Charles v. Monson & Brimfield Manufacturing Co.

Shaw C. J. delivered the opinion of the Court. The questions in this case arise upon a complaint against the respondents, for damages occasioned by flowing the complainants’ meadows, under the several acts for the regulation of mills. It is a proceeding founded on statute, and must be governed by the provisions of the statutes. The most material question in the present case is, whether under the statutes for the regulation of mills, the owners of meadows injured by flowing, can maintain this process against those who have heretofore been the owners and occupiers of such mills, and kept up the dams and flowed lands, after they have ceased to be such owners and occupants. The question is not without difficulty, as all the provisions of the statutes are formed with a view to settling the future annual or gross damages, as well as past damages ; and they imply that the respondents are qvvners and occupants of the mills and mill-dams, at the time of commencing the process. And it is no doubt true that the legislature had in view the case which would most commonly occur, that, namely, where the same person who erected the dam, would continue the owner to the time of the complaint. Still the question is, whether the statute is not broad enough in its terms, by a just exposition, to embrace both species of damage. The original act, St. 1795, c. 74, did not distinguish between past and future damage ; it provided in general terms for the recovering of damages ; but it was sufficiently distinguished by the subject matter. The past damages were actually sustained and were to be absolutely assessed and recovered by the process ; the future damages were to be estimated provisionally, and to be' recovered afterwards if the dam should be kept up. There was no limitation of the time for which the [75] past damages should be recovered. But by St. 1825, c. 109, § 2, such a limitation was established, and it was provided that a complainant should not recover for more than two years previous to the commencement of his process.* Since the decision in Stowell v. Flagg, 11 Mass. R. 364, t has been uniformly held, that for damages thus sustained, no action lies at common law. The statute having in terms made it lawful for the mill-owner, to erect his dam and keep up his head of water, it seems impossible to treat the act afterwards as a tort or an illegal and wrongful act, and thereupon to give the owner of the land an action adapted only to afford a remedy for wrongful acts. In the case of Holmes v. Drew, 7 Pick. 141, it was decided that a mill-owner is not liable for damage for flowing lands, before his title commenced. It is perfectly certain, therefore, that if the complainants have not this remedy, they are wholly without remedy ; and by frequent alienations of the mill property, which may be made without the knowledge of the land-owner, the latter would be wholly defeated of the right to damages, intended to be secured to him by the statutes. But considering that the statutes have distinctly two objects m view, the recovery of damages already sustained, and an estimate of the damages, gross or annual, which may be incurred afterwards, and security for the payment of them, and that the complaint is formed with this double aspect, the Court are of opinion, that the statutes can be properly so construed, as to give the party a remedy for past damages only, where the respondents have been owners and occupiers of a dam, which has caused the complainants’ lands to be flowed, although they have ceased to be such owners and occupiers at the time of the complaint. Those provisions only of the statutes will be applied, which are applicable to claims for damages already accrued. It was objected, that although a party might have a remedy on such a maim, upon a complaint specially adapted to such a case, yet upon such a complaint as the present, in the usual form, praying for past and future damages, he could not re [76] cover for past damages only, and that the demurrer was well taken. But upon consideration, we think that this objection cannot be sustained. It seems to be the common case, where a party claims more than he can establish by proof; nevertheless, he will recover as much as he can prove, being within his claim. A complainant may not know, when he commences his suit, whether the respondents will be responsible for both past and future damages ; there may have been alienations and changes of title and occupation. He therefore lays his claim for the whole. It is a question of evidence and not of pleading. The respondents have sufficient notice of the nature and extent of the claim ; for by claiming the whole, the complainant demands each part. The judgment will be adapted to the case proved ; the warrant to the sheriff, to summon a jury to assess the damages, will be shaped so as to meet the case thus proved and shown by the judgment, and the verdict will follow the warrant. As to the plea of alienage, we think it is well answered by the replication. The statute of the United States passed April 14, 1802, provides that the children of persons, who then were, or had been, citizens of the United States, though born out of the limits of the United Slates, should be considered as citizens, with a proviso not affecting the pres ent question. The replication brings Miranda Charles within this description, by showing that her father was a citizen of the Commonwealth after the treaty of peace, and after the adoption of the constitution. It does not distinctly appear, where her father died ; nor is it material. In the case of Manchester v. Boston, 16 Mass. R. 230, this statute came under the consideration of the Court. They say, “ without doubt the object of Congress in making this provision was, to naturalize the children of actual citizens who might be born abroad, whether their parents were living or not, at the time of passing the act.” The Court are therefore of opinion that the plea to the alienage of Miranda, one of the complainants, cannot be sustained. In regard to the objections taken to the deed under which Darius Charles claims, the Court are of opinion, that the [77] exceptions are immaterial. It appears by the report, that Darius took a deed of these three quarters, which was duly recorded he entered under it and had seisin and possession, claiming title. This is sufficient against the respondents, who are strangers not claiming title, especially when it is considered that a judgment in this suit is not conclusive upon the title. It was rather hinted at, than argued, that this deed could not take effect, because at the time, the grantors were disseised, the respondents having flowed the lands before the date of the deed. But the obvious answer is, the act of flowing was a lawful act; it was a rightful claim to an easement in the owner’s land ; it constituted neither an adverse entry, nor possession, nor even claim ; and could in no sense constitute a disseisin, or defeat or affect the operation of the deed. In regard to the title of Miranda, by proof of her being one of the heirs of John Charles, the Court are of opinion, that the proof as it stands, is deficient, though from the circumstances it is highly probable, that the fact can be easily and fully proved. If this fact is not conceded, there must he a new trial. Footnotes [*] Extended to three years by the Revised Stat. c. 116, § 17.