Spring v. Russell

This cause was argued at the last April term $ and the opinion t>f the Court was now delivered by Mellen C. J. It appears by the report of the commissioner who was appointed, by consent of parties, to ascertain and settle >the facts in this case, that the plaintiff has sustained damages within six years next before the commencement of the action, to the amount of thirteen hundred dollars j by reason that his 11 logs, by the opening of said canal and diverting the water of said river as aforesaid, were prevented from floating down said river as they otherwise would have done, and were floated into said canal, out of the usual and natural course of said river 5 and by reason of said logs running into said canal, and being prevented from following the ancient and natural channel of said river 5” and the question before us is, whether lie has a right to recover all or any part of that sum, upon a view of all the 'facts detailed, in the report, and the application of — 287 — legal principies to those facts, We have listened with patience, pleasure and profit to the learned mid elaborate arguments of the counsel upon the numerous questions discussed j arising on the sev ■ eral issues joined; and, aware of the interesting nature of the cause to the parlies, in a pecuniary point of view, as well as of lite importance of some of the principles involved in its decision, wo have examined it with attention, and have formed an opinion which we believo to be correct. The act incorporating the proprietors of the Fryeburg canal was passed on the second day of March, 1815, and they are vested thereby “ with all the powers and privileges which are by law incident to corporations of the like nature for the purpose of opening a new channel for Saco river within the town of Fryeburg” from one point on the river to another, particularly described in the act. The second section declares that the persons named in the first sec tion “ shall be liable in their individual as well as in their corporate capacity to make good all damages sustained by any person or persons, in consequence of opening said new channel 5” and it creates a lien upon the real estate of the several corporators. The third section declares “ that in all cases where any person shall bo damaged in his property, by reason of opening or managing said new channel or canal, and the said proprietors do not within thirty days after being requested thereto in writing, make or tender reasonable satisfaction to the acceptance of the person so damaged, such per • son damaged as aforesaid, - may apply in writing to the Court of Common Pleas or the Supreme Judicial Court holden within the county where the damage is sustained, within two years thereafter for redress.” The section then goes on and prescribes the particulars of such proceeding by complaint. An additional act, passed on the 20th of June, 1816, prescribes some further restrictions as to the mode of prosecution by complaint; authorizes the proprietors to purchase and hold real estate on the river and canal to a certain amount; and declares that ail claims or right of action, against the corporation or the members thereof, shall be barred at the expiration of four years from the time the cause of action shall have accrued, The act of February 23, 1818, bars all such claims oí — 288 — right of action at “ the expiration of six years from and after the time the said Saco river shall have been turned, and taken its course through the said new channel.” The act of June 19, 1819, merely relates to the choice of assessors and the assessment and collection of sums assessed, and has no relation to this cause. Neither of the acts before mentioned limits the time within which the canal was to be opened and the river to be turned into and take its course through it; nor does either of them authorize the proprietors-to demand or receive any toll from those whose property should be transported upcin its waters. The defendants have severally pleaded seven pleas, viz ; — the general issue and six special pleas in bar. Four of the six are pleas founded on the general statute of limitations, or the special limitations in some of the acts before mentioned ; the sixth is a plea of conformity to the act of incorporation in opening the canal. The seventh plea states in substance, the organization of the proprietors under the act of incorporation and some of their proceedings preparatory to their commencing the work intended; and each defendant in this plea says that the acts done and complained of in the writ, were done by him, as one of the corporation, and under its' authority, in opening the canal. The plaintiff to this replies and says that the proprietors did not open tire canal in conformity to the act. To this there is a general demurrer. At present we shall confine ourselves, to the examination of the cause as presented on this issue; waiving the numerous questions arising upon the six other issues. We adopt this method, because the seventh plea discloses the character in which the defendants acted, and opens the whole subject to consideration, as well as the legal objection to the sufficiency of the replication to this plea; though there is no