Toothaker v. Winslow , 61 Me. 123 ( 1872 )

Babrows, J.

The facts alleged in the declaration and admitted by the demurrer are substantially as follows: The Richardson Lake Dam Company, incorporated by special act of the legislature in 1853, for the purpose of making such improvements on the Andros-coggin river and its tributaries as would facilitate the floating of logs, timber, masts, and spars to a market, and authorized to remove obstructions, build dams and wing-dams, gates, piers, booms, etc., with the various rights and privileges enjoyed by other similar corporations under the laws of this State, and empowered to take such lands as might be necessary for the sites of their dams, booms, and sluices, and to demand a certain toll upon every log passing their dam at the outlet of Mooselukmaguntic Lake, and another certain toll upon every log passing their dam at the outlet of the Richardson Lake, had erected costly dams, sluices, gates, etc., at the outlet of each of said lakes, and expended large sums in removing the obstructions in those waters, and greatly facilitated the running of logs and timber through those lakes and their outlets, and at last into the Androscoggin river, by preserving and holding back the water for that purpose ; and in the season of 1869 — 70 the plaintiff had cut and landed on the tributary waters above these dams a large quantity (exceeding nine millions of feet) of logs and timber, and had contracted with the corporation that he should run the same through their dams and sluices upon payment of the required toll, and in the spring of 1870 had driven the logs through the Mooselukmaguntic, and into the Richardson Lake; and the gates of the dam at the outlet of Richardson Lake were closed for the purpose of saving the water to facilitate the driving of the logs. Defendant knew these facts and knew the necessity of keeping the gates closed till plaintiff’s logs arrived there, but on the 1st day of June, 1870, wilfully hoisted three of the gates before the plaintiff’s logs arrived, and kept them open a long time though requested by plaintiff to desist, and so reduced the water in the lake as greatly to hinder and delay the plaintiff in getting his logs across the lake, and prevented him from getting them out that season, by which means they were greatly depreciated in value, a portion of them lost, and the plaintiff was put to great expense.

A second count in the writ sets forth the same facts, with the additional allegation that the plaintiff had been authorized and directed by the corporation to keep the gates closed until he should get there with his drive, and be ready to have them pass through the sluices, and that defendant wilfully hoisted the gates and kept them up, although before he did this as much water was running from the Richardson Lake to the lake below as would have run had there been no dam there.

Waiving all objections that may be readily cured by amendment, the defendant seeks now a decision of two questions only : 1. Whether the plaintiff can maintain any action against the defendant upon the foregoing facts ? 2. Whether the Richardson Lake Dam Company has the right under its charter to stop all the water flowing there, or is bound at all times’to let the usual flow of water pass after its dams are once filled ?

The defendant contends that for any wrong he has done by in-termeddling with the property of the Richardson Lake Dam Company, the remedy is to be sought by suit in the name of that corporation ; that if the charter of that company confers upon any one the right to diminish the natural flow of the water at one time, and increase its volume at another, it is only a discretionary power vested in the company alone; that no individual citizen having a contract with the company to run his logs through their dams, has a right to have the water retained for his logs regardless of the convenience of those who have occasion to use the river as a highway or the water for other purposes; that any attempt on the part of the company to confer special, or greater, or exclusive rights and privileges upon any individual, would be in violation of the rights of other citizens, and therefore void; that if plaintiff asserts a right as agent of the company under the authority given him to keep the gates closed, any suit for the violation of that right must necessarily be in the name of the company; that as one of the public, the plaintiff had no legal right to have the reserved water retained to float his logs, his only legal right being to the water as it was wont to run in a state of nature; that at best his rights to the reserved water were subject to the discretion of the company, and so the defendant has not been guilty of depriving the plaintiff of any legal right, and consequently no action can be maintained by the plaintiff against him. And whether these positions are found correct or not, he contends that at all events no action can be maintained upon the first count for want of an averment that the natural and usual .flow of water was passing the dam at the time the defendant did the acts complained of; that the Dam Company, after completing and filling their darns are bound at all times to allow the usual flow of the stream to pass their dam, and if they do not, the dam is so far a nuisance which defendant had a right to abate.

It is quite apparent that a part of the questions which the defendant proposes to raise do not properly come before us on a demurrer to the declaration, but will arise, if at all, when his justification conies to be heard.

If the chartered rights of the Dam Co. are so abused as to make the dam a nuisance, still only those whose rights and privileges were injured or abridged thereby would have a right to abate it; and in this stage of the case it does not appear that the defendant is in a position to set up such a defense.

A mere intermeddler, who has no occasion to intervene for the protection of substantial rights of his own, and cannot justify as the servant of one who had such rights requiring protection, could not be heard to assert a justification of that sort.

