Davis v. Mattawamkeag Log Driving Co. , 82 Me. 346 ( 1890 )

Emery, J.

The plaintiff’s land is upon the Molunkus Stream, a branch of the Mattawamkeag river. The defendant company has built a dam across the Mattawamkeag below the Molunkus, which dam backs the water up the Mattawamkeag and the Molunkus, and upon the plaintiff’s land. The plaintiff says such flowage is wrongful, and he brings this action of trespass. The defendant company admits the plaintiff’s right to compensation, but say the flowage is rightful, and does not subject it to an action of trespass as for a wrong.

The defendant company say, that it has from the state a franchise and authority to erect and maintain this dam, and cause this flowage. The counsel frankly admits it has no such franchise in its own charter, and he bases the claim solely upon a franchise and authority which he says were granted to the Mattawamkeag Dam Company in its charter in 1849, and to which the defendant company has lawfully and effectually succeeded. The first question therefore is, whether there was granted by the state to the Mattawamkeag Dam Company the franchise and authority to erect and maintain the dam below the Molunkus.

The franchise and authority of the Mattawamkeag Dam Company were expressed in these words (special laws of 1849, c. 269, § 2): “Said corporation shall have the right to erect and maintain a dam across the Mattawamkeag river above Gordon’s Falls, and near a place called “Jimskitticook” for the purpose of facilitating the transportation of logs and lumber down said river;— and said corporation may improve the falls below their dam for the running of logs, by the erection of dams, and side-booms and the removal of rocks and other obstructions; * * * and they are empowered to flow lands as far as may be necessary to accomplish their object.” Provision is then made for compensation to land owners for flowage as under the mill act.

“Jimskitticook” is above the mouth of the 'Molunkus and some four or five miles above the present dam, now complained of, and some eight or ten miles above Gordon Falls. The Mattawamkeag Dam Company under its said charter built a dam at Jimskitticook, and above the Molunkus. This dam is not now in existence. In 1886, the defendant company built the present dam some four or five miles below the dam first built at Jimskitticook. Does the language of the Dam Company’s charter,, above quoted, extend its franchise so far as to authorize the building of the last dam at such a distance below the Jimskitticook, the place of its first dam?

Legislative grants of franchises or privileges to persons or corporations are never to be extended by construction beyond the plain terms in which they are conferred. No rule is better settled than that charters of incorporation are to be construed strictly against the corporators. The just presumption in every such case is, that the state has granted in express terms all it designed to grant. Cooley, Const. Lim. 394, 395, 396 and cases there cited. (The citations will be found to sustain the text.) The U. S. Supreme Court in Fertilizing Co. v. Hyde Park, 97 U. S. p. 666, used this strong language: “The rule of construction in this class of cases is, that it shall be most strongly against the corporation. Every reasonable doubt is to be resolved adversely. Nothing is to be taken as conceded but what is given in unmistakable terms, or by implication equally clear. The affirmative must be shown. Silence is negation, and doubt is fatal to the claim. This doctrine is vital to the public welfare. It is axiomatic in the jurisprudence of this court.”

When the holders of a legislative franchise claim that it authorizes them to exercise the sovereign prerogative of eminent domain to take or flow the laud of a citizen against his consent, the principles of construction above stated should be applied with all their force. The court is the bulwark of the citizen, and will scrutinize carefully and even jealously every claim of right to take his property against his will. It will also test every step of the procedure in exercising such right, and insist on the strictest regularity. Cooley, Const. Lim. 530. Leavitt v. Eastman, 77 Maine, 117 ; Hamor v. Water Co., 78 Maine, 127.

Recurring now to the language of the charter under which the authority is claimed in this case, and reading it in the light of these principles of construction, we think the legislature did not intend to give the Dam Company a roving franchise up and down the Mattawamkeag river, but rather intended to locate it and its Avorks in one locality, “near the place called Jimskitticook.” The company is first authorized to build a dam, (note the singular number), and the place for the dam is designated. Of course the company could not build that dam anyAvhere else. Then it is authorized to “improve the falls beloAV its dam.” ' We think this authority is confined to the falls next below, and near the dam. The word “falls,” though plural in form, usually means only one locality, and Avhen the designation is of falls beloAV a dam, it usually means the falls immediately below. Dams are usually built upon or near falls.

We think the company’s authority cannot be rightfully extended so far beyond the vicinity of the dam near the Jimskitticook. It may be useful and perhaps necessary for the purposes of the company that its authority to build dams should extend doAvn the river four or five miles, and include its present dam. If so, it is for the legislature to grant the authority, but as was said in Penn. R. R. v. Canal Commissioners, 21 Pa. St. 22, in doing so, the legislature should use direct, plain English words that will leave no doubt. In this case we have at least a doubt, and “a doubt is fatal to the claim.”

Defendant defaulted. Damages to be assessed at nisi prius.

Peters, C. J., Virgin, Libbey and Foster, JJ., concurred.