Donnell v. Joy

• Decision Date: 08 November 1892
• Citation: 85 Me. 118,26 A. 1017
• Parties: DONNELL et al. v. JOY et al.
• Court: Maine Supreme Court

26 A. 1017

85 Me. 118

DONNELL et al.

v. JOY et al.

Supreme Judicial Court of Maine.

Nov. 8, 1892.

Exceptions from supreme judicial court, Hancock county.

Action by Oliver C. Donnell and another against Curtis R. Joy and another. Plaintiffs had judgment, and defendants bring exceptions. Exceptions overruled.

Wiswell & King for plaintiffs.

B. T. Soule, for defendants.

VIRGIN, J. Action of debt to recover the penalty prescribed in Rev. St. c. 3,§ 63, as amended by St. 1885, c. 334, for erecting and maintaining in tide waters a weir alleged to be "below low-water mark in front of the shore or flats of the plaintiffs, without their consent."

It is not disputed that the plaintiffs own the section of flats on which their weir is located, down to low-water mark, on the south side of Hog bay, and that the defendant did not, but the state did, own the soil on which the defendant's weir was situated.

The defendant admits his weir to be "in front of the plaintiffs' shore or flats," and that it was erected there "without their consent;" but he contends that it is not situated within the locality described by the statutory phrase "below low-water mark," inasmuch as it is on land which is exposed at low water; and that to be subject to the penalty it should be attached to land from which the tide does not wholly recede, or, in other words, "under" or "beneath" the water.

To be sure, these definitions accord with those given by lexicographers; but in seeking for the intention of the legislature courts are not necessarily confined to exact synonyms of words, or to the accurate definitions given by lexicographers, (Smith v. Chase, 71 Me. 164;) but the object which the lawmakers had in view, the mischief sought to be remedied, together with the remedy itself, are to be considered, (Winslow v. Kimball, 25 Me. 493,) as well as the common use of the words of the statute when applied to its subject-matter, (Opinion of the Judges, 7 Mass. 524.)

In turning through the elementary books and the reports of decisions relating to tide waters for the purpose of ascertaining the common acceptation of the word "below" in the phrase in question, it is almost invariably found to be used synonymously with "beyond." Among the numerous instances is the case of Gerrish v. Proprietors, 26 Me. 384, in which the reporter, in his headnote, the accomplished counsel for the plaintiffs, and Shepley, J., in the opinion of the court, all used the word "beyond" low-water mark.

Moreover, it is made morally certain that the legislature adopted the same use when their object in view—the mischief to be remedied and the remedy applied—are considered.

The plaintiff owned his flats down to low-water mark as land, and not a mere easement therein. Com. v. Alger, 7 Cush. 53, 70-81; Parker v. Milldam Co., 20 Me. 353; Low v. Knowlton, 26 Me. 128. As an incident of such ownership he had the exclusive right to erect a fish weir thereon. Duncan v. Sylvester, 24 Me. 482; Matthews v. Treat, 75 Me. 597. Within its limits, the state owned the land under the sea below low-water mark, as well as the flats on which the defendant's weir was located, and had the authority to regulate the time and manner of the taking of fish by the public in the waters thereon. Sparhawk v. Bullard, 1 Metc. (Mass.) 95; Gray v. Bartlett,20 Pick. 186; Duncan v. Sylvester, supra; Matthews v. Treat, supra. If one of the public could erect a weir so immediately in front of the owner's flats as to naturally obstruct fish in their habitual passage with the flow and ebb of the tide to the latter's weir, it would be of but little value. The former's weir might as well be placed alongside, of the latter's; and it would make but slight, if any, difference whether the obstructing weir be on land permanently or periodically submerged by the tides.

In view of such an obvious mischief, and for the purpose of protecting the owner of flats in the full, practicable enjoyment of his proprietary rights, the legislature took the subject-matter in hand, and provided, among other things, in substance, that no one of the public should, upon land, whether constantly or periodically overflowed by the tides, in which he had no proprietary interest, but over which the state had control, plant a weir the natural operation...