Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1905-04-29
EXCEPTIONS ovERRuLEp
In the Case Of Jos. w. Foster VS.. Sc
baeo Improvement Co.

The following rescript will be real
with interest by owners uf land situated
OH streams and near dams:
Joseph w. Foster vs. SebaSo Improve
mcnt Co.: Rescript by Wbitehouse, j.
1t has become settled law in this
State that in order TO acquire pre-
|scriptlon right to flow land by means
of a mill dam without the payment Or
damages, it must appear that the land
was flowed for 20 consecutive years. ana
that some appreciabIe damage toit was
thereby occasioned. while the owner u
the land sustains no damage ana can
therefore maintain no suit or process
or in any way prevent such hOwillg, nc
cannot be presumed to have granted oi
|relinquished any of his legal rights. AZ
common law the foundation OF pre-
scr:ptive right to an easement III aho.h
er mans land is the adverse anu uiiii
tcrrupted enjoyment of it Tor PERU
OF 20 wears under a claim OF right Will
| out the payment OF damages ana Will
Tout the consent Of the owner.
Tt is commended by the defendant IN
support of the exceptions that ne leSls-
lativc act of 1898 upon Whlcn TINS COLL
lDlajnt is based, does not nave the erect
Ito modify the common law rule respect
ling the facts essential to establish
lprescriptive right to flow lands and thar
liz is unnecessary for the defendant 10
nroye actual damages to the plaintiff :
land in order to acquire such right.
/ On the other hand, the piaintin con-
tends that the private act in question
lconferred upon the defendant company
rights, privileges and liabilities precise
lly equivalent to those created by the
general niIl act, and consequently that
a prescriptive right to How could not
be acquired by the defendant without
proof that appreciate damage to the
Hand was occasioned by the flowing fol
a period of 20 years.
| The defendant corporation had acquired
no statutory right to construct or main.
tain the dam in question prior to the date
OF the charter granted to it by the act OF
1913, and there is no evidence in the cast
to show that its predecessors i'll the own
| ership of the dam were ever authorized
| by law to maintain it, or that they ever
in any way, acquired the right conferred
by the mill act. 1t is suggested that tho
| character OF the occupancy prior to 1S'
must have been such that If It had beer
continued for 20 years the defendants
predecessors in title would nave acquired
a prescriptive right at common law t
flow the plaintiffs land without proof thai
some appreciate damage to it was there
by occasiOned. 1t is accordingly contend
cd that inasmuch as the evidence TENDED
| to show that the plaintiffs land had beer
each year continuously flowed by means
of the defendants dam for more than Y
years. the period of occupancy by tht
defendants predecessors, with their com,
mon law rights respecting prescription
should he counted with that of the de
PENDANT corporation. holding by privity Of
estate. with all of the rights of the owner
of a mill dam, in order to make up the
period of 20 consecutive years required Il
establish a prescriptive right 1t is con
tended that as the Instructions of the
presiding judge required the defendant II
prove actual damage throughout the en-
tire period Of 70 years as basis for thu
acquisition of Drescriptive right Il
flow, making no distinction between the
period of the defendants ownership ant
| that of it's predecessors, the defendant
corporation was altogether deprived o1
the benefit of such prior to occupancy
and that the instructions complained of
if correct as to the period of the defend
ants ownership must be erroneous as tt
the period of occupancy by its predeceS
Sors.
But assuming that this contention is
correct and that it was not necessary fol
the defendant, in order to establish :
right to flow by prescription. to show tina
any actual damage to the land was occ;u
stoned by the fowage during that por
ton of the 20 years prior to 1885, ant
| hence that the instruction complained q
was erroneous as applied to that portion
of time; still. the error cannot be deemct
cXceptiOnable for the reason that it doe:
not afffrmatively appear from the state
ment of facts that the defendant is az
Srieved by the ruling. 1t only appea r.
that the plaintiffs land was continuousI,
flowed by the dam for more than 20 year.
prior to the date of the writ. 1t docs no
lappear that there was any actual damaC,
to the land during the first three year.
of that time it does not appear that thu
fOwagc during those three years was ad
verse. under Il claim of right. without TIN,
payment of damages or without the con
sent of the land owner. For aught tha
appears in this case the nOwage during
those three wears may have been nv per
mission of the land owner. The case fail
to disclose any foundation for a prescrip
tive right to flow the plaintiffs land dur
ing that period. The entry must therefor.
be:
1 Exceptions Overruled.