17 Me. 123 | Me. | 1840
The opinion of the Court, after several continuances, was by
The defendant professes to be dissatisfied, because the attention of the jury was drawn by the Judge in his instructions to one line only in the deed, and not to the entire deed, and not to the intentions of the parties to the deed under which the complainants claim. Because the instructions invaded the province of the jury in directing them how to find the place of beginning, when that fact should have been exclusively submitted to them, and of which they were the sole and independent judges. Because if the flowing was no damage, then this process does not lie. Because if there has been an uninterrupted flowing and damage for fifty years, it was evidence, which should have been submitted to the jury, as evidence of a license to flow without paying damages. And that it would be absurd to suppose that a grant of a license to flow, when the flowing was a continued damage for fifty years without interruption, is not to be submitted to the jury, when a possession of the land for a much shorter time would be evidence of a grant of the land itself.
We do not discover any good cause for the defendant’s dissatisfaction with the instruction of the Judge as to the construction of
The Judge ruled, that the uninterrupted flowing for any length of time, and the defendant and his grantors claiming the right, was not evidence sufficient for the jury to presume a license to flow by the defendant without paying damages.
Under these circumstances it would seem to be imperiously required of courts of justice not to relax the rules of law as to the effect of licenses by parol, or as to the extent of presumptions against the lawful owner’s right. It is so easy a thing for one, who would secure a right to flow another’s land, to obtain a deed conveying that right for such length of time, and to such height and extent as may be agreed upon, that it may be regretted that any dispensation with such a requisition should in any degree, be tolerated, considering the temptations to misrepresent, or to forget what transpired in years gone by, when the whole rests merely in recollection, without being reduced to writing.
It appears, that there was conflicting evidence as to the parol reservation. But admitting that there was something amounting to a license, when the land was sold by deed to the complainants’ grantor, and afterward by that grantor to the complainants, the con
The case of Clement v. Durgin, 5 Greenl. 9, is different from the present. That was between the original parties. No conveyance bad been made. We do not think that the decision in Clement v. Durgin should be construed to go further than to settle the rights between those parties as to the payment of damages, and to persons similarly situated. And by any parol agreement of the complainants’ grantors, we are satisfied that the present title of the complainant is not affected.
The Judge also overruled the motion to prove that the flowing was no damage, and that if the land of complainants was proved to have been flowed by defendant’s mill-dam, some damages would be presumed, and tbe jury or committee to bo afterwards appointed were to estimate the amount of damage, or to ascertain whether in fact there were any or not.
In this case no damage was sustained till 1835. When the complainants5 grantor purchased in 1801, the land was wild and uncultivated ; afterward it was fenced and grass cut a number of years. It may be that for some cause the flowing was not till latterly continued through the summer. The meadow of the complainants in August, 1835, was overflowed by means of the respondent’s mill-dam, as high as it was in November. This fact presented a prima facie presumption of damage. But it was not requisite to go into this inquiry as it is more particularly to be investigated by the actual inspection of the commissioners to be appointed after the decision of the Court upon the first verdict, if that can be sustained upon the questions now under consideration.
.By the stat. of 1824, c. 261, “if any owner or occupant of a mill, appearing, shall not shew sufficient cause, the court may appoint three or more disinterested freeholders of the same county to make true and faithful appraisement under oath, of tbe yearly dam
This provision of the statute shews in the clearest manner, that the construction of the Judge was perfectly correct. The design of the statutes on this subject was to authorize the party flowing to avail himself of a denial of the complainants’ title to the lands said to be damaged by flowing, or a claim of right to flow such lands without payment of damages, or for an agreed composition, to be tried by a jury, unless there be an issue in law which the Court shall determine. All this is to be finished before the appointment of commissioners. And none would be appointed, if the complainant failed to establish his title to the land flowed, or if the defendant proved a right to flow without payment of damages or for an agreed composition. Cowell v. The Great Falls Manufacturing Co., 6 Greenl. 282.
The exceptions are overruled.
Note with the opinion. It is said, that there is a case Liggins v. Inge, in 5 Moore & Payne, 712, decided I suppose in the Exchequer, in 1827, that a parol license, after it is executed at the expense of the grantee, is not eountermandable by the grantor. Where therefore the plaintiff’s father gave the defendants leave, by parol, to lower the bank of a river and erect a weir, whereby a part of the water which before flowed to the plaintiff’s mill, was diverted: — Held, that his son could not maintain an action against the de
It has not boon in my power to see the case at large. But it does not appear to me to justify a departure from the construction in Fatiman v. Smith, 4 East, 107. The ease of tlio weir was not between a purchaser for a valuable consideration and the person erecting the weir, but between him and the son of the licensor, and the son probably took by descent.