Rockland Water Co. v. Tillson

• Decision Date: 22 May 1883
• Citation: 75 Me. 170
• Parties: ROCKLAND WATER COMPANY v. DAVIS TILLSON.
• Court: Maine Supreme Court

75 Me. 170

ROCKLAND WATER COMPANY v. DAVIS TILLSON.

Supreme Judicial Court of Maine.

May 22, 1883

ON EXCEPTIONS AND MOTION.

Action to recover damages for injury to plaintiffs' aqueduct by removing its support in operating a lime quarry which it crossed. The writ was dated September 23, 1875. This was the second time the case had been tried. After the first trial it was carried to the law court on exceptions by both parties and is reported in 69 Me. 255.

The case shows that the defendant worked the quarry from 1869, to April 24, 1871, when he sold to the Cobb Lime Company, and that company operated there between the date of the purchase and the date of the writ, causing a further damage to the aqueduct.

At the trial the verdict was for the plaintiffs for $226.31, and the plaintiffs moved to set aside this verdict, and for a new trial, and also alleged numerous exceptions to the rulings and instructions of the presiding judge.

The material facts upon the questions discussed in the opinion are sufficiently stated by the court.

A P. Gould and J. E. Moore, for the plaintiffs, claimed that as their charter gave them the right to take lands for their aqueduct for the sole purpose of furnishing the citizens of Rockland and others with pure water, they were responsible to the public and the right of election, and duty devolved upon them to decide whether the aqueduct should be removed from the quarry.

This right of election is recognized by the court in this case, 69 Me. 255.

If the plaintiffs in good faith determine that it is their duty to change the location, the defendant cannot interfere with the exercise of that power; and if they make the change prudently and do not increase the value of the aqueduct thereby, but simply make it as good and as secure as it was before, they are entitled to recover of him the cost. The plaintiffs insisted upon this claim at the trial and objected to all evidence introduced for the purpose of showing the cost of constructing a bridge.

The plaintiffs are to be made whole for the injuries to their works occasioned by the acts of the defendant. The court thus instructed the jury but later on gave the following instruction: " You have a right to decide, if you see fit that the remedy should have been by a structure less than a permanent structure; one requiring even oversight and repairs from time to time; in which case, however, you would assess besides the value of the structure a sum of money to be added, enough to keep a structure in repair for as long a time as the corporation might need it." And counsel ask " with such a structure would these plaintiffs be as well off as they were before the defendant interfered with their property? Would they be as well off, even as they could reasonably be made by building a proper support and protection for the pipe where it is? … We say first that the defendant had no right to impose this perpetual peril and burden upon the plaintiffs, when by building a permanent structure, they could be relieved from it."

" The constant peril to the water works by having their pipe supported across a chasm like that created by the defendant by less than a permanent structure, one that required watching and frequent repairs, cannot be measured by the mere cost of such watching and repairs…. The aqueduct was when the defendant disturbed it, where it would be perpetually secure. The jury were first to guess how long the corporation would need it, then they were to guess how much less than a permanent structure it was safe or would be likely to put up; and again they were to guess how much oversight and repairs a structure ‘ less than permanent’ would require and cost."

But counsel claimed that the chief infirmity with the instruction was that it would not make the plaintiffs whole; and that in close connection with this comes in the further instruction, " The plaintiffs contend that the blasts of the quarry would jar the bridge, this Siamese structure of this vein or chasm…. At this point comes in, however, another consideration which you should think of. While considering that there may be a liability to shock, it must also be taken into consideration that any person, who so used the quarry as to injure the pipe legally and properly resting through and over the quarry, would be liable to such injury, and they would be liable whether done negligently or not."

Counsel claimed that this was virtually an instruction that the plaintiffs were not entitled to a sufficient sum to build a bridge of such a character that it would afford protection from injury from the jar produced by blasting in the quarry, even if the blasting was conducted without negligence or in a prudent manner.

From November 11, 1869, to April 14, 1871, the plaintiffs were under the necessity of making frequent temporary repairs; and they were subject to loss and inconvenience by reason of the freezing of the pipe and the loss of the water by leakage. The plaintiffs claimed damages for these temporary repairs and incidental losses in their writ; and counsel contended that though amply maintained by proof they were not allowed, that the only instruction relating to them was as follows: " The plaintiff cannot recover for temporary repairs and then wait and recover for other temporary repairs." And this, counsel claimed, cut off the recovery of every cent of these expenses.

