Clement v. Durgin

• Decision Date: 01 May 1827
• Citation: 5 Me. 9
• Court: Maine Supreme Court
• Parties: CLEMENT v. DURGIN

5 Me. 9

CLEMENT v. DURGIN

Supreme Judicial Court of Maine, Oxford

May, 1827

[Syllabus Material]

THIS case, which was a complaint for flowing the lands of the complainant by the respondent's mill dam, [vid. vol. i p. 300,] came again before the court, at the last October term in this county, for trial of the issue whether the respondent had good right to erect the dam, and flow the land of the complainant, without the payment of any damages therefor.

At the trial of this issue, before Preble, J., the respondent offered James Osgood as a witness, whose competency to testify was denied, on the ground of interest. And it appeared, from his own examination to this point, that he held a mortgage deed of one half of the privilege on which the dam was erected, and of the whole of a fulling mill erected thereon; of which he had been in possession more than four years; but that his title was not derived from the respondent, nor did they hold any thing in common. This objection the judge overruled.

The respondent also offered a deposition taken under a commission issued from this court, " to any judge of any court of record in the State of New York, the return of which was signed " Smith Stilwell, Judge of St. Lawrence Common Pleas." To this the complainant objected, for want of evidence that the person making the return was a judge of a court of record. But this objection also was overruled.

The complainant further objected to the admission of parol evidence to prove the issue on the part of the respondent contending that the claim of the respondent was an interest in land, which could only be sustained by deed or other instrument in writing. This objection also the judge overruled, and a verdict was returned for the respondent, to which the complainant filed exceptions.

Judgment on the verdict.

Dana, for the complainant, argued against the admission of Osgood, because, though only a mortgagee, the legal estate in the privilege and half the dam was in him, and he had the actual occupancy; so that this process would lie against him, by the statute; and his interest must necessarily be affected by the judgment in this case, so far as the judgment might regulate the height of the dam. 4 Mass. 50. Goodwin v. Richardson, 11 Mass. 469. 2 Greenl. 132. 1 N.H. 169. 6 Mass. 50.

He argued against the admission of the deposition, from the abuses which such a rule might occasion; as corrupt parties might themselves personate the magistrates of other States, or procure others to do so, if the bare signature of the magistrate were to be received as satisfactory evidence of his official character. The rule of this court, which requires higher evidence where the deposition is taken without a commission, and the statute of the United States regulating the mode of authenticating the judgments of State courts, are proofs that this objection is founded in authority and good reason.

He further contended that the right claimed by the respondent was a perpetual right to flow the land of the complainant, and intercept his pernancy of profits. It went to take away from him all beneficial use of his soil forever, and vest in a third person a permanent and exclusive interest in it. Such a title, being " an interest concerning lands," was within the statute of frauds, and therefore could be proved only by writing. Cook v. Stearns, 11 Mass. 537. Ricker v. Kelly, 1 Greenl. 117. The cases which would seem to support the contrary doctrine, he said, were cases of license to do a particular act, or for a limited time; or where a valuable consideration had been already paid, and the contract had been partially executed.

Greenleaf and Bradley, for the respondent, insisted on the admissibility of Osgood, on the ground that the dam was a personal chattel, which an out-going lessee might lawfully remove, being merely of timbers and plank, alleged to have been erected solely by Durgin, and by him justified. Osgood, therefore, could have no interest in its existence. Nor would he be bound by the verdict and judgment in this case, because he was not even a party in interest; nor had he a right to cross examine the witnesses, nor to interfere in the trial. Nor could a recovery in this case affect a future process against him, since Osgood held nothing in common with Durgin, and the respondent might have grounds for an exemption from damages totally different from any defence which another could set up. 1 Phil. Ev. 232. 1 Stark. Ev. 184.

As to the deposition, they relied on the uniform practice to receive the certificate of the commissioner as prima facie evidence of his official character, and sufficient, till it should be repelled by counter proof.

To the point of the license, they argued that this was given by the statute, which permitted the flowing of any lands, where it was necessary to raise a sufficient head of water for a mill, without the consent of any owner of the lands. It was a perpetual license, appurtenant to every mill; and where the owner of the lands can interpose no negative, it cannot be necessary to obtain his consent. Tinkham v. Arnold, 3 Greenl. 120. But here the right to flow is not an interest in lands, but only an easement, and so not within the statute of frauds. Wood v. Lake, Say. 3, cited 1 Phil. Ev. 335. Webb v. Paternoster, Palm. 71. 7 Taunt. 384. 2 Stark. 588, 589. The sole question was upon the right to damages, and this was open to inquiry by parol.

OPINION

The opinion of the court was delivered in the following June term, at Augusta, by WESTON, J.

With regard to the objection to the competency of James Osgood, on the ground of interest, it appears that the witness owned on one side, and the respondent on the other, each to the thread of the stream over which the dam was extended. They were not therefore owners of the dam in common, but each of a part in severalty. A verdict for or against the respondent could not be used for or against the witness in a complaint or action. The respondent might possess, by purchase or otherwise, the right, so far as he was concerned, to flow without payment of damages, which might not extend to or protect the witness. Their interest being several and not joint, neither would have a remedy against the other for...