Dixon v. Eaton

68 Me. 542, 1878 Me. LEXIS 156

Opinion

Appleton, C. J.

By B.. S., c. 92, § 1, “ any man may erect and maintain a water mill, and dams to raise water for working it, on his own land, upon and across any stream not navigable.”

The complaint as originally drawn fails to allege that the dam was erected to raise water for the working of the defendant’s mill, and that the same was a water mill. It is not, therefore, within the statute. Jones v. Skinner, 61 Maine, 25. Crockett v. Millett, 65 Maine, 191.

Nor does the amendment, “ that the respondent, on the first day of January, 1872, did erect and maintain, and has continued hitherto to maintain, and still does maintain a water mill, and dam to raise water for working it, on his own land, situated in Wells, upon and across a certain stream, not navigable, known and called as Ogunqnit river,” aid her. The proof negatives every material allegation in the amendment. The mill is propelled by steam and not by water. The dam is not to supply a head of water for the working of the mill, but to float the logs to be sawed there. The case is not within the provisions of R. S., c. 92.

Complainant nonsuit.

WaltoN, BaRRows, Yirgin and Libbey, JJ., concurred.