State v. Coe , 1881 Me. LEXIS 122 ( 1881 )

Libbey, J.

These cases are indictments under special act of 1868, c. 448, and they were argued together and depend substantially upon the same legal principles.

The defendant, Coe, is the owner of certain sawmills, at Milford, on the Penobscot river, which he annually rents, separately or in parts, to different tenants. The leases, at the time embraced in the indictments, contained a covenant by the lessees, "that no slabs, edgings or other waste, except saw dust, shall be thrown, or suffered to be thrown into the river; or placed in such a manner as may be washed or fall into the river; and not to do any other act such as is prohibited by the statutes of this State in reference to the subject.”

The defendant, Simpson, was general agent for said Coe, among other things, to oversee and have the general care of the mills in question, so far as repairs were concerned; aided in renting them, and looked after the collection of rents; and he had a general oversight of the tenants to see that they performed the covenants in their leases.

It is admitted that all kinds of waste inhibited by the statute, were thrown into the Penobscot river, as alleged in the indictments, by the persons actually operating the mills; and the questions to be decided are, whether either or both of the defendants are liable therefor, under the act aforesaid.

Section 3, (5f the act is as follows : "If the offence, or oiFences forbidden in the first section of this act shall be committed by any person or persons who may be in the employ of any mill owner or owners, mill occupant or occupants, such owner or owners, occupant or occupants, shall also be liable in the same penalties, recoverable in the same manner as hereinbefore provided.”

The court is of opinion that the lessees of the mills and their employees who were actually operating them, cannot be held to have been "in the employ” of the defendant Coe, within the meaning of the act. The lessees were in possession of the mills, had the full control of them, and were operating them on their own account, and not as the servants or employees of Coe. True, he might have entered and terminated the leases for breach of the covenants by the lessees, but that right rendered him in no way responsible for their acts.

Nor can the defendant, Simpson, be held to be the owner or occupant of the mills within the meaning of the act. He was merely the agent of the owner, the lessor of the mills.

In accordance with the stipulation in the report the indictments must be dismissed.

Indictments dismissed.

Appleton, C. J., Barrows, Virgin, Peters and SyjvioNds, JJ., concurred.