Crockett v. Millett

• Decision Date: 07 October 1875
• Citation: 65 Me. 191
• Parties: EPHRAIM S. CROCKETT v. JOHN H. MILLLETT et al.
• Court: Maine Supreme Court

65 Me. 191

EPHRAIM S. CROCKETT v. JOHN H. MILLLETT et al.

Supreme Judicial Court of Maine.

October 7, 1875

1875.

ON EXCEPTIONS.

CASE commenced September 1, 1873, to recover for injuries alleged to have been caused to the plaintiff by the erection and maintenance by the defendants of a dam (and flash-boards placed thereon) across Foye's brook, whereby its waters were prevented from running into Pennessewassee pond as they had previously done, and were thrown back upon and overflowed the land of the plaintiff.

The cause was referred to Hon. Charles Danforth, who made his report at the September term, 1874, of this court, as follows:

" The title to the land described in the plaintiff's writ has been in the plaintiff since December 13, 1849. The dam complained of in the writ was built by the defendants in 1865, and has since been maintained by them. This dam causes the water to flow the land described in the writ, doing damage; and the defendants, having a title to the land upon which the dam stands, claim the right of flowage by prescription. They claim further that the rights of the parties cannot be settled in this form of action, but that the process should be by complaint under the statute. Prior to 1865, and in substantially the same place as where the present dam stands, two dams had been erected by the owners of the land for the purpose of raising water for working mills standing thereon. The first with the mill thereon was built by one Foye, about the year 1815, and was maintained till a period somewhere between 1830 and 1835, when both mill and dam were burned down. The second dam with a mill thereon was built in 1836-7 by John Millett, who had succeeded to the title in the land and privilege, and was maintained by him until 1854, when the mill, becoming decayed, was abandoned by him, and the dam soon went down. In 1863 the defendants having obtained the title of said John Millett to the land and privilege, built the present dam, not for the purpose of working mills of their own, but as a reservoir dam to hold water for the use of mills further down the stream owned and run by other parties. This dam was built under an agreement to lease and it was leased to the owners of the mills below as a reservoir dam and has been so used by them during all the time for which damages are claimed in this action. Since the erection of this dam, flash-boards have been put upon it by means of which the water is caused to flow higher upon the land described in the writ, than by the former dams, and its use as a reservoir detains the water upon the land to a later period in the season. The two prior dams had flowed the plaintiff's land and damage had resulted therefrom. The present dam without the flash-boards, flows no higher than the former. The increased height of flowage in consequence of the flash-boards, and the longer detention of the water upon the land in consequence of the use of the present dam as a reservoir, causes greater damage than resulted from the use of the prior dams. If upon the foregoing facts this action can be maintained, I find, and so award, that for this increased injury to his land, the plaintiff is entitled to recover the sum of thirty dollars, as damages, with the costs of reference …. and costs of court to be taxed by the court. If otherwise, judgment is to be entered for the defendants and for their costs … … "

The presiding justice accepted this report and ordered judgment for the plaintiff according to its terms, ruling that the action was maintainable; to which the defendants excepted.

H. Upton & G. L. Farnum, for the defendants.

This is an action at common law to recover damages caused by flowage, for which the statute remedy, R. S., c. 92, is exclusive.

Though the owner of the mill operated by the head of water thus raised is primarily liable, the owner of the dam is also responsible by complaint for the damages its erection occasions. Nelson v. Butterfield, 21 Me. 220. Wolcott Manufacturing Company v. Upham, 5 Pick. 292. Shaw v. Wells, 5 Cush. 537.

A reservoir dam is within the flowage act. Bates v. Weymouth Iron Company, 8 Cush. 548. Fiske v. Framingham Manufacturing Company, 12 Pick. 68.

A. Black, for the plaintiff.

In Vermont a mill act similar to ours has been held unconstitutional. Tyler...