that for any extra-territorial injuries caused by dams and works maintained within the State, the same remedies apply as if there were no statute.1 So, on the other hand, the Acts for the encouragement of mills apply only to mills within the State. If lands in such State are injured by mills or dams situated without the State, the mill-owner is not entitled to the benefit of the statute. For injuries in both these cases the remedy is at common law in the courts of the State where the injured property lies. Where a State cedes a portion of its territory, and the jurisdiction over it, to the United States, that territory is governed by the laws of the United States. Therefore, if a Mill Act is in force in such State, it will not apply to mills maintained upon the land ceded to the United States; nor, on the other hand, will the Mill Act authorize the flowage by a mill within the State, of lands within the territory ceded.2 But where the United States simply holds the title to lands within the State, the State may exercise the right of eminent domain over such lands, and the laws of the State, including such statutes as the Mill Acts, apply to such lands.3 § 594. The proceedings under the Massachusetts Mill Act are not founded upon any common-law writ, but are purely statutory. The present statute authorizes mill-owners to maintain dams subject to its provisions, and provides that 1 Wooster v. Great Falls Manuf. Co., 39 Maine, 246; Salisbury Mills v. Forsaith, 57 N. H. 124. So in the case of a canal company chartered by the State of Rhode Island, and whose works injured property in Massachusetts, it was admitted by the company that the charter gave them no right to commit such injury. Farnum . Blackstone Canal Co., 1 Sumner, 46. See remarks of Story, J., p. 57. 2 United States v. Ames, 1 Wood. & M. 76. Boggs v. Merced Mining Co., 14 Cal. 279, 375; Hendricks v. Johnson, 6 Porter, 472. 4 Act of 1714; Ancient Charters, p. 404, c. CXI., providing for complaint by the party injured to the court of general sessions, and the appraisal of yearly damages by a jury; which should bar any action save that of debt, for the recovery of such yearly damages "from the owner or occupant of such mill, assessed as aforesaid, during the time of such flowage." Act of 1795; 2 Perpetual Laws (1801), c. 74, p. 344; St. 1825, c. 153; Rev. Sts. 1836, c. 116; Gen. Sts. c. 149. 5 Public Statutes (1882), c. 190. any person whose land is overflowed or otherwise injured may obtain compensation by proceeding according to the Act. The statute is limited to injuries to the complainant's land caused by flowage. It extends to injuries caused by reservoir dams, including injuries to land intervening between the reservoir and the mill, but not to a reservoir dam upon one stream supplying power to a mill upon a different stream. It does not include injuries by tide-mills. The present statute provides that the jury may consider damages to other lands than those overflowed. Injuries caused by flowage below the dam are within its provisions; increased flowage caused by enlarging the mill and proportionally increasing the height of the dam is a new taking within the statute. An injury caused by flooding a cellar is within the statute, and not remediable at common law. A complaint cannot be entertained under the Mill Act for injuries 1 Palmer Co. v. Ferrill, 17 Pick. 58, 66, where the injuries for which the action lies, and the benefits which may be set off, are limited to those caused by flowage. The same doctrine is adhered to in Wisconsin. Brower v. Merrill, 3 Pin. (Wis.) 46. As to injuries not within the Act, and remediable at common law, see ante, § 580. 2 Wolcott Woollen Co. v. Upham, 5 Pick. 292; Shaw v. Wells, 5 Cush. 537. And see Nelson v. Butterfield, 21 Maine, 220; Dingley v. Gardiner, 73 Maine, 63. A dam at the beginning of an unnavigable outlet of a navigable lake is within the protection of the Wisconsin statute. Clute v. Briggs, 22 Wis. 607. 3 Drake v. Hamilton Woollen Co., 99 Mass. 574; Norton v. Hodges, 100 Mass. 241. 238. Where a person has a right to maintain a dam at a certain height, it is no ground for complaint under the Mill Act, that, owing to the nonuse of his mill, the water stands higher on complainant's land than it otherwise would. Daniels v. Citizens Savings Institution, 127 Mass. 534. In Wisconsin, injuries caused by the obstruction, collection, and deposition of drift-wood are held items of damage to be allowed for in proceedings under the Act. Janssen v. Lammers, 29 Wis. 88. 