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held liable,i though he did not enter for the purpose of foreclosure.2 A party having the record title, although he has conveyed the premises away by an unrecorded instrument;8 a former owner, for damage accruing during his ownership;4 a lessor, for damages caused by a dam built by his lessee for years;6 a lessee;6 a married woman, in whose name premises are held, though the dam is maintained by her husband;7 a corporation maintaining a dam, but not the stockholders individually, where the charter does not subject thein to personal liability,8 all are chargeable either as owners or occupants of the premises on which the dam is maintained.9 A subsequent purchaser is liable for the yearly damages becoming due and payable after his purchase.i But a person not owning or occupying the dam, but incidentally benefited by its maintenance, cannot be made liable under the Act for injuries caused by it.2
i Fuller v. French, 10 Met. 359; Lowell v. Shaw, 15 Maine, 242.
2 Abbott v. Upham, 13 Met. 172.
8 Hennessey v. Andrews, 0 Cush. 170.
* Walker v. Oxford Woollen Manuf. Co., 10 Met. 203; Charles c. Monson Manuf. Co. 17 I'ick. 70; Bean v. Hinman, 13 Maine, 480.
6 Sampson v. Bradford, 0 Cush. 303.
6 Davis v. Brigham, 29 Maine, 391. See Nelson v. Butterfield, 21 Maine, 220, 237.
7 Brigham v. Holmes, 14 Allen, 184.
s Norton v. Hodges, 100 Mass. 241.
9 Whether the defendant is a millowner or occupier within the act is a question of law for the court. Large v. Orvis, 20 Wis. 696. A mill-owner was not chargeable under the act of 1795, c. 74, for damage done by flowing before his title began. Holmes t>. Drew, 7 Pick. 141. So in Wisconsin, it is held that the judgment 6hould not include damages prior to the acquisition of title by the defendant. And if several defendants acquired title at different times, damages should be assessed from the date of the oldest title not exceeding three years prior to the beginning of suit. Sabine v. Johnson, 35 Wis. 185. It is here held that there is no means of apportioning damages between such defendants. Persons rightfully maintaining a dam at a certain height, whose pond is
crossed by a highway, are not liable under the statute to the owner of land above the highway for flowage caused by an obstruction placed in the stream by a lessee of their grantors, who changed the location of the highway and obstructed the sluiceway conducting the stream under it. And their failure to remove the obstruction or restore the highway is not a continuance of a nuisance making them liable at common law. Stetson v. E. Carver Co., 97 Mass. 402. Under the statute of Maine, it has been held that all the owners and co-tenants of the dam or mill causing the injury should be joined as defendants, and that the omission of one holding an interest in the dam and mill will be ground for a plea in bav. Hill v. Baker, 28 Maine, 9; Turner v. Whitehouse, 08 Maine, 221. But the complainant will be permitted to amend and summon in the other defendants. Moor v. Shaw, 47 Maine, 88. Where the proprietor of land flowed by a dam owned by several different persons instituted separate suits and recovered separate judgments against each, and afterwards one of the respondents became sole owner of the dam, it was held that where the land-owner brought a second suit to increase his yearly damages, he might combine the whole subject-matter in one complaint against the owner of the whole
§ 598. The complaint must contain such a description of the land alleged to be flowed or injured, and such a statement of the damage, that the record of the case will show with sufficient certainty the matter heard and determined therein.3 It must allege that flowage was caused by the defendant's dam, for the purpose of furnishing power for a mill.4
dam at that time. Jones v. Pierce, 16 Maine, 411. Where the respondents, severally owning water-mills on a stream, and owning as tenants in common and jointly maintaining a dam across the stream, on their own land, to supply power to their mills, they may properly be joined in a complaint for flowage by the dam. But the complaint must allege that the respondents erected and maintained water-mills on their own land. Goodwin v. Gibbs, 70 Maine, 243. Norton v. Hodges, 100 Mass. 241.
i Lowell v. Shaw, 15 Maine, 242. The beginning of each year is reckoned from the filing of the complaint. Bryant v. Glidden, 36 Maine, 36. Under the Massachusetts statute, the annual damages for the first year become recoverable by action, if not paid within three months from the election of the land-owner to take annual damages instead of the gross sum. (Pub. Sts. c. 190, §§ 20, 21.)
2 Nelson v. Butterfield, 21 Maine, 220.
8 Pub. Sts. (1882), c. 190, § 5. A general description of the land was formerly sufficient. Commonwealth v. Ellis, 11 Mass. 462. And see Paine i.. Woods, 108 Mass. 160.
