Plummer v. Penobscot Lumbering Ass'n , 1877 Me. LEXIS 62 ( 1877 )

Dickerson, J.

The charter of the Penobscot Boom Corporation, the lessors of the defendant company, which authorizes it to erect a boom across the Stillwater branch of the Penobscot river for the purpose of stopping and securing logs, masts, spars and other lumber, and to erect piers and side or branch booms where they should think it necessary, at certain other specified places, contained, among other things, the following provisions:

1. “That said booms be so constructed as to admit the safe passage of rafts and boats and preserve the navigation of the river and the branches thereof, and

2. “ That all persons shall have the same privilege of landing rafts of logs, boards and other lumber and fastening the same as they have heretofore enjoyed.” Special Laws of 1832, c. 236, § 2.

By the act of 1854, c. 299, § 10, the defendant company was incorporated and authorized to take a lease of the rights and property of the boom company, subject to all the duties and liabilities of the latter company. Under that act the defendant company succeeded to their rights, duties and liabilities.

The foregoing provisions are limitations upon the corporate powers of the original corporation ; whatever else that corporation might do, as incidental to the powers expressly granted by its charter, it could not do either of these two tilings, close the navigation of the Penobscot river, or interfere with the existing privileges of lumbermen in respect to the matters specified. Language could scarcely make this prohibition more imperative and explicit.

To allow the corporation to exercise the powers prohibited by its charter, even to facilitate the use of its granted powers, would be to render these limitations a nullity; it cannot be permitted to do indirectly what its charter expressly prohibits it from doing. The right to throw a boom across the Stillwater branch of the Penobscot river does not include the right to close the navigation of the whole of the river, or to interfere with the ancient privileges of lumbermen excepted in the charter; these privileges and the right of the public to the navigation of that part of Penobscot river, not covered by defendants’ charter, must be maintained inviolate.

We do not think that the rule of law, invoked by the defendants’ counsel, in respect to the right of persons using a navigable river as a highway, to a reasonable use thereof, applies in this case. That rule applies where there is no statutory prohibition of socli use. There can he no reasonable use that is in contravention of the statute. The swinging of a boom across the Penobscot river though done ever so carefully, and in good faitb to accomplish tbe purposes of the defendants’ charter, was in fact in derogation of that provision of their charter which requires them “to preserve the navigation of the river.” There was no question of reasonable use for the jury to pass upon, and the court very properly instructed them that tlie maintaining of the boom was unauthorized.

The mode of ascertaining the damages provided in § 3, of tbe defendants’ charter, applies only to cases where tbe damages are sustained “by the exercise of the powers granted to the corporation.” If the defendants are liable at all in this case it is not for damages thus sustained but for damages caused by their usurpation of powers prohibited by their charter.

The plaintiff was not bound to take notice of the declared purpose of the company to swing a boom across tbe river. Such declaration imposed no additional duty upon him. Won constat that the wrongful act threatened would be committed. It is sufficient for him if he exercised ordinary care in the preservation of his logs after he had knowledge that the wrong was done. The defendants were not in a situation to require of the plaintiff a greater degree of care, nor was he bound to render it. The instructions upon this branch of the case, and, also, in regard to the measure of damages, are unobjectionable; and we do not perceive sufficient ground for sustaining the motion.

.Exceptions and motion overruled.

Judgment on the verdict.

Appleton, C. •!., Walton, Barrows and Virgin, J-I., concurred. Peters, J, concurred in the result.