Ingram v. Maine Water Co.

Peabody, J. This was a complaint for flowage of the plaintiff’s land by the defendant’s mill-dam under the Mill Acts of Maine, filed in the Supreme Judicial Court for the County of Kennebec. The defendant was defaulted at the return term of said court. Commissioners were appointed and made them report awarding as damages $3 annually and $60 in gross. At the request of the plaintiff, a jury was impanelled to try the cause. The report of the commissioners was under the direction of the court given in evidence to the jury, and evidence was offered by the plaintiff tending to contradict the report. The court ruled that such evidence could not be received unless misconduct, partiality, or unfaithfulness on the part of some commissioner was shown; and to this ruling the plaintiff excepted. The question raised by the exceptions is whether the second clause of sec. 12, chap. 92 of the R. S. 1883, relative to mills and mill-dams is constitutional. The section is as follows:— “Section 12. If either party requests that a jury may be impanelled to try the cause, the report of the commissioners shall, under the direction of the court, be given in evidence to the jury; but no evidence shall be admitted to contradict it, unless misconduct, partiality, or unfaithfulness on the part of some commissioner is shown.” This section is claimed by the plaintiff to be inconsistent with the provisions of Sec. 20, Article 1, of the Constitution of Maine which is as follows:— “Section 20. In civil suits and in controversies concerning property, the party shall have a right to a trial by jury except in cases where it has heretofore been otherwise practised; the party claiming [572] the right may be heard by himself and his counsel, or either at his election.” The Mill Acts of Maine originated under the laws of Massachusetts two hundred years ago when the conditions of the country and the very great necessity of utilizing water power were reasons therefor, which since the introduction of steam and electrical power do not so obviously exist, but they have been so long recognized and upheld by judicial decisions that in their general scope their constitutionality is no longer debatable. The principle on which these laws is founded is the right of eminent domain, the sovereign right of taking private property for public use. Cooley’s Const. Limitations, §§ 534, 535; French v. Braintree Mfg. Co., 23 Pick. 216; Jordan v. Woodward, 40 Maine, 317; Great Falls Mfg. Co. v. Fernald, 44 N. H. 444; Scudder v. Trenton Delaware Falls Co., 1 N. J. Equity, 695, 23 Am. Dec. 756; Olmstead v. Camp, 33 Conn. 532, 89 Am. Dec. 221. Their validity implies the power of the legislature to authorize a private right, which stands in the way of an enterprise to improve the water power, to be taken without the owner’s consent, if suitable provision is made for his just compensation. The construction which the courts have generally given to the words “property taken” in the constitution is that they include permanent damage to property. In Grand Rapids Booming Co. v. Jarvis, 30 Mich. 308, it is held that an injury to the property of an individual is equivalent to taking, if it deprives him of its ordinary use, and entitles him to compensation. Nichols v. Somerset, etc., R. R. Co., 43 Maine, 356; Cushman v. Smith, 34 Maine, 247; Hazen v. Essex Co., 12 Cush. 475; Boston & Roxbury Mill Corp. v. Newman, 12 Pick. 467, 23 Am. Dec. 622; Belknap v. Belknap, 2 John. Ch. 463, 7 Am. Dec. 548. Chief Justice Shaw in Murdock v. Stickney, 8 Cush. 113 makes a distinction between the taking of the corpus of the property of an owner and incidental damages caused to his land by the mill-owner. But he decides that it is now too late to inquire whether if this were an original question this legislation would be considered as trenching too closely upon the great principle which gives security to private rights. Whatever the principle upon which the Mill Acts is founded, the right thereby granted [573] is restricted by the constitutional condition that the person whose land is flowed shall receive just compensation; and here an-important controversy centres upon the tribunal which is to assess the damages. If the damages must be determined, as issues of fact are decided at common law, a jury is the only proper tribunal. In a complaint for flowage there are some elements of a suit at law. Clement v. Durgin, 5 Maine, 9; Bryant v. Glidden, 36 Maine, 36; Hall v. Decker, 48 Maine, 255; Henderson v. Adams, 5 Cush. 610; Kennebec Water District v Waterville, 96 Maine, 234. But there are others which might be only within the jurisdiction of a process in equity. The damage already sustained, which might be determined by an action at law, is not the full measure of compensation which the land owner is entitled to receive. There are yearly damages thereafter and damages in gross to be assessed. Moor v. Shaw, 47 Maine, 88; Hill v. Baker, 28 Maine, 9. A careful examination of authorities satisfies us that it is not a case where as a matter of right a party is entitled to a trial by jury. The claim for damages is not a civil suit or a controversy concerning property within the meaning of the constitution. The proceeding is judicial in character, and it is sufficient if the designated tribunal is impartial. 2d. Dillon on Municipal Corps., 482; Cooley’s Const. Limitations, § 563; Mason v. Kennebec & Portland R. R. Co., 31 Maine, 215; Rhine v. McKinney, 53 Texas, 354; Petition of Mt. Washington Road Co., 35 N. H. 134; Rich v. Chicago, 59 Ill. 286; Stowell v. Flagg, 11 Mass. 364; Stevens v. Middlesex Canal, 12 Mass. 466; Backus v. Lebanon, 11 N. H. 19; Dalton v. Northampton, 19 N. H. 362; American Print Works v. Lawrence, 21 N. J. 248; Livingston v. Mayor of New York, 8 Wendell, 85; Adolphus Koppikus v. State Capital Com’rs, 16.Cal. 249; Whiteman’s Executors v. Will. & Sus. R. R. Co., 2 Har. (Del.) 514, 33 Am. Dec. 411; Central Branch U. P. R. R. Co. v. Atch. Top. & Santa Fe R. R. Co., 28 Kan. 453; Balt. Belt R. R. v. Baltzell, 75 Md. 94; Bruggerman v. True, 25 Minn. 123. It is claimed on behalf of the plaintiff that .he is absolutely entitled to a jury trial, because under the statutes other issues beside the question of damages which- are not admitted by the default [574] remain to be tried, namely, how far the flowing of the complainant’s land described in the complaint is necessary, and for what portion of each year such land ought not to be flowed. These questions are involved in estimating the damages, and their determination serves to make the rights of the parties specific by showing how far the payment of annual or gross damages is a bar to further proceedings. It is also contended that the provision of statute which authorizes the assessment of gross damages is a new issue which requires decision by a jury; but we think it is only a judicial question. Gross damages are simply the equivalent of annual damages which are to be ascertained by the same mode and upon the same facts. The finding and report'of the commissioners may upon the application of either party be reviewed by a jury. This would meet the points raised by the complainant’s counsel already considered, if the trial was unfettered. It is said that the provision which authorizes the introduction of the commissioner’s report in evidence before the jury, and making it conclusive unless misconduct, partiality, or unfaithfulness is shown, deprives the trial of the character of a common law jury trial. King v. Hopkins, 57 N. H. 334; Plimpton v. Somerset, 33 Vt. 283; Howard v. Moot, 64 N. Y. 262. This is undoubtedly true. But the report of the commissioners is competent evidence, and it is something more; it is the finding of a tribunal selected as required by law, whose formal statement of their conclusions of fact is decisive of the rights of the parties, until its decisive effect is overcome by being impeached by evidence. Bryant v. Glidden, 36 Maine, 36. The authorized re-trial of the cause by a jury is a statutory proceeding designed to insure the decision of an impartial tribunal. The statute in question secures the constitutional rights of the complainant, and the ruling of the court being in accordance with its provisions, is correct. Exceptions overruled.