8 Slack v. Lyon, 9 Pick. 62. It is not removable by affidavit, under the
Practice Act of Massachusetts, to the Supreme Court. Humphrey v. Berkshire Woollen Co., 10 Allen, 420. See Tyler v. Beecher, 44 Vt. 648. Under the Maine statute for 1821, c. 45, it is held that the complainant must allege that the respondent has erected a water-mill "on his own land, or the land of another, with his consent" (following the words of the statute), or the complaint will be bad in substance, and a judgment thereon arrested. The Act of 1841, e. 120, omitted the references to ownership and the consent of the owner, and both these allegations became unnecessary. Prescott v. Curtis, 42 Maine, 64. In the Act of 1857, the provision for a mill on another's land was omitted. It is held under this Act that the complaint must allege the defendant's ownership of the land on which the dam is erected, or it will be demurrable. Jones Skinner, 61 Maine, 25. In Wisconsin it is held that Hie complaint need not deny in advance the defences which are open to the defendant, as that compensation has been made. Faville v. Greene, 12 Wis. 11. But the complaint must allege that the stream was unnavigable, to show that the injuries are within the provisions of the statute. Waller v. McConnell, 19
§ 599. The statute provides for a twofold trial: first, in the court, of the right of the complainant to have a jury summoned to inquire into the damages caused; and second, a trial before the sheriffs jury, of the question of damages. The defendant must plead in court any matter in bar of the complainant's right to have the inquiry;1 as a release, or misdescription in the complaint,2 a presumptive right,3 a contract right,* and all matters pleadable in bar will be determined by the trial in court, and if settled for the complainant, .and a jury is called, cannot be considered in the trial of damages.6 The question whether the land is damaged, as alleged, cannot be tried at the bar of the court, but must be left to the sheriffs jury.6 If the respondent pleads
Wis. 417. The complaint is amendable as to the description of the land: 8abine r. Johnson, 35 Wis. 186. And the pleadings under the Act are, in general, liberally construed. Zeidler v. Johnson, 38 Wis. 335.
1 Pub. St. c. 190, § 8; Vandusen v. Comstock, 3 Mass. 184; Lowell v. Spring, (5 Mass. 398.
2 Darling v. Blackstone Manuf. Co., 16 Gray, 187.
8 Wilmarth v. Knight, 7 Gray, 294; Hadley r. Citizens' Savings Institution, 123 Mass. 301.
4 Howard v. Locks and Canals, 12 Cusli. 259.
6 Charles r. Porter, 10 Met. 37.
6 Nutting v. Page, 4 Gray, 581; Charles v. Porter, 10 Met. 37; Prescott P. Curtis, 42 Maine, 64. The defendant may plead the general issue with a specification of defence. Howard v. Locks anil Canals, 12 Cush. 259. If the defendant pleads the general issue, with a specification of defence, he is confined to the specification. Tyler i.\ Mather, 9 Gray, 177. Where any one of the several defendanta has the right to flow the land in the manner charged, the complaint cannot be maintained. Butler i>. Muse, 63 Maine, 447. If a party flowing the lands afterwards acquires title to the land flowed, the right to
damages is thereby extinguished, and will not revive by a subsequent sale of the dam and mill. Hathorn v. Stinson, 10 Maine, 224. A contribution to the flowage by other dams is no defence to a complaint under the Mill Act. Jones v. United States, 48 Wis. 385. If the defendant justifies his flowage under the statute, he must aver compliance with the statute, and that compensation has been made. Thien v. Voegtlander, 3 Wis. 401. An award as to past damages, or a judgment on such award, is no bar to a complaint under the Act for subsequent damnges. Staple v. Spring, 10 Mass. 72. Nor is an award for future damages for maintaining a dam at a certain height a bar to a complaint for damages caused by increasing the height. McClellan v. Fisher, 10 Gray, 185. An award that certain damages be paid by a certain time will not avail as a defence against a complaint to a respondent who failed to pay within the time, nor to his wife in whose name he took a conveyance of the mill-site. Brigham v. Holmes, 14 Allen, 184. An oral release operates as a license; is good against the licensor; but does not bind his grantee. Stevens r. Stevens, 11 Met. 201; Seymour c. Carter, 2 Met. 520; Smith r. Goulding, 6 Cush. 154; Short v. Woodward, against the complaint, the further pleadings, issue, and trial in court proceed as in civil actions;i and on default or determination of the issue for the complainant, the court issues a warrant for a sheriffs jury, to hear and determine the matter of the complaint.2 The jury are authorized to determine the height at which the dam may be maintained;3 whether it shall be left open during any part of the year, and if so, how long; to assess the past damages for the three years next preceding the institution of the complaint, and to the time of rendering the verdict; to set off benefits caused by the dam to the complainant's lands by the flowage; to determine the amount to be annually paid by the respondent to the complainant for the future annual damages to be caused by the dam; and also a sum in gross, which would be a just compensation" for all damages thereafter to be caused, and for the right of maintaining the dam forever.1 The complainant may then elect, at any time within three months from the allowance .and recording of the verdict, to take the gross sum or the annual allowance.2 If the gross sum is
13 Gray, 80; Clement v. Durgin, 5 Greenl. 9; Seidensparger v. Spear, 17 Maine, 123; Snow v. Moses, 53 Maine, 546. Written releases, not under seal, are held not to bind the grantees, and do not bar their complaints. Craig v. Lewis, 110 Mass. 377 ; Cobb v. Fisher, 121 Mass. 160. Where the complainant mortgaged his property pending the complaint, and then executed a release under seal, of all past and future claims, in pursuance of which the complaint was entered "neither party," the release was held to bind the lands in the hands of a foreclosure purchaser, though neither he nor the mortgagee had notice thereof at the time of acquiring title. Isele v. Schwamb, 131 Mass. 337.
i If several persons file different complaints at the same time for injuries by the same dam, the complaints should be tried together by the same jury. Richardson v. Curtis, 2 Cush. 341; Wilmarth v. Knight, 14 Gray, 112. But injuries to a tract of land by different dams, owned by different persons, cannot be joined in one complaint. Lull v. Fox & Wisconsin Co., 19 Wis. 100.
