally.

In Senhouse v. Christian & als. 1 T. R. 561, Buller J. says, “ it is true that in ancient proceedings, an highway is stated as a road, leading from one rill to another; but that is done only for the purpose of showing that it is a highway. And it has been settled of late years, that it is not necessary so to state it in an indictment; for if it be laid to be an highway, that is sufficient.”

An objection similar in principle, was taken in the company of proprietors of the Mersey and Irwell navigation v. Douglas et als. 2 East, 497, which was an action of the case for a nuisance in the river Irwell, at Preston, in the county of Bancaster. If Preston was matter of local description it was wrong, and the Judge accordingly ordered a nonsuit at the trial. A rule nisi having been obtained for setting aside the nonsuit, and granting a new trial, the court made the rule absolute, holding that Preston was used merely as a venue, and not as a part of the local description, where the nuisance was committed.

In the Commonwealth v. Hall et als. 15 Mass. 240, the court held it to be sufficient to aver that the nuisance was in the highway. Upon an objection that the termini were not stated, the court overruled it, saying, that as the nuisance was averred to have been erected at Sutton, in the county of Worcester, and the highway was alleged to be there, the way was sufficiently described. But they did not hold this to have been essential, nor was a question raised whether Sutton was used merely as a venue, or as descriptive of the offence. Judgment was there arrested upon another point. In an indictment against a town for not repairing a highway, it is of the essence of the charge, and necessarily descriptive of it, to aver that the highway is in that town.

Whether this objection can prevail or not, depends upon the question, whether Bangor is laid as a venue, or as part of the description of the offence charged. The offence would have been the same, whether committed' in Bangor, Eddington, or any other town, through which the Penobscot runs. It seems therefore to us that Bangor is not laid as descriptive of the charge, or as in any manner essential to it, but as a venue, which is necessary in compliance with legal forms, long settled and established. If a venue as such had not been essential, it would have been sufficient, according to the cases, to have charged the defendants with having erected a nuisance in the Penobscot river, with the proper averments as to the right of the public to use the same as a navigable river and public highway.

The truth of the averment in the indictment, that the Penobscot river is, and has been, a navigable river and common highway, for all the citizens of the state, with their boats and rafts to pass and repass at their free will, has been found by the jury. The defendants, as riparian proprietors, may make any use of the river, consistent with the public right, but this they cannot lawfully obstruct or impair. But it is insisted that the defendants cannot be held liable to an indictment, but should be called upon by a quo warranto. A quo warranto, or an information in the nature of it, is the proper course of proceedings, by which to ascertain in behalf of the government, whether a charter has been abused, with a view to declare it forfeited. This indictment can have no such effect. It leaves the charter, under which the defendants have attempted to protect themselves, unimpaired. It is conceded.that a civil action might be sustained for an injury to an individual, but it is denied that an indictment can be prosecuted for the public injury. We cannot perceive sufficient ground for this distinction. The legislature have the power to authorize an erection in a navigable river, which would otherwise be a nuisance. If thus justified, neither a civil action nor an indictment could be maintained for the erection. If the extent and limitations of the charter cannot be controverted collaterally, but only upon a quo warranto, it is an objection, which maybe interposed with as much propriety in bar of a civil action, as of a criminal prosecution. In our opinion, this objection cannot prevail. The defendants were authorized by the legislature to erect a dam or dams between certain points. They have erected one above both. The charter then affords them no protection ; and they must be regarded merely as wrongdoers.

Upon a view of the whole case, the opinion of the Court is, that the indictment has been sustained.