Carleton v. Cleveland

• Decision Date: 14 November 1914
• Citation: 92 A. 110,112 Me. 310
• Parties: CARLETON et al. v. CLEVELAND.
• Court: Maine Supreme Court

92 A. 110

112 Me. 310

CARLETON et al.

v. CLEVELAND.

Supreme Judicial Court of Maine.

Nov. 14, 1914.

Report from Supreme Judicial Court, Knox County, at Law.

Action by Frank P. J. Carleton and others against George H. Cleveland. On report from the Supreme Judicial Court of Knox County. Judgment for plaintiffs.

Argued before SAVAGE, C. J., and CORNISH, BIRD, HALEY, HANSON, and PHILBROOK, JJ.

M. T. Crawford, of Camden, and A. S. Littlefield, of Rockland, for plaintiffs.

Reuel Robinson, of Camden, for defendant.

BIRD, J. This is an action on the case brought for the recovery of damages for diminishing the contents of and retarding the flow of water from plaintiffs' millpond or storage basin upon the Megunticook river.

The case is reported upon an agreed statement of facts, plan, and photograph. The properties of plaintiffs and defendant are separated by a bridge (forming a part of a street) the abutments of which, with apparently solid fill, are much nearer together than the margins of the river. It is agreed that plaintiffs have the right to flow the lands above the bridge to increase the supply of water for the operation of their mill below. The defendant's premises consist of a wooden building 20 feet wide, extending westerly or up-stream from the bridge 38 feet, more or less, and an addition, at its westerly end, 20 feet square, supported, the former by 15, the latter by 6, piles. The piles average 8 inches in diameter, are placed in or upon the bed of the river, and are braced by about the same number of 1 1/2-inch planks of 6 inches width. The northerly line of the buildings and the thread of the stream are coincident.

The defendant claims title to the lot whereon the main store and the addition now stand by deed to him of one Edwin C. Fletcher dated January 6, 1900. It is claimed that Edwin C. Fletcher obtained title to the lot occupied by the main store by deed to him of Aura A. Fletcher whose grantor was one Flye. The latter's deed, dated June 27, 1862, described the northerly line of the * * * 38 feet, more or less, to said road line," and it is agreed that this line "bordered immediately upon and was washed by the water of Megunticook river." The building upon this lot was totally destroyed by fire November 10, 1892, and nine days later Aura A. Fletcher conveyed the lot to Edwin C. Fletcher by deed containing substantially the same description as that of Flye to her. Subsequently to the fire Edwin C. Fletcher erected upon lot conveyed a frame building, substantially covering it, which was occupied as a store in the winter of 1892-93. In the spring of 1893 to make room for a brick block, now apparently standing, Fletcher moved his frame building northerly upon the lot lying between the thread of the stream and the northerly line of the lot described by metes and bounds in the deeds of Flye and Aura A. Fletcher, which he claimed to own as a riparian proprietor. But neither the agreed statement of facts quoted nor the plan nor photograph indicated that the northerly line of the lot, "thence northeasterly * * * 38 feet, more or less, to said road line," was coincident with the bank or margin of the river. The river is not mentioned in the description, and there are no words, apt or otherwise, conveying more than the lot described. Assuming that some one in the chain of title owned the upland to the thread of the stream, he and his successors in title could sell it in such parcels as he or they saw fit. The owner of upland upon the seashore and adjacent flats may sell the upland without the flats or the flats without the upland, or divide the flats into such parcels as convenience suggests. Storer v. Freeman, 6 Mass. 435, 439, 4 Am. Dec. 155; Deering v. Long Wharf, 25 Me. 51, 64; Abbott v. Treat, 78 Me. 121, 124, 3 Atl. 44; Proctor v. Railroad Co., 96 Me. 458, 467, 52 Atl. 933. So, we conceive, may the owner of upland extending to the thread of the river sever and convey the upland or the land under the river or any part of the latter as well as of the former. See Warren v. Blake, 54 Me. 276, 281, 89 Am. Dec. 748. We conclude that defendant under his deeds obtained no title to the lot whereon the main store now stands. He did not thus become a "riparian proprietor." Pratt v. Lamson, 2 Allen (Mass.) 275.

The defendant, however, has occupied this lot under claim of title in the manner already stated for more than 20 years prior to this action commenced. The right of the owner of land covered by water to erect and maintain buildings or other structures upon piles driven into the bed of the stream is clear, provided he does not dam the water back upon upper owners, or interfere with the flow of the stream to those below, and that the structure be so erected that it will not be washed away. The title to the land on which buildings are so erected and maintained may be acquired by prescription (Boston Mill Corp. v. Bulfinch, 6 Mass. 229, 234, 4 Am. Dec. 120), and so the right to diminish the flow or change the character of the water relative to lower proprietors (Lockwood Co. v. Lawrence, 77 Me. 297, 319, ...