Lewis E. Matteson And Betty J. Matteson, v. Malcolm Batchelder
| Decision Date | 24 June 2008 |
| Docket Number | PEN CV-08-65 |
| Parties | LEWIS E. MATTESON and BETTY J. MATTESON, Plaintiffs v. MALCOLM BATCHELDER, Defendant |
| Court | Maine Superior Court |
ORDER (Title to Real Estate Involved)
Pending before the Court is Plaintiffs' Complaint for Declaratory Relief and Motion for a Preliminary Injunction.
Plaintiffs' Complaint and Motion for a Preliminary Injunction were filed on March 8, 2008. Defendant filed an Answer with affirmative defenses and an Opposition to the Preliminary Injunction on April 10,2008.[1] A bench trial on the matter was held on June 5, 2008, where counsel for both parties argued their positions. No testimony was heard, and the parties instructed the Court to rely on the affidavits submitted. Having considered the affidavits and arguments of counsel, the Court issues this order.
Plaintiffs own real estate in Corinna, Maine, located on French's Stream. They acquired title to this property on July 29, 1993. Defendant owns real estate in Exeter, Maine also located on French's Stream. He acquired title to this property from his mother on November 5 2002.[2] Plaintiffs' and Defendant's parcels used to be part ofa larger parcel, which was conveyed from Francis Hill to Levy Stevens on August 22, 1844. The deed for this conveyance included a clause in which Mr. Hill granted to Mr. Stevens the "right to flowage on the north side of the Stream for the benefit ofthe mill as high as the dam is now built and as far west as the above describe lots extends."
Adjacent to Defendant's property, on French's Stream, is a dam, which at one time serviced a mill on his property. Defendant's father entered into a lease with the Town of Exeter ("Town") on August 14, 1970, which included "all the rights and privileges of flowage described in the deed from Level Stevens to Francis W. Hill. . ."[3] The lease included a clause requiring the Town, as the Lessee, to "keep and maintain the dam hereinafter mentioned in good condition and repair." On August 23, 1983, the lease was terminated.
The purpose ofthe lease between Defendant's father and the Town, and in particular, the use ofthe dam, is not discussed in the affidavits or counsel's briefs. The facts do not show whether the dam was maintained after the lease was terminated, though Defendant states that the dam has fallen into disrepair over the course of the last decade. There are also no facts to show that Plaintiffs' property was similarly flooded while the lease between the Town and Defendant's father was in effect.
In August 2007, the Town approved and issued a permit to Defendant for "in-kind replacement of boards on an existing dam." To date, Defendant has replaced four planks in the dam, each approximately 10 inches in height. Plaintiffs allege that Defendant's actions have caused the water level in French's Stream to rise and flood, damaging the soil and trees on their property. Plaintiffs Complaint seeks to enjoin Defendant from any further reconstruction of the dam.
Defendant argues that Plaintiffs' claim falls within the purview ofthe Maine Waterway Development and Conservation Act ("Act"), 38 M.R.S.A. §§ 631 et seq; that the Act applies "to [a]ny person whose lands are damaged by being flowed by a milldam, or by the diversion of the water by such canal" 33 M.R.S.A. § 655; and that this Act limits Plaintiffs' remedy to one of damages. Id. While the Court agrees that the Act limits one's remedy to damages, the Court finds that the Act is not applicable here. The plain language of the Act and a review of how the Act has been interpreted supports this conclusion.
Beginning with the language of the Act itself, its purpose is "to support and encourage the development ofhydropower projects." 38 M.R.S.A. § 631(2). A "hydropower project" is defined as "any development that utilizes the flow or other movementofwater...as a source ofelectricalormechanicalpower orthatregulates the flow of water for the purpose ofgenerating electrical or mechanical power." Id. at § 632(3). The projects contemplated by the Act are those that will produce power.
The Act allows for the building and maintaining of a "watermill and dams to raise water for working it." 38 M.R.S.A. § 651 (2008). Historically, a mill was a building with machinery for grinding grain. The term now incorporates a variety of industries. A watermill is a mill whose machinery is driven by water. "Dams to raise water for the working of it," are "dams to raise water for working a mill." Brown v. Denormandie, 123 Me. 535,542, 124 A.2d 697,699 (1924). The language ofthe Act makes clear that the structures covered by the Act are those mills and dams constructed for the purpose of harnessing the energy of flowing water.
Further support for this purpose is found in the case law interpreting the Act. See Central Maine Power v. Public Uti/. Comm'n, 156 Me. 295, 327, 163 A.2d 762, 779 (1960) stating "the riparian proprietor may use the [water] power for manufacturing and industrial purposes" (emphasis added); Clarkv. Rockland Water Power, 52 Me. 68, 78 (1860) stating "[u]nder our mill Act, riparian proprietors, who are owners of mill sites may raise a head of water, by the construction for the purpose of working their mills" (emphasis added); Brown, 123 Me. at 541, 124 A.2d at 699 stating the statute was "enacted to develop water power by private initiatives" (emphasis added); See also Duncan v. New England Power Co., 113 NE 781, 782 (1916) explaining the term "mill" as follows: "The thing which makes or does not make the mill a water mill within [the Massachusetts Mill Act] depends upon the power which drives its machinery. A mill to grind corn, to saw boards, to roll iron, to manufacture goods, to generate electricity or to make any other article or thing is a water mill within R. L. c. 196, § 1, provided the motive power which drives its machinery is in whole or in part water power (emphasis added).
The cases that apply the Act are those where the dam or mill in question generated, or was going to generate, mechanical or electrical energy. The Act's language is clear and the case law interpreting the Act is consistent. Those with flowage rights are allowed to flood the property of another only when the dam or mill in question produces electrical or mechanical power.
The Court recognizes that Defendant may have a flowage easement on the portion of French's Stream adjacent to his property. An easement is an "interest in land owned by another person, consisting in the right to use or control the land, or an area above or below it,jor a specific purpose." BLACK'S LAW DICTIONARY 527 (7th ed. 1999) (emphasis added); see also Great Cove Boat Club v. Bureau afPub. Lands, 672 A.2d 91, 94 (Me. 1996) "An easement appurtenant is a non-possessory interest in the owner of one parcel of land...to use the land of another for a specific purpose." The specific purpose ofthe easement here, as stated in the 1844 deed, is "for the benefit of the mill." The purpose of flowage rights as benefiting a mill or dam is also articulated in case law. See Trask v Public Utilities Comm 'n, 1999 ME 93, , 12, 731 A.2d 430,432-33; Town of Waltham v. PPL Maine, LLC, 2006 ME 88, , 10, 902 A.2d 816, 819 stating "Thus [Defendant, a hydroelectric plant] by virtue of its ownership of the flowage rights, has a right pertaining to the flooded land ofthe upstream landowners, which is in the nature of an easement appurtenant that benefits the dam." Flowage rights are not absolute; they are tied...
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