46 Me. 288 | Me. | 1858
The opinion of the Court was drawn up by
The complainant’s title to the land alleged to be overflowed, as well as the fact that it is overflowed by means of the respondent’s mill-dam, is fully established by the deeds and other evidence in the case ; and it is conceded that the title to the water privilege, including the spot where the mills
The special plea, in substance, alleges that the respondents “ have the right to, and rightfully may and do maintain the mills and dam described in said complaint;” and that they and their grantors, for more than forty years next before the filing of the complaint, “ have had the right to flow the land described in the complaint, to the full extent of any and all flowing of which they have been the cause, and of which said dam and said mills have been the cause, without compensation to be paid therefor.” The replication to this plea tenders an issue to the country upon the facts alleged, which being duly joined, the burden of proof is upon the respondents to establish the facts necessary to sustain it.
The right to flow the complainant’s meadow does not appear to have been conveyed to the respondents, or their grantors, by any of the deeds which have been put into the case. If, then, any such right exist, it must depend upon prescription, or a user showing that the respondents, or their grantors, have been accustomed to flow the premises uninterruptedly for twenty years or more, prior to the date of the complaint, thereby causing damage during that period.
Damages are not to be presumed from the mere act of flowing. Underwood v. The North Wayne Scythe Co., 41 Maine, 291. They must be proved to have been of yearly occurrence, unless a temporary omission to flow may have been occasioned by the leaky condition or prostration of the dam, in which case the time necessarily and reasonably spent in repairing or rebuilding the dam, will not interrupt the running of the twenty years, or prevent the acquisition of the right to flow. Dana v. Valentine, 5 Met. 8; Wood v. Kelley & al., 30 Maine, 47. A voluntary omission to flow in such a manner as to occasion annual damage, when such omission is accompanied by no acts indicative of an intention to resume the
In view of the preceding principles, does the evidence in this case raise any presumption of a grant to flow, or in ’any manner show the acquisition by the respondents of any such right? We think it does not. The testimony shows that no less than four dams, for the working of mills, have been successively erected and maintained, for longer or shorter times, upon the falls on Fifteen mile stream, at or near the village of Canaan. The first was erected in 1801. It was very high and leaky, and stood about 10 or 80 feet below the village bridge. In 1810 or 1811 a new dam' was built, a few feet below the place of the first. This second dam was tighter, and, perhaps, a little lower than the other. The third dam was built in 1821, some 100 feet or more further down the stream than those which preceded it. By it the. former dams were flowed out and rendered useless, and all the mills which had been worked by them were moved down the stream and placed upon the new dam, where they still remain in successful operation. In 1841, the fourth dam was built, and now remains. It is above the bridge and about 380 feet from the lower dam.
It becomes unnecessary to determine whether all these dams were erected upon the same mill site, so as to bring the case within the principle of Stackpole & al. v. Curtis, 32 Maine, 383, because we are fully satisfied, upon a careful analysis of the whole evidence, that, notwithstanding the meadows may have been sometimes overflowed, still there has been no flowing of the land described in the complaint, except in times of freshets, by which it was damaged in any degree, prior to the erection of the fourth dam; nor, since that, does there seem to have been any flowing, annually, prejudicial to such land, until after 1852, when this dam was rebuilt or repaired. The testimony fails to show that, before this, the trees or grass,
It appears from the testimony of the engineers, Crosby and Wilde, that the fourth dam is at least six feet higher than the one now in use below it. The other testimony shows that it is this fourth, or upper dam, which causes the flowing now complained of. It was first erected by the respondents upon land belonging to their father, but by his consent; and it was repaired, or rebuilt, in 1852, by Frost and Burrill, under a lease of the privilege upon the west side of the stream, from these respondents; since which time it has been occupied by them and their lessees for their several mills; the latter using it for a machine shop, and the respondents for a shingle machine, a planing machine, and a door and blind factory. Whether, during the three years next preceding the filing of the complaint, the complainant’s meadow has been annually overflowed, and, if so, whether it was occasioned by the respondents’ dam, together with the extent of the flowing, and, whether it was prejudicial to the complainant or not, are questions, in the first instance, for the commissioners who are to be appointed in pursuance of the statute, and by whom the yearly damages, if any, are to be assessed. Prescott v. Curtis & als., 42 Maine, 64.