Baird v. Wells

Wilde J.

delivered the opinion of the Court. The plaintiff’ demands damages for an injury dqne to his real estate, by the erection of a dam across Farmington river by the defendants, whereby the plaintiff’s meadow lands were flowed, and water was set back on the wheel of his mill. By the first section of the Revised Stat. c. 116, the defendants were authorized to flow the plaintiff’s land, and are only liable to the payment of damages in the manner provided by the statute. And this claim the plaintiff has waived. But he contends, that he may well maintain his action for damages to his mill.

Several grounds of defence were relied on at the trial, only one of which is presented for our consideration ; and this arises on an exception taken to the instruction of the court to the jury. By the facts reported it appears, that the plaintiff commenced preparations for erecting his mill in December, 1836, and then laid down two sills for an apron to his contemplated mill, but before he had erected and completed his mill, the defendants had completed their dam and mill below, whereby the plaintiff’s workmen were interrupted and prevented from proceeding with the plaintiff’s work. There was a question as to the priority of the commencing these operations, and also as to the defendants’ prior right under the title of one Isaac Hunter, who erected a mill on the defendants’ mill-site, in 1823 ; but these questions are not material. The jury were instructed, on the whole evidence, that if they believed that the Hunter dam was not abandoned, the plaintiff’s only remedy was under the mill acts. The correctness of the principle laid down depends on the construction of the 2d section of the same statute. That provides, that “ no such dam shall be erected, to the injury of any mill lawfully existing, either above or below it, on the same stream, nor to the injury of any mill site on the same stream, on which a mill or mill dam shall have been lawfully erected and used, unless the right to maintain a mill, on such iast mentioned site, shall have been lost or defeated, by abandonment or otherwise.”

The question is, whether the present case is brought within this prohibitory clause of the statute. And it is the opinion of the Court that it is not. At the time defendants’ dam was erected the plaintiff had no existing mill. The defendants’ dam was erected in April, 1837 ; and the plaintiff’s mill was not completed until the December after. The plaintiff’s race-way from the brook to his mill for the purpose of procuring a head of water, was not begun until September or October, of the same year. Nor was the plaintiff’s mill-site one on which a mill or mill-dam had ever before been erected and used. So that the case is not within the true meaning and indeed the express words of the statute. If the plaintiff has any remedy, it is under the mill acts, as the jury were instructed.

The case of Bigelow v. Newell, 10 Pick. 348, was cited in support of the plaintiff’s claim ; but as that case was decided before the Revised Statutes, it cannot control the obvious meaning of the 2d section of the statute.

Judgment on the verdict.