Bean v. Cent. Maine Power Co.

• Decision Date: 21 June 1934
• Citation: 173 A. 498
• Parties: BEAN v. CENTRAL MAINE POWER CO. BINGHAM LAND CO. v. SAME.
• Court: Maine Supreme Court

173 A. 498

BEAN

v. CENTRAL MAINE POWER CO.

BINGHAM LAND CO.

v. SAME.

Supreme Judicial Court of Maine.

June 21, 1934.

Exceptions from Superior Court, Somerset County.

Suits by Matilda Bean and by the Bingham Land Company against the Central Maine Power Company. On plaintiffs' exceptions to the ruling of the superior court ordering portions of the complaint expunged as impertinent.

Exceptions overruled.

Argued before PATTANGALL, C. J., and DUNN, STURGIS, BARNES, and THAXTER, JJ.

Locke, Perkins & Williamson, of Augusta, for plaintiffs.

Merrill & Merrill, of Skowhegan, and Perkins & Weeks, of Waterville, for defendant.

BARNES, Justice.

On complaints for flowing under R. S. c. 106, §§ 1-38, bills of exceptions to the ruling of the superior court were argued together before the law court.

The erection and operation of Wyman Dam, between Moscow and Pleasant Ridge, in Somerset county, occasioned a material change in the surface level of the Kennebec river above the dam, and flowing of riparian lands on each side, including such lands of both plaintiffs, the Bingham Company land, at the southerly bound of Carrying Place Plantation, west of the river, and the Bean land, in Carratunk, east of the river and far above the Bingham Company land.

There is no community of interest in the complainants, but the lands of each extend to the midthread of the river, and the principles involved are identical in the two cases.

Prior to the erection of the dam, on and opposite complainant's lands, the river flowed, in volume affected by seasonal and climatic variations, down a channel, over no natural pitch and affording no site for a mill, as the term is understood in New England.

The contention of plaintiffs is that by the flowing they have suffered loss of current; that the current of which they are deprived is a valuable incorporeal hereditament incident to their lands, not to be taken from them by another except upon payment of compensation.

In other words, suspension of the enjoyment of the flow of water in a swift current through complainants' lands and the substitution of flow of the same volume of water by imperceptible current is what is complained of.

The flowing is admitted, and the problem is to determine what are the factors that go to make up damages.

The parties agree that time and expense will be saved to all if the rule of compensation may be determined for the guidance of the commissioners, who, under the law, shall determine the same; and complainants admit that neither they nor any of their predecessors in title had, before the building of the dam, taken any steps toward construction of a dam at any point within their respective bounds.

Defendant's position is that the right of an upper riparian owner to raise a head of water on his land is not absolute, but is contingent upon the fact of steps of construction being taken by the upper owner before a lower owner has built and flowed the upper owner's privilege; that, if there are, on the same stream, two undeveloped power privileges, construction on the lower, which flows and renders useless as a power privilege the upper site, while entailing on the upper owner what may prove to be a loss, does not make the lower owner liable for such loss as may be based on inability to make a profit from development of the upper power privilege.

Industrial development had not advanced in England, at the time of first New England settlement, to the stage of construction of dams for sawing timber or grinding grain by water power. It is said that sawmills driven by water power were in successful operation in New England more than thirty years before an attempt was made to build such in the mother country.

Permanent settlements in the area, now the state of Maine, were established before enactments of the Massachusetts Bay Colony were accepted and recognized as the law of this locality.

On Captain John Mason's plantation, in what is now York county, in this state, a sawmill was built in 1631. See Ridlon's "Saco Valley Settlements and Families," p. 191.

Such rules of English common law as the early colonists adopted became the common law of the land of the colonists, together with other laws deemed by them to be of prime importance and adapted to the needs of the inhabitants of the new land.

Under the common law of England, the bed of a river was the property of the state; a riparian proprietor owned only to low-water mark on the shore of a river. At the time of the first settlements in the new world, the chief service of a river was as a highway.

Obstructions on a river bed were abatable if proven a nuisance to the public.

In England there was recognized the exception that an obstruction erected by the sovereign was not abatable.