doubt we are at liberty to examine all the merits of the cause, so far as facts are concerned, upon the general issue; for in the agreement of the parties as to the appointment and powers of the commissioner, it is expressly stated, that the court, upon the facts reported by him, and upon the several pleadings which have terminated in demurrers, shall decide the cause. Prior to the act of incorporation in 1815, Saco river passed — 289 — through tho town of Fryeburg iu a very circuitous manner. By the opening of the canal, its winding course has been essentially altered, and it lias been shortened fifteen or eighteen miles in that town. It, is stated or admitted that until it was so shortened by means of the canal, “ the inhabitants of the State of Maine, as well as others, had been accustomed to float their logs and timber down and along said river, in its ancient channel, through and below said Fryeburg” The allegations in the writ aro, that the defendants on the first of July 1815 “removed and opened tho banks of said river, and thereby diverted and turned a great portion of the water of said river from its natural and usual channel and course, and until tho commencement of this action the water of the same river, by means of the same opening of said banks, was so diverted and turned from its accustomed channel, and the defendants thereby obstructed and prevented the floating and passing of logs and lumber along tho usual channel of said river, as before the opening of tho bank.” The plaintiff then avers that his logs which he had in Saco river above the opening in the hank, “by means of the opening and removal of said hank of said river as aforesaid, were prevented from floating down tho same river, as they otherwise would have done, and thereby were carried from the natural channel of said river, and became of no value, and were wholly lost to said Spring Whatever acts the defendants did, of which tho plaintiff complains, they claim to justify under the act of incorporation. This act and those additional thereto, the plaintiffs declaration and the pleadings, together with the report, present three general questions to view: J. Whether the plaintiff has suffered any damages for which he ever could maintain any legal process. 2. If so, does a common law action furnish a legal remedy for their recovery ? 3. Has the remedy been lost by the operation of any of the statute limitations on which the defendants rely in their pleas. Damnum absque, injuria, is not a legal, novelty. It does not necessarily follow that because a plaintiff may have sustained a serious injury in his properly, consequent «¡ton ¡.he voluntary acts of a defendant, that therefore he has a right to recover damages for that k290 jury. Some acts may be justified by an express provision of law, or the damage may have arisen as the consequence of those acts which others might lawfully do in the enjoyment and exercise of their own rights and management pf their own business; or it may have resulted from the application of those principles by which the general good is to be consulted and promoted, though in many respects operating unfavorably to the interests of individuals in society. Other instances might be stated. Such is and must be the law of society,. But we proceed to the consideration of the first question. Fresh water rivers, thqugh in point of properly, they are prima facie private, yet they may be of public interest, and belong to the people at large as public highways. Rivers of public use in the transportation of property are of this class; and being subservient to commerce, have by general consent of mankind and by the rule and authorities of the common law been considered as things of common right. Sir Matthew Hale, in his learned treatise de jure mark, lays down the doctrine that fresh rivers belong to the owners of the adjacent soil; but that such rivers as well as those which ebb and' flow, may be under servitude of the public interest; that is, may be of public use for the carriage of boats, fee. and in this sense may be considered as public highways by water. Hurg. Tracts, ch. 3, 8 ; Davies Rep. 152; 4 Burr. 2162; Palmer & al. v. Mulligan & al. 3 Caines 307 ; 3 Kent’s Com. 344; Berry v. Carle & al. 3 Greenl. 269. Saco river in the town of Fryeburg is one of the character above-described ; not a navigable river, however deep and large, in common law language, being above tide waters ; but one under servitude to the publie interest,' and over the waters of which the public have' a right to pass. In this respect such a river resembles a highway on land; for the land over which a highway is laid out is private property ; yet the highway belongs to the public for the common use., The owner of land adjoining a fresh water river owns to the thread of the river; so if a man purchase land bounded on one side by a highway, the deed will convey to him the land as far as the centre of the road. 3 Kent’s Com. 349, and cases there cited. The, legislature, if they see cause, may lay out a highway; and for reason? — 291 — satisfactory lo thorn, they can discontinuo or change the course of it. It is equally true, and is admitted by the counsel for the plaintiff, dial tiie legislature