Woodman v. Pitman

• Decision Date: 16 June 1887
• Citation: 79 Me. 456,10 A. 321
• Parties: WOODMAN v. PITMAN and others.
• Court: Maine Supreme Court

10 A. 321

79 Me. 456

WOODMAN

v. PITMAN and others.

Supreme Judicial Court of Maine.

June 16, 1887.

On motion by defendants from supreme judicial court, Penobscot county.

Action on the case to recover damages to plaintiff's property because of alleged negligence of defendants. The verdict was in favor of the plaintiff, and the defendants filed a motion for new trial. The opinion states the material facts.

C. P. Stetson, for plaintiff. Wilson & Woodward, for defendants.

Peters, C. J. This case largely depends for its solution upon what may be the extent of the right to harvest ice from our large rivers, compared with the conflicting right of traveling upon such rivers during the winter season. This is an interesting topic of inquiry, in view of the importance which ice has lately assumed as a merchantable commodity, and is a branch upon which the law has as yet hardly passed beyond a formative period. The inexhaustible and ever-changing complications in human affairs are constantly presenting new questions and new conditions which the law must provide for as they arise; and the law has expansive and adaptive force enough to respond to the demands thus made of it, not by subverting, but by forming new combinations and making new applications out of its already established principles,—the result produced being only "the new corn that cometh out of the old fields."

Neither of the rights which seem in conflict in the present case, that of harvesting ice and that of traveling upon the ice, is absolute in any person. No one has any absolute property in either. They are derived from a natural right which all have, to enjoy the benefit of the elements, such as air, light, and water, and are common or public rights, which belong to the whole community. In the Roman law they were classified as "imperfect rights." Not that all persons can or do enjoy the boon alike. Much depends upon first appropriation. One man's possession may exclude others from it. Says Black-stone, (2 Comm. 14:) "These things, so long as they remain in possession, every man has a right to enjoy without disturbance; but if once they escape from his custody, or he voluntarily abandons the use of them, they return to the common stock, and any man else has an equal right to seize and enjoy them afterwards." They are the subjects of qualified property by occupation. 2 Kent, Comm. 348.

Each right is in theory, speaking generally, relative or comparative. Each recognizes other rights that may come in its way. Each must be exercised reasonably. And what would be a reasonable exercise of the one or the other, at any particular place, (for, clearly, there would be a difference in the relative importance of the different rights in different localities,) depends in a large degree upon the benefits which the community derive therefrom. The public wants and necessities are to be considered. The two kinds of franchise belong to the people at large, are owned in common, and the common good of all must have a decisive weight on the question of individual enjoyment.

These, and all other public rights, and the relation that shall subsist between them, when not thereby trenching upon congressional jurisdiction, may be regulated by the legislature. The legislature is the trustee of the public rights for the people. And, as such agent or trustee, the legislature of this state has gone a great way in abridging an individual enjoyment of some of the common rights and privileges possessed by society, when the legislation has presumably inured to the common good. It authorized the changing of the channel of the Saco river, although the effect of the diversion was to impair the value of a good deal of private property, (Spring v. Russell, 7 Me. 273;) has allowed private interest to be subserved to the injury of other private interests, by permitting dams and mills to be erected which prevented the flow and ebb of the tide, upon the ground that the public as a whole were to be benefited thereby, (Parker v. Cutler Mill-Bam Co., 20 Me. 353;) has granted to a single individual the exclusive right of navigating Penobscot river above the tide with steamers for a period of 20 years, for the consideration of improvements to be made in the navigation of the river by the grantee, (Moor v. Veazie, 31 Me. 360, and 32 Me. 343, and 14 How. 568.) These are illustrations of the legislative power in such matters.

