Pearson v. Rolfe

• Decision Date: 04 August 1884
• Parties: WILLIAM T. PEARSON and another v. HENRY ROLFE. HENRY ROLFE v. HENRY T. PEARSON.
• Court: Maine Supreme Court

76 Me. 380

WILLIAM T. PEARSON and another v. HENRY ROLFE.

HENRY ROLFE v. HENRY T. PEARSON.

Supreme Judicial Court of Maine.

August 4, 1884

ON REPORT.

The first action is for trespass. The writ dated August 31, 1880 alleged that the defendant at Oldtown, August 30, 1880, with force and arms wilfully, and without the consent of the owner let loose the plaintiffs' boom in the Penobscot river by reason whereof a large number of logs ran by the boom into the plaintiffs' mill-pond and the plaintiffs were put to great expense in sluicing the logs out of the pond. Ad damnum one thousand dollars.

The second action is case. The writ, dated September 18, 1880 alleges that the defendant on the first day of June, 1875 and various other times between that day and the date of the writ unlawfully erected, maintained and kept a dam across the Penobscot river at Great Works in Oldtown, and unlawfully omitted, neglected and refused to provide a suitable sluice or place of passage for logs being driven down the river by the plaintiff and caused great loss, damage and detention to the plaintiff in his business of driving logs. Ad damnum five thousand dollars.

The two cases were submitted together to the law court to render such judgment as the rights of the parties require in each case; damages, if any, to be assessed at nisi prius.

The cases were ably argued upon the law and facts by Wilson and Woodward, and John Varney, for William T. Pearson and Co. and by

Chas. P. Stetson, and J. A. Blanchard, for Rolfe.

It is common learning that the right of erecting and maintaining dams and mills upon a river which is navigable for logs, must be deemed as in subjection to the paramount right of passage of the public, and that all hinderances and obstructions to navigation, without direct authority from the legislature, are public nuisances. Knox v. Chaloner, 42 Me. 150; Dwinel v. Barnard, 28 Me. 554, 567; Moor v. Veazie, 32 Maine, page 356; Brown v. Chadbourne, 31 Me. 19. Angell and Ames on Water Courses, §554, note 2. (7th ed.)

That when the river is unlawfully obstructed, any individual who has occasion to use it in a lawful way, may remove the obstruction. Angell and Ames on Water Courses, § 563; Treat v. Lord, 42 Maine, page 557; Arundel v. McCulloch, 10 Mass. 70.

And that any person receiving special damage from such obstruction, may maintain an action therefor. Brown v. Watson 47 Me. 161.

Applying these principles to the facts in these cases, we claim that Rolfe was justified in his action in removing the boom, and that he is entitled to judgment in the first named case, and that in the other case he is entitled to recover, as damages, the increased expense of getting his logs through.

But plaintiffs while admitting that the Penobscot river at this point is navigable, say that in season of drouth and at the time of the alleged injury, Rolfe could not have driven his logs by Great Works, in the river in its natural state, and therefore their detention of his logs, and their refusal to shut down their mills, and give him a passage for his logs, were not wrongful. We claim that Rolfe was entitled to have passage for his logs in the river, and the water as it then was, even if it be shown that logs could not have been driven down the river, in its natural state, at that time of drouth; that if the dams of plaintiff improve the river for driving logs, Rolfe could use that improved condition of the water for that purpose, in the same manner as he could the river in its natural state, and the same principles of law which would give him, as one of the public, the paramount right of navigation in the public highway applied to the river and the water as it then was, with plaintiffs' dams and mills upon it. This is an important question to be settled by this case; important as establishing for the future the rights of those having logs to be driven down the river in the summer season, and the rights of the owners of extensive mills below, requiring from time to time during the season, some seventy-five millions of feet of logs, for the supply of their mills.

The cases above cited, Brown v. Chadbourne, and Treat v. Lord, say that a river has the character of a navigable river although not navigable at all seasons of the year, and even if in its natural state it is so obstructed, by obstructions which could be removed, that logs could not be driven in it.

