Dorcourt Co. v. Great Northern Paper Co.

• Decision Date: 12 June 1951
• Citation: 81 A.2d 662,146 Me. 344
• Parties: . v. GREAT NORTHERN PARER CO. Supreme Judicial Court of Maine
• Court: Maine Supreme Court

Page 662

81 A.2d 662

146 Me. 344

DORCOURT CO. v. GREAT NORTHERN PARER CO.

Supreme Judicial Court of Maine.

June 12, 1951.

McLean, Southard & Hunt, Augusta, for plaintiff.

Louis C. Stearns, Louis C. Stearns, III, Bangor, Thomas Allen, Boston, Mass., Scott W. Scully, Portland, for defendant.

Before MURCHIE, C. J., and THAXTER, FELLOWS, MERRILL, and NULTY, JJ.

MERRILL, Justice.

On exceptions to the denial of a peremptory writ of mandamus by a single Justice of this Court. The proceeding was initiated against Great Northern Paper Company by a petition of New England Trust Company, Trustee, and The Dorcourt Company. The first or alternative writ of mandamus was ordered to issue. The petition and alternative writ were then amended, on motion, by striking out New England Trust Company, Trustee, as a party plaintiff thereto. Issue was joined on the return to the alternative writ. The peremptory writ was denied, and exceptions to the denial of the writ certified to the Chief Justice.

The Dorcourt Company is seeking to compel the Great Northern Paper Company 'to maintain, repair and improve Stratton Brook Dam so that said Dam will be at the effective height at which it was maintained on April 22, 1936, and so that it will be sufficient to raise a head of water to facilitate the driving of logs, pulp wood and other lumber down Stratton Brook,' which brook discharges into Dead River, one of the branches of the Kennebec.

By Private and Special Laws 1907, Chap. 234, the Legislature granted to one Albion L. Savage, his associates, successors and assigns, a charter authorizing them to erect dams, including those theretofore erected by him, and to make other improvements in Stratton Brook for the purpose of facilitating the driving of logs, pulp wood and other lumber down said brook, and raising a head of water therefor. Said charter also authorized the charging of tolls, and granted the right of eminent domain. It further provided that when the tolls collected equalled the cost of the improvements, together with six per cent interest, they should be reduced to a sum sufficient to keep the works in repair. There was no provision in the charter which in express terms imposed any duty or duties upon the holder thereof. This charter was duly accepted by Savage. By a quit-claim deed, Savage purported to convey to Great Northern Paper Company his interest and rights under said charter as of September 6, 1911. Great Northern Paper Company built a dam at the outlet of Stratton Brook Pond, on which dam it made its last repairs sometime during the nineteen twenties. At the time of the institution of these proceedings the dam had been destroyed by fire. The Great Northern Paper Company had never charged tolls for the use of the facilities. The Dorcourt Company demanded that the respondent rebuild the dam, which the respondent refused to do.

The Dorcourt Company is the owner of standing timber on the watershed of Stratton Brook, but it is neither engaged in the business of cutting and removing the timber from the soil and delivering the same to purchasers, nor does the record show that it either had or has any present intent so to do. As stated in its brief 'Petitioner (The Dorcourt Company) is in the business of selling stumpage. It does not cut the logs nor drive them to market.' Nor does the record disclose that if the prayers of the petitioner were complied with, and Great Northern Paper Company rebuilt Stratton Brook Dam, that a single cord of pulp wood or a single stick of long lumber would be driven down Stratton Brook.

The position of the petitioner as established by the facts in the record is not that the respondent is failing to maintain facilities to drive lumber which the petitioner has ready to be driven down Stratton Brook, or even lumber which definitely will be made ready by it, or purchasers from it, to be driven down Stratton Brook. The basis of the petitioner's complaint, on the facts in the record, is that the failure of the respondent to continually maintain the Stratton Brook Dam so that a potential purchaser of lumber from it could, if it desired, drive lumber down Stratton Brook interferes with the marketability of the petitioner's standing timber.

The procedure relative to mandamus in this State is statutory. It is found in R.S., Chap. 116, Secs. 17 to 20, both inclusive. Although the statute does not in express terms provide for the allowance and certification of exceptions if the peremptory writ be denied, this Court in Lawrence v. Richards, 111 Me. 95, 88 A. 92, 47 L.R.A.,N.S., 654, held that it was the manifest intent of the Legislature that the petitioner be entitled to prosecute exceptions in matters of law if the peremptory writ were refused.

It is further to be noted that there is no provision in the law for sending a mandamus case back to the Justice who heard the case for a rehearing. It must be sent to the Law Court, if at all, in such shape that the decision of the Law Court will be the final disposition of the case. See Hamlin v. Higgins, 102 Me. 510 at page 520, 67 A. 625; Libby v. York Shore Water Company, 125 Me. 144, 146, 131 A. 862. Such being the situation, if exceptions to the refusal of the peremptory writ are to be of any advantage to the petitioner, the case must come to the Law Court on such a record that if the exceptions be sustained, the peremptory writ may then be ordered to issue. As a peremptory writ of mandamus is issued only in the exercise of sound legal discretion by the court, the record accompanying the exceptions to the denial of the peremptory writ must disclose a...