may alter the direction of a river when the public good requires it; and that if the act incorporating the proprietors of the canal in question was passed for public benefit aud not for private accommodation and advantage, the act is so far constitutional. .But ho contends that individual interests and personal or private considerations were the only objects in the view of the legislature. it is said that this fact appears from the report; it only appears dial thirty years ago “ it bad been deemed of great importance by a portion of the inhabitants of the town to produce that result” (the diversion of the waters of said river as aforesaid) “ for the advancement of their agricultural interest and enhancing the value of their hind situated' upon and near the river; and the undertaking had been commenced of opening a communication through the high land which separated Bear and Bog ponds.” The opinions and proceedings above mentioned do not appear to have any connexion with ii 10 act in question or with the persons therein named. Besides, as we determined in the case of Thomas v. Mahan & al. 4 Greenl. 513, wo aro not at liberty to travel out of the act in search of its meaning; but must give it such a construction as its language au-thorises and seems to lequire; remembering at the same time that when the constitutionality of the law is in question, we should be on ■our guard not to decide and pronounce it to be unconstitutional, by ascribing motives for its enactment which perhaps never existed, and ■excluding from our view those facts and considerations which might have justly had an important influence on the mind of the legislature. Marshall C. J. in the case of Fletcher v. Peck says, “ The question whether a law he void for its repugnance lo the constitution, is .■it all times a question of much delicacy, which ought seldom, if ever, to bo decided in the affirmative in a doubtful case.” The con-•siitution of Massachusetts in the 4tb article of ch. 1, as originally 5os >jm. j, authorised the legislature to establish and ordain all manner ■ J' wholesome and reasonable laws, not repugnant to such constitution, •>:; they should judge to be (or the good and welfare of the common-...oaMi and of the subjects of the same And in the 10th article of — 292 — the Declaration of Rights it is stated that “ whenever the public ex» igencies require that the property of any individual should be appropriated to public uses, he' shall receive a reasonable compensation therefor.” Under the above mentioned limitations it is the unquestioned province of the legislature to determine as to the wisdom and expe» dience of a law, and how far the public interest is concerned, (if in any degree,) and may properly be influential in the enactment of a law directly operating on private property or private rights. In the case before.us the legislature have made provision for compensation to those injured by the opening the canal and the diversion of the river into it; and we hear no complaint from those whose lands have been appropriated for the purposes of the canal, or those whose lands may have been rendered less valuable, if there are any such, by so important a change in the course of Saco river. How far a a person whose private property has not been taken from him by means of the act of incorporation, has a right to contest the question of constitutionality, is worthy of consideration. On principles of analogy it would seem he has none | but we will not pursue this inquiry, or decide the point. We apprehend that the question of constitutionality does not in judicial consideration, depend on the proportion which the public interest bears to private interest, in the application of the restrictive principle on which the plaintiff’s counsel relies. In the case of Commonwealth v. Breed, 4 Pick. 462, the court observe, “ but it is said this grant was made upon the petition and for the sole benefit of an individual, and was not needed for the accommodation of the public. It is doubtless true that the leading motive of the defendant in erecting the bridge was private profit 5 and so almost all other enterprizes, many of which have resulted in great public improvements, have originated in private gain. We. can see no valid objection to the constitutionality of this grant.” The grant to Breed was to erect a bridge from Chelsea to Belle Island in Boston harbor ; and the court lay down the principle before stated in this opinion, that “ in all cases the legislature lias the power to inquire when the public convenience and necessity demand these partial obstructions and interruptions to navigation, and — 293 — upon what terms and conditions they may be established.” The act of March J f>, 1821, establishing the Cumberland and Oxford canal corporation, authorizes the corporation to “ take and use the lands of private persons, acquiring the same title to said lands as is acquired by the public to lands appropriated for public highways, and paying a just compensation therefor.” In the act establishing the Kennebec and Androscoggin canal association, passed March, 4S 1826, there is a clause exactly in the same words. Are these acts, unconstitutional in respect to the foregoing