Kennebunk, Kennebunkport and Wells Water Dist. v. Maine Turnpike Authority

• Decision Date: 09 February 1950
• Citation: 71 A.2d 520,145 Me. 35
• Parties: KENNEBUNK, KENNEBUNKPORT AND WELLS WATER DIST. v. MAINE TURNPIKE AUTHORITY.
• Court: Maine Supreme Court

Page 520

71 A.2d 520

145 Me. 35

KENNEBUNK, KENNEBUNKPORT AND WELLS WATER DIST. v. MAINE TURNPIKE AUTHORITY.

Supreme Judicial Court of Maine.

Feb. 9, 1950.

Hutchinson, Pierce, Atwood & Scribner, Portland, Waterhouse, Spencer & Carroll, Biddeford, for plaintiff.

Varney, Levy & Winton, Portsmouth, New Hampshire, Charles W. Smith, Saco, for defendant.

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

MERRILL, Justice.

On exceptions. This is an action on the case instituted by Kennebunk, Kennebunkport and Wells Water District, hereinafter called the District, against Maine Turnpike Authority, hereinafter called the Authority. The District is a body politic and corporate created by the Legislature of this State for the purpose of supplying water to towns and individuals within its territorial limits. Priv. & Sp.Laws 1921, Chap. 159. The Authority is a body politic and corporate created in like manner for the purpose of constructing and operating a turnpike from a point at or near Kittery to a point at or near Fort Kent. Priv. & Sp. Laws 1941, Chap. 69.

The District in this action seeks to recover damages for injury to its water supply, Branch Brook, which injury and damages it alleges were caused by the Authority by the construction of its turnpike across Branch Brook and its watershed. The injury claimed was the creation of a turbid condition of the water. To remedy this condition the District claims that it was compelled to construct a sedimentation plant which cost between $163,000.00 and $164,000.00.

The writ was dated April 16, A.D. 1947, returnable to the Superior Court in York County at the May 1947 Term. In said court the case was referred to three referees with the right of exceptions as to matters of law reserved. After hearing, the referees filed their report, finding for the plaintiff and assessing damages in the sum of $70,000.00. At the January Term of the Superior Court, 1949, the District moved for acceptance of the report and the Authority filed written objections thereto. The presiding Justice rejected the report and exceptions to his ruling were taken and allowed.

The written objections to the report were as follows, viz:----

'(1) It is against the law and the evidence.

'(2) It is against the weight of the evidence.

'(3) The referees fell into a plain mistake as there is no evidence to justify a finding of any unreasonable use by the defendant of its property or that any damage actually accrued to the plaintiff by reason of any acts of the defendant.

'(4) The amount of the report is obviously the result of a compromise on the part of the referees as the plaintiff claimed as damages only the cost of the Filtration Plant which amount was conceded to be one hundred sixty-three odd thousand dollars, while the defendant claimed no damage at all.'

The report of the referees is general in its terms announcing a finding for the District and assessing damages in the sum of $70,000.00. It contains no statement of facts found upon which the report is based. Neither does the report contain any statement of the legal principles which the referees applied in determining liability or in assessing damages.

The only cause of action submitted to the referees for decision was the cause of action set forth in the declaration. This is the only cause of action upon which they were authorized to find for the District. The report of the referees in favor of the District was a decision that it had such cause of action. It is presumed that in finding for it they confined their inquiry thereto and based their decision thereon. Such is the effect of the general finding by the referees in favor of the District.

By Rule XXI 'Objections to any report offered to the court for acceptance, shall be made in writing and filed with the clerk and shall set forth specifically the grounds of the objections, and these only shall be considered by the court.' In interpreting the objections so filed, they, and the words used therein, must be interpreted as they apply to the reports attacked as a decision of the specific cause of action set forth in the declaration. To so interpret such objections they should also be interpreted as they apply to such cause of action.

Objections (1) and (2) are so manifestly insufficient under Rule XLII and Rule XXI as interpreted in Staples v. Littlefield, 132 Me. 91, 167 A. 171 and Throumoulos v. Biddleford, 132 Me. 232, 169 A. 307 that they could not be considered by the Justice to whom the report was presented for acceptance, nor need we give them further consideration.

