47 A. 259 | N.H. | 1900
The defendant claims that no judgment can be rendered against him in this proceeding, (1) because he does not wish or intend to exercise any flowage rights to which he has not a clear legal title; (2) because the mill act does not apply to navigable waters. *285
The committee find, in substance, that the operation of the defendant's dam, gates, and flash-boards during his ownership has resulted in flowing the plaintiff's land beyond the defendant's contractual or common-law right; that such operation is of public benefit and necessary, but that the same can be operated so as not to flow the plaintiff's land in excess of the defendant's legal right. The capacity of the dam to raise the water is not the measure of the right for which damages are to be assessed under the mill act, but damages are to be based upon the actual interference with and raising of the water by the proposed management of the dam and its appurtenances. The mill-owner is not required to pay for a greater right than he takes. Town v. Faulkner,
If the defendant's answer disclaims all right to flow the plaintiff's land under the authority of the mill act, there can be no assessment of damages upon a petition under the act. Such answer is a conclusive record that estops the defendant from claiming in an action for damages for past flowing, or at any time, that at the commencement of the proceedings he was exercising a flowage right under the mill act. Chapman v. Company,
As the defendant proceeded to a trial of the facts instead of insisting upon the objection that he claimed no flowage right, in which case there would have been no occasion for the reference to a committee, such order as to costs will be made in dismissing the bill as justice requires. Since the necessary result of the defendant's disclaimer is the dismissal of the petition for want of jurisdiction, the other questions raised are not material. As the dismissal of the petition upon this ground conclusively establishes against the defendant his non-exercise of any statutory flowage right, the question whether under the law and the facts he has any such right, should he desire to exercise it, is not before us. Whether the right exists is not properly considered or determined until such right is claimed and in issue.
Case discharged.
All concurred.