Goddard v. Berlin Mills Co.

Decision Date05 January 1926
CourtNew Hampshire Supreme Court

[Copyrighted material omitted.]

Transferred from Superior Court, Coos County.

Separate actions by Corey A. Goddard against the Berlin Mills Company and against the Brown Company; defendant in the second suit being same as in the first, except for change of corporate name. Verdicts for plaintiff. Cases transferred on defendant's exceptions. Exceptions overruled.

Case for flowage of the plaintiff's land in Milan. The second suit is for a later period. The defendant therein is the same as in the first suit, except for change of corporate name. Trial by jury with verdicts for the plaintiff. Transferred by Sawyer, J., upon exceptions to the denial of motions for nonsuits and directed verdicts, to the admission and exclusion of evidence, to rulings upon remarks of counsel and to instructions to the jury given and refused. Further facts appear in the opinion.

Murchie & Murchie, of Concord, and Warren W. James, of Berlin, for plaintiff.

Sullivan & Daley and E. Sullivan, all of Berlin, and Shurtleff, Oakes & Hinkley and Eric Oakes, all of Lancaster, for defendants.

PEASEEE, C. J. These suits involve water rights on the Androscoggin river. The plaintiff claimed damage caused by flowage and by floating logs. The defendant denied the flowage, and also claimed a right to flow. It excepted to the denial of its motions for nonsuits and for directed verdicts. One ground taken is that there was no evidence of flowage.

An expert in hydraulics, called by the plaintiff, testified that the dam and flash-boards would affect the height of the water at the plaintiff's premises. One produced by the defendant denied the proposition. Each sought to sustain his position by numerous data and voluminous computations. It is urged here that the defendant's position must be accepted as the true one, as matter of law. In order to reach such conclusion, it must appear that there are established facts or matters of common knowledge which demonstrate the falsity of the plaintiff's claim.

The plaintiff's land is five miles up river from the defendant's dam. At two intervening points the channel narrows, with a resulting acceleration of current and drop in surface level of the water. It is argued that this proves that the dam could not affect the level at the plaintiff's premises. It may be that, if this were a shallow stream, running over a shelving bottom, the argument would be sound. But that is not the situation presented here. The bed of the river, opposite the plaintiff's land, is several feet below the level of the top of the flashboards. It would seem evident that anything that retarded a free discharge of water at any point above the level of the bed would to some extent have a like effect over all the pondage. In any event, it cannot be said to be a matter of common knowledge that it would not have that effect, even when a free flow between the two points was further impeded by an insufficiency of width of channel.

It is a matter of more or less common knowledge that the efficiency of a water power may be greatly diminished by lack of a clear tail race. Back water on the wheel decreases power because it retards the flow. So here the narrows undoubtedly slowed the discharge, but that slowing may well have been accentuated by lack of a free discharge below the narrows.

It is urged that an experiment conducted by the defendant at the time of the trial demonstrates beyond question the correctness of the defendant's theory. The experiment consisted in closing the gates in the dam and noting the subsequent rise of water. In about an hour the water at the dam showed a rise 13 inches and no change at plaintiff's premises. In about three hours the height at the dam was the same, and at plaintiff's land showed a rise of a quarter of an inch. The experiment was then abandoned, and the gates opened.

While this may be persuasive evidence, it is by no means conclusive. No evidence has been pointed out which would demonstrate how long a period of time might elapse before the effect of closing the gates would be fully manifested at a point five miles up stream. It might be thought significant that the experiment was abandoned when a rise at that point began to be manifest. The claim that, because four hours after the gates were opened the water at the dam was three-eighths of an inch higher than before the gates were closed, therefore the slight rise opposite plaintiff's land was not caused by the dam, fails to settle the matter for the same reason. It is inconclusive. The added flow at the dam may have been due to the fact that the storing up while the gates were closed had not been fully overcome; and, if the cause was an added flow in the stream there is no evidence that it began while the experiment was being conducted.

The motions to take the cases from the jury because there was no evidence that the dam and flashboards affected the water level at the plaintiff's premises were rightly denied.

The plaintiff's complaint relates to flowage at times of unusual floods, and the defendant argues that the damage was caused by an act of God, for which it is not accountable. But, if the defendant's illegal act in maintaining the dam increased the flowage under such circumstances, it is manifest that liability for such increase would be incurred. To excuse the defendant on this ground, it must appear that its fault was not a contributing cause for the wrong complained of. An occurrence is not an act of God excusing human accountability, unless resulting from "a cause which operates without interference or aid from man." Reed v. Hatch, 50 N. H. 327, 337.

The defendant set up a prescriptive right to maintain its dam with 70 inches of flashboards. It relies in part upon evidence concerning an old dam for which the present structure was erected as a substitute in 1898. As to this it is sufficient to say that the evidence was not conclusive as to the extent of flowage by the old dam. That was used largely as an aid to running logs in times of a large flow in the stream. It did not conclusively appear that water was kept up in those times to any such extent as in later years, or that there was ever any claim of a right to do so.

It is also claimed that such right has been acquired by the use of the new dam since it was built in 1898. But the plaintiff started his first suit before the 20-year period had expired, and the claim is therefore without legal foundation. Bringing suit was a denial of the defendant's right, and disposes of any claim that the flowing was with the "acquiescence of the owner of the land." Wallace v. Fletcher, 30 N. H. 434, 444, 448. It negatived any idea of "submission and acquiescence of the landowner." Gilford v. Winnipiseogee Lake Co., 52 N. H. 262, 267.

Subject to exception, the plaintiff testified that the high water had damaged his river banks. The objection was put upon the ground that the defendant had a deed of the right to drive logs in the river. It is not apparent how this fact rendered evidence of damage from high water, caused by the new dam, incompetent. The further objection urged here that the evidence was inconclusive if of any legal importance, is not now open to the defendant. The excepting party is limited to the ground of complaint stated when the objection was made. St. Laurent v. Railway, 77 N. H. 460, 92 A. 959.

Evidence of the flow of the stream at various times in years preceding the time the injury was alleged to have been done was received subject to exception. Objection was put upon the ground that the flow was controlled by third parties. Such fact did not render the evidence incompetent or valueless, as matter of law. Whether it raised collateral issues that ought not to be gone into was for the presiding justice to determine. Mason v. Railway, 79 N. H. 300, 109 A. 841, and cases cited.

Measurements of flow at a point down stream from the dam, and below the point of influx of three smaller streams, stands upon the same ground.

One Cross was an owner of meadows near the plaintiff's and testified as to conditions along the river and at the dam at the times complained of. He did not undertake to assign the cause of the high water, but it might be inferred from the facts detailed by him that the dam was...

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