Axtell v. Coombs
| Decision Date | 01 May 1826 |
| Citation | 4 Me. 322 |
| Parties | AXTELL v. COOMBS & AL |
| Court | Maine Supreme Court |
IN this case, which was a complaint for flowing lands of the complainant, the respondents pleaded in bar that the land " had not been flowed and rendered of no value and use to the complainant" by reason of their mill-dam; on which issue was taken to the country; and the jury found that the lands had been so flowed and rendered of no value and use, & c. Hereupon the respondents moved that the verdict be set aside, because the issue made up and tried by the jury was not authorized by the statutes on which this process is founded; because the jury had undertaken to determine the extent of the injury done to the land, which was a question to be decided wholly by commissioners to be appointed by the court; or by a jury to be afterwards empaneled for that purpose; and because the verdict precluded the commissioners from making a report that the complainant had sustained no damage, if such should be their opinion.
Orr and Boutelle, in support of the motion, contended that as the proceedings were altogether of statute creation, no issues could be formed to the jury, except such as were enumerated in the statute; and the issue made up in this case not being of that description, it was a mistrial. 3 Mass. 184. 6 Mass 398. The question of damage belonged wholly to the commissioners.
Bond and R. Williams, for the complainant, replied that enumeration of certain issues in the statute, did not exclude any others which might be pertinent to the case, or necessary to elucidate its merits. The respondent must of course be entitled to shew any legal cause why a warrant should not issue to appraise the damages; and to have the fact tried by a jury. As to the immateriality of the issue, it is not for the respondent to make the objection. 2 Saund. 317, note. 1 Chitty's Pl. 634. Doug. 396.
By the second section of the statute of Massachusetts of 1797 ch. 63, being an act in addition to an act for the support and regulation of mills, it is provided that the party charged by the complaint may, by his plea, dispute the statement made by the complainant, and issue being joined thereon, the same is to be tried by a jury at the bar of the court, if it be an issue of fact; but if of law, by the court themselves. Under this statute, Parsons C. J. says, in delivering the opinion of the court, in Lowell v. Spring 6 Mass. 398, that the respondent may deny that he is the owner of the dam, which may have occasioned the flowing. It would doubtless under this statute have been equally competent for the respondent to deny, that any flowing was caused by the dam.
By the second section, ch. 45, of the revised statutes of this State, which provides for the regulation of mills, the party charged in the character of owner or occupant of the mill, is to be notified to appear and show cause, if any he has, why a warrant should not issue in the manner, and for the purposes, prayed for in the complaint. The third section provides for the trial of an issue, if of fact, by a jury at the bar of the court; or if of law, by the court themselves which may be joined upon a plea of the respondent, denying the title of the complainant to the lands alleged to have been flowed, or claiming a right to flow such lands, without payment of damages, or for an agreed composition. This second section is a re-enactment of the second section of the statute of Massachusetts before cited, omitting the specification of a plea, in which the respondent may dispute the statement made by the complainant. The fourth section of the revised statute provided that, if the owner or occupant of the mill shall not appear, or appearing shall not show sufficient cause, the court may issue a warrant to the sheriff, or his deputy, to empanel a jury, who " shall be sworn to make a true and faithful appraisement of the yearly damages done to the complainant...
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