g. OBSTRUCTING NAVIGATION. — One who without legislative authority erects a dam across a navigable river is liable for all the injuries that result from it, even though had the dam not been erected another obstruction in the river would have produced the same result.2 1 VI. LIABILITY FOR REPAIRS-1. Of Joint Owners. Where a milldam is owned by several persons they are bound, in the absence of a special contract, to defray the costs of repair in proportion to their several interests.3 In several states this question is regulated by statute." 2. Where Dam Is Part of a Highway. If the owners of a water mill, whose pond is raised by a causeway which they maintain by affirmative acts as their dam, but which forms part of a highway which the town is bound to keep Chute Rendered Unnavigable by Flood or Accident. If a dam be built in a navigable stream, in conformity with the provisions of the law, and the chute be rendered unnavigable by flood or accident, the owner of the dam will not be liable for damage occasioned thereby. Roush v. Walter, 10 Watts (Pa). 86. Where the Stream Is Subject to Extraordinary Freshets the owner of the dam is bound to so construct it as to resist such freshets. Gray v. Harris, 107 Mass. 492, 9 Am. Rep. 61; New York Bailey, 2 Den. (N. Y.) 433. See also Dickson v. Burnham, 14 Grant's Ch. (U. C.) 594. In California the rule has been laid down that such care shall be required in the construction of a dam, as discreet or prudent men should use or ordinarily use in such cases, where their own interests are to be affected. man v. Tuolumne County Water Co., 10 Cal. 413; Wolf v. St. Louis Independent Water Co., 10 Cal. 541; Todd v. Cochell, 17 Cal. 97. Hoff Where Raft Could Not Have Navigated River Without Dam. It is no defense to an action for injuries to a raft, occasioned by improper obstructions at a dam, that such a raft could not have navigated the river at all before the dam was built. Volk v. Eldred, 23 Wis. 410. Mutual Rights of Dam Owners and Public. Where one has a right to erect a dam in a public stream, so as not to obstruct its navigation, persons passing such dam are required to use ordinary care, diligence, and skill; but where these are used, and the dam is such an obstruction as to occasion loss to those attempting its passage, the one erecting or maintaining it must answer in damages, no matter what was the stage of the water at the time of passing it. Plumer v. Alexander, 12 Pa. St. 81: Newbold v. Mead, 57 Pa. St. 487. The owner of a mill, having a right to erect a dam upon a navigable stream, is bound to exercise his right in such manner as not to interfere unreasonably with the rights of the public in the use of the stream. Such owner will be liable to an action by any citizen whose reasonable use of the stream to float logs to market he has prevented. Parks v. Morse, 52 Me. 260. Obstructing Floatable Streams. Though a stream is not strictly navigable, yet if it is inherently and in its nature capable of being used for the purpose of commerce, for the floating of vessels, boats, rafts, or logs, a public easement in it exists; and where the proprietor of such a stream, by means of a dam and an accumulation of his logs above the dam under claim of a right to control the stream, designedly obstructs the running of another's logs and refuses to make any provision for the passage of them, he will be liable for the damages resulting therefrom. Brown v. Chadbourne, 31 Me. 9, 50 Am. Dec. 641. See also McBean v. Carlisle, 19 L. Can. Jur. 276; Knox v. Chaloner, 42 Me. 150. 2. Immaterial that Another Obstruction Would Have Produced Same Result. — Clark v. Lake, 2 Ill. 229. 3. Liability of Joint Owners for Repairs. Cooper v. Cedar Rapids Water Power Co., 42 Iowa 398; Alden v. Carleton, 81 Me. 358; Gwinneth v. Thompson, 9 Pick. (Mass.) 31, 19 Am. Dec. 350; Campbell v. Hand, 49 Pa. St. 234; Webb v. Laird, 59 Vt. 108, 59 Am. Rep, 699; Clark v. Plummer, 31 Wis. 442. 4. Regulated by Statute in Several States. Buck v. Spofford, 31 Me. 34; Alden v. Carleton, 81 Me. 358. The New Hampshire statute (Pub. Stat. 1891, pp. 391, 392) relative to the repair of mills, dams, etc., owned by tenants in common, does not, on the neglect of the one tenant, authorize another to erect a new dam substantially different from the former and to call on his cotenant under an appraisal for contribution. Bellows v. Dewey, 9 N. H. 27S. Under the Wisconsin statute (Tay. Stat., c. 56, 43, 44, et seq.), joint owners of milldams, booms, and piers are liable for the expense of necessary repairs, and a summary mode is provided for determining the necessity and expense of such repairs and the time for commencing and completing them. Clark v. Plummer, 31 Wis. 442. in repair, render repairs to it as a highway needful by their negligence in maintaining it as a dam, they are liable to the town for the cost of such repairs. 