Objection (3) presents two questions of law. A finding by referees without any evidence to justify it is an error of law. Staples v. Littlefield, supra. These alleged errors of law are, (a) that 'there is no evidence to justify a finding of any unreasonable use by the defendant of its property' and (b) that there is no evidence to justify a finding 'that any damage actually accrued to the plaintiff by reason of any acts of the defendant.'

If rejection of the report by the presiding Justice can be sustained upon one or the other of these legal grounds, the exceptions to its rejection by him must be overruled. If the rejection of the report was justified under objection (3), it will become unnecessary for us to consider the validity of objection (4).

As the case comes to this Court, although the record is very voluminous, the issues for our determination are contained within narrow compass. The plaintiff seeks to recover damages for injury to its claimed property right to take water from Branch Brook under legislative charter and to make use of said water for distribution to the public under the same. It claims that the defendant, although it was a governmental agency created by legislative charter, and although it was engaged in a governmental function, within the authorization of its charter, to wit, building a turnpike across Branch Brook and the watershed thereof, so constructed the same and used such methods of construction that the quality of the water of Branch Brook was rendered so impure, viz, so turbid, that it was unfit for distribution by the plaintiff to its customers. The sole injury claimed by the plaintiff was to the waters of Branch Brook as used by it for a source of public water supply, and the sole damages claimed were to its use by the plaintiff as such.

The only right to the use of the waters of Branch Brook by the District set forth in the declaration was that Branch Brook was included in the sources of supply it was authorized to use under its charter. The declaration contains no allegation that the District owned any riparian land touching Branch Brook. The declaration did not set forth that the District was the owner of, possessed, used or that there even existed any riparian rights based upon its ownership of riparian land, nor does it set forth the existence of facts from which the same may be inferred, nor does it assert any invasion or damage to such rights by the Authority. The sole claim for damages was based upon the District's right as a quasi municipal corporation under its charter to distribute water from Branch Brook, and an invasion of such rights by the Authority and injury caused thereby.

The report of the referees, therefore, must be interpreted in the light of this alleged cause of action; and the reasons assigned as objection thereto must likewise be interpreted as applicable to the report sustaining such cause of action.

It might be inferred from the evidence that the District owned land on the brook where its pumping station and intake were situate and also that it owned some riparian land on the brook above its pumping station and below the riparian land owned by the Authority. The only purpose for which the District's ownership of such riparian land can be considered, however, is whether or not such ownership conferred upon it the right to use the waters of Branch Brook as a source of supply for public distribution, this being the only right that the District claimed to have and the only right which it claimed was invaded by the Authority.

The defendant was an upper riparian proprietor, it had title to its right of way across Branch Brook and its watershed. As such riparian proprietor it asserted that it had a right to use its land for all reasonable purposes; that so far as the rights of the plaintiff are concerned, the building of the turnpike across the watershed of Branch Brook and Branch Brook, and all acts which it did in connection therewith were authorized by its charter and constituted only a reasonable use of its own land by it as an upper riparian proprietor; and that if in so acting it injuriously affected the quality of the water of Branch Brook, such injury was only the result of a reasonable use by it of its own land and was damnum absque injuria so far as the plaintiff was concerned.

The only cause of action set forth in the declaration was injury to the right of the District to use the waters of Branch Brook as a source of supply for public distribution. This was the only use or right of use set forth in the declaration. Unless the District, as against the Authority as an upper riparian proprietor, had the right to use the waters of Branch Brook for such purpose, the damage to the quality of the water would be damnum absque injuria, that is, damage without the invasion of legal right.

Objection (3) that 'there is no evidence to justify a finding of any unreasonable use by the defendant of its property' raises a question of law which goes to the very essence of the plaintiff's claim. If there is 'no evidence to justify a finding of any unreasonable use by the defendant of its property' the report of the referees should not be accepted. Unreasonable use may be either such a use as is unreasonable because of its very nature, or a use which, though reasonable in and of itself, becomes unreasonable because of the...