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chosen, it must be paid within three months, or the respondent will lose the benefit of the Act so long as the sum is unpaid; and the complainant is entitled to judgment and execution on the verdict for past damages. If no election is made and recorded within the three months, the statute provides that the annual compensation will become due and payable (as if it had been elected) to the complainant and those claiming under him, so long as the dam is maintained; the person entitled to compensation is given å lien on the mill and dam, for payment of the compensation for the three years prior to suit therefor. He may maintain an action of contract to recover such sum for the three years preceding the suit, and enforce his lien against the person who owns or occupies the mill when the action is brought, and may have the premises sold on execution, subject to a right of redemption within one year. A new trial may be granted in this action, as in civil actions generally.

§ 600. If either party becomes dissatisfied with the annual compensation established, a new complaint may be brought for the increase or diminution of such compensation, or for ascertaining the gross damages, as before; but if the complainant declined to accept gross damages awarded to him, they cannot be again awarded until the expiration of ten years from the former award.2 Such new complaint may be

damages for the future may be in one gross sum.

former complaint and proceedings, or it will be treated as an original complaint. Vandusen v. Comstock, 9 Mass. 202; Ray v. Fletcher. 12 Cush. 200. And where the complainant alleged an increase in the height of the dam, and also wished to obtain a review of the former assessment, it was held that an allegation of dissatisfaction was necessary to make the complaint sustain a verdict for annual and gross damages which was larger than the preceding. Without such an allegation, the complaint might be treated simply as an original one for the damage caused by the increased 2 The complaint must set forth the height. Leonard v. Schenck, 3 Met.

1 It is no defence to such action that the mill and dam are destroyed, if the defendant has not abandoned his right to flow. Nothing short of an abandonment of his right to flow will terminate the liability to answer therefor. Fuller v. French, 10 Met. 359. If such action to recover the damages assessed is brought jointly against the person who occupied it when the action was brought, the plaintiff may amend by discontinuing as to the former. Fitch v. Stevens, 2 Met. 505.

maintained by and against either of the parties to the original suit, or by and against a person lawfully holding under either of them, but no such complaint can be brought until the expiration of one month after the payment of the then last year has fallen due.1 A finding on the original complaint that the complainant is not entitled to damages is no bar to a new complaint for damages alleged to have arisen after the former verdict, and for compensation for damages thereafter sustained.2

§ 601. The statute of Wisconsin is almost an exact copy of that of Massachusetts. The principal difference is that the remedy provided is by "a civil action"; that the case

357. See Johnson v. Kittredge, 17 Mass. 75, which holds that a complaint for such increase is good. The judgment on the original complaint, that the respondent has no right to maintain a dam without paying damages, estops him from pleading to the second complaint, a right by prescription or grant, previous to the judgment. Adams v. Pearson, 7 Pick. 341. The defendant cannot deny the increased damage by a plea in bar. This must be determined by the sheriff's jury. Ibid. The statute makes no provision for reassessment of gross or annual damages against a mill-owner for flowing lands after the land-owner has elected to take the gross damages, and neither party can maintain a complaint for that purpose. The mill-owner can maintain a complaint for reassessment of annual damages only when he is liable for such damages under an existing judgment. He, therefore, cannot maintain such a complaint when the landowner has elected the gross damages. Stevens v. Fitch, 2 Met. 507. in Wisconsin, the plaintiff accepting gross damages is held estopped from questioning the height of the dam. Aken . Parfrey, 35 Wis. 249.

So

1 The effect of this provision is to suspend the complaint for one year

and one month following the time comprised in the prior decision. Staple. v. Spring, 10 Mass. 72, 77; Stevens v. Fitch, 2 Met. 507, 508. The time comprised in the prior decision is, under the present act (§ 16), for past damages up to the time of rendering the verdict. Such complaint, therefore, cannot be brought until after the first yearly payment has been made. Under the statute of Maine, the damages, past and future, are assessed in yearly sums, and the judg ment includes the sum due on the date of its entry, viz., the last day of the preceding term, and the new com plaint cannot be brought until one month after payment of the yearly sum next falling due. Billings v. Berry, 50 Maine, 31. In both cases the judgment is conclusive for the amount of yearly damages for the year succeeding the time comprised in the former decision.

2 Pub. Sts. c. 190, § 36. But it is considered by Sewell, J., in Staple v. Spring, 10 Mass. 72, 77, that the postponement of a second action for one year and one month (under the present section 31) applies to this case also.

3 Wis. Rev. Sts. (1878) 78, c. 164. See Kearns v. Thomas, 37 Wis. 118.

* Rev. Sts. (1878) 78, c. 146, § 3377. The action is legal and not equitable.

