Mullen v. Penobscot Log-Driving Co. , 90 Me. 555 ( 1897 )

Peters, C. J.

The plaintiff had certain pulp-logs that had been driven out of a stream tributary to the West Branch of the Penobscot Biver, at a place below the Chesuncook dam, a structure maintained by the defendant corporation on the West Branch for the purpose of ci-eating a head of water for driving logs; and, designing to have his logs driven down the West Branch as far as Montague, where there was a mill for manufacturing such logs into pulp, he desired to drive them along in advance of the main body of logs to come down the West Branch, knowing that, if his logs became mixed with those logs, many of them would necessarily be carried into Penobscot boom, some miles below Montague, there being no booms and gap for the separation and sorting of logs at the latter place, — the Penobscot boom being the place of destination of logs generally coming down all the branches of Penobscot river. Having a scarcity of water for driving his logs in the manner and at the time desired by him, the plaintiff claims that he was by law entitled to water enough from the stores reserved within the corporation dam for effectuating his purpose. And that is the principal question presented here.

It cannot reasonably be questioned that the legislature intended to impose important responsibilities on the company and to grant to it powers and privileges commensurate with the responsibilities and duties to be by it assumed; and that, to enable it to perform the duties of its trust effectually, it conferred upon the company, if not an exclusive, certainly a superior and prior right to the use of all the head of water available on the river for the purpose of driving logs. The company has no stock and can declare no dividends. It represents the public and not individuals.

There was great reason for such legislation. Experience had demonstrated that a combined drive of all the logs in that branch of the river and its tributaries could be successfully made by a use of all its waters combined, when separate drives by a separation and division of the same water would as a rule result in failure. It was apparent that logs could be driven more cheaply and expeditiously together. Further, individual owners could not afford to improve the navigation of the river while the company could. Under the old experience some owners would get their logs to the exclusion of others, and thereby useless competitions and strifes were engendered. Under the new experience all owners get their logs alike. And the new system has stood the test of time, for just half a century, successfully and well.

A glance at some portions of the acts affecting the company will illustrate the legislative intent in relation to the exclusiveness of both the duties and powers belonging to the company. All of such acts are enumerated in the special plea or brief statement filed by the defense, there being fourteen of them in all.

Section one of its charter, approved August 10, 1846, describes what its active duties shall be: “Said company may drive all logs and other timber that may be in the West Branch of Penobscot river between the Qhesuneooh Dam and the East Branch, to any place at or above the Penobscot boom, where logs are usually rafted, at as early a period as practicable. And said company may for the purpose aforesaid, clear out and improve the navigation of the river between the points aforesaid, remove obstructions, break jams and erect booms where the same may be lawfully done, and shall have all the powers and privileges and be subject to all the liabilities incident to corporations of a similar nature.”

Section three of the charter informs the owners of logs of their duties as follows: “ Every owner of logs or other timber which may be in said West Branch, between said Chesuncook dam and said East Branch, or which may come therein during the season of driving and intended to be driven down said West Branch, shall on or before the fifteenth day of May, in that year, file with the clerk a statement in writing, signed by such owner or owners, his or their authorized agent, of all such logs or timber, the number of feet board-measure of all such logs or timber, and the marks thereon; and the directors or one of them shall require such owner, or owners, or agents, presenting such statement to make oath that the same is, in his or their judgment and belief, true, which oath the directors or either of them are hereby empowered to administer. And if any owner shall neglect or refuse to file a statement, in the manner herein prescribed, the directors may assess such delinquent or delinquents, for his or their proportion of such expenses, such sum or sums as may be by the directors considered just and equitable.”

. By a special act, approved July, T849, the jurisdiction of the company was extended to the head of Chesuncook lake instead of at the foot of the lake as before, and certain additional duties were imposed on the company by the act, which are as follows: “ Section 1. The Penobscot Log Driving Company may drive all logs and lumber between the head of Chesuncook lake and the East Branch, instead of between the Chesuncook dam and the East Branch, and with all the powers, rights and privileges, and under the same conditions, limitations and restrictions, as is provided in the act, to which this is additional; and may assess according to the provisions of said act, a sum not exceeding twenty-five cents for each thousand feet, board measure, in addition -to the sum of sixty-two and one-half cents, as provided for in the fourth section of said act, for the purpose of paying the expenses of driving said logs and lumber across said lake.

“ Section 2. The said Corporation may, and it shall be their duty to build all the boom or booms which may be necessary above the lake, but not to impede the navigation of the same.”

By an act, approved March 2, 1864, the duties of the company are defined and limited in a certain respect, as follows: “Section 1. Said Company shall adopt as the basis of their assessments the boom scale of the Penobscot Boom, or what shall be equal to that scale, to be determined in all cases of doubt by the Directors.