The legislature has the constitutional authority, no doubt, to provide rules regulating the possession and cultivation of the ice-fields upon our navigable rivers, where the tide ebbs and flows, at all events so far as the business is carried on below low-water line, and for the adjustment of conflicting interests which may affect that privilege. If it omits to do so, such matters necessarily become the subjects of judicial interpretation. While the judicial is not co-extensive with the legislative jurisdiction upon the questions, there can be no doubt that it is within the scope of judicial authority to determine the manner in which such public privileges may be best enjoyed by the public, provided that any judicial regulation which may be attempted shall do no violence to existing law.

The law is subject to slow and gradual growth. A remarkable instance of the development of the law is seen in the doctrine unanimously adopted by the courts in this country that a river may be considered navigable although not affected by a flow of the tides from the sea. The common law was otherwise. Lord Hale, the great publicist, knew no such doctrine. Legislation did not create it. The courts felt obliged to adopt the interpretation, as a new application of an old rule, from an irresistible public necessity. The court of no state has probably ventured so far as this court has in maintaining that small streams have floatable properties belonging to the public use. Our climate and forests, together with the interests and wants of the community make the doctrine here reasonable,—a reasonable interpretation of the law; while in some of the states, where less necessity for the doctrine exists, it is considered by their courts to be untenable, as subversive of private rights. So, in handling the somewhat novel and important questions now pending before us, we are certainly at liberty to construct out of admitted legal principles such reasonable rules as will meet the requirements' of the case.

The importance to the public of the ice privileges within the territory before named is incomparably greater than is that of traveling on the ice. Winter river-roads are of much less consequence at the present day than formerly. In the earlier days the natural ways were the only ways for travel, and upon the large ponds and lakes, and upon the rivers in remote places, the same necessity may even now exist. But at Bangor, and for some distance below, the principal area of Penobscot river from which the ice-cuttings have been for some years customarily taken, the public have no need of a way on the ice. The traveler receives much more than an equivalent for any deprivation of the natural passage, in the use of the roads on the banks of the river, at all times kept passable at the public expense. Roads over the ice are rarely suitable and passable,—only occasionally so. The access to them from the shores is difficult, if not dangerous, where the tide, as it does here, ebbs and flows. Permission must be had of the riparian proprietor to cross his land to enable one to get to the river without being a trespasser. The inconveniences render the privilege nearly, if not quite, worthless. Nor is any considerable use of the river for such purpose proved or suggested. On the other hand, the business of gathering ice for merchantable purposes has assumed extraordinary importance on our rivers. Large amounts of capital are invested. Thousands of men and of teams are employed at a season of the year when other employment cannot be obtained by them. The outlay is mostly in bills for labor, widely circulated. A crop of immense value is annually produced from an exhaustless soil without sowing. The shipping business is materially aided by it. The wealth of the state is greatly increased by it. It is eminently a business of the people. It would seem unreasonable to embarrass such an important enterprise by according to the traveling public a paramount right of passage, when such right, even to its possessor, is scarcely good for anything.

It is an error, we think, to invest the right of passing on the ice in all places with the same degree of importance as that which attaches to the right of vessels in navigable waters. It may be an offshoot of the navigable right,— something akin to it,—but a right of a secondary or inferior degree. The idea of roads over the frozen surface of rivers was never broached in the old common law. It has grown up since, and should be the superior right or not, according to circumstances. We know of only one judicial decision touching the subject,—that, in our own state, (French v. Camp, 18 Me. 433,) and that does not contradict the views we express in this discussion. There the plaintiff's injury came from the defendant's carelessness in cutting a hole through the ice, and leaving it exposed, upon or near a place where there had been a winter road for more than 20 years. Weston, C. J., there says: "Assuming that the defendant has as good a right to the use of the water as the plaintiff or the public generally had to the right of passage, the use of a common privilege should be such as may be most beneficial and least injurious to all who have occasion to avail themselves of it." In the present case, it must be remembered, the defendants are not defending themselves as riparian owners, for that would justify their possession only to low-water line, but as a portion of the public, partaking of a common and public right. Brastow v. Rock-port Ice Co., 77 Me. 100.

An unlawful obstruction...