Hersey v. Packard , 56 Me. 395 ( 1868 )

Walton, J.

— The only fact in dispute between these parties is whether the new dam, built by the defendant, (Packard,) in 1839, flowed the plaintiff’s land higher than he had then acquired a prescriptive right to flow it, without the payment of damages; and this fact has been once litigated between the parties and decided against the defendant. The defendant testifies that soon after the dam was built the plaintiff claimed damages. The defendant claimed that he had a prescriptive right to flow without the payment of damages. The plaintiff claimed that the new dam flowed his land higher than it had ever been flowed before. They agreed to submit the question to arbitration. Intelligent referees were selected and a hearing had. This was soon after the new dam was built, when it must have been much easier to ascertain whether it flowed the plaintiff’s land higher than any previous dam had flowed it, than it is now after the lapse of more than a quarter of a century. The referees awarded the plaintiff damages at the rate of five dollars per annum from the time the new dam was completed'. Their report was accepted by the District Court aud judgment rendered thereon. If there are any defects in the submission or record of the judgment, they are such as relate to matters of form only. There is nothing to indicate that the case was not fairly tried and honestly decided. The judgment still remains in full force. If liable to be reversed for informalities, it never has been. The defendant, if he did not admit the decision to be just, acquiesced in it, and for ten years paid the annual damages thereby awarded. He now claims to have the identical question that was then tried, and decided against him, tried over again. He now claims precisely what he then claimed, that the new dam, built in 1839, flowed no higher than he had then acquired a prescriptive right to flow without the payment of damages. This was his only defence then, it is his only defence now. Is it open to him? Clearly not. The defendant has had his day in Court; he has had his right to flow the plaintiff’s land without payment of damages once passed upon; the decision was against him; he expressly agreed that the judgment should be final; and to allow him to again try the same question, would not only be contrary to the plainest principles of right, as between man and man, but contrary to well settled rules of law. The authorities in support of this conclusion are too familiar to require citation.

This case is not distinguishable in principle from the case of Adams v. Pearson, 7 Pick., 341, and the circumstances of the two cases are strikingly alike. That like this was a complaint for flowage. In that case as in this the defendant claimed a prescriptive right to flow the plaintiff’s land. There as here the plaintiff’s right to recover damages had been submitted to referees, and decided in his favor. The report had been returned to. and accepted by the Court of Common Pleas, and judgment rendered thereon, as was done in this case. The defendant claimed to have the question tried over again ; the plaintiff claimed that he was estopped by the former adjudication. The Court held that, it having been settled and adjudged on the former complaint that the plaintiff was entitled to damages, the defendant could not be allowed to aver anything inconsistent with that adjudication, otherwise there would be no end to controversies. And, speaking of the reference, the Court said that although the damages were ascertained by referees mutually chosen by the parties, their report was equivalent to a verdict, and judgment thereon as binding as a judgment on the verdict of a jury.

The defendant contends that if, before submitting the question to arbitration, he had actually acquired a prescriptive right to flow the plaintiff’s land, without the payment of damages, nothing short of a deed of conveyance or its equivalent would devest him of the right; and he relies upon the case of School District v. Benson, 31 Maine, 381, in which it was held that the title to real estate, obtained by disseizin, could not be devested-by a parol abandonment or relinquishment, in support of his proposition. But the cases are not analogous; for, inasmuch as the right to flow land for mill purposes is given by statute,' and the owner has simply a pecuniary claim for compensation, it has been held that such claim, like any other pecuniary claim, may be waived, satisfied or extinguished by parol. Snow v. Moses, 53 Maine, 546, and authorities there cited. But there is another complete answer to the objection, and that is, that the judgment of a court of record is as effectual to devest a party of any interest he may have in real estate as a deed of conveyance.

There has been no change in the dam since the award of the referees, nor since it was built. The defendant himself so testifies. The flowage is the same now as it was at the time of the former adjudication, and if the plaintiff was entitled to damages then, he is now; for there is no pretence that the defendant has acquired a right to flow without the payment of damages since that time, he having paid the annual damages till 1852. He claims now precisely what he claimed then; namely, that the new dam, built by him in 1839, flowed the plaintiff’s land no higher than he had then acquired a prescriptive right to flow it without the payment of damages. He resisted the plaintiff’s claim to damages upon that ground then, he resists it upon precisely the same ground now. His counsel endeavors to avoid the effect of the former adjudication, not upon the ground that the plaintiff’s land is flowed less now than it was then ; but upon the ground that there were informalities in the proceedings ; that such a claim for damages was not a proper matter for arbitration; that the judgment would not have the effect to devest the defendant of his right to flow without the payment of damages, if he had then actually acquired such a right; that nothing short of a deed of conveyance would have such effect. None of these grounds are in our judgment tenable.

Our conclusion, therefore, is that the plaintiff is entitled to recover, and that a committee should be appointed to appraise the damages, as provided in c. 91, § 9, of the R. S. of 1857.

Appleton, C. J., Cutting, Dickerson and Daneorth, JJ., concurred.