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specific performance. In Pennsylvania it has been held that a parol license, given without consideration, to divert and use the water of a stream for a mill, in consequence of which the licensee erects a mill at great expense, is irrevocable, and that equity will specifically enforce the right of the grantee by an injunction, and will give damages for interference. In Ohio it is said that a written license to put water-pipes in land, and to enter and repair them, cannot be specifically enforced, and that a violation of it is only ground for an action for damages.2

1 Rerick v. Kern, 14 S. & R. 267.

2 Wilkins v. Irvine, 33 Ohio, 138, 145.

CHAPTER XIV.

STATUTORY REMEDIES AND EFFECT THEREOF.

SECTION.

579, 580. In general, statutory remedies take away common-law and equitable

remedies.

581. Whether they protect from indictment.

582. Their effect as to damages and modes of recovery.

583-585. As to unauthorized and excessive injuries.

586. Breach of statutory conditions.

587. Injuries unforeseen and unprovided for.

588. Case lies for incidental injuries from public works.

589. Also for injuries caused by negligence or abuse of the powers conferred.

590. Effect of statutory remedies upon contracts and submissions to

arbitration.

591. Effect of repeal of statute on remedies.

592. Mill Acts. Different systems of remedies thereunder.

593. Extra-territorial injuries.

594. The Massachusetts system.

595, 596. Ibid. - The Complaint.

597. Ibid. Respondents.

598. Ibid.

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Who may be complainants.

Description of the land injured.

599. Ibid. Mode of trial.

600. Ibid. New complaint.

601. Ibid.

Substantially followed in Wisconsin and Maine.

602. Ibid. Prescriptive rights to flow under this system.

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604. Other States adopting this system. - Rhode Island.

605. Ibid. New Hampshire.

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§ 579. Special statutory remedies for injuries caused by acts authorized by the Legislature, and otherwise remediable at common law, usually take the place of the common-law remedies, which are thereby taken away by implication. The remedies provided in the Mill Acts for injuries authorized by them have this effect.1 Equitable remedies, and

1 Stowell v. Flagg, 11 Mass. 364; Wolcott Woollen Manuf. Co. v. Upham, 5 Pick. 292; Fiske v. Framingham Manuf. Co., 12 Pick. 68; Baird v. Wells, 22 Pick. 312; Walker v. Oxford Woollen Manuf. Co., 10 Met. 203; Murdock v. Stickney, 4 Cush. 113, 116; Leland v. Woodbury, 4 Cush. 245; Shaw v. Wells, 5 Cush. 537; Henderson v. Adams, 5 Cush. 610; Gile v. Stevens, 13 Gray, 146; Burnham v. Story, 3 Allen, 378; Woods v. Nashua Manuf. Co., 4 N. H. 527; Hill v. Baker, 28 Maine, 9; Monmouth v. Gardiner, 35 Maine, 247; Wooster v. Great Falls Manuf. Co., 39 Maine, 246; Underwood v. Wayne Co., 41 Maine, 291; Veazie v. Dwinel, 50 Maine, 485; Dingley v. Gardiner, 73 Maine, 63; Bull v. Valley Falls Co., 8 R. I. 42; Brown v. Commonwealth, 3 Serg. & R. 273; Criswell v. Clugh, 3 Watts, 330; Speigelmoyer v. Walter, 3 Watts & S. 540; Ensworth v. Commonwealth, 52 Penn. St. 320; Mumford v. Terry, 2

Law Rep. (N. C.) 425; Wilson r. Myers, 4 Hawks, 73; Gillet e. Jones, 1 Dev. & Bat. (N. C.) 339; Waddy r. Johnson, 5 Ired. (N. C.) 333; King e. Shuford, 10 Ired. 100; Gilliam r. Canaday, 11 Ired. 106; Hendricks e. Johnson, 6 Porter, 472; Lummery v. Braddy, 8 Iowa, 33; Stephens r. Marshall, 3 Pin. (Wis.) 203; 3 Chand. 222; Babb v. Mackey, 10 Wis. 371, Newton v. Allis, 12 Wis. 378; Wood r. Hustis, 17 Wis. 416; Crosby r. Smith, 19 Wis. 449; Large v. Orvis, 20 Wis. 696. For decisions giving the same effect to a statutory remedy against the overseer of highways for injuries in providing for the drainage of the road, see Elder v. Bemis, 2 Met. 599; Benjamin v. Wheeler, 8 Gray, 409; 15 Gray, 486.

2 Bull v. Valley Falls Co., 8 R L 42; Lummery e. Braddy, 8 Iowa, 33. As to injunctions, see Newton r. Allis, 12 Wis. 378; Crosby v. Smith, 19 Wis. 449.

the common-law remedies by abatement,1 may also be taken away by such special enactments.