8 McNally v. Smith, 12 Allen, 455. And so semble, if water is set back through a cellar drain into a cellar. Cotton v. Pocasset Manuf. Co., 13 Met. 429. Injury to lands not flowed, but merely rendered less valuable by reason of odors from adjoining flowed 4 Bates v. Weymouth Iron Co., 8 lands, was held too remote for reCush. 548. 5 Murdock v. Stickney, 8 Cush. 113. 6 Gile v. Stevens, 13 Gray, 146. 7 Johnson v. Kittredge, 17 Mass. 76; Leonard". Schenck, 3 Met. 357; see Brady v. Blackinton, 113 Mass. covery under the statute in Eames v. New England Worsted Co., 11 Met. 570. But see the present provision of the statute, § 14, cited supra. Compare Rooker v. Perkins, 14 Wis. 79, accord. to an unappropriated mill-site.1 Injuries to highways were held not authorized by the general Act, and were remediable at common law; 2 but by the Act of 1873,3 a mill-owner who desired to maintain a dam in such a manner as to overflow a highway is authorized to apply to the county commissioners, who may order such alteration in the way as will enable him to maintain his dam without injury to the highway, and may order the petitioner to pay all damages sustained by any person or corporation by such alteration. But the statutory remedy will lie for an injury to a private way. § 595. The statutory proceeding is by complaint filed in the Superior Court of the county where the land or any part thereof is situated. It is provided in section,396 that two or more persons suffering damage from a mill-dam, whether jointly or separately interested in the lands injured, may join in a complaint, and their cases may be heard before the same jury, which may assess joint or several damages as the interest and title of the complainants may require. The language is permissive, but when co-tenants are so injured, they will be required to join. The permissive rule that they “may join" in actions for trespass or nuisance was construed "must join" by Shaw, C. J., in May v. Parker, for the reason that the damages survive to all, which is equally true in this case; and it has been so ruled under the statute of Maine.8 1 Fuller v. Chicopee Manuf. Co., 16 counties, or if injuries are done to Gray, 43. 2 Calais v. Dyer, 7 Maine, 155; Monmouth v. Gardiner, 35 Maine, 247. 3 St. 1873, c. 144; Pub. Sts. 1882, c. 190, § 42. A town within whose limits a highway has been changed under this section, and which has no ownership in the soil of the way, is not a person or corporation entitled to damages under this provision. Cheshire v. Adams Reservoir Co., 119 Mass. 356. several parcels belonging to the same persons, but lying in different counties, the complaint may be filed in the court for either county. Bates v. Ray, 102 Mass. 458. 6 Pub. Sts. (1882), c. 190, § 39; Gen. Sts. c. 149, § 44. 7 May v. Parker, 12 Pick. 34. See Bacon Abr. Joints Tenants, etc., K. 8 Tucker v. Campbell, 36 Maine, 346; Moor v. Shaw, 47 Maine, 88; Phillips . Sherman, 61 Maine, 548. The Maine statute (Rev. Sts. 1871, Title 9, c. 92) contains no provision on joinder of parties. In Phillips v. 5 If the land lies partly in several Sherman it was held that the non Calais v. Dyer, 7 Maine, 155; Monmouth v. Gardiner, 35 Maine, 247. A mortgagor in possession of the land injured may maintain a complaint under the Act without joining the mortgagee,1 and may recover against the mortgagee; 2 and a land-owner may, after conveying the land away, recover under the statute for injuries to the land during his ownership. So a person in possession under a defeasible title, and a widow holding by devise a life estate in her late husband's lands,5 have been held entitled to recover. So a purchaser of land is held entitled to the remedy, for damage done after his purchase, by flowage begun before, unless the right perpetually to flow has been acquired, the original flowing not constituting a disseisin.6 joinder of a plaintiff could be taken advantage of under the general issue, by a brief statement denying the ownership, and that possession under claim of title was not a sufficient interest to enable the plaintiff to maintain his complaint. But a quitclaim deed to the plaintiff is held prima facie proof of ownership without proof of entry. Williamson v. Carlton, 51 Maine, 449. That part Owners cannot maintain an action alone, but that complainants must have the entire title, see Davis v. Stevens, 57 Maine, 593; Webster v. Holland, 58 Maine, 168. 1 Paine v. Woods, 108 Mass. 160. 2 Vaugh v. Wetherell, 116 Mass. 138. 