Bassett v. Carleton

Howard, J. The defendant had erected and maintained a dam and sluice on the Carleton stream, in Troy, upon his own land, under a charter from the State, to improve the stream for running logs and other lumber. He was authorized to receive and recover a certain rate of toll for the passage of such lumber, and made liable to pay all damages that any person might sustain, by any failure, on his part, to construct and maintain the dam of the required height and capacity, or to erect and maintain a suitable and convenient sluice. Before any person could be entitled to the benefit of the sluice for floating lumber, he was required to pay the owner of the dam and sluice toll, as provided by the Act, statute 1848, chap. 185, sect. 1, 2, 3, 4. The fifil section of the Act contains a provision, that “ persons driving logs shall be entitled to sufficient water to drive their logs to the twenty-five mile pond, so called, but said Carleton shall not be obliged to turn logs through said sluice, [556] unless there is a, considerable proportion of the logs above ready to be turned over ; and in case there arises any dispute between the owners of said sluice and the log owners, as to the time of turning over logs, the quantity to be turned over, or the amount of water to be let through to drive the same out, the selectmen of the town of Troy shall decide between the disputants, and may appoint one of their number to superintend the execution of their decree, and all parties interested shall be held to pay the expenses of said selectmen.” No question is raised as to the sufficiency of the dam, or the right to receive toll. The selectmen of Troy, for the time, were constituted a tribunal to determine upon the spot, when, and in what quantity, the logs were to be turned over the dam, and the amount of water to be let through, to drive them to the pond. They had exclusive jurisdiction over the subject, and were to exercise that jurisdiction upon the immediate occasion, on application of either of the parties if they disagreed. If the plaintiff had required more seasonable action on the part of the defendant, or more wafer than he was willing to furnish, the decree of the selectmen might have settled that controversy or dispute, by removing the cause and preventing damages. If the plaintiff has neglected his rights and his duty in this respect, he cannot recover damages 'which are the result wholly or in part of his own neglect. So if a statute confer special privtheges, and provide a particular remedy for their invasion, those neglecting that remedy may be without redress for the invasion. It was not competent for the plaintiff to introduce evidence on the points raised at the trial; which were : — 1, whether sufficient water had or not been furnished to drive the logs; and 2, whether the logs had or not been seasonably turned over the dam. The selectmen of Troy had no jurisdiction conferred upon them, by the Act referred to, respecting the sufficiency of the sluice, and the plaintiff was not required to submit that matter to their consideration, as a preliminary proceeding, or to [557] obtain their decision upon any other matter of Controversy, in order to support an action for damages for the insufficiency of the sluice. But as no question was made, respecting the sufficiency of the sluice, the case should not be sent back to a jury on a point not raised, and to hear evidence, to the introduction of which no objection was offered at the trial, and when, perhaps, no such evidence exists. To dispose of the case in that manner, would seem to be oppressive to the defendant, and without any apparent benefit to the plaintiff. Plaintiff nonsuit.