“Sec. 2. Said Company shall be under no obligation to drive any logs coming into the Chesuncook lake at any other point than from the main West Branch, unless seasonably delivered to them at the head or outlet of said lake.”

Again, by an act approved February 11, 1869, the powers of the company are enlarged, as follows: “Section 2. Said Company may make contracts for driving or assist in driving logs outside of the' limits of the Company, on the Penobscot waters; and for any sum due for such driving, the same lien shall exist and be enforced in the same manner as is provided for other logs.

“Sec. 3. Said Company may build or assist in building, and keep in repair any steamboat or other craft, that in their opinion or in the opinion of the Directors may be advantageous in facilitating the progress of the drive, the expense of which may be apportioned upon the logs of different years as they may think proper.”

Still again, by act approved January 28, 1876, the duties of the company were in part defined, as follows: “Section 2. Said Company shall be under no obligation to drive any logs coming into the Chesuncook lake at any other point than from the main West Branch or the Caucomgomoc stream, unless seasonably delivered to it at the head or outlet of said lake, or at the mouth of said stream.”

By an act approved February 21, 1883, in order that the company might increase its supplies of water, and for other purposes, it was further provided, as follows: “Sec. 1. The Penobscot Log-Driving Company may build and maintain a dam across the outlet of each of the lakes Caucomgomoc, in the County of Piscataquis, and Millinocket, in the County of Penobscot, to raise a head of water on each of said lakes for log driving purposes only. Said corporation may take land on which to build each of said dams, and may flow contiguous lands. For land taken, and for land flowed, the parties may agree upon the damages, but if the damages are not mutually adjusted, the owner, or party injured, may be compensated in full by the payment of such sums as may be determined by the commissioners to be appointed by the supreme judicial court in and for the county where the land is situate, etc., etc., etc.”

Now there was an obstacle, in the way of a complete control of the river by the defendant company, in the existence, within its limits under its amended charter, of a company owning a dam at the outlet of Chesuncook lake with a right of collecting a toll on all logs passing over such dam. The company could not purchase the dam having neither money nor the means of raising money to buy it with, as it was empowered to assess logs only for the legitimate and necessary expenses of driving the logs. But a scheme was hit upon to allow the toll to continue until the owners should be reimbursed for the balance due on its cost, with expenses and interest, and the dam then to become the property of the log-driving company. And so the legislature provided, among other .details, by chapter 86 of the Laws of 1847, certain rights for the owners of Chesuncook Dam, “upon the further condition that if said corporation shall collect the sum in tolls as provided in the second section of this act, under and by virtue of this act, it shall be in full compensation to said corporation for their said dam, and then the same shall become the property of the Penobscot Log-Driving Company, and be free to the public without the payment of toll.” The same act contains precisely the same provisions as to the North Twin dam situated on a lower lake, the defendant company to have and own the same when the owners should receive compensation for their outlay by collection of the tolls prescribed by the legislature. The words in this act, “ and shall be free to the public without the payment of toll ” was an awkward way of saying that the franchises of such corporations should be terminated, but the words are without special significance in this connection. The legislature takes the property in these dams from those corporations and gives it to the Penobscot Log-Driving Company, for the purpose for which the company has been for well nigh fifty years using such dams. For that period have both the dams been kept constantly in repair and been many times rebuilt by the log-driving company. No toll is demanded or received for logs passing them. No West Branch drive can be made without the stores of water held in reserve by such dams.

It is plainly manifested by the foregoing quotations from the statutes that the legislature intended to impose upon the defendant company the duty of including in its drives all logs of all owners in the West Branch waters; and it is just as strongly manifested that the legislature also intended that the company should possess the exclusive control and management of the waters of the river, so far as necessary to enable it to successfully execute the obligation resting upon it, an obligation in some respects partaking of the character of a public trust. The permission of the state was to take all the water for the purpose of driving all the logs. There can be no doubt that the company would be liable in damages for negligence in omitting to drive any owners’ logs; and it has been so decided in Weymouth v. Pen. Log-Driving Co., 71 Maine, 29. No occasion has hitherto arisen requiring any decision of the question whether the company is entitled to drive the logs of an owner against his consent, and for the reason that no owner has ever had any motive to reject the benefits of having his logs driven by the corporation. And in the present case the plaintiff would have had no such motive could his logs have been left at Montague instead of in the boom at Oldtown.

