Dingley v. Gardiner , 1881 Me. LEXIS 13 ( 1881 )

Appleton, C. J.

This is an action on the case to recover damage for the flowage of the plaintiff’s meadow in Richmond, by reason of the defendants’ dam on the Cobbosseecontee stream in Gardiner.

The dam in controversy is a reservoir dam on land belonging to the defendants as trustees, but there is no mill on this dam. There are seven dams below on the Cobbosseecontee stream, on which are mills, all of which are operated by the head of water raised by the dam in question. The defendants as trustees own two of the dams below and the mills on the same, with the land on which their dams and mills are erected.

The damage for which compensation is sought, was occasioned by flash boards.

The defendants own the land on which the reservoir dam is built, and the dam and mills for whose use the first named dam exists. They are operated by the head of water created-fhereby.

No principle of law is better settled than that this action cannot be maintained, where the party injured can proceed under the flowage act, R. S., c. 92.

It matters not whether the flowage was caused by the dam or by flash boards. The injury is none the less in the one case than in the other. The same remedy for redress is open in the one case as in the other Whether the plaintiff’s land is overflowed by a dam or by flash boards, the height of the water the same, the damage to his land is the same. Gordon v. Saxonville Mills, 14 Allen, 220; Brady v. Blackington, 113 Mass. 242.

The reservoir dam is within the mill act. It has ever been so. held. The statute authorizes the erection of dams. It does not restrict the mill owner to one dam. Bates v. Weymouth Iron Co. 8 Cush. 548; Nelson v. Butterfield, 21 Maine, 220. "Reservoir dams,” remarks Colt, J., in Norton v. Hodges, 100 Mass. 242, "for the benefit of mills upon the same stream have been held to come within the protection of the statute; and this although such a dam may not be immediately connected with or very near the mill.”

The defendants are mill owners as well as dam owners. They are within the clear language and object of the statute. That others may be benefitted by the water saved by the reservoir dam does not in the least relieve them from liability. They none the less own the dam, which injures the plaintiff by causing back water, and the mills which are benefitted by the water reserved. The dam is directly subservient to the purpose of driving the defendants’ mills and increasing their water power, though other dams and mills may be nearer the reservoir dam.

The only remedy open to the plaintiff is by complaint under the statute. Goodwin v. Gibbs, 70 Maine, 243; Shaw v. Wells, 5 Cush. 538; Crockett v. Millett, 65 Maine, 191.

Exceptions overruled.

Barrows’, Virgin, Peters, Libbey and Symonds, JJ.f concurred.