2 Or the parties may by stipulation have a trial by jury in the Superior Court. Pub. Sts. (1882), c. 190, § 13.
6 Unless the height of the dam is conclusively fixed by a verdict, an award, or a binding agreement, a mill-owner has the right under the statute to adapt his dam to the needs of his milI, and to build it to such height as he pleases, subject to the liability to pay damages, and to have a jury fix the height at which it may be maintained by proceedings under
the statute. Brady v. Blackinton, 113 Mass. 238. The verdict is not defective for failing to fix and state the proper height for the dam. The existing or proposed height is held allowed, and presumed capable of proof outside the verdict. Sabine v. Johnson, 35 Wis. 185; Aken v. Parfrey, 35 Wis. 249. An award by arbitrators, or a finding by a jury .authorizing the mill-owner to "raise the water " to a certain height, refers to the height of the water at that mark, and not to the height of the dam. Winkley v. Salisbury Manuf. Co., 14 Gray, 443; Hiscox v. Sanford, 4 R. I. 55. These cases were decided by the language of the award and finding. Where the height of water is fixed by a conveyance or other instrument, the height in ordinary stages of water is referred to. Brady v. Blackinton, 113 Mass. 238. Where the height of the dam is fixed, the height of the dam in good repair is intended. Voter v. Hobbs, 09 Maine, 19. For decisions giving this rule where the height of the dam was determined by other means than by a finding, see Bliss v. Rice, 17 Pick. 23, 33; Cowell i>. Thayer, 5 Met. 253; Ray v. Fletcher, 12 Cush. 200; Jackson v. Harrington, 2 Allen, 242; Vickerie v. Buswell, 13 Maine, 289; Laey v. Arnett, 33 Penn. St. 169; Marcly v. Shults, 29 N. Y. 340; Winnipiseogee Lake Co. v. Young, 40 N. H. 36. See Alder v. Savill, 5 Taunt. 454. Contra, see Burnham v. Kempton, 44 N. H. 78, 90; Smith v. Ross, 17 Wis. 227. Where a grant of the right to flow referred to a mark as a measure of height, and no such mark existed
at the time, one fixed nineteen years afterward cannot be shown by parol to occupy the place intended. White r>. Bliss, 8 Cush. 510. A finding authorizing a petitioner to raise the water three feet above the height at which it was raised by his dam on a day named, has been held sufficiently certain. Todd v. Austin, 34 Conn. 78. Sec Town v. Faulkner, 56 N. II. 255, where it is held, under New Hampshire Act, that the measure of damages is not determined by the height of the dam, but by the height to which tlie water is authorized to be raised.
1 In estimating the damages, the jury are to compare the present value of the land, as a whole, with what its value would have been if it had not been flowed, regard being had to the injuries caused by the flowing. Palmer Co. D. Ferrill, 17 Pick. 68; Bates v. Ray, 102 Mass. 458; Howe v. Ray, 113 Mass. 88. See Pick v. Rubicon Co., 27 Wis. 433. Where the verdict was for past damages up to the time of action begun, and for annual damages, after the trial, omitting the damages which accrued during the suit, the amount of such damages was reckoned for the length of time elapsed, on the basis of the
annual damages, and the verdict was sustained. Newton v. Allis, 10 Wis. 197.'
3 An acceptance of the gross sum bars all right of action for future flowage of the lands in question by any one. Chase v. Sutton Manuf. Co., 4 Cush. 152; Heard v. Talbot, 7 Gray, 113. A life tenant is entitled to future damages and to gross damages. Howe v. Ray, 110 Mass. 298. It was held, upon the complainant's electing to take damages in gross, that the respondent might abandon his right to flow, take down his dam, and avoid liability for future damages. Hunt v. Whitney, 4 Met. 003; Blackwell e. l'hinney, 120 Mass. 458. The same rule prevails in Wisconsin. Aiken v. Mills, 29 Wis. 322. So in North Carolina, if the dam is altered or taken down, this will be ground for reducing the annual damages on a writ of audita querela. Gillet r. Jones, 1 Dev. & B. 339. When the respondent's exceptions are carried to the Supreme Court, and there overruled, after the verdict is returned and accepted, the verdict is held not to be allowed until the overruling of the exceptions. Hamilton r. Farrar, 131 Mass. 572. In Darge r. Horicon Iron Co., 22 Wis. 417, it is held that the award for past damages and gross