Washburn v. Gilman , 64 Me. 163 ( 1873 )

Appleton, C. J.

The defendant is a mill owner on the Piscataquis river. The plaintiff brings this action to recover damages by reason of the butts, edgings, saw dust, &c., thrown by the defendant into this river,-which stuff floating upon his land injured the grass upon his meadows and was removed therefrom at great expense.

The defendant requested the court to instruct the jury “that the defendant has the right to cast into the Piscataquis river the slabs, hearts, edgings, saw dust and other waste stuff made by his mills, and if by the great freshet of March 13, 1871, and the jamming of the ice on the island below the plaintiff’s land, the same or any of it was carried on the plaintiff’s farm and injured it, the defendant is not liable for the injury.”

This instruction the court declined to give, but instructed the jury that, “if the defendant threw or cast into the Piscataquis river, or deposited upon the ice, edgings, saw dust, slabs, butts, hearts, clippings or other waste stuff from his mills, leaving the same to be floated away without any care or oversight; and if any such stuff was carried by tlpe action of the water of the river to and upon the plaintiff’s land and there deposited and left, and the plaintiff was thereby injured, he may recover his damages of the defendant.” "When there is a dam built on a stream subject to great freshets, it is not enough that it is sufficient to resist ordinary floods, but great freshets should also be guarded against. The Mayor, &c., of New York, v. Bailey, 2 Denio, 433. The instruction given was in accordance with law, and gave the defendant all to which he was entitled.

Freshets and ice periodically occur in the ordinary course of nature in our rivers. Their existence is no excuse for exposing refuse materials to their action, when the consequences of so exposing them are well known to all. Indeed, that they were so exposed “without care or oversight” the jury must have found, and the fact so found is the very basis of the plaintiff’s complaint.

From the decision in Simpson v. Seavey, 8 Maine, 138, to the present time, it has been held that mill owners are responsible for damages arising from throwing drift and waste stuff in the streams, (if navigable) upon which their mills are erected. In Gerrish v. Brown, 51 Maine, 256, it was held that if a person obstruct a stream, which is by law a public highway, by casting therein waste materials, filth or trash, or by depositing materials of any description, except as connected with the reasonable use of said stream or highway, or by direct authority of law, he does it at his peril, and is guilty of causing a public nuisance. The defendant was not in the reasonable use of the river, if “without care or oversight” he left the drift stuff from his mill so that by the ordinary forces of nature it would be carried on the land of the riparian proprietors below him to their injury. If without care, there could not be reasonable care. If the counsel had desired a more explicit ruling and that the question of reasonable use should have been distinctly submitted to the jury, he should have so requested the court.

The ground of complaint in the present case is not the interference 'with the navigation of the river but damage done to the plaintiff’s land by the drift stuff floated by the rise of waters upon it. P is a private and special nuisance, for the consequences of which he seeks compensation. “It is a principle of the common law,” observes Huston, J., in Howell v. McCoy, 3 Rawle, 256, “that the erection of anything in the upper part of a stream of water, which poisons, corrupts, or renders it offensive and unwholesome, is actionable. And this principle not only stands with reason but is supported by unquestionable authority, ancient and modern. . . The erection of a tan-yard comes within the operation of the same principles provided it has the effect of which the plaintiffs complain, corrupting and rendering unwholesome the water in the stream below, used for distillation or for culinary or domestic purposes. The general rule of law is that every man has a right to have the advantage of a flow of water, on his own land, without diminution or alteration in quantity or quality. Nor are we to be understood as saying, that there can be no diminution or alteration whatever, as that would be denying a valuable use of the water. The use of it must be such as not to be injurious to the other proprietors.” In Crosby v. Bessey, 49 Maine, 539, which was an action on the case for injury to the plaintiff’s land by reason of the deposit thereon of bark from the defendant’s tannery, by the natural flow of water, the court instructed the jury, that unless the defendant had acquired by grant or prescription the right so to deposit, that by the natural action of the water, it would be carried upon the plaintiff’s land below, to his damage ; and that if he did thus deposit it without having acquired such right, and it was carried on to the plaintiff’s land to his damage, the plaintiff was entitled to recover, and the correctness of this ruling was affirmed. The same principle applies, whether the injury is by fouling the water or diminishing the productive powers of the soil. “I take the law to be,” observes Blackburn, J., in Hodgkinson v. Enna, 116 E. C. L., 229, “as stated in Tenant v. Goldwin, 2 Ld. Raym., 1089; Salk., 21, 360; 6 Mod., 311; Holt, 500; that you must, not injure the property of your neighbor, and consequently, if filth is created on any man’s land, then in the quaint language of the report in Salk., 361, “he whose dirt it is, must keep it that it may not trespass.” In Hay v. The Cohoes Co., 2 Comst., 162, Gardner, J., states the law as follows: “In this case, the plaintiff was in the lawful possession and use of his property. The land was his, and as against the defendant, by an absolute right from the centre usque ad ccelum. The defendants could not directly infringe that right by any. means or for any purpose. They could not pollute the air upon the plaintiff’s premises, (Morley v. Pragnell, Cro. Car., 510,); nor abstract any portion of the soil; (Rol. Abr., 565, note; 12 Mass., 221); nor cast anything upon the land, (Lambert v. Bessy, Sir T. Raymond, 421), by any act of their agents, neglect or otherwise. Eor this would violate the right of eminent domain. Subject to this qualification, the defendants were at liberty to use their land in a reasonable manner according to their pleasure.”

The second requested instruction was properly refused. The defendant is not to be held responsible for the freshet, but as freshets are of frequent occurrence, he is bound to know that fact equally as any other fact occurring in the course of nature, and he is liable for negligently leaving his drift stuff so that the lands of the riparian proprietors below are injured whenever they do occur.

The defendant is liable for damages arising from his own wrongful or negligent acts; — not for those arising from the negligent acts of others. Such was the instruction given. The difficulty may be great of accurately proportioning and assessing the damages done by the defendant, but that difficulty the defendant would have avoided had he taken due care that no occasion should arise requiring such assessment of damages.

The question of prescriptive right does not arise. There is no full report of the evidence, so that we cannot say whether the prescription was established or not. There was no ruling in relation to the law of prescription either given or requested. There were no erroneous instructions on this subject, for there were none whatever given. If the defendant wished to present that question, he should have asked for such rulings as he deemed applicable.

Exceptions overruled.

Dickerson, Barrows, Daneorth and Peters, JJ., concurred. Walton, J., did not concur.