Citation Numbers: 42 Me. 178
Judges: Appleton, Non, Rice, Tenney
Filed Date: 7/1/1856
Status: Precedential
Modified Date: 9/24/2021
This action is brought to recover damages alleged to have been sustained by the plaintiff, as proprietor of a saw-mill called the “Columbus,” situated on the river St. Croix, in the city of Calais, by the acts of the defendant, who claims to be the owner of the mill “Franklin,” situated upon the same river and dam, in Calais.
The injuries of which the plaintiff complains are, diverting a great part of the water from the flume of his mill, and obstructing the race-way through which the water flowed, from the wheels of said mill, thereby occasioning back water, and thus retarding the operation of said wheels.
There was evidence introduced tending to support both propositions.
The city of Calais, then plantation No. 5, was granted to Waterman Thomas, by the Commonwealth of Massachusetts, in 1790. The parties to this action derive their respective titles through mesne conveyances from this source.
It appears from the testimony, that there was supposed to be eight mill privileges, in all, upon the dam, upon which the mills of the parties are situated.
Thomas, the original proprietor, conveyed the township to
The report of the committee appointed by the Court to make partition, contained the following clause among others describing the estate set off to Robbins; to wit: “Also the water privilege, now occupied by the saw-mill called Franklin, and marked on the plan No. 7.”
Among other instructions given to the jury by the Court was the following: “ That by the partition of E. H. Robbins, jr. of three-sixteenths, under whom the tenant claimed, so far as regards the right of the Eranklin mill to the use of water, the owners of that mill acquired by that partition no right to any more water than was necessary to the full enjoyment of the mill as it then was, and all its machinery; and the owners of that mill, as such, had no right to any overplus of water on the dam, if any there should be.”
There was evidence tending to prove that there was, at times, a very large surplus of water, over and above the amount necessary to propel the mills and machinery upon the dam, at the time when the partition above referred to was made. And, as has been before remarked, there was also evidence tending to show that the water rights of all the co-tenants, on that dam, had been divided into eight “ privileges.”
The report contains no such qualification, and the construction was, in our opinion, too restricted, and unauthorized. Robbins, by that partition, acquired the exclusive right to the whole privilege occupied by the Franklin. The extent of that privilege, whether one-eighth of the entire power of the dam, or not, was matter of fact for the jury.
In the other instructions given, no error is perceived, and the requested instructions were properly withheld.
The defendant offered to prove that the back water to the defendant’s mills, so far as any existed, was produced by the continuation of the wing dams on the English side, as delineated on Hayden’s plan. This testimony was excluded by the presiding Judge.
One of the causes of complaint on the part of the plaintiff, was, that the defendant had caused the water to flow back upon the wheels of his mill, by means of obstructions placed in the race-way through which that water passed from the wheels. In our view of the case, this testimony might have been both pertinent and important. If the evidence should fail to prove an unlawful alteration in the race-way, by the defendant, and it shall appear that the water had been thrown back upon the plaintiff’s wheels to an extent greater than heretofore, it was important to determine whether that increase of back water was occasioned by the alterations which the defendant had made, in the manner in which water was discharged from his wheels, or by the wing dams on the English side. For this purpose, the testimony should have been admitted. Whether the defendant suffered from these erroneous rulings, may well admit of doubt. But inasmuch as we cannot be certain upon which point the jury rested their verdict, and as the errors in certain aspects of the case, might have had a controlling in
Exceptions sustained, verdict set aside, and new trial granted.