Hill v. Jeremiah Baker , 28 Me. 9 ( 1848 )

The opinion of the Court was drawn up by

Whitman C. J.

This is an application under the Rev. Stat. c. 126. The respondents plead in abatement, that there are other owners, of the mill dam complained .of, who are not named in the application; and to this the applicant demurs. The truth of the allegation in the plea, that there were other owners of the dam not named in the application, is, therefore admitted. And the question from thence arising, is, was it essential that the other owners should have been joined with the respondents in the application.

In an action at common law, for injuries arising from the reflux of waters, occasioned by the erection of mill dams, such a plea could not be sustained. But by the statute the action at common law, except under particular circumstances, is abolished. There is now no remedy for an individual, so injured, except it be under the statute, or when mill owners fail to comply with its provisions. The mill owners, in the first instance, are empowered to flow the lands of others. Any restriction or regulation of the flowage must be obtained on application of the party injured. The mill owners, therefore, in flowing the lands of others, are riot originally tort feasors. The process authorized against them is not as tort feasors, but is rather in the nature of a bill in equity, to obtain redress for the injury occasioned by the flowage; and to obtain that, which is in effect an injunction against an unreasonable exercise of the right of flowage. It is manifest in such case, that all the parties in interest should be before the court. The statute seems clearly to contemplate that such should be the case. The rights of all those interested in the dam are to be affected. The applicant is to have a lien, from the time of his application, upon the dam, mill and privileges (<§> 19) for his damages. The restrictions upon flowage are to affect all the owners alike. It would be impracticable to regulate it otherwise. If judgment be obtained, in a suit, and execution be thereon issued, for the damages awarded (<§> 21) it maybe levied upon the whole of the dam, mill and privilege by a sale at auction. It is one of the first principles in administering justice, that the rights of no one shall he~ affected without an opportunity to be heard in his defence. All the owners of the mill and dam, therefore, should be before the court, before any proceeding should be had against them.

It is true that it may be difficult in some instances, to ascertain who the owners of a mill privilege are. But this is,a difficulty similar to what occurs in actions of assumpsit at common law, in many cases, the inconvenience in which has been provided against recently by statute ; and the legislature may see fit to apply a similar remedy in cases of flowage.

Plea in abatement adjudged good—

Application dismissed.