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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.i Equitable remedies,2 and

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Law Rep. (N. C.) 425; Wilson v. Myers, 4 Hawks, 73; Gillet v. Jones, 1 Dev. & Bat. (N. C.) 339; Waddy v. Johnson, 5 Ired. (N. C.) 333; King v. Shuford, 10 Ired. 100; Gilliam v. Canaday, 11 Ired. 106; Hendricks v. Johnson, 0 Porter, 472; Lummery v. Braddy, 8 Iowa, 33; Stephens v. Marshall, 3 Pin. (Wis.) 203; 3 Chand. 222; Babb v. Mackey, 10 Wis. 371; Newton v. Allis, 12 Wis. 378; Wood v. Hustis, 17 Wis. 410; Crosby v. 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 mjuries in providing for the drainage of the road, see Elder v. Bemis, 2 Met. 599; Benjamin v. Wheeler, 8 Gray, 409; 15 Grav, 486.

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

the common-law remedies by abatement,1 may also be taken away b}T 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 ilowage 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; 591, which was an action at law, the Spcigelmoyer D. Walter, 3 Watts & S. New Hampshire Mill Act of 1868 is 540. construed. The Act provides, § 4:

2 11 Mass. 304. That the Mill Act "No person or corporation shall dewas intended to fix a measure of drain- rive any title from said proceedings, age for the future, and relieve the or be discharged from any liability in mill-owner from future suits, as well as relation to said premises, until he or afford him a remedy for public past it has paid or tendered to the person damages, see Commonwealth v. Ellis, aggrieved or damaged the amount of 11 Mass. 464; Wolcott Manuf. Co. v. such adverse judgment." The Act Upham, 6 Pick. 202; Walker v. Ox- also provides that proceedings under ford Woollen Manuf. Co., 10 Met. it may be begun by either party, if 203; Craig v. Lewis, 110 Mass. 379. the injury by the acts authorized be

3 8 Cush. 113. continued for thirty days without ad

4 Mass. Public Sts. (1882), c. 190, justment. From these provisions, and § 28; Maine Rev. Sts. (1871), c. 92, from the possibility of an injury's § 23. In Ash v. Cummings, 50 N. H. being continued for a great length of

§ 581. Whether the statutes protect parties proceeding under them from indictments, where their dams injure the public, is a question upon which the courts are divided.. In New Hampshire it is held that an indictment will not lie.1 In Kentucky the statute contains, as we shall see, a provision against injuries to health; and a dam built under permission of court, but which causes injury to the health of the neighborhood, is indictable as a public nuisance.2 These decisions were followed in Wisconsin, although the statute there contains no such provision.3 In Indiana the permission to build a dam is held no protection against an indictment for creating a public nuisance by flooding a highway;4 and in Michigan, Cooley, J., in the course of a decision upon the constitutionality of an Act, expressed the opinion in general terms, that such a statute, if constitutional, would be no defence to a prosecution for a public nuisance.1

time, before a judgment could be reached, and the possible insolveney of the respondent at that time, and the possibility that the flowagc 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 pendeney 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 become 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. If 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 pendeney of a petition, the damages claimed in the former must be excluded from consideration in the lattev." 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 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 1Wi8 would authorize the iourt 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 deeision ia based principally on the special clause in the statute, and in view of this clause the decision that the liability to an action at law remained, was unavoidable. The suggestions of the delay possible, under the Mill Acts, of the possible insolvency of the mill-owner, and of the possible decision of the court that the riowage and injury are not for public use, are added to show the evils which were to be avoided by preserving the remedy; and also to show the reasons upon which the clause in the statute was based; and not, it seems, as grounds for the decision itself. They would not in themselves prevent the application of the doctrine of abrogation of such remedies by implication. The citations from the opinion show some of the inconveniences to which the doctrine of concurrent remedies might lead. The suggestion that if a judgment were first obtained at law, the petition might be treated as an action on the judgment, is untenable, from the nature and object of the petition, and a fortiori because while the judgment at law is obtained by the land-owner, the petition may be by the mill-owner, who is the judgment defendant at law. It seems that, where the remedy is retained, a better method of avoiding these