This exception was adopted in New England, with the further exception that dams might be erected, and mills driven by water power might be maintained, as of public use and benefit; hence the expression "mill privilege."

Under the common law as recognized by Massachusetts Bay Colony, a proprietor's land, bounded on a stream, extended to the midthread of the current.

If one owned the banks on both sides of a river, above the reach of the tide, he owned the bed of the stream, and his dam, on his land, could not be prostrated unless by order of court for the abatement of a public nuisance.

Under the doctrine of reasonable use, common-law rights and duties protected and restricted those who would develop a mill privilege; for examples, they had the right, as against the public, to convert a current, valuable to timber men, to a still pond, and the duty not to obstruct a river below the marl; to which the tide of ocean flowed.

Experience showed that raising a head of water sufficient for reasonable operation of a mill frequently flowed river banks and adjoining lands beyond the bounds of what the mill man owned or could control by virtue of grant, and controversies arid lawsuits arose; wherefore the mother colony, in 1714,¹ enacted legislation, the first Mill Act, so far as Maine is concerned, "That where any person or persons have already, or shall hereafter set up any water-mill or mills, upon his or their own lands, or with the consent of the proprietors of such lands legally obtained, whereupon such mill or mills is or shall be erected or built, that then such owner or owners shall have free liberty to continue and improve such pond, for their best advantage, without molestation."

Then, in harmony with the common-law rule that, if one man's property is taken, to another's advantage, the taker shall make good the loss, the act provided for an impartial "appraisal of the yearly damage done to any person complainant by flowing his or their land as aforesaid." Section 2.

A similar act was passed after the establishment of the commonwealth of Massachusetts, and by the first Legislature of Maine, Laws 1821, c. 45.

Then, by R. S. 1841, c. 126, § 1, our Legislature provided: "Any man may erect and maintain a water mill, and a dam to raise water for working it, upon and across any stream that is not navigable, upon the terms and conditions and subject to the regulations hereinafter expressed"; and in the regulations provided by Section 2, "No dam shall be erected to the injury of any mill lawfully existing either above or below it, on the same stream; nor to the injury of any mill site, on which a mill or mill dam shall have been lawfully erected and used, unless the right to maintain a mill on such last mentioned site, shall have been lost or defeated by an abandonment, or otherwise."

Subsequent amendments, not vital here, have been made, and the present law, R. S. e. 106, prescribes, "Any man may on his own land, erect and maintain a water-mill and dams to raise water for working it, upon and across any stream, not navigable; * * * upon the terms and conditions, and subject to the regulations hereinafter expressed" (section 1); retains the clause of exception, section 2; by subsequent section provides, "Any person whose lands are damaged by being flowed by a mill-dam * * * may obtain compensation for the injury, by complaint to the superior court," etc. (section 4); and, if injury compensable in damages is established, by section 9 provides, "The court shall appoint three or more disinterested commissioners of the same county, who shall go upon and examine the premises, and make a true and faithful appraisement, under oath, of the yearly damages, if any, done to the complainant by the flowing of his lands * * * described in the complaint * * * They shall also ascertain, determine, and report what sum in gross would be a reasonable compensation for all the damages, if any, occasioned by the use of such dam;" and makes provision for collection of such compensation.

The constitutionality of the act is not questioned.

The fact of its validity is settled. Brown v. De Normandie, 123 Me. 535, 541, 124 A. 697 (1924).

It is not denied that lands of complainants are flowed by defendant's millpond, and it is admitted that damages are to be assessed for flowing the banks and adjacent lands.

But it is urged by complainants that an item of damages to be considered was brought into being because, over all that part of the bed of the river that extended to the thread of the current, in its natural state, from lower to upper bounds of each tract described, the level of the river has been raised and the still waters of a millpond substituted for what was formerly the natural stream, moving "through a narrow valley with a heavy and steady current," to quote from complainant's briefs.

They admit that, "no fall or dam site as the term is usually used" existed on the land of either, and state, "Nor is there any (such) natural head or waterfall at the point where the complainant's land is located above the dam."

In fine, complainants set up what defendant contends is entirely novel, and not maintainable, the inclusion, as an increment of...