Norris v. Pillsbury , 1882 Me. LEXIS 102 ( 1882 )

Appleton, C. J.

The motion and demurrer filed by the respondent must both be overruled.

There was no provision for the assessment of damages in gross before the passage of c. 88 of the acts of 1881. The first section by its terms is to be added to section nine of E. S., c. 92. By its provisions the commissioners are to determine the damages in gross as well as the yearly damages. The mill owners may elect within ten days after the report is presented to the court to pay the damages in gross, but if they fail to make the election, the annual damages shall stand as the judgment of the court.

By § 2, if the damages in gross are paid, the judgment is a bar to all further proceedings "so long as the dam and flash-boards remain at the same height.” In case either are raised a new complaint may be made by the owner of land for such additional flowage.

By section third, "in any case where annual damages have been determined by a judgment of the court the owner of the dam or mills may apply to the court by a new complaint to have the -damages assessed in gross.” The new complaint is one first given by this, and not by another and preceding act. The complaint before us sets forth all the facts required to authorize the owner of the dam or mills to apply to the court to have the damages in gross ascertained and determined, and is in strict accord with the provisions of the act.

It is urged in defence that this complaint is not maintainable because commenced "before the expiration of one month after payment” of what is due "of the then last year,” and without one month’s previous notice as required by E. S., c. 92, § 19. But this section has no relation to a complaint like the present. It refers exclusively to cases under § 18 where either party being dissatisfied with' the annual compensation as established, seeks to increase or diminish such compensation for the future. But when damages have been once assessed in gross there can be no reassessment nor new complaint. The sections following section nineteen are obviously inapplicable to a complaint when it is sought to have damages assessed in gross.

The statute of 1881 is a new and independent act of legislation and is to be construed by its own provisions.

Exceptions overruled.

Walton, Barrows, Danfoutii, Verges' and Peters, JJ., concurred.