But it is argued, in behalf of the plaintiff, that the state does not possess the right to create a monopoly in the use of any of the public waters in favor of this corporation. It is, however, too late in the history of that question to set up such a contention now. The state represents all public rights and privileges in our fresh water rivers and streams, and may dispose of the same as it sees fit. The principle is settled in no state more firmly than in this. Parker v. Cutler Milldam Co., 20 Maine, 353; Lee v. Pembroke Iron Co., 57 Maine, 481; Treat v. Lord, 42 Maine, 560; Moor v. Veazie, 32 Maine, 343; Same case 31 Maine, 360; Veazie v. Moor, 14 How. (U. S.) 568; Brooks v. Cedar Brook etc. Imp. Co., 82 Maine, 17; State v. Leighton, 83 Maine, 419; Gould. Waters, (2d. ed.) § 36, and cases.

In view of the foregoing considerations, it is contended in behalf of the defendant company that the plaintiff can have no standing in court for the reason that the company had the right to take his logs and include them with the mass of logs in the main West Branch drive. While that would undoubtedly be the rule as far as any logs are concerned which may come legitimately into the possession and under the control of the company, the court is of opinion that the same rule should not apply as to the plaintiff’s logs whose place of destination was Montague instead of the Penobscot boom. As the company were allowed or required to drive all logs and timber “ to any place at or above the Penobscot boom where logs are usually rafted,” and as Montague is not such rafting place and logs cannot be stopped there when the main drive is passing that point, the interpretation is that these logs never came within the possession or jurisdiction of the company for the purpose of being driven under the authority of its charter. Nor could the company be compelled to receive and drive logs not bound for the Penobscot boom. It might be otherwise should the company establish a rafting place at Montague. Undoubtedly there was no expectation in 1847, when the log-driving company was incorporated, that logs would ever be driven down Penobscot river whose place of destination would be other than the Penobscot boom, and the changes of the present day could not have been anticipated. Possibly changes in legislation may be necessary to meet such changes of business, such as will be just and equitable.

What then were the rights of the plaintiff in the waters of the West Branch, with logs in his possession below Chesuncook dam' whose place of destination was Montague ? He undoubtedly possessed such common-law right of passage for his logs as had not been granted to the Penobscot Log-Driving Company by the state, such and so much use of the water as would not hinder or prevent the company from its enjoyment and use of all the water necessary for its purposes under its prior and privileged right thereto.

The plaintiff was under no circumstances legally entitled to more tlian the natural flow of the stream. That would be the extent of his common-law right, and he was not included in the statutory right granted by the legislature. Pearson v. Rolfe, 76 Maine, 380; Foster v. Searsport Spool-wood and Block Co., 79 Maine, 508; Stratton v. Currier, 81 Maine, 497. Therefore, he had no right to require the defendant to provide him with any part of the stores of water which it had in reserve within its dam or dams, unless he was entitled to the natural flow and it became necessary to use some of the reserved stores in order to create a flow equal to the natural run or flow. And if the dam was full and overflowing then he got the full natural flow. The natural amount of water may flow over a dam as well as under it or through its gates. It is not just or equitable for log owners outside of the company to claim to use without compensation its stores of water which have cost many thousands of dollars to produce. And if one person after another should have the privilege of tapping such stores, it would soon deprive the company of all pow'er to perform its most imperative obligations.

But the plaintiff was not entitled even to the natural flow, or to draw from the reserves of water in order to create what would at the time and place be equivalent to the natural flow, so long as the company needed or would be likely to need the same water for driving its own logs to market. The defendant’s right was the superior right. The plaintiff’s right was secondary and conditional. Such is the inevitable effect of the grants to the compa.ny by the legislature. The stores of water are accumulated by using the natural flow until the necessary head is obtained. It was not that the defendant company would not let the water'down when it needed its use itself, but the plaintiff desired the use and advantage of it in advance of the use of it by the company.

Upon the question whether the company could safely spare any of its accumulated stores of water in order to supply the plaintiff’s logs with what would be equivalent to the natural run, all circumstances affecting the situation should be carefully considered, both present and prospective. Certain geographical facts should be taken into the calculation. It is generally known that the West Branch drive usually consists of about fifty millions feet of lumber; that the drive has to travel in the crookedness of the river eighty or ninety miles after being turned over Chesuncook dam before it reaches its destination within Penobscot boom; that the drive starts late in the season because it is detained in the lake until the last contributory drives come into the lake from the streams and brooks above; that the drive arrives usually in the drought of summer, scarcely ever earlier than some time in August, depending entirely for its success in reaching Penobscot boom upon the accumulations of water held back by the dams at the outlets of several lakes; that all the sources of water are not always enough for successful driving, portions of the drive being -not infrequently left on the way for the want of sufficient water; that the company sometimes finds it necessary to send water along in advance of its drive to clear the river of obstructions caused by drives of logs from the other branches of Penobscot river that have become crippled and stuck for want of sufficient freshet to move them along; and that for the causes named, as well as other reasons that might be named, the duties of the company to the public are responsible in the extreme in bringing such mass of logs to the possession of their many owners with safety.

Action to stand for trial.