provision ? In the act, oí June 22, 1793, incorporating the proprietors of the Middlesex canal, there is this clause : — “ Whereas it may be necessary in the prosecution of the foregoing business, that the property of private! persons may (as in the case of highways) be appropriated for the public use ; in order that no person may he damaged,” &c. &,c„ The act then prescribes the mode for obtaining compensation. In the act of March 10, 1792, incorporating the proprietors of the Massachusetts canal, there is a more extensive authority given. And similar power is given in the following acts, viz. that of 10th March, 1797, incox-porating the proprietors of Ten Mile Falls. So in the act as to Saco falls canal, of February 1803, and in that of Medford canal of March 1805. The act of March 1793, empowering Charles Barrett to open and make a canal in the county of Lincoln is more in point still. On his application he was authorized “ to open and cut a navigable canal from the upper part of Barrett's town (now Hope) so called, in said county of Lincoln, beginning at the distance of twenty five miles above the head of the iide in George's river, so called, in the county aforesaid, to communicate with the sea, at the mouth of said river.” The same power was given to take and appropriate private property as in the other aols before cited, making compensation for it. Here a sufficient quantity of water is to be taken for the canal; and the preamble of flic act states that the object in view in making the canal was to avoid the falls in George's river. Had not the legislature as much right to change the course of Saco river and shorten it thereby fif leen miles, as to avoid an obstruction occasioned by falls ? Thu net incorporating the proprietors of iho locks and canals on Conned • — 294 — icut river confers similar powers; and among others, John Worthington, Caleb Strong and Theodore Sedgwick appear in the act as proprietors ; three of the most eminent lawyers in that section of the country. Many other, acts similar in principle might be mentioned. Ail these canals and locks are or were to be made at private expense, and for the profit of the proprietors; yet as the legislature granting the several charters considered that a public good would result from the existence of this species of river or highway, they gave to the proprietors the same power of appropriating private property in effecting the object in view as is exercised in the location of highways. But we have never heard of any objection to these acts on the ground of unconstitutionality; and yet why are they not as liable to the objection as the act incorporating the proprietors of the Fryeburg canal ? They were authorized merely to open the canal or new channel for Saco river; no time was limited within which the channel should be completed, nor does the act require it to be of any particular width.or depth, or degree of excellence, convenience or safety, as it respects those who might transport through it, their boats, logs or lumber; no toll was granted to the proprietors, nor, by the act, were they bound to keep it in repair or free from obstructions after it was once opened according to the act. Whether the new channel opened by the defendants, under the authority of the corporation, is more or less safe and convenient than the river before the diversion of it, we apprehend to be no question in this cause ; if properly opened, the defendants are not responsible. The act of incorporation empowers the corporation to open a new channel for Saco river, between two given points; and the act of February 23, 1818, as before stated, bars all claims for damages 5{ at the expiration of six years from and after the time the said Saco river shall have been turned and taken its course through the said new channel.” The several acts must be construed as one act, being in pari materia. What then did the legislature mean, in the absence of all descriptive language, by the words “ a now channel for Saco river?” The act of 1818, fixes the liability of the corporation and its members, for damages, as terminating at the limo of — 295 — tlm turning of the river and taking its course through the new channel ; and allows six years after that time to prosecute for the accru - ed damages. On this principle, the new channel seems to have been contemplated as opened when the river should be turned into it and take its course through it j and it is slated in the report that “ since the year 1820, all the water of said river has been diverted from its ancient channel at RusseWs creek, so called, in said town oí' Fryeburg, and flowing through Bear and Bog ponds and meeting; its former channel again near the laud of John H Frye, and running in this new course through what is called the canal.” According to this fact, it seems that such a new channel was opened, sometime in the year 1820, as the legislature intended by the act of incorporation. The report further states that Spring was the owner of a large quantity of logs in Saco river from 1821, to the commencement of the action, and those arc the logs mentioned ¡u the writ; and this implies that ho did not own thorn till after the canal was opened and the course of the