Stanton v. Trustees of St. Joseph's College

• Decision Date: 04 October 1967
• Citation: 233 A.2d 718
• Parties: Edward E. STANTON, Helen S. Stanton, Francis E. Daggett, Margaret E. Daggett, Mildred A. Libby, Fred H. Libby, Jr., Gerald A. Stanton, Susan Stanton, Ernestine H. Whitman and Paul Whitman of the Town of Standish v. TRUSTEES OF ST. JOSEPH'S COLLEGE, a Corporation with place of business atStandish, Maine, commonly known as Saint Joseph's College.
• Court: Maine Supreme Court

Page 718

233 A.2d 718

Edward E. STANTON, Helen S. Stanton, Francis E. Daggett Margaret E. Daggett, Mildred A. Libby, Fred H. Libby, Jr. Gerald A. Stanton, Susan Stanton, Ernestine H. Whitman and Paul Whitman of the Town of Standish v. TRUSTEES OF ST. JOSEPH'S COLLEGE, a Corporation with place of business atStandish, Maine, commonly known as Saint Joseph's College.

Supreme Judicial Court of Maine.

Oct. 4, 1967.

Robert L. Cram, Falmouth, for plaintiff.

Mahoney, Desmond, Robinson & Mahoney, by Robert C. Robinson, Portland, for defendant.

Before WILLIAMSON, C. J., and TAPLEY, MARDEN, and WEATHERBEE, JJ.

WEATHERBEE, Justice.

On appeal. The plaintiffs are residents of Standish and riparian owners along a small non-navigable brook known as Wescott Brook which flows through their land and empties into the Presumpscot River. The defendant trustees operate a private college for women in Standish and their plans for expanding the college's facilities call for a new dormitory requiring a new sewage disposal plant which would emit an estimated 50,000 gallons of liquid residue per day. Although the defendants own no land bordering upon the brook or in its watershed, they have acquired easements from certain riparian owners upstream from the plaintiffs' land authorizing them to pump their sewage through pipes across the servient tenements and thus discharge it into the brook. Defendants applied to the Maine Water Improvement Commission for a license to so discharge this liquid residue into Wescott Brook which was granted after due notice and a public hearing pursuant to the requirements of 38 M.R.S.A. § 414. The plaintiffs, who had opposed the granting of the license, appealed from the decision of the Commission following the appeal procedure provided by statute. However, the plaintiffs subsequently filed a motion for a voluntary dismissal of their appeal, which was granted, and commenced this action in the Cumberland County Superior Court seeking to enjoin the defendants from the discharge of their waste water or effluent into Wescott Brook in spite of the license to do so which the Commission has granted them.

The defendants moved to dismiss the complaint on the grounds that 1) the plaintiffs had failed to exhaust their administrative remedies, and 2) the plaintiffs had failed to show a right to relief upon the facts and law presented. The single justice sitting below found that the statutory provisions for an administrative hearing and appeal had afforded the plaintiffs an adequate remedy at law of which the plaintiffs had not availed themselves and that therefore they were not entitled to equitable relief. The complaint was dismissed and the plaintiffs have appealed the decision to this court.

Although the complaint does not specifically allege Wescott Brook to be a non-navigable stream (and amendment before trial of the principal issue may be appropriate) it sufficiently describes it as such for the purposes of our consideration. The effluent which defendants propose to discharge would, if the plaintiffs' contentions are correct, pollute the water of this brook and render it unsuitable for plaintiffs' use and enjoyment. We accept the plaintiffs' allegations of fact to be correct for the purposes of this appeal as the justice below did when he ruled that the plaintiffs' action was barred because of their failure to pursue their administrative remedy. We consider the correctness of his ruling against this background.

The plaintiffs contend that as riparian owners along a non-navigable brook, they have a right to have the stream flow across their property undiminished in either quantity or quality, subject only to a reasonable use by other riparian owners above them, and that defendants are not such riparian owners. This right, they argue, is a private property right.

