Stratton v. Currier , 3 L.R.A. 809 ( 1889 )

Ltbbey, J.

In 1884, the defendants were the owners of a mill, and dam across the Piscataquis river, to raise and hold a sufficient head of water to operate their mill, on their own land at Abbot. They claim that they had owned and possessed their mill and dam, in the same condition that they were then in, for more than twenty years. The Piscataquis river at that point was not navigable as a tidal river, but was floatable for the running of logs at certain seasons of the year. The defendants claim that when their dam was constructed it was provided with a sluice proper and sufficient for passing all logs that the river in its natural state, and as it then was and had been down to 1884, could float. They say that prior to that time, by reason of the natural character of the river above their dam, the water fell so rapidly in the running season that comparatively bat a small quantity of logs could be floated to and over their dam.

The plaintiffs do not seem to have controverted these facts, but claimed and introduced evidence to prove, that in 1883, they obtained a charter from the state to build reservoir-dams and otherwise improve the river above that place, and that under that charter they had constructed two reservoir-dams and otherwise improved the condition of the river for floating logs above Abbot.

That in the spring of 1884, they had in the river above Abbot four millions of logs which they drove down the river that season; and that to enable them to drive that quantity they had their reservoir dams full of water, which they used for that purpose. They claimed that the sluice at the defendants’ dam was not of sufficient capacity to enable them to run that large quantity of logs over the dam without unreasonable and unnecessary delay; and that for that reason the dam was a nuisance to them and caused them great damage.

The great question in contention between the parties was, whether the defendants were obliged to maintain a sluice over their dam reasonable and proper for the use of the plaintiffs for floating the large quantity of logs winch they were able to float, by the water which they had stored up by their reservoir-dams, and which they would not have been able to float by the natural and usual condition of the river before their dams were constructed; or whether they complied with the duty imposed upon them by maintaining a sluice reasonable and proper for passing all the logs, which could be run in the river above their mill, by the natural condition of the water.

Upon this point, the court charged the jury in substance, that the defendants had a right to construct and maintain them dam upon their own land for the-purpose of raising a sufficient head of water to operate their mill. That the stream being of sufficient capacity to float lumber, the public had a right to its use for that purpose; the plaintiffs had a right to its use for that purpose; and that in constructing and maintaining their dam, the defendants were bound to provide reasonable and proper means for floating over their dam the lumber which the stream was caj>able of floating, in its natural condition. That they were not bound to provide in 1884, for the plaintiffs a sluice of additional capacity to enable them to run the large quantity of logs, which they were able to float that year, by the use of the large quantity of water which under their charter, by artificial means, they had held back and stored for that purpose.

After the judge had given the jury his instructions upon this point, at the request of the counsel for the plaintiffs he gave them the further instruction: “That if the plaintiffs’ logs could have been driven with the river, in its natural state at any season of the year, they were entitled to a reasonable passage when by reason of the water stored they could, float their logs to the defendants’ dam.”

We think the instructions correct. It is not necessary to determine what the duties of the defendants would have been if the capacity of the river for floating logs had been increased by removing artificial obstructions, such as fallen trees, accumulations of logs, roots and brush in the river which impaired its capacity for floating lumber; for no such question appears to have been involved or raised at the trial.

The plaintiffs’ contention is, that if the defendants’ dam, as it was constructed and has been maintained prior to 1884, furnished reasonable and proper facilities for the exercise of the public right of floating lumber in the natural condition of the river, the action of the plaintiffs under their charter of increasing the capacity of the river by removing natural obstructions and by artificial means had correspondingly increased the duties of the defendants ; so that, if prior to 1884, the dam was not a nuisance, and the defendants could not have been made responsible, the plaintiffs, by their own artificial devices, converted it into a nuisance to the public right and changed the liability of the defendants. We think this proposition is unsound.

The plaintiffs, by their charter, could not require the defendants to do anything in removing natural obstructions in the bed of the river. They could not enter upon the defendants’ land to remove any obstructions to the damage of the defendants without rendering just compensation, if their charter in the exercise of the right of eminent domain by the state had conferred upon them the right to do so. If they could not take the defendants’ property for the purpose of accomplishing their objects, under their charter without just compensation, how can they by their acts under their charter increase the obligations of the defendants, and require them to construct a larger sluice at an expense of one hundred dollars or two hundred dollars, and thus substantially take their property without compensation?

The relative rights of mill-owners and of log owners, on floatable streams in this state, have recently been so fully discussed and determined by this court in Pearson v. Rolfe, 76 Maine, 380, and in Foster v. Searsport Spool & Block Co., 79 Maine, 508, that we deem it unnecessary to enter upon a more extended discussion of the law in this case. We think the instructions of the court are in entire accord with the law as determined in those cases.

Exceptions overruled.

Peters, C. J., Walton, Daneorth, Emery and Haskell, JJ., concurred.