And the case of Dwinel v. Barnard, 28 Me. 562, lays down the following principle: " Should a person obstruct the flow of the waters of the river or stream over their accustomed bed, so that they could not be used as formerly, for the purpose of boating or of floating rafts or logs, and should turn them into a new channel, he would thereby authorize the public to make use of them in the new channel, as they had been accustomed to use them in their former channel." Mr. Eddy, a witness for plaintiffs, and interested in the result of this suit, as much or in the same manner, as Pearson, says, that the river could be improved so that logs could be driven in case of drouth, if there were no dam and mills there, and that more convenient passage could be made for logs in the present works, but adds: " in severe drouth there is not water enough to drive logs there and run the mills too, one or the other must yield."

The character of the river being established as a public highway, Rolfe had a right to use it for the navigation of his logs, and to use the water as it then was, and to have the benefit of any improved condition of the river for navigation, made by the dams there. Holden v. Robinson Company, 65 Me. 215.

The position which plaintiffs take in this case is not sound, because it is impracticable. It would make the navigation of the river subject to the will of the mill-owner, and to his opinion or the opinion of others, as to whether, at a particular season, long years past, logs could be driven down the river, in its natural state, at this point; --because it deprives the public of the improvements which might be made in the river, so that it would be navigable in cases of drouth,--because the amount of water which would have run in the river at the present time, if the dam was not there, must be a matter of conjecture, and entirely too uncertain for the determination of the rights of the public and those navigating the river.

The character of the river being established as navigable, as a public highway, the public have a right to use it at all times and seasons, and the adjoining owner cannot, by making improvements on the highway, deprive the public of the use of it.

A man improves the highway in front of his house--he cannot say to the traveler, to the public,--" You cannot drive over this highway, because at some time, before I improved it, you could not have driven over it, or could have driven over it with difficulty." He cannot say to the traveler--" You cannot drive over this highway which I have improved, unless you pay me for the use of it, or for the inconvenience you may occasion to me by using it."

PETERS C. J.

The controversy in these cases arises from a conflict between log-owners and mill-owners as to their respective rights in the use of the water at certain falls in the Penobscot river at West Great Works, in the town of Oldtown. Pearson represents mill-owners,--Rolfe represents log-owners. Pearson has mill structures upon his privilege, with such appendages as dams, sluices and booms. Rolfe had a quantity of logs in the river which he was unable to drive over the dam at Pearson's mills, unless Pearson would shut down his mill-gates, thereby suspending his own business of manufacturing, until water enough should accumulate in his mill-pond to float the logs over. This Pearson refused to do, basing his refusal upon the allegation that the drift-way in the dam, without shutting down his working gates, afforded all the facility for floating logs by his mills that existed in the river at that place in its natural state,--as much as there would be provided his mills and all of his structures were entirely out of the way. Rolfe contends that the facts were otherwise, but further contends that Pearson, even if he represents the facts truly, having it within his power to furnish more water than the natural facility and flow, was under an obligation from his situation to do so.

The counsel for Rolfe contends that the doctrine of reasonable use applies; and that, if the river in its natural condition would not furnish a sufficient flow, Rolfe was entitled to the use of the river in its changed condition for his purposes. We think this position cannot be maintained. Our idea is that the doctrine of reasonable use does not apply when the river is not naturally floatable; but does apply when it is naturally floatable or lognavigable, when both parties can use the natural flow and desire to use it at the same time. We are well satisfied that, whenever logs cannot be driven over a particular portion of a fresh water river such as the Penobscot above the flow and ebb of the tide, while in its natural condition, such portion of the river is not at such time navigable or floatable, and that the use of the water at such time, and place, so far as he needs the same for his own purposes, belongs exclusively to the riparian proprietor. We think an examination of well settled principles, as illustrated by the decisions, affecting the respective rights of the parties in river easements and privileges, inevitably leads to such conclusion.

Rolfe unquestionably, had the general right to use the river as a passage-way for his logs. All navigable waters are for the use of all citizens. In a technical sense at the common law, the Penobscot river would be regarded as...