Hubbard v. Great Falls Manuf'g Co.

• Decision Date: 09 January 1888
• Parties: HUBBARD v. GREAT FALLS MANUF'G CO.
• Court: Maine Supreme Court

12 A. 878

80 Me. 39

HUBBARD

v. GREAT FALLS MANUF'G CO.¹

Supreme Judicial Court of Maine.

January 9, 1888.

Exceptions from supreme judicial court, York county.

Complaint for flowage. The opinion states the material facts.

James A. Edgerly and Harry V. Moore, for complainant. Rufus P. Tapley, for respondent.

FOSTER, J. This was a complaint for flowage. At the first term, after notice, the respondents appeared, and, without any pleadings being filed, or other action had, the court, by consent and agreement of parties, appointed three commissioners, as provided by Rev. St. c. 92, § 9. When their report was returned to court, the respondents moved its acceptance, and the complainant claimed a trial by jury. Thereupon the case was continued to the next term, when the justice presiding declined to accept the report, and rejected the same, to which the respondents excepted. The exceptions cannot be sustained. It must be conceded that, inasmuch as this is a statutory proceeding, it must be strictly pursued, and can be sustained only in accordance with the statutory provisions relating to such proceedings. The statute unquestionably contemplates that when the right to flow is controverted, such fact must be established or admitted before the appointment of commissioners. It is no part of their duty, nor is it within their power, to determine that question. Not having pleaded to the complaint before the appointment of commissioners, arid not having shown "any legal objection to proceeding," the effect was practically the same as if a default had been entered; and all matters that should have been determined by the proper tribunal before such appointment were shut out. Axtell v. Coombs, 4 Me. 324, 325; Vandusen v. Comstock, 3 Mass. 187; Bryant v. Glidden, 36 Me. 42. It only remained for the commissioners to proceed in accordance with the authority with which they were invested under the statute and their warrant issued from the court. By that they were directed and empowered to go upon the premises, and make a true and faithful appraisement, under oath, of the yearly damages, if any, done to the complainant by the flowing of his lands described in the complaint, and determine how far the same may be necessary, and ascertain and make report what portion of the year the complainant's land ought not to be flowed. Instead of this, however, at the hearing before the commissioners, the parties entered into a written agreement to open the whole question of damages without regard to the statute of limitations of three years, and that the defendant might show what right they had to modify the same, and to assess damages in a lump sum. The commissioners proceeded and heard the cause under this agreement. The parties, by this agreement in...