69 Me. 255 (Me. 1879), Rockland Water Co. v. Tillson

Citation:69 Me. 255
Opinion Judge:DANFORTH, J.
Attorney:A. P. Gould & J. E. Moore, for the plaintiffs, A. S. Rice & A. G. Hall, for the defendant
Judge Panel:APPLETON, C. J., VIRGIN, PETERS and LIBBEY, JJ., concurred
Court:Supreme Judicial Court of Maine

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69 Me. 255 (Me. 1879)




Supreme Judicial Court of Maine.

March, 1879

ON EXCEPTIONS by both parties.

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ACTION ON THE CASE for injuries to the plaintiffs' aqueduct. Writ dated September 23, 1875.

Plea, general issue and brief statement which alleged, inter alia, that the aqueduct was constructed on land of Orris B. Ulmer, without right and against his will; that at the time of the supposed injury, the defendant and one Cornelius Hanrahan owned in common with Ulmer, the limestone in and upon said land, with the lawful right to dig and remove said limestone and the soil thereupon; and that if any injury was caused to the aqueduct by the defendant, it was done in the prosecution of the rightful use and occupation of said land, and in the digging and removal of the soil and limestone in behalf of himself, Ulmer, and Hanrahan.

The plaintiffs put in their charter, approved August 20, 1850, together with its amendments, which are sufficiently recited in the opinion.

Plaintiffs' exceptions:

L. L. Buckland, surveyor appointed by the court, presented a plan and testified in substance, among other things, that he surveyed the location of the plaintiffs' aqueduct from the lake, which is a mile from the Ulmer field, where he found the pipe supported over the quarry by a truss bridge--a temporary structure. The rock had been excavated from beneath the bridge, which is about fifty feet long. It was thirty-one feet from the pipe to the bottom of the quarry. East of the bridge the quarry had been excavated and the dirt fell off shelving, exposing the pipe where no protection had then been provided.

That from the east end of the bridge across the excavation to the eastern line of the eastern excavation it is about seventy feet; that across this seventy feet, the crest line is about over the pipe, from which point it slopes down to the edge of the quarry; and that some kind of protection to this part of the pipe is necessary.

That he surveyed a certain line (shown on the plan) commencing some two hundred feet northerly of the north end of the bridge, where he dug down to the pipe; thence southerly, to avoid the quarry, around to where it strikes the line of the pipe again; that this is the proposed line, for the change of the location of the

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pipe, so as to avoid the Ulmer quarry; that it would clear all present quarrying operations, and would be less expensive, to thus carry the pipe around, than the building of a permanent bridge would be, to sustain it over the quarry; that he estimated the expense of this change, without land damages, at $1,264; that he had also made an estimate that it would cost $2,000 to build a permanent bridge, sufficient to sustain the pipe across the whole quarry, including that portion of the quarry now partially opened; that the bridge now built is about fifty feet long, and that it would require about seventy feet more.

It appeared that the plaintiffs laid their water pipe through the Ulmer field, in 1851, with the knowledge and without the objection of Orris B. Ulmer, who then owned it, before any quarry in that field had been opened; and that they have ever since maintained it there.

The plaintiffs also put in a receipt signed by Orris B. Ulmer, dated November 9, 1852, of the following tenor:

" Received of the Rockland Water Company, thirty-five dollars in full for damages done land or otherwise in completing the works of said company."

It further appeared that the defendant opened the quarry and made the excavations under the pipe, commencing in the summer of 1869; that the first injuries to the pipe, by reason of the undermining and blasting out of the lime rock, occurred in November, 1869; that the defendant built the temporary structure for the support of the pipe; that the plaintiffs, during the fall of 1869 and the summer of 1870, expended the sum of $173.36 for new pipe and repairs of pipe, made necessary by injuries inflicted upon it by the defendant.

The plaintiffs proposed to prove by further testimony that the pipe would be in constant peril where it now is, by reason of the excavations and undermining done by defendant prior to the date of the writ; that it would be necessary to remove it, or to build some more expensive structure to support and protect it; but the court rejected all further evidence on this subject, and ruled that the plaintiffs in this action could recover only the amount of money actually expended prior to the date of the writ

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for repairs done by them, which were made necessary by the acts of the defendant, and that, if more permanent supports and security for the pipe were necessary, plaintiffs could not recover the prospective cost of them, but must wait until the expense was actually incurred before they would be entitled to recover it. Plaintiffs claimed to recover not only what they had actually expended, but the future cost of sustaining and protecting the pipe over the quarry; and if it would be cheaper to remove it to a new location, they would be entitled to recover the cost of such removal.

These propositions were overruled.

The plaintiffs made eight requests for instructions, which, on account of the view taken by the court, need not be reported here.

The remaining material facts relating to the plaintiffs' exceptions appear in the opinion.

Defendant's exceptions:

The defendant put into the case a deed of warranty, from Orris B. Ulmer to Cornelius Hanrahan, dated June 15, 1869, duly acknowledged and recorded, of " one undivided quarter of all the lime rock or other minerals within" certain parcel of land including the locus of injury. Also a similar deed from said Ulmer to the defendant.

The deeds were introduced for the express purpose of showing that if the plaintiffs had a license to lay the aqueduct over the locus in quo, it was revoked by these conveyances; and further to show revocation, David Tillson, the defendant, testified as follows:

" Before commencing to go under the pipe at all I called the attention of the president of the water company to the fact, and told him I should do so; that, while we would avoid in any possible way injuring the pipe, it would be safer to take it up and move it to the south as indicated in that plan, though there was no need of taking it so far south. I notified Mr. Farnsworth, the president of the company, and asked him to take it away. He went there with Mr. I. K. Kimball, and I think Mr. Berry. I think the other gentlemen advised the change. Mr. Farnsworth afterwards refused to make it. I gave that notice to remove the

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pipe before we commenced digging under the pipe. We were digging in that vicinity. I think we had not uncovered the pipe."

Defendant also put in deed of Davis Tillson to Cobb lime company, dated April 24, 1871.

The presiding judge, in his charge to the jury, gave them the following instructions among others, viz:

" They (the plaintiffs) have placed a pipe over the land of Mr. Ulmer. The first question is whether it is legally there or not. They were there under the charter. Their charter provides that they may take land by filing within six months, in the office of the register of deeds, a description of the land and a statement of the purpose for which it is taken. They have not done so, as I understand. It is not alleged that they have done so. They have therefore omitted to do what they were bound to do. But the question is whether this defendant or Ulmer, under whom he claims, have any right to question their acts on that account.

It seems that Ulmer owned the land; that while the works were being built and the pipe laid he...

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