Stevens v. Kelley

• Decision Date: 07 December 1886
• Citation: 78 Me. 445,6 A. 868
• Parties: STEVENS v. KELLEY and another.
• Court: Maine Supreme Court

6 A. 868

78 Me. 445

STEVENS

v. KELLEY and another.¹

Supreme Judicial Court of Maine.

December 7, 1886.

On report, upon the allegations in the writ, from supreme judicial court, Waldo county.

The opinion states the facts.

Thompson & Dunton, for plaintiff.

W. H. Fogler, for defendants.

DANFORTH, J. This action is reported upon the allegations in the writ, and for the purposes of this hearing such allegations must be taken as true. It appears that the parties are respectively riparian owners upon a fresh-water, unnavigable stream; the defendants owning a mill below, with a privilege, and a dam which flows the water back upon plaintiffs land, thereby creating a pond which is useful and profitable for cutting ice in the winter season. The defendants' dam has been accustomed thus to flow for more than 30 years. By what title the defendants obtained this right to flow does not appear, and perhaps it is not material. They have it; and as it does appear that the plaintiff is not only a riparian owner, having a title to both the banks, but to the bed of the stream also, it necessarily follows that the defendands' right, in this respect, is one of flowage only. It is alleged in the writ that the defendants have not for several years used their mill, but that they have flowed the water in the summer and early winter; but that when the "ice was forming, and being cut and harvested," they let the water out of the dam by opening the gate and sluiceway, thus causing the ice to fall into the mud, and become spoiled; and this is the act complained of. The allegation that, by flowing in the summer, the plaintiff is prevented from building a dam for his own use, cannot be taken as a substantive cause of action, as is plainly shown by the context. It may be put in to show the motive of the defendants, or as an aggravation of damages; but whether it subserves any useful purpose is not material now, as it cannot be a foundation for, or even an element in, the cause of action.

The result of the case must depend upon the rights of the respective parties in the property involved. The defendants' right of flowage, whether obtained by grant, or under the mill act, having been used for more than 30 years with the mill, and, so far as appears, for no other purpose, must be understood to be for the benefit of the mill. Aa such their right to the use of the water thus flowed must be limited by the wants and requirements of the mill, at least in kind. It might perhaps be more or less extensive in quantity, as changes in the mill from time to time might require more or less water; but it could be used for no other purpose. As was said in Crockett v. Millett, 65 Me. 195: "The mill is the principal. The dam is subservient to it." So, too, this use of the water is not unlimited. There are owners above and below whose rights and whose interests are to be regarded. The owner of such an easement is not at liberty to consult his own interests or whims only as to when, or in what quantity, he shall let out the water thus accumulated. Even when rightfully accumulated, he must exercise ordinary care in regard to the interests of riparian owners both above and below in letting it out. Frye v. Moor, 53 Me. 583; Phillips v. Sherman, 64 Me. 174. The plaintiff, as riparian owner above, has fixed and well-defined rights. Among others, not necessary to be noticed in this case, is that of taking ice from the stream, where it flows over his land. Whether this right could have been profitably exercised without the flowing is not a question involved here. With the flowing it can be, and the plaintiff has the right to avail himself of all the improvements made to his property, even by the defendants; nor can the defendants avail themselves of such a right, though created by them. It is not a purpose recognized by law for which a person's land can be appropriated by another, but is a privilege attached to and becomes the property of the plaintiff. This right to take the ice is not a new one, though perhaps a greater importance has become attached to it within the last few years than formerly. It results from and grows out of the title to the bed of the stream, and such right to the use of the water as results therefrom. This right is well settled by authority, as well as by principle. Gould, Waters, § 191; Ham v. Salem, 100 Mass. 350; Paine v. Woods, 108 Mass. 172. The plaintiff's title to the ice must be the same as in the water before...