Wilson v. Campbell

76 Me. 94, 1884 Me. LEXIS 19

Opinion

Virgin, J.

Even if the complaint be amended as proposed so as to show that the mill and dam are erected upon the land of the respondents as is required by E. S., c. 92, § 1, and Jones v. Skinner, 61 Maine, 25, these allegations cannot remedy another quite as serious a difficulty. For only he can recover damages under the mill-act "whose lands are damaged by being flowed by a mill-dam,” E. S., c. 92, § 4. This language, especially when considered in connection with other provisions of the chapter, evidently refers to lands flowed by water raised by the dam, and situated above the darn. Thus § 3 provides for a regulation of the time of flowing and the height of the water; § 9 for the appointment of commissioners to determine how far the flowing is necessary; § § 12 and 13 forbid flowing when prohibited by the commissioners and furnish a new remedy in certain cases. Damages caused by water let out of the dam is nowhere hinted at in the statute. If the dam is rightfully built, the statute provides the remedy for persons injured in their lands by flowing caused thereby; but the water thus rightfully accumulated must be let out with ordinary care, or the party will be liable at common law for negligence. Frye v. Moor, 53 Maine, 583.

Moreover the dam cannot be maintained for any purpose other than that of raising water for working a water-mill. E. S., c. 92, § 1. Dixon v. Eaton, 68 Maine, 542. The Massachusetts statute is different including flowing below or above the dam.

Complainant nonsuit.

Peters, C. J., Daneorth, Libbey and Syhonds, JJ., concurred.