Smedberg v. Moxie Dam Co.

• Decision Date: 18 November 1952
• Citation: 148 Me. 302,92 A.2d 606
• Parties: SMEDBERG et al. v. MOXIE DAM CO.
• Court: Maine Supreme Court

Page 606

92 A.2d 606

148 Me. 302

SMEDBERG et al. v. MOXIE DAM CO.

Supreme Judicial Court of Maine.

Nov. 18, 1952.

Jerome G. Daviau, Waterville, for plaintiff.

Louis C. Stearns, Louis C. Stearns III, Bangor, Perkins, Weeks & Hutchins, Waterville, for defendant.

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

WILLIAMSON, Justice.

On appeal. This is a bill in equity by the owner of a hotel and sporting camps to enjoin the raising and lowering of the waters of Lake Moxie, a great pond, at certain seasons of the year by means of the defendant's dam at the outlet. Mr. Smedberg is the only plaintiff, although the bill was brought 'in behalf of himself, and others similarly situated who may wish to join * * *.' After hearing on bill and demurrers, both general and special, the single Justice entered a decree sustaining the demurrers and dismissing the bill from which the plaintiff appealed.

The issue is: Assuming the truth of the matters well pleaded, does the plaintiff in his bill set forth a cause entitling him to relief in equity?

The plaintiff's hotel and sporting camps are situated near but not touching the shore of Lake Moxie and near the defendant's dam. The plaintiff is not a shore or littoral owner. From a public landing the plaintiff rents boats. The business is operated for the accommodation of persons hunting and fishing in the region of Lake Moxie. There is nothing unusual about the plaintiff's business. It is a part of our great recreational industry.

Under a charter granted by the Legislature in 1911 the defendant was authorized to maintain dams at Lake Moxie 'for the purpose of raising and storing a head of water for log driving purposes'. P. & S. L. 1911, Chap. 155. Here again there is nothing unusual about the charter.

The plaintiff does not object to the defendant carrying out its chartered purposes; that is, to the maintenance of the dam for log driving purposes. The burden of the complaint is: (1) That contrary to its charter the defendant has caused 'the level of the water in Lake Moxie aforesaid to be fluctuated by sluicing out water not for the purpose of log driving or any other legitimate and lawful purpose, thus draining Lake Moxie to its extreme low level and then closing said gates and sluiceways so as to cause the level of water in Lake Moxie to be raised to its extreme high level, which procedure the defendant has repeated, or caused to be repeated, at least once each year, and particularly in the fall of the year, and sometimes many times each year, contrary to its charter, and therefore, ultra vires.'; (2) that the fishing in the lake has been seriously damaged in particular by destruction of the spawn; (3) that as a consequence fewer people are attracted to Lake Moxie with loss of revenue to the plaintiff; (4) that many others in business in the vicinity are similarly affected; (5) that the public landing has been rendered inaccessible and useless for the conduct of plaintiff's business of renting boats.

The plaintiff prays, in addition to a prayer for general relief, that the Dam Company may be 'perpetually enjoined from fluctuating or changing the level of said Lake Moxie, unlawfully and contrary to its charter and contrary to the public policy of said State of Maine and contrary to the vested interests and property rights of the plaintiff and others similarly situated.'

For purposes of the demurrers the defendant concedes, to quote the brief, 'that all these very things which plaintiff now complains of have been going on to his detriment for twenty-five years.' This condition will continue unless prevented by equity. Under these circumstances is a legal interest of the plaintiff threatened with harm or destruction? Has the plaintiff such an interest in the fishing and use of the public landing that equity may give the relief requested?

We start with the proposition that the State has full right to control and regulate the waters of Lake Moxie and the fishing therein. Full ownership and sovereignty over great ponds lies in the State. American Woolen Co. v. Kennebec Water District, 102 Me. 153, 66 A. 316; Conant v. Jordan, 107 Me. 227, 77 A. 938, 31 L.R.A.,N.S., 434; In re Opinion of Justices, 118 Me. 503, 106 A. 865; Brown v. De-Normandie, 123 Me. 535, 124 A. 697. In Fernald v. Knox Woolen Co., 82 Me. 48, 19 A. 93, 7 L.R.A. 459, a littoral owner obtained an injunction against drawing down the water of a lake by deepening the outlet. It was held that the waters of lakes may not be drawn down below natural level without legislative authority. The Court said, 82 Me. at page 56, 19 A. at page 93, 7 L.R.A. 459: 'As great ponds and lakes are public property, the state may undoubtedly control and regulate their use as it thinks proper'. For purposes of the demurrers the plaintiff in substance has complained that the defendant is maintaining a public nuisance in controlling and regulating the waters of the lake in a manner not authorized by its charter.

