Bellows v. Dewey , 9 N.H. 278 ( 1838 )

Parker, C. J.^*

The statute which is relied on as the foundation of this action, provides that all necessary repairs in any mill, mill-dam, or flume, owned by joint tenants, or tenants in common, in this state, shall hereafter be made by such tenants, each contributing thereto in proportion to his interest therein ; and in case any person shall neglect to make immediately the necessary repairs belonging to his part or share in such mill, mill-dam, or flume, any one of the other tenants may apply to the selectmen of the town, &c., whose duty it shall be to notify the several owners, or occupiers, of the time when they will repair to the place ; and if it shall be the opinion of the major part of the selectmen that such repairs are necessary, they shall notify in writing the delinquent party to repair his part of the mill. &c. Similar proceedings are to be had where several persons are joint tenants, or tenants in common, of the privilege of the water, &c.

The statute then provides, that if either of the owners or occupiers shall neglect to repair his part, within the time ordered and allowed by the selectmen, the party aggrieved may build or repair the part of the one so neglecting, and the selectmen shall estimate and appraise the same, &c. : and the person so building or repairing shall have a right to demand, and recover the said amount of the occupant, lessor, or freeholder of the mill, mill-dam or flume, which was out of repair, at his election, with costs. N. H. Laws 187.

It is very evident that, under this statute, one party is not authorized to call upon the other to erect a mill, or dam, in a different place, or of a different character from that already existing. Nor can he, upon the neglect of the other to repair, proceed to erect a mill, or dam, or flume, substantially different from the former, and compel the other to pay. The statute authorizes a repair of the mill, &c. A rebuilding may, perhaps, under some circumstances, be considered a repair, within the meaning of the statute ; but it cannot be extended beyond a substantial rebuilding. It does not authorize one party to erect a new mill, or dam, varying substantially in its dimensions and situation from the old.

It appears in this case that there is a substantial difference between the dam erected by the plaintiff and that previously existing, notwithstanding it may have been intended for the same use. In one place it is seventy feet distant from the former one. The selectmen were not authorized to make an appraisal in such case, and the proceedings cannot sustain the plaintiff’s action.

Judgment for the defendant.

* Wilcox, J.? having been of counsel, did not sit.