Huffman v. Vaughan

• Decision Date: 31 October 1880
• Citation: 72 Mo. 465
• Parties: HUFFMAN v. VAUGHAN et al., Appellants.
• Court: Missouri Supreme Court

72 Mo. 465

HUFFMAN

v.VAUGHAN et al., Appellants.

Supreme Court of Missouri.

October Term, 1880.

Appeal from Andrew Circuit Court.--HON. H. S. KELLEY, Judge.

REVERSED.

Chas. F. Booher and W. S. Greenlee for appellants, cited Com. v. Ellis, 11 Mass. 464; Stowel v. Flagg, 11 Mass. 364; Swett v. Poor, 11 Mass. 553; Knox v. Chaloner, 42 Me. 150; Renwick v. Morris, 3 Hill 621; People v. Cunningham, 1 Denio 536; Chalker v. Dickinson, 1 Conn. 382.

Meyers & Heren for respondents.

SHERWOOD, C. J.

Action for damages, brought July 13th, 1875, against defendants, for erecting and maintaining a mill dam, about two miles south of plaintiffs' mill dam, to such a height that the operation of plaintiffs' mill machinery was seriously impeded in consequence of the flow of back-water from the mill dam of defendants. In addition to the prayer for damages, it was prayed that defendants be required to abate their dam to such a height as would not interfere with the prior rights of plaintiffs. The plaintiffs claim under one Lewis Shelton, stating that their dam was erected in conformity to law in consequence of permission granted to him under the mill dam act. The defendants also claim under a like permission. When the case was tried, it was shown that the permission granted to Shelton to erect his dam was on June 28th, 1842; but the testimony showed, and so the jury, in answer to interrogatories, found, that the work on plaintiffs' dam was not commenced until 1846, and that the mill was not completed for business till 1848. The jury also found that plaintiffs' mill and dam had been kept up and maintained for twenty-two years prior to the building of defendants' dam. It appeared in evidence offered by defendants, that upon petition presented by those under whom they claimed, an order had been duly made for the erection of their dam, August 31st, 1870, and that it and their mill were commenced and completed in due time. Under instructions of the court, the jury returned a verdict for nominal damages in favor of plaintiffs, and upon this a judgment was entered, and it was therein ordered that defendants abate the height of their dam.

1. MILLS AND MILL DAMS: nuisance: prescription.

At the time permission was granted to Lewis Shelton in 1842, the act of 1835 respecting mills and mill dams, was in force. The 16th section of that act provided that the order and decree authorizing the erection of a dam, and the rights and privileges thereby granted, should, in all cases, be upon, and subject to, the conditions thereinafter expressed. Among those conditions were, as expressed in the 17th section, that the dam and mills, or other machinery, should be commenced within one year, and the same be ready and finished for business within three years from the date of the order of permission. The 22nd section of the act referred to, provided that if any person should “build or raise any dam, or any other stoppage or obstruction in, or across, any water course” without obtaining legal permission, and any injury should ensue to another person, that he might recover double damages. And section 23 of that act provided that “all dams, stoppages or obstructions not made according to law,” should “be deemed to be public nuisances,” and might “be dealt with as such.” These statutory provisions, as above quoted, have been continued down to the present time.

I think it very clear from the statutory provisions I have mentioned, that the evident intent of the legislature in enacting those provisions, was that a person might acquire a right to erect a mill dam, provided he proceeded ““according to law,” and not otherwise; for not only does the statute point out the method to be pursued, but it goes further, and denounces as a “public nuisance” all dams, etc., not made in accordance with statutory provisions. The language of the act leaves no room for construction, and banishes all idea of a right acquired by prescription or lapse of time. It makes no exceptions, and the courts are not authorized to do so. The legislature, by declaring that all dams, etc., not made according to law, are public nuisances, and to be dealt with accordingly, has made the erection of a mill dam in such circumstances as the statute does not sanction, a misdemeanor and indictable offense, and the perpetrator thereof is punishable accordingly, (2 Wharton Crim. Law, § 1410;) and no...