Citation Numbers: 15 Me. 242
Judges: Shepley
Filed Date: 4/15/1839
Status: Precedential
Modified Date: 9/24/2021
After a continuance for advisement, the opinion of the Court was drawn up by
By the provisions of the stat. ch. 45, § 4, there is to be an “ appraisement of the yearly damage done to the complainant by so flowing his landsand a return is also to be made of “ what portion of the year the said lands ought not to bo flowed.” The judgment rendered upon these proceedings, is to “ be the measure of the yearly damages,” until the owner or occupant shall by a new process vacate such judgment; and an action of debt upon the record is given to the party, or to his legal representatives, or assigns. The injury is to be compensated by a yearly damage, although the lands may be flowed only for a part of the year. The intention appears to have been, that the yearly damage should become attached to the estate of the mill-dam so as to make
Upon what principles could an apportionment be made upon time ? 'Could the person, who should be owner during that portion of the year, when the lands are not to be flowed, be chargeable ? Or must the damage be apportioned upon those months and parts of months during which the land may be flowed ? And upon what principles can an action be maintained for a part of a judgment, unless claimed as the whole amount which is due upon it ? Any attempt at such an apportionment would be attended with serious difficulties and would be liable to the objection, that it would be giving other rights, and imposing other burdens than those contemplated by the statute.
By the common law a rent or annuity payable yearly or quarter yearly so long as the party receiving or the party paying should live could not be apportioned on time. Until the statute, 11 Geo. 2, ch. 19, sec. 15, otherwise provided, whatever might have accrued between one day of payment and another .was lost. William Clun’s Case, 10 Coke, 128; Price v. Williams, Cro. Eliz. 380; Hawkins v. Kelley, 8 Ves. 307. In Clun’s case, it is said, “ if tenant for life makes a lease for years rendering rent at the feast of Easter, and the lessee occupies for three quarters of a year, and in the last quarter before the feast of Easter, the tenant for life dies,
Whether guided by cases in some degree analogous, or by the provisions of the statute, the conclusion is, that the owner of the dam at the time when the yearly damage becomes duo is liable to pay it. A mortgagee in possession must be regarded as the owner. According to the agreement, defendants are to be defaulted.