Berry v. Carle

• Decision Date: 01 April 1825
• Citation: 3 Me. 269
• Parties: BERRY & AL. plaintiffs in error, v. CARLE
• Court: Maine Supreme Court

3 Me. 269

BERRY & AL. plaintiffs in error, v. CARLE

Supreme Judicial Court of Maine, York

April, 1825

[Syllabus Material] [Syllabus Material]

UPON a writ of error to the Court of Common Pleas, the case appeared to be thus:--

The action was trespass, brought by Carle, the defendant in error, against Berry & al. before a Justice of the peace, for taking and carrying away ten of his mill-logs. At the trial in the the Court of Common Pleas, into which it came by appeal, before Whitman C. J. the original plaintiff proved that he and others, among whom was one Tucker, were owners of certain saw-mills on a certain fall on Saco river; --that the plaintiff's mill was on one side, and Tucker's mill towards the other side of the river; --that the owners of the mills had their respective parcels of logs above the mills secured in booms, for the purpose of being sawed at the mills; --that occasionally logs would escape from these booms, and lodge on the common dam, or among the drift wood above the dam; --that the original defendants, now plaintiffs in error, were employed in Tucker's mill as his servants --that on the day alleged in the writ, being Sunday, a quantity of logs and drift wood, covering nearly three quarters of an acre, having accumulated above the dam, and that being the only day in the week when the mills were all stopped, and the water thereby raised so to enable them to turn over the drift stuff with convenience, the defendants turned it over the dam, with two of the logs in question which being thus carried below the mills, were of less value to the plaintiff.

The original defendants proved that Tucker's mill was frequently injured, and its operations impeded, by the accumulation of drift stuff which floated into the floom; --that in several previous instances they had turned such stuff and drift logs over the dam, without notifying the other owners of mills; and that a similar practice had obtained at some of the mills on the other falls on the river. But this did not appear to have been the uniform usage at the mills in question. In some instances either notice had been given by an owner about to clear away the stuff, to the other proprietors, to secure their logs; or they had been detained for their owners, on such occasions; --and at the time stated in the writ the owners, had they been notified in season, could have secured their logs with very little trouble.

There was other evidence tending to prove that at that time there was no very great urgency for turning away the drift stuff, none being then in Tucker's floom; --that the plaintiff and other owners of the mills were near at hand, and might have been notified with very little trouble; --and that when the defendants had already made some progress in that work, the plaintiff requested them to desist, which they refused. It also appeared that a considerable number of the logs thus turned down the river belonged to persons owning mills below, of whom Tucker also was one.

Upon this evidence the original defendants requested the Judge to instruct the jury that if Tucker's mill was injured by the accumulation of the drift stuff, they had a right to turn it over the dam, without notice to the other owners of mills on the same falls. But this the Judge declined; and instructed the jury that if they should find that the drift stuff and logs did impede Tucker's mill, yet the defendants were not justified in turning the plaintiffs logs over the dam, unless they should find it unavoidably necessary so to do, in order to free the mill; --that if with but little or no inconvenience they could have notified the plaintiff to take care of his logs, or could with the same facility have saved them for him, they were bound so to have done; --that the plaintiff apparently was not in fault on account of the situation of the logs, that seeming to be a casualty to which all owners of such property were liable; --and that though if the fault were the plaintiff's, the defendants might not be bound to exercise the same degree of care for the safety of his property; yet if no negligence was imputable to him, the case was merely that of one man's property accidentally intermingled with another's to his damage, in which case the party injured would not be justified in doing more damage to the property of his neighbor than was necessary to extricate or disembarrass his own. To this opinion the defendants filed exceptions, the verdict and judgment being rendered against them.

Exceptions overruled, and judgment affirmed.

Shepley, for the plaintiffs in error, maintained the following points.

1. The river, though not navigable from the sea, is yet a public highway, by immemorial usage, common to all the citizens for the conveyance of their goods and lumber, without obstruction. 3 Com. Dig. tit. Chimin A. 1. B. 1. And even an uninterrupted usage of twenty years, is held to be evidence of this right. Shaw v. Crawford 10 Johns. 236. Perley v. Chandler 6 Mass. 454.

2. The logs and drift wood, accumulated against the mill, were a nuisance. 4 Bl. Com. 167. 3 Bl. Com. 216, 218. Weld v. Hamley 7 East. 195. The existence of the mills and dams make no difference, since these are lawful by common law, as recognized by the statute regulating mills, and from a legal modification of the public right to the use of the river. Even booms cannot be erected without leave of the legislature; and the grant of such leave shews that they would otherwise be nuisances. The public right, moreover, is the right of conveyance per transitum, not of deposit.

3. Being thus unlawfully deposited on the defendant's dam and nuisances, they might well be abated, and that promptly, by the party injured. 3 Bl. Com. 5. Arundel v. McCulloch 10 Mass. 70. Hodges v. Raymond 9 Mass. 316. Wales v. Stetson 8 Mass. 143. Com. Dig. tit....