Since the beginning of our statehood our citizens have attached great importance to the use of the waterways and our court has frequently been called upon to examine claimed public and private rights in the waters of the State. The law distinguishes between navigable and non-navigable waters for the purpose of determining what waterways the public has the right to use and what waterways are the private property of the riparian owners. Navigable, or public waters, have been variously defined as those bodies of water which are tidal (Opinion of the Justices, 118 Me. 503, 106 A. 865 (1919); Small v. Wallace, 124 Me. 365, 129 A. 444 (1925)), or lakes or ponds whose surface area is greater than ten acres (Flood v. Earle, 145 Me. 24, 71 A.2d 55 (1950)), or whose waters are suitable for, or capable of, having property transported upon them (Brown v. Chadbourne, 31 Me. 9 (1849); Wadsworth v. Smith, 11 Me. 278 (1834)). When a body of water falls within one of the above categories it is deemed to be a public waterway open to certain public uses. 56 Am.Jur. Waters Sec. 177ff. (1947); 93 C.J.S. Waters § 15ff. (1956). The rights of a riparian owner in non-navigable streams and brooks are private rights, subject only to the right of reasonable use by other riparian owners. Cent. Me. Power Co. v. Pub. Util. Comm., 156 Me. 295, 163 A.2d 762 (1960); Hamor v. Bar Harbor Water Co., 78 Me. 127, 3 A. 40 (1886); Davis v. Getchell, 50 Me. 602 (1862); Wadsworth v. Smith, supra.

It is well to observe at this point that we are not now called upon to make a determination as to the extent of these plaintiffs' rights and whether the proposed action of defendants would in fact violate these rights. These issues may arise at another time. Here we only seek to determine the principles of law applying generally to riparian owners on non-navigable streams. We find that this court has defined them on several occasions.

'But such little streams or rivers as are not floatable, that is, cannot, in their natural state, be used for the carriage of boats, rafts, or other property, are wholly and absolutely private; not subject to the servitude of the public interest, nor to be regarded as public highways, by water, because they are not susceptible of use, as a common passage for the public.' Wadsworth v. Smith, 11 Me. 278, 281 (1834).

'Every proprietor upon a natural stream is entitled to the reasonable use and enjoyment of such stream as it flows through or along his own land, taking into consideration a like reasonable use of such stream by all other proprietors above or below him. The rights of the owners are not absolute but qualified, and each party must exercise his own reasonable use with a just regard to the like reasonable use by all others who may be affected by his acts. Any diversion or obstruction which substantially and materially diminishes the quantity of water, so that it does not flow as it has been accustomed to, or which defiles and corrupts it so as to essentially impair its purity, thereby preventing the use of it for any of the reasonable and proper purposes to which it is usually applied, is an infringement of the rights of other owners of land through which the stream flows, and creates a nuisance for which those thereby injured are entitled to a remedy.' (Emphasis added) Lockwood Co. v. Lawrence, 77 Me. 297, 316 (1885), and adopted in Kennebunk, Kennebunkport & Wells Water District v. Maine Turnpike Authority, 145 Me. 35, 42, 71 A.2d 520, 526 (1950).

The Justices of our Court in 1919, in answer to a question from the House of Representatives, gave that body their opinion as to rights of the riparian owner in rivers and streams in the following language:

'The legal rights of the riparian proprietor along the rivers and streams flowing from great ponds are equally well settled. Where lands border upon a nontidal stream, although it may be floatable for logs or boats, each of the riparian proprietors owns the fee in the land which constitutes the bed of the stream to the thread of the stream, 'ad medium filum aquae,' as it was anciently expressed, and if the same person owns on both sides he owns the entire bed, unless, of course, it is excluded by the express terms of the grant itself. * * *

'The riparian proprietor has the right to take fish from the water over his own land, to the exclusion of the public. * * * He does not own the water itself, but he has the right to the natural flow of the stream, and the right to the use and benefit of it, as it passes through his land, for all the domestic and agricultural purposes to which it can be reasonably applied and no proprietor above or below can unreasonably divert, obstruct of pollute it. (Emphasis added.) * * *

'All these rights which the riparian proprietor has in the running streams are as certain, as absolute, and as inviolable as any other species of property, and constitute a part of his land as much as the trees that grow thereon, or the mill or the house that he builds thereon. He can be deprived of them only through the power of eminent domain constitutionally exercised.' Opinion of the Justices, supra, 118 Me. at 506-507, 106 A. at 868.

We conclude that the riparian owner of a non-navigable stream has an interest in the preservation of the quality of its water which is private property.

The Maine Water Improvement Commission was created in 1941 under the name of the Sanitary Water Board which was given the minimal powers of studying and recommending 'ways and means of eliminating from the streams and waters of this state, so far as practicable, all substances and materials which pollute, or tend to pollute, the same, * * *' P.L.1941, Chap. 209, § 1. In 1945, the Legislature added to the Board's powers by requiring the Board's authorization before any new source of pollution could be discharged. A license could be refused when any increased pollution would be 'inconsistent with the public interest.' P.L.1945, Chap. 345, § 4. When, in 1951, the Legislature changed the Board's name to the Water Improvement Commission, the Commission assumed all of the powers and duties previously exercised by...