Plaintiffs' easement having been acquired only by laying their pipe across Ulmer's field and afterwards paying him the damage agreed, extended only over the land upon which the pipe laid. They have no right to the soil on either side of it; and they have no right to change the location. Onthank v. Lake Shore R. R. Co. 71 N.Y. 194; Jennison v. Walker, 11 Gray 423; Chandler v. Jamaica Pond Aq. Co. 125 Mass. 544; Washburn's Easements (2d ed.), 225; Jaqui v. Johnson, 27 N.J.Eq. 526; Idem, 526.

Counsel further argued: " We say first, that as defendant was opening this quarry at his own risk his co-tenants could not be responsible for his torts; second, that if he was doing it as a tenant in common his trespass does not give the injured party the right to take the property of his co-tenants to repair the damage; third, that if the property of Tillson and his co-tenants could be taken to repair the injuries done by him, the property of his innocent grantees who hold the quarry under a conveyance of the lime rock from him, and authority to take it all out with a covenant of warranty against the incumbrance of the plaintiffs' easement cannot be taken to repair the damage without compensation."

Counsel further contended that the defendant was responsible for the injury done to the aqueduct by his grantees. He only owned the lime rock. He only sold the lime rock. Sold it to be quarried. He covenanted with his grantees that there was no incumbrance. His grant authorized the Cobb Lime Company to take out and remove all the lime rock in that quarry. " I authorize you to take out all the lime rock and I guarantee that if you destroy the easement of the Water Company by doing it I will pay all the damage."

It cannot be questioned that if the Cobb Lime Company were sued by these plaintiffs for injuries caused by removing the lime rock, judgment against them would alone be a sufficient ground of action against this defendant upon his covenant to them.

That would be circuity of action. Brown v. Manter, 21 N.H. 528; Bates v. Norcross, 17 Pick. 14; Haynes v. Stevens, 11 N.H. 28; Thompson v. Banks, 43 N.H. 540; Comstock v. Johnson, 46 N.Y. 615; Voorhees v. Burchard, 55 N.Y. 98; Wood on Nuisances, § § 77, 828; Irvine v. Wood, 51 N.Y. 224; Wash. Easements, (2 ed.) 665; Sedg. Damages, 162; Ang. Wat. Courses, 439.

Counsel further elaborately argued the motion to set aside the verdict.

Rice and Hall, for the defendant, cited: S. C. 69 Me. 255; Pen. R. R. Co. v. White, 41 Me. 512; Farnum v. Platt, 8 Pick. 338; Liford's case, 11 Rep. 46; Wash. Easements, 564; Prescott v. White, 21 Pick. 341; Prescott v. Williams, 5 Met. 429; Dygert v. Schenck, 23 Wend. 446; Waggoner v. Jermaine, 3 Denio 306.

SYMONDS J.

In 1869 and 1870, the defendant, in working a lime quarry, disturbed the plaintiffs' aqueduct, and this action is to recover damages therefor. The plaintiffs had acquired under their charter the right to maintain the aqueduct through the field where the excavations were made. The owner of the land authorized the defendant to open the quarry. The questions, therefore, which the case presents, arise between the owner of an easement on the one hand and on the other the owner of the fee, or one acting by his authority, who in changing and developing the property for lawful business purposes does damage, temporary or permanent, to the structure which the easement protects.

" The existence of a servitude upon an estate does not affect the general rights of property in the same. All these remain, subject only to the enjoyment of the existing easement… The proprietor of the soil retains his exclusive right in all the mines, quarries, springs of water, timber and earth, for every purpose not incompatible with the public right of way." Wash. Easements, 227, 228.

" The soil and freehold remain in the owner, although encumbered with a way. Every use to which the land may be applied, and all the profits which may be derived from it consistently with the continuance of the easement, the owner can lawfully claim." Perley v. Chandler, 6 Mass. 454.

" If any other person has an easement in an estate, the owner has still all the beneficial use, which he can have consistently with the other's enjoyment of that easement." Atkins v. Bordman, 2 Met. 467.

" Nothing is better settled than that a highway leaves the title of the owner...