Smart v. Aroostook Lumber Co.

Peabody, J.

This is an action on the case brought by the plaintiff against the defendant to recover damages for obstructing with logs and lumber, on and prior to the first day of April, 1903, the Presque Isle Stream, a navigable stream flowing through the towns of Mapleton and Presque Isle in the County of Aroostook.

The stream has its source in small lakes and numerous tributaries in a lumber region comprising three townships, and its length to the junction with the Aroostook River, a mile below Presque Isle, is about forty miles.

For many years, logs in large quantities have been floated down the main stream and its tributaries and small boats and canoes have been used in connection with the lumbering operations and by sportsmen.

Recently, the plaintiff and other persons have erected summer camps and cottages on the banks of the stream four or five miles above the village of Presque Isle. He has, with his family, regularly occupied his cottage in the summer months for recreation and health.

In 1864, one of the defendant company’s predecessors in title built a dam across the stream and erected a saw-mill near the public bridge at Presque Isle Village, and for several years last past the defendant company has carried on a large lumbering business under exclusive permits of the various owners of land at the head waters of the stream, and in the spring has driven the logs to its mill in quantities of five or six millions yearly. The logs have filled the pond formed by the dam and the still water four or five miles np the stream and have usually been held by a boom at the head of the drive.

The original channel was quite crooked but well defined for thirty miles, and was of sufficient width and depth to float logs and small boats at all times of the year, except in seasons of unusual drouth. 'From the dam to what is called Sheep Tail Rips above the plaintiff’s cottage, a distance of five miles, the average width of the stream from bank to bank is one hundred and fifty-six feet and the average depth between three and four feet.

The logs stored by the defendant in the pond and dead water above are manufactured at the mill, and in the months September and October the stream is practically clear above the dam.

The defendant has made no effort to open a passageway for canoes and boats through its logs in the stream, although it has been requested by the plaintiff and others to make, after the drives, a sufficient channel during the summer season.

The case is reported to the Law Court for decision.

The plaintiff’s right of action involves three material questions : 1. Is the Presque Isle Stream a navigable stream? 2. Has the defendant unreasonably obstructed it? 3. Has the plaintiff sustained special damages?

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We retain the term "navigable stream” as indicating one which is subject to public use as a highway for the purposes of commerce and travel. The tidal test of navigability adopted by the common law has been found inapplicable to the conditions existing in the United States, and waters are generally declared navigable in a legal sense if they are in fact navigable. The Daniel Ball, 10 Wall. 557.

Capabilty of use for transportation is the criterion, and is a question of fact. Brown v. Chadhourne, 31 Maine, 9; Treat v. Lord, 42 Maine, 552; Lancy v. Clifford et al., 54 Maine, 487 ; The Montello, 20 Wall. 430 ; Healy v. Joliet etc. R. Company, 116 U. S. 191; Rhodes v. Otis, 33 Ala. 578 ; Moore v. Sanborne, 2 Mich. 520 ; Thunder Bay River Booming Company v. Speechly, 31 Mich. 326.

The extended application of the right of the public to use navigable streams, whether tidal or non tidal, even those of inconsider- ! able size, as highways for transporting merchandise, rafting and driving logs and propelling boats, has made the terms "navigable” and "floatable” practically synonymous. Knox v. Chaloner, 42 Maine, 150.

In Veazie v. Dwinel, 50 Maine, on page 484, the Court say: > "All streams in the state of sufficient capacity in their natural con- ! dition to float boats, rafts or logs, are deemed public highways and as such are subject to the use of the public.”

The Presque Isle Stream above the bridge at Presque Isle for a distance of thirty miles is clearly shown by the evidence to be navigable in fact, and to possess the character which brings it within the class of streams which, though in point of property are private, are subject to the easement of public highways which individuals have no right unreasonably to obstruct.

Public highways afford an equal right to each citizen to their reasonable use, and any unreasonable obstruction that prevents or hinders such use, creates a nuisance in the judgment of the law.

The circumstances of each case are to be considered in determining the use which individuals may make of the public highways, and the same rule prevails in limiting the extent of the right over waters as over the land. Angell on Highways, sec. 229; Stetson v. Faxon, 19 Pick. 147, and cases cited; Davis v. Winslow, 51 Maine, 264.

Temporary obstructions are unavoidable and are incident to the legitimate purposes of travel and transportation, and if continued within reasonable limits they do not create a nuisance. But if the encroachment upon the public highway is unreasonable in extent or duration, it is unjustifiable. Veazie v. Dwinel, 50 Maine, 479; Gerrish v. Brown, 51 Maine, 256; People v. Cunningham, 1 Denio, 524.

No circumstances can be supposed which would authorize an individual to convert a navigable stream into a place of deposit for logs or other materials so as to permanently obstruct navigation. Enos v. Hamilton, 24 Wis. 658. In McPheters v. Moose River Log Driving Company, 78 Maine, 329, the court by Emery, J. say: ■" When parties deliberately and without compulsion by nature, select a portion of a river as a place for a season’s storage of their logs, and thus completely block up another’s entrance into the common highway, we think they are exceeding their right and are liable for damages thereby caused.”

As applied to the rights of operators in lumbering enterprises, the doctrine of these cases is not questioned by the defendant, but it claims that the storing of drives of logs until they might be manufactured in the usual course of business, interferes with no one having a common right of travel and transportation, as it has monopolized the commercial business on this stream and its tributaries. If the public has in reality become merged in the defendant company, ’ its exclusive use of the stream is justifiable. But the report shows that there are riparian proprietors, including the plaintiff, who have occasion to use the stream in the summer months for floating boats and transporting goods from the Presque Isle Bridge to their cottages, and that sportsmen were accustomed to pass up and down the stream. Their use is valuable and legitimate, differing only in degree from the defendant’s use measured by necessity and convenience.