For aught that appears here the defendant was a mere volunteer to redress grievances which, whether real or imaginary, did not in any manner affect him, or any one for whom he was authorized to act. If it shall appear at the trial of the cause that the defendant may rightfully enter upon such an inquiry, it will be in season then to determine in the light of the testimony offered by both parties whether the defendant’s acts can be justified as the abatement of a nuisance specially prejudicial to himself or those for whom he acted.

We therefore pass this part of the case at the present time with the single remark, that while it is doubtless true that in the exercise of any and all chartered privileges and powers which are in derogation or restriction of common rights, all due and reasonable care mast be used to avoid any unnecessary or unreasonable abridgment of the public right, or injury to those who have occasion to exercise it, it must not be expected that such a construction of the act will be adopted as will make the legislative grant nugatory, or deprive the privilege conferred thereby of its substantial value.

Reasonable mutual regard for the convenience and interest of all other parties liable to be unfavorably affected, and due care to avoid needless injury or hindrance to them, must be the rule of action on all hands.

Whether either party to this suit has been guilty of a breach of this rule, and if so, which, are not questions that can be intelligently decided upon a demurrer to this declaration or to either of the counts in it.

All that can be said at present is that the legislature in the legitimate exercise of their power of eminent domain have granted powers and privileges to the Richardson Lake Dam Company which must necessarily, to some extent, affect the use of the water below, and the common rights of all citizens to the use of the stream’ as a public highway; yet the powers thus granted are to be exercised, in a reasonably discreet manner, for the accomplishment of the purpose for which the grant was made, with as slight disturbance or abridgment of the public rights as may be.

The principal matter for us to settle now is whether, upon the facts alleged in these counts, remitting ■ the consideration of all questions properly arising upon the defense foreshadowed to the timé when the defense is shown, the plaintiff can maintain his action against the defendant.

In the absence of any matter tending to establish a defense we see no reason to doubt his right to do so upon either of the counts, assuming such amendments made as the defendant concedes may be made according to the understanding of the parties, if the points which the defendant makes against the maintenance of any suit by plaintiff are not tenable.

There is a want of any direct averment that the defendant did the acts complained of “ without right” as well as “ wilfully,” which the plaintiff will do well to amend; but the defendant concedes in argument that as this case is presented, the drawing off of the water is to be considered as tortiously done.

We do not think that any legal inference can be drawn from the facts as here set forth that any contract of the Dam Company with the plaintiff that he should be permitted to run his logs through the dams and have the water retained to facilitate his so doing, or any authority that the Pam Company might have given him to keep the gates shut to further that design, was void upon any such ground as was held to vacate the exclusive privileges attempted to be conferred on the Eastern Express Company by the Railroad Company in the case of The New England Express Co. v. The Maine Central R. R. Co., 57 Maine, 188.

We are dealing now only with the facts as alleged by the plaintiff, and cannot take cognizance here of possibilities which might change their aspect. Neither do we think it can be maintained that the plaintiff had no right to anything beyond the natural flow of the water as it was before the improvements made by the Pam Company.

Unless there were an illegal abuse of the powers conferred by the charter, of which assuredly we have now no evidence, so far as any matter or thing that is made to appear in this case goes, he had a right to that improved condition of the water to effect which the Pam Company was created — a right according to the allegations in this writ not dependent at all upon the discretion of the Pam Company — a right which, independent of any contract or agency, would rest in the plaintiff until he was deprived of it in the exercise of a sound, legal discretion of parties having the right to do it under all the circumstances and necessities of the case. It is not. a right resting in the mere discretion of anybody, but one for any tortious interference with which the plaintiff may maintain suit to recover the damages he has thereby sustained.

And it illustrates well the indirect injury for the infliction of which the special action on the case was deemed long ago the appropriate remedy.

A wrong-doer may expose himself to as many suits as there are parties whose rights and interests .are injuriously affected by his wrongful acts.

The Pam Company might have their action for any wrongful intermeddling with their franchises and property; but this would not preclude the plaintiff, or any other party whose pecuniary interests were directly and injuriously affected, from maintaining suit for the special damage he might also sustain. Nor can it be said, admitting the truth of the averments in this writ, that the plaintiff sustained no special damage which -was the direct and natural consequence of the defendant’s acts.

He in common with any other party similarly situated, had a legal right to the use of the water in the improved condition in which it had been placed by the operations of the Dam Company to float his drive of logs to the market, for aught that appears here.

For any interference with that right which the defendant cannot justify, he must respond in damages.

The man who is traveling upon a turnpike has as much right to maintain an action against him whose tortious digging of a ditch or placing of an obstruction in the path occasions him an injury, as if he were traveling upon a common highway.

Demurrer overruled.

AppletoN, C. J.; Walton, DiceeRson, and Danforth, JJ., concurred.