Our problem may be considerably narrowed. First, we may assume that the defendant has violated, and, unless enjoined will continue to violate, its charter in its methods of control of the waters of Lake Moxie. The defendant for purposes of this case is maintaining and threatens to maintain a public nuisance. It goes without question that the public, that is the State, may insist that the defendant confine its activities within the grant of the Legislature. Second, it is unnecessary to consider what rights, if any, in fishing or a public landing may belong to owners of shore property on our great ponds. The plaintiff's hotel and camps are not on the shore. The plaintiff does not contend that he has gained ownership of any nature in shore property from the rental of boats at the public landing.

Two issues remain for consideration. First, does a sporting camp owner under the circumstances outlined suffer an injury different in kind from the injury to the public? May he have injunctive relief based upon a special, peculiar, distinct, and private injury from the maintenance of a public nuisance? Second, in view of the existence of the present situation for twenty-five years without complaint, is plaintiff barred by laches, or is his claim stale? Since the first issue must be answered in the negative, there will be no need of considering the defense of laches or staleness.

Justice Appleton, later Chief Justice, stated the rule clearly in Brown v. Watson, 47 Me. 161, at page 162, as follows:

'The law is well settled, that no person can maintain an action for a common nuisance, unless he has suffered therefrom some special and peculiar damages other and greater than those sustained by the public generally.'

The problem, as is so often the case, is not in ascertaining the law but in applying the accepted legal principle to the facts. We comment on a few of the many cases in our reports in which the Court has been faced with a like question. In Smart v. Aroostook Lumber Co., 103 Me. 37, 68 A. 527, 14 L.R.A., N.S., 1083, the plaintiff, a riparian owner of a summer cottage on a navigable or floatable stream, recovered against defendant engaged in driving logs for interference with plaintiff's right of access to his cottage. The ground of recovery was not that the plaintiff used the stream more than others, but that his use to reach his cottage differed from the use of the public. In the equity case of Fernald v. Knox Woolen Co., supra, a littoral owner on a great pond secured an injunction against withdrawal of water below the natural level. The Court said, 82 Me. at page 56, 19 A. at page 93, 7 L.R.A. 459;

'And this natural water frontage may be as valuable to the land-owner as the right to draw water is to the mill-owner. But whether of equal value or not, it is of equal validity in law, and entitled to equal protection.'

Other cases of interest in which the private person has prevailed are: Cole v. Sprowl, 35 Me. 161 (building on highway); Dudley v. Kennedy, 63 Me. 465 (obstruction of river); Franklin Wharf Co. v. City of Portland, 67 Me. 46 (damage to docks from maintenance of sewer); Tuell v. Inhabitants of Marion, 110 Me. 460, 86 A. 980, 46 L.R.A., N.S., 35 (obstruction to stream by bridge-increasing expense of log driving); Yates v. Tiffiny, 126 Me. 128, 136 A. 668 (obstruction to highway cutting off right of access to private property); Larson v. New England Tel. & Tel. Co., 141 Me. 326, 44 A.2d 1 (obstruction of highway). See also Lockwood Co. v. Lawrence, 77 Me. 297, 52 Am.Rep. 763 (leading case in equity on rights of riparian proprietors); 39 Am. Jur. 378, Sec. 124 et seq. 'Nuisances'; Joyce on Nuisances, 1906 Ed., Sec. 430; 66 C.J.S., Nuisances, § 78, p. 831.

There must be an infringement of the plaintiff's private rights to permit recovery at law or relief in equity. In Whitmore v. Brown, 102 Me. 47, 65 A. 516, 9 L.R.A.,N.S., 868, the owner of land at the seashore occupied for summer residential purposes was held to have no complaint in equity against the extension of a wharf or the maintenance of other structures on tide flats owned by the defendant in front of plaintiff's land. The Court said, 102 Me. at page 59, 65 A. at page 521:

'Though by reason of her land being on this cove the plaintiff may have more need or occasion than other persons so make use of the public right to the unimpeded navigation of the cove, and her land may be more damaged by the violation of that right, the right itself it still public and not private. Her ownership of land on the cove gives her no greater nor different right to navigate it. Every other citizen has the same right in kind and degree. The plaintiff may have a greater interest than others in the right and a greater need of its enforcement, but that does not change the public right into a private right. Frost v. Wash. Co. R. Co., ...