river changed. In addition to this, it appears by the writ that that the gravamen alleged, which we have before cop ied verbatim from the declaration, has no connexion with or reference to any insufficiency or imperfection of the new channel; but, all which the plaintiff complains of is, that the defendants, by removing the banks of the river, prevented his logs from floating down the river as they would have done, if there had been no diversion * instead of which they wore carried into the new channel. All tin’s is true; but do these facts lay a foundation on which this action can be sustained, when by an act of the legislature the proprietors had a legal authority for diverting the river from its ancient channel t Tn our allusion to the limitation in the act of 1818, which has been made above, our only object was to aid us in giving to the expression in the first act, “ opening a new channel,” our construction a;; to its import and meaning ; and without reference to the constitutionality of it, against which the plaintiff objects. The plaintiff in bis declaration does not allude to either of the acts before mentioned, much less claim any damages in virtue of any of their provisions ; therefore if the facts which have been reported to us, in con296 nexion with 'those provisions, amount to a justification of their conduct, the action of course must fail. Having thus considered the general ground of defence under the first head or division of the cause, we now proceed to examine the •special ground, presented on the demurrer to the replication to the seventh plea. The substance of this plea has already been stated, and also of the replication. The plea states a good defence, and the question is whether the replication has avoided it. As we have before observed, the act of incorporation limits no time within which the new channel or canal should be completed ; and in such a case the general principle of the common law implies and requires that it should be done in a reasonable time. In such a case as this, the question as to reasonable time is matter of evidence, depending on facts which are not before the court. When the facts are found, it is a question of law. It is true that the length of the canal is given; but as to the time and expense requisite for its completion the court know nothing. The replication professes to avoid the plea by saying that the corporation never opened the new channel according to the provisions of said acts; and on the demurrer, the counsel for the defendants contend that the replication is bad, as it contains no averment of any neglect, or that a reasonable time had elapsed, before the plaintiff sustained the injury of which he complains ; it being a traversable fact, as much as an averment of special notice or of performance of a condition precedent on the part of the plaintiff is traversable. These are familiar principles. The plaintiff’s counsel in reply, contends that his replication puts every thing in issue, including the question of reasonable time. The averment is that the proprietors have never opened a new channel, in the prescribed rout in manner and form as in the said acts is provided 5 and yet these acts contain no provision as to time. Whether a reasonable time had elapsed or not, is not the question; but whether on demurrer the averment that it had elapsed is not essential to the sufficiency of the replication. Upon the principles of pleading wc arc strongly inclined to the opinion that it is. Nothing was averred in it but a nonconformity to the provisions of the acts, in the manner of opening the new channel for Saco river. — 297 — Our opinion is, that, the defence is sustained upon the broad, general ground on which we have examined and placed it; and it seems to be also on the demurrer lo the replication to the seventh plea ; and thus we close our observations on the first head or division of the cause. The disposition which we have thus made of the cause, renders it unnecessary for us to proceed any further; but still, as to the second division of the subject, we would observe, that the ground of action assumed by the plaintiff is not covered by the specific process which the act of incorporation has prescribed. It was the usual mode of redress pointed out in acts of a similar character previously passed, having for their object the claims of those whose property might bo taken or appropriated for the contemplated purposes. From the provision of a remedy for this class of persons and no others, an argument may well be drawn in favor of the defence, and of the exemption of the proprietors from liability for consequential damages like those demanded in this action; inasmuch as the act does not declare them liable for such damages, nor liable for repairs, nor grant them any toll. Towns are expressly made liable for tho repair of highways, and for damages to individuals suffering from bad roads ; and corporations entitled to and receiving toll are also liable on that principle. As to the questions arising on the pleadings, based on the statute of limitations, being the last division of the cause, we forbear all observations, and waive the examination of them, as wholly unnecessary. Plaintiff nonsuit,