Stevens v. Kelley , 78 Me. 445 ( 1886 )

DaNFORTíi, J.

This action is reported upon the allegations in the writ, and for the purposes of this hearing, such allegations must be taken as true.

It appears that the parties are respectively riparian owners upon a fresh water _ unnavigable stream ; the defendants owning a mill below, with a privilege and a dam which flows the water back upon the plaintiff’s land, thereby creating a pond, which is useful and profitable for cutting ice in the winter season. The defendants’ dam has been accustomed thus to flow for more than thirty years. By what title the defendants obtained this right to flow does not appear, and perhaps it is not material. They have it, and as it does appear that the plaintiff is not only a riparian owner, having a title to both the banks but to the bed of the stream also, it necessarily follows that the defendants’ right in this respect, is one of flowage only.

It is alleged in the writ that the defendants have not, for ■several years, used their mill, but that they have flowed the water in the summer and early winter, but that when the "ice was forming, and being cut and harvested,” they let the water out of the dam, by opening the gate and sluiceway, thus causing the ice to fall into the mud and become spoiled ; and this is the act complained of. The allegation that, by flowing in the ■summer, the plaintiff is prevented from building a dam for his ■own use, cannot be taken as a substantive cause of action, as is plainly shown by the context. It may have been put in to show the motive of the defendants or as an aggravation of damages, but whether it subserves any useful purpose, is not material now, as it cannot be a foundation for or even an element in the cause of action.

The result of the case must depend upon the rights of the respective parties in the property involved.

The defendants’ right of flowage, whether obtained by grant, or under the mill act, having been used for more than thirty years with the mill, and so far as appears, for no other purpose, must be understood to be for the benefit of the mill. As such, their right to the use of the water thus flowed, must be limited by the wants and requirements of the mill, at least in kind. It might, perhaps, be more or less extensive in quantity, as changes in the mill from time to time, might require more or less water, but it could be used for no other purpose. As was said in Crockett v. Millett, 65 Maine, 195, "the mill is the principal. The dam is subservient to it.” So too, this.use of the water, is not unlimited. There are owners'above and below, whose rights and whose interests are to be regarded. The owner of such an easement is not at liberty to consult his own interests or whitns, only as to when, or in what quantity he shall let out the water thus accumulated. Even when rightfully accumulated, he must exercise ordinary care, in regard to the interests of riparian owners, both above and below, in letting it out. Frye v. Moor, 53 Maine, 583; Phillips v. Sherman, 64 Maine, 174.

The plaintiff as riparian owner above, has his fixed and well defined rights. Among others, not necessary to be noticed in this case, is that of taking ice from the stream where it flows over his land. Whether this right could have been profitably exercised, without the flowing, is not a question involved here. With the flowing it can be and the plaintiff has the right to avail himself of all the improvements made to his property even by the defendants. Nor can the defendants avail themselves of such a right though created by them. It is' not a purpose recognized by law for which a person’s land can be appropriated by another, but is a privilege attached to, and becomes the property of, the plaintiff.

This right to take the ice is not a new one, though, perhaps, a greater importance has become attached to it within the last few years than formerly. It results from and grows out of the title to the bed of the stream,'and such right to the use of the water as results therefrom. This right is well settled by authority, as well as by principle. Gould on Waters, § 191; Ham v. Salem, 100 Mass. 350; Paine v. Woods, 108 Mass. 172. Tbe plaintiff’s title to the ice must be the same as in the water before it is congealed, and that is so well settled that it needs no further discussion. Elliot v. Fitchburg R. R. Co. 10 Cush. 191. The plaintiff therefore has the sole right to take the ice from the water resting upon his land, with the single qualification that it is not to be taken in such quantities as to appreciably diminish the head of water at the dam below. (Cummings v. Barrett, 10 Cush. 186. If this diminution could ever take place from such cause as is doubted in the case last cited, (see pages 189, 190) there can be no such claim in the case at bar, for the mill was not in use and the water was not needed. Thus at the time the water was drawn off the title of the plaintiff to the ice was virtually absolute.

From this view of the rights of the several parties, it would seem to follow as a self evident proposition, that the defendants’ interference with the plaintiff was unjustifiable, and that damages having resulted, they would be liable. But it is said that having raised the water, it v7as their privilege to let it down. It may be true that they were under no obligation to keep up the dam any longer than their interest, or whim even, might dictate. But the dam was not removed nor abandoned, l't was kept up, and by an affirmative act on the part of the defendants, the water was drawn off when it was of no use to them, but a serious dnjuiy to the plaintiff. This can not be said to be consistent with their qualified right to the use of the water, and the reasonable care which they are legally bound to exercise in that use. It is rather a wanton use, a disregard of the rights of 'others which the law condemns, and which the writ alleges to be malicious and for the purpose of injuring the plaintiff. In Phillips v. Sherman, supra, on page 174, it is said, "a wanton, or vexatious, or unnecessary detention, would render the mill owner so detaining, liable in damages to those injured by such unlawful detention.” If the owner of the dam has no right unreasonably to detain the water, for the same reason he would have no right wantonly to accelerate it to the injury of owners above or below. In Frye v. Moor, supra, it was held that when water is accumulated wrongfully, the party so doing in letting it out must do so at bis peril. In this case, so far as ■appears, the defendants had the right to flow the water for their ■mill only. It was not raised for'that purpose, for the mill was mot used. Nor does it appear for what purpose it was raised, 'except as alleged in the writ, to injure the plaintiff.

The case of Chesley v. King, 74 Maine, 164, in the principles involved, is substantially like this. There, the defendant, in ■digging a well upon his own land, destroyed the plaintiff’s spring •by drawing from it the water which percolated through the earth ■and thus supplied the spring. In that case it was held, after much consideration and a careful review of the authorities, that •the defendant, though in the exercise of a right and would not be liable to an action so long as he acts in good faith and with •an honest purpose, yet he would be liable if he dug the well for the sole purpose of inflicting damage upon the party who has rights in the spring. The case at bar would seem to be a stronger •one for the plaintiff. In this the defendants have only a qualified interest in the water, a right to use it for a specified purpose -only; and in that use bound to exercise due care in regard to ■the rights of others. Yet in the act complained of they were ■not in the use of the water for their own legal purposes, nor were they in the exercise of due care, by which an injury happened to the plaintiff.

This result is reached from a consideration of the facts alleged in the writ alone. What title to the water the defendants may show, or what excuse for their act, can only appear upon the trial.

Action to stand for trial.

Peters, C. J., Walton, Emery, Foster and Haskell, JJ.,1 concurred. j