5 Me. 38 | Me. | 1827
delivered the opinion of the Court, at the ensuing term in Kennebec.
It is objected that the subject matter in dispute between these parties, affecting the title to real estate, could not be adjudicated upon by referees, appointed under a submission before a justice. If the tide to real estate is necessarily involved in this controversy, upon the authority of Fowler v. Bigelow, cited in the argument, this error is well assigned. But It does not appear to us,t hat the title to real estate is affected by the submission. The right of the plaintiffs in error, however derived, to make their canal across the defendant’s land, is not disputed. He sought not to reclaim his land from their operations, nor does he pretend that he has a right so to do ; but it being assumed that his land is gone, or rendered useless to him, by being covered by the waters of the canal, he claims damages for this injury. That the defendant also was the general owner of the land thus taken, is not denied br drawn in controversy. If the parties had, in the mode adopted, submitted the right of the plaintiffs in error to make the canal, or whether the defendant was or was not the owner of the land, for an injury to which he claimed damages, the question in dispute would be of a different character. The power of a justice of the peace in civil actions does not extend to cases, in which the title to real estate comes in question; yet it is every day’s practice, to bring before a justice, actions of trespass guare clausum fregit; and where the defendant does not dispute the title of the plaintiff to the locus in quo, the justice may lawfully adjudicate between the parties. ' The dispute between these parties is of the
It is further assigned for error, that in and by the record it appears that the committee, assuming to act in behalf of the plaintiffs in error, were not authorized thereto. There is, among the copies certified, a paper accompanying the submission, purporting to be a copy of a vote of the proprietors of the Fryeburg canal, under the signature of their clerk, by which it appears that the persons, who entered into the submission in their behalf, were appointed a committee to settle with claimants for damages or loss of lands,' by reference or otherwise. This authority it is contended is insufficient; but admitting it to be so, we do not know that there may not have been other votes, prior to the submission or subsequent, by which it would appear that the committee were clothed with competent power. The committee, in entering into the submission, declare themselves duly and legally authorized for that purpose ; but they refér to no vote of the corporation, as evidence of their agency; nor is it any where stated that they acted in virtue of the vote certified ; much less that this was their only authority. The justice, in his certificate of the acknowledgment of the parties to the submission before him, represents the committee in behalf of the plaintiffs in error, to have been duly authorized. It cannot therefore with propriety be averred, that it is apparent from the record, that, the committee were not duly and legally empowered to bind the corporation. It appears that the plaintiff in error attended before the referees prior to their first award, and that their proofs ánd allegations were received; that they procured a recommitment, and were again heard by the referees; and it does not appear in any stage of the proceedings, prior to the acceptance of the report, that they disclaimed the authority of the committee who entered into the submission. It is certainly inequitable, after they had thus recognized the authority of the referees, and taken the chance of a decision in their favor, that they should now deny all obligation on their part to abide their award. If the want of authority in the committee had been formally assigned as an error in .fact, it might well be. doubted whether, under these circumstances, all object
Another error assigned, and upon which much reliance has been placed, is, that the defendant did not pursue the remedy pointed out by the statute creating this corporation, and the several acts in addition thereto. These acts not having been pleaded, or in any manner made a part of the record, or referred to therein, a question arises whether judicial notice ought to be taken of them. The counsel for the plaintiffs in error, insist that they are public statutes; principally upon the ground that the Saco is, at Fryeburg, a public river. It may have become such by long usage; but as this fact does not appear, and the canal being above where the tide ebbs and flows, according to the case of Berry v. Carle, 3 Greenl. 269, we cannot regard it as a public river of common right. These statutes seem therefore to belong to the class denominated special or private ; and as such requiring to be pleaded or set forth. But if we look into these statutes, they do not sustain the error assigned. The claim of the defendant in error for damages was not in the nature of a new right given by statute, and in which a special remedy is provided, which in such case could alone, be pursued. If these statutes had been silent on the question of damages, the common law would have afforded a sufficient and adequate remedy, in the special one provided, there are no words of exclusion; the language is not imperative but optional, and ought perhaps rather to be deemed cumulative than exclusive. But if not intended to be cumulative, it was a provision manifestly introduced for the benefit of both the parties; and if they both agreed to waive it,'and to resort to a course, and to a tribunal, open to all the citizens, we are not aware that it was not competent for them so to do. The corporation were invested with the capacity to sue and to be sued; and if all concerned were disposed to enter into a submission before a justice, which in ordinary cases would bo
It being the opinion of the court that there is no error in the record before us, the judgment of the Common Pleas is affirmed, with costs for the defendant in errar.