Turner v. Whitehouse
| Decision Date | 31 May 1878 |
| Citation | 68 Me. 221 |
| Parties | IDDO B. TURNER, complainant, v. JOHN R. WHITEHOUSE et als. |
| Court | Maine Supreme Court |
ON EXCEPTIONS.
COMPLAINT FOR FLOWAGE, dated July 18, 1871, and tried at the October term, 1876, when the verdict was for the complainant; and the respondents alleged exceptions, stated in the opinion.
W P. & E. W. Whitehouse, for the respondents.
O. D Baker, for the complainant.
This is a complaint for flowage inserted in a writ. A verdict was rendered for the complainant and exceptions filed.
The first exception relates to the sufficiency of the complainant's title. The case shows that he had an absolute title from March 18, 1867, to November 2, 1870. At this last date he conveyed the premises by deed to N. B Turner and William R. Hisler, taking from them a contract not under seal, for a reconveyance upon certain conditions, with a proviso that " said Iddo is to hold a tenancy by the year on said real estate until condition broken; but when broken, a tenancy only at will." At the end of the first year the condition appears to have been broken; and on the fourth day of August, 1874, he assigned all his interest in the contract to another party. The writ is dated July 18, 1871, and the trial was at the October term, 1876. Thus it appears that within three years of the date of the writ the complainant was the owner in fee of the land described; at the date of the writ he was a tenant by the year, and at the trial had parted with all his interest.
Under this state of the facts, the presiding justice was requested to instruct the jury " that the complainant had not shown a sufficient title to the premises to enable him to maintain his process."
This request was properly refused. It may be conceded that, as this is a statute proceeding, it can be sustained only in accordance with the provisions of the statute. But many of these provisions are independent of each other, and may be so separated that one or more may have its full force without aid from, or interference with another. The commissioners when appointed are to appraise the yearly damages, if any, done to the complainant, determine how far the flowing is necessary, and whet portion of the year such lands ought not to be flowed. Either one of these several duties may be performed without the other. If the complainant within the three years has suffered damages, they may be appraised by the commissioners. At the same time, if the facts of the case show no occasion for regulating the extent or duration of the flowage, if the complainant has parted with his title so that an adjudication upon these matters would not be binding upon the then owner, such an adjudication may be omitted without affecting the question of damages.
It is clear that the statute gives this remedy, and no other, to one who has suffered damage by lawful flowage. Shall, then, the party who has suffered past damage, but has no interest in such as may arise in the future, or in the extent and duration of the flowing, or who at the beginning of his process has parted with his title, so that an adjudication will not be binding upon his successor, be without a remedy for his injury? We think the law is not open to that objection. If we adopt such a conclusion, we nullify one of the provisions of the statute, when not required to do so by any other. The complainant alleges that he has suffered damage, and seeks to recover for it. Under one of the provisions of the statute he may do so; surely it can be no reason for refusing him this remedy, simply because the statute provides for the settlement of future damages and the extent of flowage, matters upon which he makes no claim, and about which, in his case, no questions can arise.
Nor do the respondents have any reason to complain. The law gives them the right to flow upon conditions. One of these conditions is that they shall pay the damages caused by the flowing. They are called upon to pay the damages caused to this complainant, and nothing more. The other liabilities are to be settled with such persons as may have the legal interest in the matters to be adjusted.
It is, however, contended that the complainant, having before the trial parted with his interest in the subject matter of the suit, can no longer maintain his action. If such were the fact, the legal consequence claimed would undoubtedly follow. But it is not. The land he has parted with. That, however, is not the subject of the suit. He is not seeking to recover possession of that, or of any interest in it. He is seeking to recover for the damage which accrued while he was the owner. That is the subject matter of the suit, and that he has not parted with. The sale of the land does not carry with it prior accruing damages. Sargent v. Machias, 65 Me. 591.
This question is so satisfactorily discussed and settled in Walker v. Oxford Woolen Mfg. Co., 10 Met. 203, that...
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