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is tried before a jury at the bar of the court; and therefore the distinction between issues which must be presented to the court and issues for the jury does not affect the order of pleading. The defendant is not, as in Massachusetts, forbidden to deny by his pleading the allegations of injury in fact.2 The verdict in the action may be set aside and a new trial ordered, as in other cases, and an appeal may be taken from any final judgment rendered therein, in like manner and with like effect as in other civil actions. of Maine is substantially like that of Massachusetts, and the rulings upon the latter have generally been followed in construing the former. The principal differences in the Maine statute, resulting from subsequent legislation, are the following: 1. It authorizes mill owners to dig canals upon their own land, not exceeding one mile in length, and thereby divert the water of unnavigable streams to their mills, upon making compensation, to be ascertained by the same form of procedure as in the case of flowage. 2. It does not provide for other injuries than those caused by such flowage and diversion. 3. It directs the appointment of three commissioners, by whom the damages are to be appraised, and the height and period for maintaining the dam are to be determined, instead of by a sheriff's jury. On request of either party, a jury may be impanelled to try the cause at the bar of the court; and the report of the commissioners shall then be given in evidence to the jury. The report will be conclusive evidence until impeached, and it may be impeached only for misconduct, partiality, or unfaithfulness on the part of some commissioner.5 4. The commissioners are not em

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powered to assess a gross sum as compensation for permanent future damages. 5. The court may at discretion, on the complainant's motion, require the owner or occupant of the mill or canal property to give security for the payment of annual damages; and on failure of such owner or occupant to give security as required, he shall lose the benefit of the statute and become liable to an action at common law.1 6. If the restrictions upon the height of the dam or seasons during which lands may be flowed are violated by the mill-owner or occupant, he becomes liable to pay double damages, recoverable in an action at law.2

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§ 602. The effect of flowage not causing actual damage has caused a difference of opinion between the courts of Maine and Massachusetts in the construction of their respective statutes. By the law of Maine, flowage not causing damage is held lawful, and no ground for complaint. Therefore if flowage not causing damage be continued for twenty years, it confers no right to flow lands and injure another, and is no bar to an action where damage results from the flowage. The adverse user begins at the time when actual damage is caused. In Massachusetts, on the other hand, flowage, though causing no actual damage, if continued for twenty years, without any complaint therefor, is held to be adverse, and confers the right to flow such land in future, without payment for any damages which may thereafter be caused. This difference may be explained in part by a difference in the wording of the statutes. The Maine statute of 1821, following the Massachusetts statute of 1795, provided: "It shall be lawful for the owner or occupant of such

1 The Massachusetts statute of 1795, c. 74, contained a similar provision. And see Stowell v. Flagg, 11 Mass. 364.

2 Rev. Sts. 1871, Title 9, c. 92, § 24. 3 Tinkham v. Arnold, 3 Maine, 120 Hathorn v. Stinson, 10 Maine, 224; s. c. 12 Maine, 183; Seidensparger v. Spear, 17 Maine, 123; Nelson v. Butterfield, 21 Maine, 220; Wood v. Kelly,

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mill" (before described) "to continue the same head of water to his best advantage in the manner on the terms hereinafter mentioned." "If any person shall sustain damages in his lands by their being flowed as aforesaid, he may complain," etc.; and a similar provision has been retained in all 'he revisions.1

1 Laws of Maine, 1830, c. 45, § 2; Rev. Sts. (1841), c. 126, § 5; Rev. Sts. (1857), Title 9, c. 92, § 4; Rev. Sts. 1871, Title 9, c. 92, § 4. In the Massachusetts Revised Statutes of 1836, c. 116, the language of the Act of 1795 is changed. Section 4 reads: Any person whose land is overflowed, or otherwise injured by such dam, may obtain compensation therefor," etc. This change was made three years before the case of Williams v. Nelson was decided. The point decided in the case is, therefore, simply that under the Massachusetts statute the complainant had a right of action which he had lost by failing to exercise it for twenty years. Shaw, C. J., did not, however, place the decision upon the words of the statute. He held in effect that the statute of 1795 was to be construed in the same way, and that the Maine doctrine was erroneous. The Maine decision went upon the ground that the user was no evidence of a grant because it was lawful and needed no grant. He replies that the grant pleaded was of the right to flow, paying no damage. The statute conferred only a right to flow, paying damage. The right asserted, therefore, went beyond that conferred by the statute. Such a right could only be accounted for by the presumption of a grant. The Maine case held that the user was not such as to be evidence of such a grant. Of this he says: "The case also goes on the supposition that to found the presumption of a grant, the enjoy ment must be adverse, and of such a nature that but for the presumed grant it would be unlawful. It may

be deemed adverse, if in any degree it tend to impose any servitude or burden on the estate of another. But in many cases, as the enjoyment of air and light by the owner of a house, the act is not unlawful without a grant by the owner of the land over which they come; yet the enjoyment of such privilege for a long time, without obstruction or notice on the part of the owner of the adjoining land, is proof of a right, and may raise the presumption of a grant. The case of a mill-owner is in the same degree similar." The case of Boston Manuf. Co. v. Burgin, 114 Mass. 340, contains some statements seemingly in conflict with this. It was there held that the mill-owner did not acquire such an easement as would enable him to maintain a petition against the land-owner, to compel him to try his title. Wells, J., said: "Such exercise of the right of flowage is not the enjoyment of an easement in the land flowed. It is not adverse to the title or possession of the owner, and being permitted by law, and not actionable except by complaint for compensation, it will not ripen into title by lapse of time . . . The right to maintain the dam, and to keep up the head of water, is given to all mill-owners by statute. The flowage of adjacent lands is incidental, and compensation is made according to the degree of injury. But the right to occupy the surface of the land with the water is not taken, and the land-owner may exclude it if he sees fit to do so. And when the right of the mill-owner becomes absolute by paying gross damages, or by prescription, it is only a right to keep

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