The independent-reporter. [volume] (Skowhegan, Me.) 1909-1955, 1916-01-13
CLARK VS. GILMAN
Rescript Returned In Case OF Nellie
ID. Clark vs. A. j. Gilman ct al

A rescript has been returned by
Judge King in the case of Nellie ID.
Clark vs. Andrew j. Wilman and AL
bert M Bailey all of Cambridge. The
case was reported at the law court
following the April term of the S. j.
Court last holden in Skowhegan. Wal
ton & Walton of this town appeared
for defendant and Hudson & Hudson
of Guilford for the plaintiff. The
rescript reads as follows:
The case comes up on a report of
all the evidence. 1t is an action of
trespass to real estate. The defend
ants are the owners of mills and a
mill dam across Ferguson Stream in
Cambridge. Maine. The plaintiff
owns a small lot above the dam,
partly covered by the fiowage. and
bounded on its easterly side by the
channel of the stream" She caused
wharfing or abutment to be made
upon her lot extending out to the
easterly and southerly lines thereof
and in height about two feet above
the top of the dam. The abutment
was rough and uneven, especially on
its easterly side next to the channel
and the evidence shows that since it
was built logs running against it in
floating down the channel have
caught on its uneven sides and been
held there by the force of the current
until poled off or otherwise removed
by the log driver May 5, 1914, the de-
hig h,,fv Co.,
a few moments only and removed
with pick poles some of their logs
that We're caught against it. That Is
the alleged trespass. 1t is admitted
that the damage was nominal only
Held: l. The riparian owners use
and enjoyment of his property ada
cent to foatable stream is, in
sense, subject to the use of such
stream by the public for the floating
of logs, If reasonably exercised. He
is bound in the use of his property
not to obstruct the reasonable use of
the stream for such purpose. The
log driver also in using such stream
for the passage of his logs is required
to exercise reasonable care to prevent
doing damage to the property of the
riparian owner.
2. Where logs in their passage
down a fioatable stream, without the
fault of the driver, are caught on the
edge of the riparian owners property,
and the driver casually and from in
cidental necessity enters upon such
property and releases the logs, doing
no appreciate damage, trespass
quare clausam will not lie
.. Assuming, as we do, that the
provision in the plaintiffs deed, that
her lot was conveyed subject to be
flowed, did not prevent her from US
ing her lot in any manner that would
not unreasonably obstruct the use of
the stream as public highway for
the floating of logs thereon, we think
the evidence plainly shows that the
abutment which the plaintiff built on
her lot was an obstruction to the
passage of logs down the channel of
the stream. 1t materially interferred
with the defendants right to a rea-
sonable use of the stream for floating
logs to their mill. 1t was the ex-
istence of that structure placed there
by the plaintiff that caused the logs
to be stopped in their otherwise ma
tural passage down the channel, and
created the incidental necessity for
the defendants to do the acts COM
planned of. For that reason also we
think this action to trespass does not
lie in the plaintiffs favor, especially
where no appreciate damage has re-
suited to her.
Judgment for defendants.
Received Dec. 16, 1915.
EXCEPTIONS OVERRULED IN
COLBY CASE
A rescript has also been received
in the case of Ellen }. Colby vs. limits
of Pittsfield, which had gone to the
law court and in which the exceptions
were overruled.