59 Me. 256 | Me. | 1871
This is a complaint for flowage tried before the jury at the January term, 1870; the respondent not denying the complainant’s title in the lands or that they were flowed, but asserting by 'his plea “ a right to flow without compensation, also a right to flow acquired by prescription.” The verdict being agaipst him, he presents exceptions from which we learn that the parties traced 'their respective titles to Nezar Dailey, in whose deed of the meadow land, dated August 26, 1809, to Samuel Fuller (under whom, through certain mesne conveyances the complainant holds), is'found the following clause: “reserving liberty for roads, also for repairing dams, and flowing as. much as said Dailey requires for use of the mill.”
The respondent owns the mill privilege and pond dam causing the flowage, through a series of conveyances under William H. Brettun, to whom Nezar Dailey conveyed them by deed dated June 20, 1814, couched in the terms following: “Also, the saw
The whole charge of the presiding judge is made part of the exceptions, and taken in connection with the pleadings, and the statement of the case in the exceptions, makes it plain that the controversy between these parties was not whether this defendant had the right to flow this land to the extent that Nezar Dailey did in 1809, when he made his deed to Fuller, but whether the dam had not been raised since that time so as to flow more of the complainant's land than would have been flowed by a dam of no greater efficient height than the one which was in existence when
If the defendant claimed that by the conveyances from Dailey he had acquired a right to flow to any greater extent than would be flowed by a dam of the same height as that which Dailey was using when he sold the meadow-land to Fuller, his claim could not be sustained.
It is apparent that his right to flow so much,' however it might have been acquired, was not in dispute. He and his predecessors and grantors had exercised for more than fifty years the right to flow so much, and it was admitted that defendant’s dam is the dam originally supplying-the mills referred to in the Fuller deed, “the complainant claiming that it has been rebuilt several times and raised, and is now higher than when that deed was given.” Manifestly, it was upon proof of this allegation that the complainant based his claim to a verdict, and not upon a denial of the defendant’s right to flow to the extent mentioned in the reservation, a right which he and his grantors had enjoyed for more than fifty years, and were entitled to maintain by prescription, whether it had originally been so excepted and reserved by Dailey as to be capable of passing by deed to his grantees or not.
Under these circumstances we do not see how the defendant could have been injured in the least by the instruction of which he complains, if it was erroneous. It was purely immaterial.
There are numerous cases in which it has been held, that, even if instructions are erroneous, unless it appears also that they might have been prejudicial to the excepting party, a new trial will not be granted. Neal v. Paine, 35 Maine, 158; Beeman v. Lawton, 37 Maine, 543; Whidden v. Seelye, 40 Maine, 247; Barrett v. Salisbury Manuf. Co., 28 N. Pl. 438; Moulton v. Witherell, 52 Maine, 237.
We need not inquire whether the clause in Nezar Dailey’s deed to Samuel Fuller would be most correctly described as a reservation or an exception, or whether for want of words of limitation or
Exceptions overruled.