The difference in the nature and importance of the use of a public highway only bears upon the question of reasonable use and not upon the fact of the paramount right. Woodman v. Pitman, 79 Maine, 456.

The existing conditions which create the purposes of the public use of the Presque Isle Stream are subject to change, and the driving and temporary storing of logs now of principal importance, may become secondary in importance to the travel of summer residents and the transportation of merchandise for their accommodation. In this State, recreation is assuming features and incidents as valuable to the public as trade and manufacturing.

The question, whether the class represented by the plaintiff has the same rights as those distinctively engaged ip business, has already been settled in other states. The Supreme Court in Massachusetts has decided that "Navigable streams are highways, and a traveler for pleasure is as fully entitled to protection in using a pub-lie way, whether by land or by water, as a traveler for business.” Atty. Gen. v. Woods, 108 Mass. 436 ; West Roxbury v. Stoddard, 7 Allen, 158; Charlestown v. Middlesex County Coms., 3 Met. 202 ; Murdock v. Stickney, 8 Cusb. 113 ; Atty. Gen. v. Terry, L. R. 9 Ch. 423; Lamprey v. State, 52 Minn. 181. In Grand Rapids v. Powers, 89 Mich. 94, it was held that "Navigability for pleasure is as sacred in the eyes of the law as navigability for any other purpose.”

The duration and extent of the obstruction of the stream by the defendant company, shown by the report, must be considered unreasonable and as creating a public nuisance.

The remaining question is difficult only in the application of an entirely simple rule of law to the facts. It must be shown by the plaintiff that by the acts of the defendant he has sustained damages not suffered by the community at large. 3 Black, Com. 219 ; Rose v. Miles, 4 M. & S. 101; Dudley v. Kennedy, 63 Maine, 465. As generally expressed, he must prove special damages resulting from the public nuisance to entitle him to a private action, or particular damage which in cases like the one at bar may be the preferable term. Anderson?s Dictionary of Law, 307 ; Sedgwick on the Meas. of Dam. 28, 29, 152, 153.

Instances occur in which the application of the principle is obvious as where an individual suffers physical injury, injury to his horse or carriage, or where the access to his dwelling house or place of business is directly cut off by an obstruction to the highway. But there are others where the distinction between general and special damages must be determined by the rules of reasonable inference and the authority of decided cases involving similar facts. Quincy Canal v. Newcomb, 7 Met. 276 ; Rose v. Gross, 5 M. & G. 613 ; Stetson v. Faxon, 19 Pick. 147, supra.

It is held that the particular injury is one not merely greater in degree but different in kind. Aram v. Schalenbergen, 41 Cal. 449 ; Wesson v. Washburn Iron Company, 13 Allen, 95; Bullock v. Bullock, 122 Mass. 3; Brightman v. Fairhaven, 7 Gray, 271. But it has also been held that a private action is not to be defeated by the fact that others suffer a similar particular injury. Park v. The Chicago etc. R. Company, 43 Ia. 336 ; Lansing v. Smith, 4 Wend. 10; Bigley v. Nunan, 53 Cal. 403; Seeley v. Bishop, 19 Conn. 135 ; Powell v. Bunger, 91 Ind. 64; Sohn v. Cambern, 106 Ind. 302; Brant v. Plumer, 64 Ia. 33.

The mere fact that a person is delayed or compelled to take a circuitous route by an obstruction in the highway, does not necessarily constitute special damages. Winterbottom v. Derby, L. R. 2 Ex. 316 ; Houk v. Wachter, 34 Md. 265 ; Holmes v. Corthell, 80 Maine, 31. But where an individual suiters expensive delay or substantial pecuniary loss, in traveling or transporting goods, it may be a particular damage for which he has a right of action. Greasely v. Codding, 2 Bing. 263, cited with approval in Norcross v. Thoms, 51 Maine, 503 ; Little Rock etc. R. Co. v. Brooks et al., 39 Ark. 403; Page v. Mille Sac’s Lumber Company, 53 Minn. 492; Brown v. Watson, 47 Maine, 161; Angell on Watercourses, secs. 95, 96, 567, 572; 1 Hilliard on Torts, 66, 548 ; R. S., chap. 22, sec. 13.

The reason for the rule which denies an action to an individual for a common nuisance, is that "it .would cause such a multiplicity-of suits as to be itself an intolerable nuisance.” Quincy Canal v. Newcomb, 7 Met. 276, supra. But with equal justice it was said by Lord Holt in Ashly v. White, Lord Raymond, 938, "If men will multiply injuries, actions must be multiplied too, for every man that is injured ought to have his recompense.”

In this case the plaintiff purchased and built a residence on land bordering on the Presque Isle Stream, a legal highway. No other highway affords him access. The obstruction of the stream not only obstructs, his right in common with others to pass up and down the stream, but cuts off his right of access to his private property which is a private right appurtenant to his land, as said in Whitmore v. Brown, 102 Maine, 47.

And we think upon the authority of the cases and law writers cited that the plaintiff has, in a legal sense, clearly suffered special damages from the acts of the defendant company in obstructing the Presque Isle Stream, not because he has had occasion more than others for its use, but in a particular way as means of ingress and egress to and from his summer cottage, a use and benefit differing from that required by the public at large. Venard v. Cross, 8 Kan. 248 ; R. S., chapter 22, section 13 ; Whitmore v. Brown, 102 Maine, 47, supra.

Judgment for plaintiff for $®5, according to stipulation of the parties.