Dorey v. Estate of Spicer, Docket No. C

• Decision Date: 05 August 1998
• Docket Number: Docket No. C
• Citation: 715 A.2d 182
• Parties: Peter M. DOREY v. ESTATE of William C. SPICER, Jr. et al. um-97-588.
• Court: Maine Supreme Court

Page 182

715 A.2d 182

1998 ME 202

Peter M. DOREY v. ESTATE of William C. SPICER, Jr. et al.

Docket No. Cum-97-588.

Supreme Judicial Court of Maine.

Argued June 10, 1998.

Decided Aug. 5, 1998.

Stephen P. Beale, Skelton, Taintor & Abbott, P.A., Auburn, for plaintiff.

Stephen Hessert, Paul F. Driscoll, Norman, Hanson & DeTroy, Portland, for Robert Senger and others, defendants.

William L. Plouffe, Drummond, Woodsum & MacMahon, Portland, for Town of Bridgton, defendant.

Before WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, and SAUFLEY, JJ.

SAUFLEY, Justice.

¶1 Peter M. Dorey appeals from the judgment of the Superior Court (Cumberland County, Brennan, J.) declaring that he does not have the right to control the flow of water through the dam at the outlet of Foster Pond in Bridgton, thereby raising and lowering the Pond's water level and affecting the property of the pondfront landowners, in order to generate a private supply of electricity. We affirm the judgment.

I. Background

¶2 Dorey owns property in Bridgton which lies downstream from Foster Pond ¹ along Gristmill Brook. At the outlet of Foster Pond stands a dam which provided power for a sawmill from the mid-1800's to the mid-1900's. In 1991, Dorey filed a declaratory judgment action naming as defendants forty-four owners of waterfront property on Foster Pond, the Foster Pond Association, and the Department of Environmental Protection, seeking a declaration of his right to operate the dam at the outlet of Foster Pond, inclusive of a right to flood the Pond's waterfront land. He also sought an injunction precluding any of the defendants from interfering with those rights. Eight of the named defendants moved for summary judgment, asserting that Dorey did not hold any flowage rights relative to the outlet dam.

¶3 The court (Brennan, J.) agreed with the defendants and granted them a partial summary judgment. ² Following Dorey's motion for reconsideration and a subsequent trial management conference, the court held an evidentiary hearing to resolve the issue of Dorey's legal rights with respect to all of the defendants. The court then declared that Dorey did not have the right to flow the dam at the outlet of Foster Pond and thereby raise and lower the Pond's water level. This appeal followed.

II. History of Conveyances

¶4 Because Dorey bases his rights to operate the dam on his ownership of real property and purported purchase of flowage rights, a review of the conveyances giving rise to his claim is necessary to an understanding of the issues. ³ At the heart of this litigation lies real property located at, the outlet of Foster Pond and along the outflowing Gristmill Brook to the northeast. In 1774, Asael Foster acquired the land encompassing this property from the proprietors of the Bridgton Township. Soon thereafter, Foster built a gristmill and a dam (not the dam in dispute here) on what is now known as lot 9, ⁴ which lies downstream from the Foster Pond outlet along Gristmill Brook. In 1839, Asael's son Francis conveyed to Benjamin Knapp the right to use the land at the outlet of Foster Pond to construct a dam and use its water power to undertake sawmill operations. Knapp and Joseph Foster, Francis's son, built the dam and sawmill the same year.

¶5 In 1849, Joseph Foster conveyed to Knapp a one-half interest in the sawmill property, "[r]eserving to the mills on the old privilege below, and the owner & occupants of the same, the right to draw water for the use of any mills which are, or may be on said old privilege when needed[.]" Knapp, however, relinquished that one-half interest back to Foster in 1860 in order to establish a third mill site downstream from the gristmill property. ⁵ The gristmill and sawmill properties then remained in the Foster family until 1916, when Edward Bennett inherited the properties upon the death of his mother, Almira Foster. By 1946, Bennett or his successors in title had conveyed to Everett and Frances Johnson four parcels of land along Gristmill Brook, spanning from the southwestern boundary of the original sawmill property, which encompassed the dam at the outlet of Foster Pond and the sawmill, to the northeastern boundary of the original gristmill property, which lay further downstream. ⁶

¶6 During the 1960's, the Johnsons conveyed the central portion of the gristmill property, lot 9, the northeastern portion of the gristmill property, lot 9-2, and a small portion of the sawmill property, lot 9-1, to William and Margaret Sewell. When the Sewells died, those lots became part of the Margaret B. Sewell Revocable Trust, and on January 18, 1980, the Trustee of that Trust conveyed lots 9, 9-1, and 9-2 to Dorey.

