Chase v. Dwinal

• Decision Date: 01 June 1830
• Citation: 7 Me. 134
• Parties: CHASE v. DWINAL
• Court: Maine Supreme Court

7 Me. 134

CHASE v. DWINAL

Supreme Judicial Court of Maine, Penobscot

June, 1830

THIS case, which was assumpsit for money had and received, came before the court upon exceptions taken by the defendant to the opinion of Smith J. before whom it was tried in the court below.

The plaintiff was conducting his raft down the Penobscot river and when he came near the boom of the defendant, which was erected under a charter from the State, he was unable to pass it through the passage-way left for that purpose; and by force of the wind and current it was driven eastward of the passage, and stopped by the defendant's boom. The plaintiff, with other assistance, immediately made exertions to free it from the boom and conduct it through the passage which in two or three hours was effected. One of the defendant's hired men, who assisted the plaintiff demanded seventy five cents for this service, which the plaintiff refused to pay. Afterwards the defendant demanded of the plaintiff six dollars and forty cents, being the regular boomage for the raft; which the plaintiff refusing to pay, the defendant stopped and detained the raft, till the plaintiff paid the sum demanded; to recover which this action was brought.

There was evidence on both sides, tending to show the difficulty of passing the boom, which extended nearly across the river; and on the other hand the facility of passing it, with proper care and skill.

The judge instructed the jury that he considered it intended by the statute authorizing the erection of the boom, that the owner should receive a compensation for drift-timber stopped by it, as well as for the timber placed in it for security or convenience. In such cases the owners of the lumber receive a benefit from the boom, and ought to pay the compensation fixed by law. On the contrary, if by reason of the navigation of the river being obstructed by the boom, a raft is impelled by the winds and current, into the boom, against the will of the owner and conductor; who without delay, in a reasonable time, proceed to get it clear from the boom, as was done by the plaintiff; the owner of the raft was not liable to pay the boomage. He further instructed them that if they should find, upon these principles, that the defendant had no right to claim the boomage, and that the plaintiff was obliged to pay the money in order to procure the release of his raft, he might well recover the money in this action.

And the jury having found for the plaintiff, the defendant filed these exceptions pursuant to the statute.

Exceptions overruled.

Rogers, in support of the exceptions, argued that the toll granted by the act was analogous to the like grant in the case of bridges and turnpikes; in which cases it is not for any man to say he passed the bridge or road involuntarily, in order to avoid payment of the toll. It is enough that it was actually passed. The language of the act is clear and unambiguous, and the right to stop rafts is expressly given. 7 Mass. 524; 3 Mass. 256. The legislature might well have discontinued the river as a public highway; and having this right, it was competent to limit the public use by a toll.

The statute may be construed as transferring to the defendant all the right which the public had to the navigation of the river in that place; thus making the space necessarily occupied for the use of the boom the close of the defendant. In this view the plaintiff was a trespasser. If the erection or continuance of the boom was an injury to him, he should pursue the mode specially provided in the statute on this subject.

But the money was received as well for assisting to remove the logs, as for stopping and securing them; and this form of action being of the nature of a bill in equity, the plaintiff must show that the defendant has received money which, ex aequo et bono, he ought not to retain. 2 D. & E. 370; Cowp. 793.

In any view, it was a voluntary payment, and therefore cannot be recovered back. 1 Selwyn's N. P. 66; Knibbs v. Hall, 1 Esp. 84; Brown v. McKinally, ib. 279; Lothian v. Henderson, 3 B. & P. 520; Brisbane v. Dacres, 5 Taunt. 143; Fulham v. Down, 6 Esp. 26; Hall v. Schultz, 4 Johns. 240.

Godfrey, for the plaintiff.

OPINION

WESTON, J., delivered the opinion of the Court at the ensuing July term in Waldo.

The defendant claims, in behalf of the Penobscot boom corporation, a right to receive and retain as toll, the money attempted to be reclaimed in this action. If he has such right, the action cannot be supported. The act, establishing this corporation, grants them a toll for stopping and securing the several kinds of timber mentioned therein, whether drifted or rafted down the river. The franchise of taking toll granted to the corporation, was manifestly in consideration of valuable services rendered. The benefit and advantage was intended to be reciprocal. To the corporation a compensation for the use of their boom, and to the owners of the timber, the security and preservation of their property, arising from such use. It never could have been contemplated that the owners should have been compellable to pay, without seeking or deriving any benefit from the boom. Where their purpose was, to avail themselves of an uninterrupted passage down the river for their rafts, this object might be impeded by the boom, but could not be promoted by it. In the case before us, the plaintiff derived no benefit from the boom, but his raft was retarded and obstructed by it in its progress. It has been contended that by the fifth section of the act, the toll was given for the benefit of the corporation. Doubtless the toll was given for their benefit, but that for which it was given was a benefit conferred, not for an injury inflicted, upon the party holden to pay such toll. It is further urged, that it was competent for the legislature to deprive the public altogether of the use of the river, or to permit its use upon such terms, as they might think proper to prescribe; and that in virtue of the act, the corporation have a right to toll; although they confer no benefit whatever on the party to be charged. The terms of an act must be very clear and unequivocal, to justify a construction which would take money from one man and bestow it upon another, without consideration. And if such construction should become inevitable, from the language used, constitutional objections might be interposed. But without discussing this topic, we are well satisfied that the act imposes the liability to pay toll upon the owners of timber, for the security and preservation of their property; and that it does not attach to rafts, which are intended to pass down the river, where the use and security of the boom is not sought or desired. In the second section of the act, it is expressly enjoined upon the corporation so to construct the boom, as to admit the passage of rafts and boats.

If the defendant was not entitled to boomage, it is, secondly, contended that the payment, being voluntary, cannot be reclaimed. Upon this point, there is not an entire harmony in the decided cases. It is believed, however, that by attending to certain distinctions, which have sometimes not been adverted to, they may be in a great measure reconciled.

It has been often held that money paid with a full knowledge of all the facts, although under a mistake of the law, cannot be recovered back. Thus in cases of insurance, where there has been no fraud, and the party paying is fully apprized of the facts, although under a misapprehension of his legal liability, he can sustain no action for the money thus paid. Lowrie v. Bourdieu, Doug. 471, per Buller J. ; Bilbie v. Lumley, 2 East 469; Herbert v. Champion, 1 Camp. 134. The same principle applies where endorsers of notes of hand or bills of exchange, pay...