Inhabitants of Palmyra v. Waverly Woolen Co.

Emery, J. From the evidence for the plaintiff and from the uncontradicted evidence for the defendant we find the following to be established as the material facts: — In pursuance of its statutory duty the plaintiff town, Palmyra, about the year 1880 built a highway bridge in that town across the Sebasticook Fiver, a stream not navigable. Afterward in 1891, at a point on the river three and one-eighth miles below this bridge, the defendant erected and has since maintained on its own land a dam across the river as authorized by the “Mill Act,” P. S., chapter 94. This dam was about ten feet high above the bed of the river. With the water even with the top of the dam the level of the water ran out about a mile above the dam. With two and a half feet of water running over the dam the level ran out about two miles above the dam and one mile below the bridge. At this latter stage of the water the surface of the water at the bridge was ten inches higher [137] than at one mile below. At a normal pitch of the water its -surface under the bridge was some four feet below the lowest part of the bridge. The flowagé caused by the dam extended up the river for some distance above the bridge. Through all the periodical freshets, spring, fall and winter for the ten years after the dam was built, from 1891 to 1901, no harm came to the bridge from freshets, the water not troubling it. In April, 1901, however, there occurred on this river as on many other rivers in the State a very unusual freshet. The litre had not been known on that river since 1887 and had seldom occurred during the century, though the freshet of 1887 and perhaps one or two previous ones had been as high or even higher. Though very unusual it was not unprecedented. In' this freshet of 1901 the water of the river rose suddenly and so high that at the bridge -it reached the bottom of the structure, and the cakes of ice floating down struck the bridge and threw it down into the river. There was no evidence that the defendant company did not exercise all due diligence to give the freshet free vent through the gates and waste ways of the dam. The only complaint was that the dam was-too high. Under these circumstances does the law shift the loss from the town to the owner of the dam, or does it leave the loss where it fell? The answer is to be found in a consideration- of the limitations upon the right given by statute, R. S., ch. 94,- to ripai’ian owners upon streams not navigable to erect and maintain dams for the purpose of operating mills. The right is given in the broadest terms with no limitation as to the height of the dam, except that it shall not be so high as to injux’e prior mills on the same stream. National Fibre Board Company v. Lewiston & Auburn Electric Light Company, 95 Maine, 318, 321. There is no such express prohibition in the statxxte against maixxtaining the dam so high as to injure prior bx’idges, and the question has been mooted whether such a prohibition is implied; whether, on the contrary, the town is not obliged to raise its bridges as water power is developed under the statute. But, ignoring this question and conceding ai’guendo without deciding that the statutory right' of the riparian owner to erect dams on his land for manufacturing pux’poses is limited to some extent by the [138] height of a prior bridge above on the same stream, we think the limitation as to height is only that the dam shall not be so high as to injure the bridge at the usual and ordinary stages of the water throughout the year, including the usual recurring and to-be-expected freshets at the different seasons as they occur in a series of years. China v. Southwick, 12 Maine, 238; Smith v. Agawam Candi Co., 2 Allen, 355. If the production of water power must be so limited that low bridges will not be affected by extraordinary and unusual freshets which occur but seldom, a few in a century, the development of industries dependent upon, or facilitated by, water power will be often greatly hampered, if not absolutely prevented, to the great loss of the public. Applying even this rule to the case at bar, the defendant company’s dam was not an unlawful structure nor of unlawful height. The bridge was not injured by the highest water of any freshet for a decade. The freshet, in which it was carried away by the ice brought down by the current, was a very extraordinary one, caused by unusually heavy rains at the season of melting snows. This was to human ken a fortuitous and very infrequent combination of powerful natural causes, unusual and unexpected. The resulting loss must, therefore, remain where it fell. It may be observed that this is not a case of regular fiowage of a road by a dam. Nothing was regularly or periodically overflowed. Hence the case is not within the purview of those decisions maintaining actions by towns for flowing out the roads they were by statute obliged to maintain. Again, it is not a case where the dam must be lowered, or the road raised, in order to use and keep the latter open for travel. This is a case of a bridge only, and not only was the bridge not regularly or periodically overflowed by the dam, but it was not overflowed even at this unusual and unexpected juncture. The water simply rose so high under the bridge that cakes of floating ice struck the bridge and pushed it from its piers. The case, therefore, does not seem to be within sections 37 to 42 inclusive of the Mill Act, (eh. 94, R. S. of 1904) providing for cases of fiowage of a highway. Motion sustained. Verdict set aside.