¶7 Dorey then approached the Johnsons seeking to acquire the entirety of the original sawmill property for the purpose of generating electrical power for private use at his residence on lot 9. Although the Johnsons declined to sell the site of the outlet dam, identified as lot 27, or the site of the sawmill itself, identified as lot 11A, ⁷ they sold Dorey three property interests: (1) lot 9-3, a parcel adjacent to the northeastern border of the original gristmill property, (2) lot 9-4, a parcel lying in between lots 9 and 11A which straddles the original gristmill and sawmill properties, and (3) the "flowage rights" relative to the dam at the outlet of Foster Pond on lot 27.

¶8 Lots 9-3 and 9-4 were conveyed to Dorey through a single deed, dated May 27, 1980. The flowage rights were addressed through a separate deed, dated May 28, 1980, by which the Johnsons purported to convey to Dorey "[t]he exclusive and perpetual right to use that certain dam erected at the outlet of Foster's Pond ... and ... all water power and rights as to the waters of said Foster's Pond and the outlet stream however acquired, now appurtenant, owned, used, and enjoyed in connection with the above described dam[.]" The May 28 deed further stated that "[t]he above described dam and flowage rights and privileges shall be appurtenant to those premises which [Dorey] recently purchased from David C. Hamblett, Trustee of the Margaret B. Sewell Revocable Trust Agreement by deed dated January 18, 1980[.]"

III. The Mill Act

¶9 The private right to operate a dam and flood the property of upstream waterfront landowners, to the extent that it still exists, arises from the Mill Act, 38 M.R.S.A. §§ 651-59, 701-28 (1989), which has its genesis in the early statutory law of the Province of Massachusetts Bay. At common law, a dam that flooded the lands of upstream landowners was a private nuisance that rendered its owner vulnerable to an action in tort for damages arising from the dam's erection, an equitable order for abatement, and successive actions for yearly damages. See Jones v. Skinner, 61 Me. 25, 26 (1872). In 1714, however, the Province of Massachusetts Bay, in recognition and support of the "public good and benefit" provided by mills, enacted a law providing riparian landowners with the "free liberty" to establish mills on their property and limiting their liability to injured upstream landowners to the assessment and payment of yearly damages. See Id. at 27 (quoting Acts of 1714, ch. 111, Ancient Laws 404-5). In 1796, the Commonwealth of Massachusetts replaced the provincial law with "An Act for the support and regulation of mills[,]" the first section of which stated:

[T]hat where any person hath already erected, or shall erect any water Mill on his own land, or on the land of any other person by his consent legally obtained, and to the working of such mill, it shall be found necessary to raise a suitable head of water, and in so doing any lands shall be flowed not belonging to the owner of such mill, it shall be lawful for the owner or occupant of such mill to continue the same head of water to his best advantage in the manner and on the terms herein after mentioned.

Mass.Gen.Laws ch. 76, § 1 (1796). The remaining sections of that Act also limited the remedy available to the injured upstream landowner to the recovery of yearly damages. See Jones, 61 Me. at 27.

¶10 Upon achieving statehood, Maine in 1821 enacted its own Mill Act, virtually identical to the 1796 Massachusetts law both in the language of its first section and in its limitation of remedies to the recovery of yearly damages. See P.L.1821, ch. 45, §§ 1-16. With the exception of an 1881 amendment that expanded the available remedies to include, at the election of the mill owner, the one-time recovery of damages in gross, see P.L.1881, ch. 88, §§ 1-3, Maine's Mill Act has survived to this day in essentially the same substantive form. See 38 M.R.S.A. §§ 651-659, 701-728 (1989). Specifically, section 651 of the current Act provides that "[a]ny man may on his own land erect and maintain a watermill and dams to raise water for working it, upon and across any stream not navigable; ... upon the terms and conditions and subject to the regulations hereinafter expressed." Id. § 651. Section 655 provides a cause of action for damages for "[a]ny person whose lands are damaged by being flowed by a milldam[.]" Id. § 655. And, finally, sections 711, 706, and 721, respectively, provide for the primary remedy of yearly damages, the alternative remedy of damages in gross, and a ban upon all other remedies otherwise available at common law. See id. §§ 711, 706, 721.

¶11 The Mill Act is not only in derogation of common law riparian rights, ⁸ it also constitutes a state-sanctioned form of private eminent domain, whereby upstream landowners' rights relative to their waterfront property are taken, with compensation in the form of limited damages, for the "public good and benefit" provided by the otherwise private mill. As early as 1855, however, this Court questioned the necessity and constitutionality of the Act's "privatized" eminent domain, but nonetheless accepted the Mill Act as constitutionally valid because of "its great antiquity, and the long acquiescence of our citizens in its...