Prentiss v. Parks

• Decision Date: 03 May 1876
• Citation: Prentiss v. Parks, 65 Me. 559 (Me. 1876)
• Parties: HENRY E. PRENTISS v. FRANCIS E. PARKS et als.
• Court: Maine Supreme Court

65 Me. 559

HENRY E. PRENTISS v. FRANCIS E. PARKS et als.

Supreme Judicial Court of Maine.

May 3, 1876

1873.

ON REPORT.

ASSUMPSIT on account annexed to the writ which is dated November 1 1872, containing nine items for flowing land in Danforth for nine years, from A. D. 1863, to A. D. 1871, both inclusive at $75 a year with another item for costs of court in complaint for flowage $72.17, in all $747.17. There were other special counts founded on the same matter.

If upon the evidence offered and legally admissible, the action could be maintained, it was to stand for trial; otherwise judgment to be for the defendants. The facts sufficient to raise the legal points decided appear in the opinion.

J F. Godfrey, for the plaintiff.

D. D. Stewart, for the defendants.

BARROWS J.

This is an action of assumpsit against the three defendants, Parks, Dresser and Dodge, to recover damages and costs of court allowed to the plaintiff in a complaint for flowage of his land in Danforth, in the county of Washington, against George W. Butterfield, A. L. Butterfield and W. H. Decker.

A copy of the record of the judgment in Prentiss, complainant for flowage, v. Butterfield et als., recovered at the October term of this court, in Washington county, A. D. 1871, was offered in evidence by the plaintiff, and is made part of the case subject to all legal objections by defendants. The case was hereupon reported to the law court with the stipulation that " if upon the evidence offered and legally admissible, this action can be maintained the case is to stand for trial, otherwise judgment to be entered for defendants."

Several objections to the maintenance of the action upon the evidence offered are suggested. If one is found fatal it is needless to look further. The record introduced shows that a complaint, by the plaintiff against Butterfield and others for the flowage of certain lands of his in Danforth by reason of a saw and grist-mill and dam erected on lot No. 3, in the 5th range upon and across the Baskahegan stream, by one Stinchfield, which came into the possession and ownership of said Butterfield and others in 1865, was entered at the April term, 1866, and thence continued till the October term, 1869, when notice to the respondents was ordered. The record does not show that this order was ever complied with; but the case was thereupon continued until the October term, 1870, when, the defendants not appearing, a default was entered and commissioners were appointed who, at the October term, 1871, made their report by which it appears that they gave notice to Parks and Dresser, two of these defendants, " as the present owners of said mill and dam," and to two of the original respondents, the third being absent from the state, and that Parks and Dresser appeared and were present during the examination, and were heard by the commissioners upon the questions before them, and that the commissioners thereupon made the report called for by the statute and their commission, and awarded the damages for the collection of which this suit is brought.

When the report was presented at the October term, 1871, the record further shows that two of these defendants, Parks and Dresser appeared and objected to the acceptance of the report, and moved to have the default originally entered struck off, which motion after a full hearing was denied, and the report was accepted and judgment entered up thereon. The warrant to the commissioners, issued at the October term, 1870, recites, under a whereas, the pendency of the complaint for the flowing of lands, the names of the parties, and that " said respondents after due notice have not appeared and answered thereto but made default," and the consequent appointment of commissioners. The present defendants object that the record does not show such notice to the respondents in the original complaint for flowage as the statute regulating that proceeding requires, or, in fact, any notice to those respondents, or any appearance by them.

The counsel for the plaintiff claims that the questions here are whether the absence of the notice ordered by the court is fatal, and whether the appearance of Parks and Dresser, two of these defendants, before the commissioners and subsequently in court, to move to take off the default, and the proceedings thereon, cure the defect.

The plaintiff must recover, if at all, by bringing his case within the provisions of R. S., c. 92, § 15, which enables " a party entitled to such annual compensation" to " maintain an action of debt or assumpsit therefor against any person who owns or occupies the said mill … when the action is brought; " and to " recover" thereon " the whole sum due and unpaid, with costs; " and gives him " a lien, from the time of the institution of the original complaint, on the mill and mill-dam … for any sum due not more than three years before the commencement of the complaint."

The plaintiff, to show himself " entitled to such annual compensation," must show a valid judgment therefor obtained in his favor against the proper parties as respondents,...