3 Walker v. Oxford Woollen Manuf. Co., 10 Met. 203; Turner v. Whitehouse, 68 Maine, 221. quit-claim deed conveyed to the company for a valuable consideration all his right in the lands flowed. The vendor afterwards entered for breach of condition, foreclosed the purchaser's equity of redemption, and then brought a complaint under the Act for damages accruing from the flowage after the entry. He was held entitled to recover. In Newell v. Smith, 15 Wis. 101, the purchaser of land already flowed, for which no compensation in gross had ever been made to the former owner, was held entitled to the remedy. This was doubted in Pick v. Rubicon Co., 27 Wis. 433, and the following rule established. The person who owns the land at the time the right to flow vests in the mill-owner has the right to recover damages for perpetual flowage. If he sells the land, he re 4 Charles v. Monson Manuf. Co., tains that right, and the vendee will 17 Pick. 70. 5 Howev. Ray, 110 Mass. 298. 6 Charles . Monson Manuf. Co., 17 Pick. 70; Craig r. Lewis, 110 Mass. 377. In Ballard v. Ballard Vale Co., 5 Gray, 468, the company, having the right to flow land to a certain height, wrongfully increased the height of their dam and the extent of flowage. The owner then sold the land and took a mortgage back for the purchase money. The purchaser by a have no right of action for subsequent flowage. Under the Mill Act the right to flow vests whenever the millowner chooses to flow, and is divested only by his failure to pay the damages assessed. Under the general Mill Act the vendor of land flowed at the time of sale therefore retains the right of action for damages caused by perpetual flowage. This part of the ruling was directly affirmed in Mead v. Hein, 28 Wis. 533. But under the § 596. Under the Maine statutes, one holding a fee, liable to be defeated by the non-performance of a condition subsequent, shows sufficient title against a stranger flowing his land. Under the Wisconsin Mill Act the plaintiff is required to state his interest. It is held that one who holds the legal title, and his purchaser in possession under a contract entitling him to a deed upon full performance of its conditions on his part, may join in an action for flowage, and the court may apportion the damages.2 § 597. The complaint may be maintained against any person owning or occupying the premises upon and for which the dam is maintained. So the mortgagee in possession is special charter involved in Pick v. Rubicon Co., the right of flowage did not vest in the mill-owner until proceedings had been begun for determining the right and compensation. The vendor sold the lands flowed before the proceedings were begun, and, therefore, the right of action was held vested in the purchaser. But in Sabine v. Johnson, 35 Wis. 185, the rule in Mead v. Hein, and the doctrine advanced in Pick v. Rubicon Co. were distinctly overruled, and the rule laid down that the grantor of lands which are flowed at the time of sale by means of a mill-dam lawfully maintained, but in respect to which no proceedings to assess damages have been maintained, is entitled only to such damages as have accrued at the time of sale, unless he specially reserves future damages; and that the purchaser is entitled to recover for damages after the sale. Where the plaintiff averred that he had been, for three years preceding, the owner in fee and actually possessed of certain lands therein described, and that during all that time he had the right to the use and profits of said lands, and that the defendant had for the last three years flooded such lands, the complaint was held sufficient without averring that he owned the land when the dam was erected. Faville v. Greene, 12 Wis. 11. Where proceedings to recover compensation have been had, and, after a sale of the property flowed, unforseen injuries result, the purchaser can recover for such injuries in an action on the case. Denslow. New Haven & Northampton Co., 16 Conn. 98. 1 Webster v. Holland, 58 Maine, 168. So the defendant charged with flooding lands by a dam must be alleged and proved to be owner or in possession of the dam causing the injury. A deed to him from one not shown to have had title is not sufficient evidence of such ownership, where an older outstanding title is proved in a third party; and in the absence of evidence, possession will be presumed to follow the superior title. Sidelinger v. Hagar, 41 Maine, 415. And where the issue involves the title to the premises flowed, a judgment will be conclusive between the parties and their privies to the estate, and is decisive of the question if raised in a subsequent suit. A title acquired after action is begun cannot be introduced to defeat the claim of the demandant. Chick v. Rollins, 44 Maine, 104. 2 Seymour v. Carpenter, 51 Wis. 413. |
