Brooks v. Cedar Brook & S. C. R. Imp. Co.

• Decision Date: 05 June 1889
• Parties: BROOKS v. CEDAR BROOK & S. C. R. IMP. CO.
• Court: Maine Supreme Court

19 A. 87

82 Me. 17

BROOKS

v. CEDAR BROOK & S. C. R. IMP. CO.

Supreme Judicial Court of Maine.

June 5, 1889.

Report from supreme judicial court, Oxford county.

The defendant company is a duly-organized corporation under its charter, and by virtue thereof has made extensive improvements in the streams named in it, for the purpose of facilitating the driving of logs. Among other improvements, the company built a dam across the Swift Cambridge river, at a point about four miles, as the river runs, above the plaintiff's land in Grafton. A head of about five feet of water can be obtained by the dam. The gate in the dam is about seven feet wide. Logowners who have landed their logs on said river above the plaintiff's land have used said dam and the other improvements of the company for driving purposes. The greatest increase in height that is usually produced in the river, where it crosses the plaintiff's land, by opening the gate, is one foot.

The action of the logs and water have tended to deepen and widen the stream, by gradually wearing away the soil of the banks and bottom across the plaintiff's land.

The defendant company has allowed log-owners to use the dam and improvements, paying therefor the charter toll, but has never itself used the dam for the purpose of driving logs, and has never undertaken the driving of logs in any of the streams named in its charter.

If the defendant is liable for the wearing away of the banks, as aforesaid, the damages are to be assessed by a referee agreed on; otherwise judgment to be for the defendant

D. Hammons, for plaintiff. A. E. Herrick, for defendant.

EMERY, J. Facts agreed. Swift Cambridge river in Maine is a non-tidal stream, but is capable, in its natural state, of floating to market logs and other products of the forest, and hence is a public highway for all the people of the state. Brown v. Chadbourne, 31 Me. 9. The legislature authorized the defendant company, among other things, to build dams across this river for the purpose of facilitating the driving of logs, and improving the navigation. Sp. Laws 1875-77, c. 106. The defendant company, in pursuance of its charter, and for the purposes named, built a dam across the river, about four miles above the plaintiff's land. There is no suggestion, in the statement of facts, that the dam is not properly constructed, and not wholly within the terms of the defendant's charter.

The head of water accumulated by this dam increases the flow below the dam, when the gates are opened for the passage of logs. This increased flow facilitates the driving of the logs, which is the object of the company's charter and works. The greatest increase in the height of the river, where it passes through the plaintiff's land, caused by this increased flow, is one foot. The action of this increased flow of water, and of the logs borne along upon it, "have tended to widen and deepen the stream by gradually wearing away the soil of the banks and bottom across the plaintiff's land."

The plaintiff brings this common-law action to recover damages for that injury to his land. He makes no other complaint. None of his land has been appropriated by the defendants. They have not flowed nor occupied his land. They have not diverted any water from or upon it. So far as appears, they have by their erections detained the water a reasonable time, and let it down in reasonable quantities, at proper seasons. This is just what is being continually done on nearly every stream in the state, and what every riparian owner submits to, with little thought of claiming damages.

The plaintiff's injury, if any, does not flow from the wrongful act of any one, and hence is damnum absque injuria. To hold otherwise,—to hold that the mere tendency of an increased flow of water, at times, in its natural channel to wear away soil, is in itself a cause of action against the owners of mills and dams,—would prevent all improvement of inland navigation, and would paralyze all industries dependent on water-power. A law, requiring such a judgment, can never have been established by the people.

The plaintiff urges, however, that the legislature cannot authorize the improvement of the navigation of the public streams of the state, without providing compensation to riparian owners for such injuries as his. It may be at once conceded, fully, that the legislature cannot authorize the taking any property of a riparian owner, for use in improving the navigation, without providing compensation. If riparian land is taken for storage of water, or for a receptacle for discharged waters, or for dams, locks, etc., the owner is entitled to compensation for the injury caused by such taking. This concession, however, does not include incidental injuries, where no land is appropriated, and no water is diverted.

The riparian owners on all public streams in this state hold their riparian lands subject to the paramount right of navigation of such streams by the public. The public right of navigation existed before the private ownership of the land under or adjoining the public streams. The title to the whole, lands and rivers, was first in the sovereign, whether king, province, or state. In...