Ginn v. Hancock , 31 Me. 42 ( 1849 )

Shepley, C. J.

The action is covenant broken, founded upon the covenants contained in a deed, executed by the defendant on December 6, 1847, by which he conveyed to the plaintiffs a tract of land situated on the easterly side of Eastern river, bounded twelve rods by the river and extending easterly from it, four rods, and westerly to the middle of the bed of the river.

The first inquiry is, whether the defendant at the time of the conveyance was the owner in fee of the land conveyed. He executed a lease of the premises, extending to the middle of the channel of the river, to the Eastern River Lock and Sluice Company, on February 28, 1817, to hold for the term of twenty-five years. It is agreed, that the company entered and occupied the premises under that lease during the term, and continued to occupy after its termination, paying rent therefor to the defendant, until February 28, 1848. 'This is satisfactory proof of an exclusive occupation of the defendant, by his tenant, under claim of title, for thirty-one years. He appears, therefore, to have been the owner of land in fee, at the time of the conveyance. The fact, that another person may have been entitled to an easement upon some portion of the premises, would not disable him to convey the fee. The covenant of seizin, does not appear to have been broken.

The next inquiry is, whether his title at the time of the conveyance, was free from incumbrance. It appears, that the company by its act of incorporation, approved on December 13, 1816, was authorized “ to make a sluice and lock or locks from the outlet of Eastern liiver Great Pond, so called, to the water below the falls, at the bead of the tide, in the town of Orland, in the most suitable place for making the same, and to erect such dam or dams as may be necessary for the safety and convenience thereof.” Provision was made for compensation to persons, who might thereby suffer damage. The company, while it occupied the premises, under lease from the defendant, built a sluice and locks in “ about the centre of the stream, and partly on each side of the centre,” and erected a “ dam across the stream, which runs on the premises in question from the centre of the stream to, and on to, the eastern bank.” The dam appears to have been built across the river, extending from land owned by the company on the west side, to the land occupied by it, under the lease on the east side. The company has since erected on its own land, on the west side of the river and near to the dam, “ a double' saw-mill, a grist-mill, and a lath machine, and has used the water of the stream for the same, at all times, and claims the right to use all the water of said stream.”

The counsel for the defendant contends, that his land was not taken by the company for the erection of the dam and sluice, by virtue of the act of the Legislature, but under and by virtue of the lease, and that being permanent fixtures, so much of them as were on the defendant’s land, were, at the termination of the lease, part of his estate. There were other dams erected in other places, and the sluice was extended over lands, which do not appear to have been owned or occupied by the company. The former flow of the waters of the river was obstructed and its mode of navigation was varied by the authorized improvements. The acts performed would have been unlawful, if they had not been done by virtue of the act. The presumption is, that they acted lawfully. The company must be considered as acting by virtue of the same authority, in all parts of the river, while constructing connected works of improvement; and not as erecting one portion of such works, by virtue of the act, and another portion by a different right or authority, merely because it was erected on land owned or occupied by it. The works must therefore be considered as erected and maintained by the company, by virtue of the act, and as rightfully existing there as its property, at the time of the conveyance. It is agreed, that “no damages for the premises in question were ever claimed or assessed under the act, and as there provided.” This fact does not deprive the company of the right to maintain those works. - The defendant might have applied and have had any damages occasioned thereby, to his reversionary interest assessed according to the provisions of the act. His neglect to do so, cannot diminish the rights of the company. The land must therefore be considered as subjected to that servitude and as thereby incumbered at the time of the conveyance.

The inquiry then arises, respecting the extent of that incumbrance. Whether it embraced the whole water power, and appropriated it to the use of the company, or only such an appropriation and use of the water, as might be necessary for the full °and convenient operation of the works. The rights of the company axe derived from and limited by its charter. That only can be considered as granted, which is necessary for such use, and operation. If there remained a surplus of water in the river, which might be useful for other purposes, that would not be granted, nor could it be appropriated by virtue of the act. No riparian proprietor could have damages assessed for an injury not occasioned by an erection of the dams, sluice and locks, and by the appropriation of so much water as would be necessary for the full and convenient operation of the works. In all other respects, the rights of the riparian proprietors would remain unaffected. Every such proprietor has an equal right with the owner of the opposite shore to the flow and use of the water, while it flows upon his land, so far as he has not been deprived of it, by grant, license, prescription or by the exercise of the right of eminent domain. The fact,- that the company is the owner of the whole of the dam, will not deprive the owner of the eastern shore of the right to use the surplus water. To hold., that it would do so, would be to appropriate the whole water power to the use of the company/ If it be found to be necessary to the use of the surplus water, that it should be drawn through the easterly end of the dam, and that can be done without injuring it, for the accomplishment of all the purposes of the works authorized to be erected, the owner will be entitled to use it in that manner. The right of private property in works erected for public improvements by the exercise of the right of eminent domain, is not such as to exclude all others from a use of it necessary to the enjoyment of their own property, and not inconsistent with the full and convenient use of it for the purposes of the improvement, and not injurious to the works erected.

The company cannot establish any claim to the use of the whole of the surplus water by an adverse use of it, for although it may have had the use of it for more than twenty years, yet it has enjoyed such use by virtue of a lease of the land on the eastern side of the river, extending to the middle of the channel, which precludes the assertion of an adverse enjoyment.

The parties have agreed, “ if the court should be of opinion, that said company has an exclusive and prior right to use said water only for the necessary purposes of said lock and sluice, and that the plaintiffs have an equal right with said company in the remaining water and to the use thereof, then the plaintiffs to be nonsuit.”

Although the premises at the time of the conveyance were subject to an easement and incumbrance, yet, according to the agreement of the parties, a nonsuit must be entered.

Note. — Hovard, J. took no part in tliis decision.