§ 580. In the leading case of Stowell v. Flagg,2 Parker, C. J., said: "From the general purview of the statute, made expressly to relieve mill-owners from the difficulties and disputes they were before subject to, there can be no doubt of the intention of the Legislature to take away the commonlaw action, which might be renewed for every new injury, and so burden the owner of a mill with continual lawsuits and expenses." In Murdock v. Stickney,3 Shaw, C. J., in speaking of the flowage and injury caused by the erection of a dam, said: "Here the law steps in and declares that, in consideration of the advantage to the public to be derived from the establishment and maintenance of mills, the owner of the land shall not have an action for this necessary consequential damage against the mill-owner, to compel him to prostrate his dam, and thus destroy or reduce his head of water; but it authorizes him to keep up his head of water to his own best advantage, having at the same time provided what the law deemed an adequate and practicable remedy for all the damage sustained, by a compensation in money, to be paid by the owner of the mill." Some of the more recent Mill Acts have expressly taken away the common-law remedies for injuries so authorized.4

1 Criswell v. Clugh, 3 Watts, 330; Speigelmoyer v. Walter, 3 Watts & S.

540.

2 11 Mass. 364. That the Mill Act was intended to fix a measure of drainage for the future, and relieve the mill-owner from future suits, as well as afford him a remedy for public past damages, see Commonwealth v. Ellis, 11 Mass. 464; Wolcott Manuf. Co. v. Upham, 5 Pick. 292; Walker v. Oxford Woollen Manuf. Co., 10 Met. 203; Craig . Lewis, 110 Mass. 379.

38 Cush. 113.

Mass. Public Sts. (1882), c. 190, § 28; Maine Rev. Sts. (1871), c. 92, § 23. In Ash v. Cummings, 50 N. H.

591, which was an action at law, the New Hampshire Mill Act of 1868 is construed. The Act provides, § 4: "No person or corporation shall derive any title from said proceedings, or be discharged from any liability in relation to said premises, until he or it has paid or tendered to the person aggrieved or damaged the amount of such adverse judgment." The Act also provides that proceedings under it may be begun by either party, if the injury by the acts authorized be continued for thirty days without adjustment. From these provisions, and from the possibility of an injury's being continued for a great length of

§ 581. Whether the statutes protect parties proceeding under them from indictments, where their dams injure the

time, before a judgment could be reached, and the possible insolvency of the respondent at that time, and the possibility that the flowage may be found not to be of public use, the court decide that the act does not take away the common-law action until after the tender upon the judgment has been made; they even contemplate the pendency of a suit at common law and of another under the statute at the same time. Sargent, J., in delivering the opinion, said (p. 619): "If a petition should be filed under the statute, and a judgment for damages should be rendered thereon before a judgment in this suit is rendered, perhaps the plaintiff might have his election to go on with this suit, and retain any security he may have by attachment, to satisfy the judgment in this suit, or to be come non-suit, and allow the subjectmatter of it to be settled on the petition. If he should recover a judgment in this suit, and also on the petition, and defendants should pay both judgments, the law would not, of course, justify an injunction founded on the judgment in this suit. plaintiff recover a judgment in this suit, and it is .not satisfied, and a petition should be brought under the statute, there might, perhaps, be no objection to including in the judgment on the petition the amount of the former judgment and fifty per cent. additional, treating the petition as a suit upon the former judgment as far as it goes, and treating the former judgment as conclusive as to the estimation of the damages included in it. There would be no difficulty in settling every practical question that may arise, nothing to be compared with the difficulties that have been overcome in the construction of the Homestead Act, and some

others. If the land-owner chooses to go on with his common-law action, notwithstanding the pendency of a petition, the damages claimed in the former must be excluded from consideration in the latter." In speaking of equitable remedies, he said: “But suppose that the land-owner endeavors to prevent the mill-owner from building his dam or from flowing his land after the dam is built, by injunction, what course is to be taken, and what rule to be applied? A mill-owner, in a given case, may be wholly irresponsible, and in all cases there is a possibility that the flowage may not be deemed of a public benefit and necessary for the use of the mill, and some power must be lodged in the court to apply the general principle involved in ordinary cases of injunction to this new law. . . . In ordinary cases, upon application of the land-owner for an injunction, the court would notify the mill-owner, and, instead of giving the plaintiff his injunction, as we do in other cases, by his giving bond to respond in damages to the other party if he does not succeed, we should, to If meet the spirit of this act, order that the mill-owner, in case he showed no other right to flow the land than what arises under this Act of 1868, should deposit with the clerk of the court such an amount of cash, as, upon the best evidence that the case admitted of, would be compensation for the damage about to be done; and unless he did this, or in some other way should give security equivalent to compensation, we should grant the injunction of course; but if he did this, the spirit of this Act of 1868 would authorize the court to refuse an injunction in order that the millowner might, by actual flowage, bring himself within the letter of this Act and proceed by petition." The de

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