evils would be for the court to assume jurisdiction, if necessary, to grant a stay of proceedings in all actions at law, until judgment has been obtained on the petition, or the question of public use has been determined. In Indiana the statutory remedies are held not to deprive the injured party of his remedies at common law. Toney p. Johnson, 26 Ind. 382. And see Smith p. Olmstead, 5 Blackf. 87, where it is held that the common-law remedy lies unless the damages are assessed and paid. In Snowden v. Wilas, 19 Ind. 10, the court raise the question without deciding it, whether the statutory remedy is not exclusive. See, further; post, § 250, et seq,

1 Hooksett v. Amoskeag Manuf. Co., 44 N. H. 105; Eastman v. Amoskeag Manuf. Co., 44 N. H. 143. To same effect, see Ensworth v. Commonwealth, 52 Pcnn. St. 320; Crittenden v. Wilson, 5 Cowen, 105.

2 Ky. Sts. 1879, c. 77, § 4; Mountjoy p. Oldham, 1 Marsh. 635; Major r. Taylor, Ibid. 552. See to same effect Commonwealth v. Faris, 5 Hand. 691.

3 Liming v. State, 2 Tin. (Wis.) 216. < State !■. Phipps, 4 Md. 616. This

rule is now made a part of the statute, and applies to all public nuisances created by such dams. Ind. Rev. Sts. (1881), § 1850.

§ 582. In Massachusetts it was held that the remedy by assumpsit or debt, allowed by the Mill Act,2 to enforce payment of the annual compensation or gross damages, awarded for flowage under the Act, was not cumulative, but was substituted for and took away the common-law remedy by an action of debt on the judgment.3 Where an action lias been brought for the wrongful erection of a dam built under authority, it cannot be.changed by amendment into a proceeding under the statute.4 But where a special Act authorizes the damming of a stream for manufacturing purposes, but provides no remedy, and makes no reference to the general Mill Act, the common-law remedy must be pursued, and not that provided by the general Act.6 So Acts authorizing the taking, diversion, or obstruction of streams, for canals or for the improvement of navigation, or for other public par

1 Rycrson v. Brown, 35 Mich. 333, 338. The decision in Massachusetts that the Act did not authorize the flowage of a public highway, and that for such injuries an indictment would lie (Commonwealth v. Stevens, 10 Pick. 247; ante, § 214), is in effect an authority for the same proposition. All the cases are apparently in harmony with the following proposition: The effect of the statute is to authorize the acts provided for, and their necessary consequences, and to take away the public right of indictment or action therefor. So such statutes protect one maintaining a dam in accordance with their provisions from indictment for a nuisance in obstructing the stream. But for other nuisances caused by the dam, which are not necessary consequences of the existence of the dam under any circumstances, the statutes afford no protection. One of the New Hampshire cases, on the one hand, expressly says: "But an Act authorizing one to build a dam on his own land upon

a river which is a highway, merely protects him from an indictment for a nuisance in obstructing the river; but if in doing this, he overflows his neighbor's land, he is liable to an action therefor" (Eastman v. Amoskeag Manuf. Co., 44 N. H. 143, 160). And the Virginia and Kentucky eases, on the other hand, are referable to the provisions of the statutes against injuries to health, or for unforeseen injuries. Where the statute prescribes an indictment with a special form of presentment and procedure, a common-law indictment will not lie. Commonwealth v. Plumer, 1 Am. L. Reg. 124; Brown v. Commonwealth, 3 Serg. & R. 273.

2 Rev. St. 1836, c. 116, § 24.

8 Leland v. Woodbury, 4 Cush. 245.

4 Newton ii. Allis, 12 Wis. 378; Confer French v. Owen, 5 Wis. 112, which holds, conversely, that a statutory action cannot be changed by amendment into one at common law.

6 Cogswell r. Essex Mill Co., 6 Pick. 04; Lee v. Pembroke Iron Co., 57 Maine, 81.

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