Dwinel v. Veazie , 44 Me. 167 ( 1857 )

Hathaway, J.

Penobscot river is navigable for boats, rafts, and lumber, above and below Oldtown Palls. In the river are sundry islands, which so divide the waters as to make an east and a west channel. Goat island is near to, and next below the falls, and Webster’s island next below that.

The defendant owned a mill privilege at those falls, on the west channel of the river, and he and those from whom he derived his title, have owned and occupied it as such, evor since 1801.

The plaintiff owned a mill privilege on the same channel, about half a mile below the defendant’s mills, which privilege has been owned and occupied by the plaintiff and those from whom he derived his title since 1803. When the dam was built on the plaintiff’s privilege, in 1803, no sluice or passage way was made through it for running rafts, but instead thereof, the owner of it built a side dam from Webster’s island to Goat island, and made a sluice through it, near its lower end, which dam and sluice were ever after kept in repair by the owners of the plaintiff’s mill site, until 1854, and the sluice was always used by the owners and occupants of the mills on the defendant’s privilege, for running rafts of lumber from their mills into the eastern channel of the river, where they could be floated to market.

“A bank of drift stuff, slabs, &c., accumulated in the river, between the plaintiff’s and the defendant’s mills, which bank extended down the stream from the western side of Goat island, narrowing the channel, and leaving a large basin on the east side of the bank, between said bank and the side dam, around the lower end of which bank was the channel or passage for rafts to the sluice.

In the spring of 18'54 a breach was made in the side dam, and a part thereof, near the upper end of it, carried away, by reason of which the floating of rafts through the sluice became impracticable or dangerous. The plaintiff had due notice of the breach in the side dam, but did not repair it. Whereupon the defendant made a cut through the u bank of drift stuff, edgings, and slabs,” through which rafts could be run from his mills, and thence through the breach in the side dam, to the eastern channel of the river.

The cut made by the defendant through the “ bank of drift stuff,” &c.; diverted the water, or a considerable portion of it, from the plaintiff’s mills, to his damage, for which this action was brought, and also for filling up and obstructing the channel of the river and the plaintiff’s mill-pond. The case is presented on exceptions, and a motion for a new trial.

The defendant contends “ that no action can be maintained for any damages sustained by the plaintiff from the filling up of his mill-pond by edgings and drift stuff, even though the facts be as alleged by him,” for, “ that the wrong done, if one, is of a public and general nature.”

The allegation in the second count in the writ, is, that the defendant had “ filled up and obstructed the said channel and mill-pond with slabs and edgings, &c., so that the channel of said river has been choked and finally diverted, and the said Dwinel’s mill-pond has been filled up.” We cannot doubt that this is a sufficient allegation of special injury to maintain an action, according to the authority of Stetson v. Faxon, 19 Pick. R., 147, and other cases cited in argument by the defendant’s counsel.

When the defendant’s mill privilege was first occupied, as such, in 1801, the owner thereof had a right to the use of the water for his mills, subject to the rights of the public to the use of the river as a stream navigable for boats, rafts and lumber, and when the plaintiff’s mill privilege was first occupied, as such, in 1803, the rights of the owner thereof, and his duties to furnish facilities of passage to the public at his mill-dam, wore the same as those of the owner of the upper privilege, neither of them having the right, by his dam, to raise a head of water so high as to injure the operations of an older mill above his mill-site. The defendant had a right to the use of the water above his mills, to float logs to them, and also to the use of the water below them, to float rafts and lumber to market, and also to float away the waste stuff from his mills, so far as such use was reasonable and conformable to the usages and wants of the community.

His right of way was in the waters, and the plaintiff had no authority to prevent its use. The owner of the plaintiff’s privilege had a legal right to erect and continue his dam and mills, but he was bound to provide a way of passage for the defendant’s rafts. Brown v. Chadbourne, 31 Maine R., 9.

The plaintiff proved by Ebenezer Webster that there was no channel between the two islands when the side dam was built between them, and that rafts could run out between them only when the water was high.

The original erection of the dam, on the plaintiff’s privilege obstructed the flowing of the waters, so that they could not be used there as formerly, for floating rafts. The effect of the plaintiff’s mill-dam, tho side dam, and the sluice, was to raise the waters to be used for floating rafts from the defendant’s mills, and turn them into a new channel between Goat island and Webster’s island.

It was held by the court in Dwinel v. Barnard, 28 Maine R., 554, that “should a person obstruct the flow of the waters of a river or stream over their accustomed bed, so that they could not be used as formerly for the purposes of boating or of floating rafts or logs, and should turn them into a new channel, he would thereby authorize the public to use thém in the new channel, as they had been accustomed to use them in their former channel.”

The owners and occupants of the mills on the defendant’s privilege had used the new channel between those islands over fifty years, running their rafts through the sluice until they could not safely use it longer, by reason of the breach in the side dam above the sluice.

The defendant had a right to use the water for floating his rafts. The channel had been obstructed by the plaintiff’s mill-dam, and the waters to be used for floating rafts, had béen turned into a new channel, which was in such a condition that it could not be safely used without expensive repairs, which it was the plaintiff’s duty to make, or to provide some suitable passage way, which he neglected to do, after notice. The defendant had all the rights of passage for his rafts through the side dam which he would have had through the mill-dam, if the side dam and sluice had never been made, and he had a lawful right, in the use of reasonable care, arid causing no unnecessary damage to the plaintiff, to effect a suitable passage for his rafts. And whether in doing it he used such care, or caused any unnecessary damage to the plaintiff^ is a question of fact, which should have been submittéd to the jury.

The defendant would not be liable for the tortious acts of his lessees, unless authorized by him. Rich v. Barterfield, 56 Eng. Com. Law R., 783; Regina v. Watson, 2 Ld. Raymond, 856; Earle v. Hall, 2 Met. R., 353; Hilliard v. Richardson, 3 Gray’s R., 349; Wyman v. Farrar, 35 Maine R., 64. And the case furnishes no evidence that they were authorized by him to do any unlawful act to the plaintiff’s property. So far as the instructions given to the jury, are conflicting with our views of the law upon the questions presented in the case, and considered by the court, we think they were erroneous. The exceptions are sustained. The verdict is set aside, and a new trial granted.

It is not necessary to consider the other questions presented on the motion.