Brown v. Die

• Citation: 124 A. 697
• Parties: BROWN v. DE NORMAN DIE et al.
• Decision Date: 26 May 1924
• Court: Supreme Judicial Court of Maine (US)

124 A. 697

BROWN

v. DE NORMAN DIE et al.

Supreme Judicial Court of Maine.

May 26, 1924.

Report from Supreme Judicial Court, Oxford County, in Equity.

Suit for injunction by Benjamin E. Brown against Philip Y. De Normandie and others, trustees. Case reported. Injunction denied; bill dismissed.

Argued before CORNISH, C. J., and PHILBROOK, DUNN, WILSON, and DEASY, JJ.

Frederick R. Dyer, of Portland, and Hastings & Son, of Fryeburg, for plaintiff.

William B. Skelton, of Lewiston, Walter L. Gray, of South Paris, and Burton E. Eames, of Boston, Mass., for defendants.

CORNISH, C. J. The question for decision is: Shall an injunction be granted to restrain the defendants from building a reservoir dam upon their own land across a stream not navigable, for the purpose of storing a head of water for their mills situated 80 miles below on the same waters.

The pertinent facts should first be stated. The plaintiff is the proprietor of a summer hotel known as Brown's Camps, located upon the shore of Upper Kezar Lake, which for convenience will be called Kezar Lake. The defendants, in their capacity as trustees of the Pepperell Manufacturing Company, a voluntary association, own and operate certain water mills at Biddeford on the Saco river. They own two dams from which water is conducted directly to the wheels of the mills. These dams have a developed and undeveloped water power at Union Falls on the Saco river above Biddeford, where electricity is now generated and transmitted to Biddeford to supplement the water power there, and other mill privileges and dam sites on the Saco and its tributaries, among them being the one in question located on the outlet of Kezar Lake at a point called the Harbor and known as the Thompson Mill privilege. Kezar Lake is a great pond situated in the town of Lovell, out of which, flows a small nonnavigable stream known as Kezar Lake outlet, upon which the Thompson privilege is situated at a distance of about two miles from the lake Itself following the course of the stream. This outlet stream flows into or joins the Charles river, and these two combined streams flow into what is known as the Old Saco river; the three streams, combined then flow on to what is locally known as the New Saco river, and thence to the defendants' mills. The terminology of the various waters is unimportant. They all form a part of the Saco waters which finally propel the wheels of the defendants' mills. They are but different sections of a continuous body of water from the outlet of Kezar Lake to the sea.

The proposed dam on Kezar outlet, occupying the site of the old Thompson dam, is to be five feet in effective height from the apron of the old dam as formerly located, and will consist of four feet in height of permanent dam and one foot of flashboards. This would raise the. waters of Kezar Lake 2.67 feet above mean summer level, and is expected to create from 300,000,000 to 360,000,000 cubic feet of storage. The defendants hold title to flowage rights to a considerable extent on Kezar Lake which was acquired by their predecessors as early as 1879, all the deeds being recorded in that year.

The plaintiff acquired land on the easterly shore of the lake by several deeds about the year 1900, erected and has maintained a summer hotel there for 22 seasons, and has now a plant of some 30 buildings accommodating about 100 guests. The proposed increase in height of the water is not expected to overflow the plaintiff's premises, but would come so close to the surface that he claims it would flow out the sand beaches now valuable for bathing purposes, would in time destroy the trees near the shore, interfere with the process of filtration in the septic tanks erected near the shore for the purpose of taking care of the sewage, render the surroundings unsightly and unsanitary, and otherwise injure or destroy his property and business.

So much for the general situation.

The plaintiff seeks remedy by injunction to prohibit the erection of the storage dam which the defendants claim the legal right to erect and maintain under the mill act, and rests his contention on two grounds, which, as stated by himself are:

First. That the proposed dam is not within the mill act, because "there is no mill near or adjacent to it or within a sufficient distance so that it can be said that the dam is directly and obviously subservient to the purpose of carrying said mill."

Second. That the proposed dam is not protected by the mill act because its erection "would destroy an established business of great value to the state itself, and would thus commit the state to the policy of favoring one branch of industry at the expense of another."

The decision of these questions necessitates a re-examination of the history and scope of the mill acts which have been in existence as long as the state itself and for a long time prior thereto, and of our decisions thereunder.

1. The Mill Acts.

As early as 1714 the province of Massachusetts Bay enacted a law for the benefit of water mills in the following terms with the preamble, which shows the purpose of the legislation:

"Whereas it hath been found by experience, that when some persons in this province have been at great cost and expenses for building of mills serviceable for the public good and benefit of the town, or considerable neighborhood in or near to which they have been erected, that in raising a suitable head of water for that service it hath sometimes so happened that some small quantity of lands or meadows have been thereby flowed and damnified, not belonging to the owner or owners of such mill, or mills, whereby several controversies and lawsuits have arisen.

"For prevention whereof for the future, be it therefore enacted by his excellency, the Governor, council, and representatives in general court assembled, and by the authority of the same, 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 are 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."

The act then provides for the summoning of a jury and the determination of the yearly damage. Province Laws, c. 111.

It will be noted that this original province act was in very general terms. It did not limit the location of dams to streams not navigable, nor did it protect mills and mill sites already existing on the same stream. Land was then of little value compared with the usefulness of grist, saw, carding and fulling mills to the pioneer settlers, and the duplication of mills on the same stream was not anticipated.

After the establishment of the commonwealth of Massachusetts, and while the territory now embraced within the limits of the state of Maine was a part of it, the Legislature passed "an act for the support and regulation of mills," which provided:

"That where any person hath already erected, or shall erect any water mill on his own land, or on the land of any other person by his consent legally obtained, and to the working of such mill, it shall be found necessary to raise a suitable head of water, and in so doing any lands shall be flowed not belonging to the owner of said mill, it shall be lawful for the owner or occupant of such mill to continue the same head of water to his best advantage, in the manner and on the terms hereinafter mentioned."

Then follow provisions as to the appraisal, security and recovery of the annual damage. Laws Mass. 1795, c. 74.

It is unnecessary to trace the statutes in Massachusetts farther. Let us turn to the history of the mill act in Maine.

The first section of the mill act in 1821 (Public Laws 1821, c. 45) is an exact transcript of the Massachusetts act of 1796, before quoted. The words "dam," or "mill dam," or "reservoir dam" are not mentioned in this act of 1821. The mill owner is given the right to raise a suitable head of water to meet his necessities, and he is to continue the same head to his best advantage. These words have a broad meaning, and would seem to imply the use of a reservoir dam as well as a working dam if thereby the mill owner is enabled to raise a suitable head of water and continue the same to his best advantage. No prohibition against flowing existing mills or mill sites upon the same stream was created.

The revision of 1841 recast the language in these words:

"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." R. S. 1841, c. 126, § 1.

It will be observed that this act for the first time expressly mentions a dam, inserts a new condition that such dam shall be upon and across a stream not navigable and in section 2 provides that no dam shall be built to the injury of an existing mill or mill site as therein specified. It omits the proviso as to necessity. That element seems to have disappeared.

In the revision of 1857 the word "dam" becomes plural (R. S. 1857, c. 92, § 1), and has so remained for a period of nearly 70 years, and through all the intervening revisions (R. S. 1871, c. 92, § 1; R. S. 1883, c. 92, § 1; R. S. 1903, c. 94, § 1; and R. S. 1916, c 97, § 1); the words of the present statute being:

"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."

Then follow the provisions as to protection of other mills and mill sites on the stream, and the procedure by complaint for obtaining damages.

This brief history of our mill act for more than 200 years shows that there has been no legislative narrowing of...