1 3. To Bridge Erected by Dam Owner Across a Flooded Highway. - Where a dam floods a public highway, and the dam owner erects a bridge or causeway on the highway at the place where it is flooded, and thereby renders it better than it was before the flooding, and the public uses such bridge or causeway, the dam owner is not chargeable with the maintenance and repair of such structure, but the liability for repairs rests with the public authorities. VII. LIABILITY FOR INJURIES TO DAMS. Any person who, without legal authority to do so, destroys or injures a dam, or infringes any right pertaining to the ownership of a dam, is liable for the damage resulting from his acts.3 Injuries Resulting from Reasonable and Proper Use of Stream. But if a riparian proprietor, in the reasonable and proper use of the stream, causes injury to the dam of another proprietor, he will not be liable therefor.1 Removing Dam Which Unlawfully Floods Another's Land. A riparian proprietor who removes a dam which unlawfully floods his land is not liable in damages therefor.5 - Contributory Negligence. There is no liability for injury to a dam where the dam owner's own negligence contributed approximately to the injury. - VIII REMEDIES 1. Of Persons Injured by a Dam-a. INJUNCTION AND ABATEMENT. Where the erection or the raising of a dam, or the improper use of the water of a stream by means of a dam, would violate another's right and cause irreparable injury or danger of such injury, it will be restrained by injunction; and where the maintenance of a dam works an injury to the rights of others for which an action at law furnishes no adequate remedy, equity will interfere and order its abatement to such an extent as will remedy the injury. But the right of equity to interfere is subject to the provisions 1. Where Dam Is Formed by Part of Highway. — Brookfield v. Walker, 100 Mass. 94. 2. Bridge Erected by Dam Owner Across Flooded Highway. Rex v. Kent County, 2 M. & S. 513: Wallace v. Evans, 43 Kan. 509. See the titles BRIDGES, vol. 4, p. 918; HIGHWAYS. 3. Injuries to Dams. Toothaker v. Winslow, 61 Me. 123: Darling v. Thompson, 108 Mich. 215; Quigley v. Birdseye, 11 Mont. 439: Runnels v. Bullen, 2 N. H. 532; Van Rensselaer . Van Rensselaer, 9 Johns. (N. Y.) 377; Gwaltney v. Scottish Carolina Timber Co., 115 N. Car. 579; Canfield v. Andrews, 54 Vt. 1, 41 Am. Rep. 828. Impeding Operation of Mill by Use of Water. Louisville, etc., R. Co. v. Beauchamp, (Ky. 1897) 40 S. W. Rep. 679. No Liability for Exposing Dam to Sun.- An upper riparian owner is not liable for so using the water in the stream that a lower owner's milldam, instead of remaining under the water, is exposed to the action of the sun, the operation of the mill not being impeded. Louisville, etc.. R. Co. v. Beauchamp, (Ky. 1897) 40 S. W. Rep. 679. 4. Reasonable and Proper Use of Stream. Prentice v. Geiger, 74 N. Y. 341, affirming 9 Hun (N. Y.) 350; Canfield v. Andrew, 54 Vt. 1, 41 Am. Rep. 828. Whether or not a particular use of a stream is, under all the circumstances, a reasonable and proper one, is a question of fact for the jury to decide. Prentice v. Geiger, 74 N. Y. 341, affirming 9 Hun (N. Y.) 350. Injuries Caused by Logs in Floatable Stream. - One who places logs in a floatable stream is not liable for the damage they occasion to a dam below, if such dam has no convenient sluice or passageway for logs. Gaston v. Mace, 33 W. Va. 14, 25 Am. St. Rep. 848; Whisler v. Wilkinson, 22 Wis. 572; Miller v. Sherry, 65 Wis. 129. See also Beliveau v. Levasseur, I Rev. Leg. 720. But see Munson v. Hungerford, 6 Barb. (N. Y.) 265. See the title LOGS AND LUMBER. In James v. Carter, 96 Ky. 378, the appellee had maintained a dam in a floatable stream for more than fifty years. It was held that persons engaged in floating logs down the stream, who injured the dam by reason of their negligence in handling their logs, were liable to the appellee for such injury. 5. Removal of Dam Which Floods Another's Land. Winchell v. Clark, 68 Mich. 64. As to the right to abate a dam, see infra, this title, Remedies. - Dam Erected by State. - But where a dam is erected by the state for a public purpose, a person who removes it is liable therefor even though it floods his lands. To the extent that a dam is maintained by the state or by its authority it cannot be a nuisance, and no private person can destroy it because the state neglects to keep it in good preservation or because he considers it dangerous or injurious. Harris v. Thompson, 9 Barb. (N. Y.) 350. 6. Where Dam Owner's Negligence Contributes Proximately to Injury. - Lilley v. Fletcher, 81 Ala. 234. See generally the title CONTRIBUTORY NEGLIGENCE, vol. 7, p. 368. of the milldam acts of the several states.1 When Party Injured May Abate. One upon whose land a dam or a part of a dam is unlawfully erected may remove so much of it as is upon his land.* And where the dam of one proprietor causes injury to another by backing water on his lands or mill above or by obstructing the flow of the stream to his mill below, the party injured may go upon the land of the dam owner and abate the dam to such an extent as will remedy the injury. But he must abate it within a reasonable time, and if he remove more of the dam than is 4 1. Injunction and Abatement - England. Agnew v. McDowell, 14 L. R. Ir. 445; Belfast Rope Works Co. v. Boyd, 21 L. R. Ir. 560. Canada. - Graham v. Burr, 4 Grant's Ch. (U. C.) 1; Wright v. Turner, 10 Grant's Ch. (U. C.) 67; Beamish v. Barrett, 16 Grant's Ch. (U. C.) 318; Dickson v. Burnham, 17 Grant's Ch. (U. C.) 261, 14 Grant's Ch. (U. C.) 594. United States. - Hardt v. Liberty Hill Consol. Min., etc., Co., 27 Fed. Rep. 788; U. S. v. Lawrence, 53 Fed. Rep. 632. Alabama. Rosser v. Randolph, 7 Port. (Ala.) 238, 31 Am. Dec. 712; Ogletree v. McQuaggs, 67 Ala. 580, 42 Am. Rep. 112. California. -Ramsay v. Chandler, 3 Cal. 90; McDonald v. Askew, 29 Cal. 200; Stanford v. Felt, 71 Cal. 249; Heilbron v. Fowler Switch Canal Co., 75 Cal. 426, 7 Am. St. Rep. 183; Paige v. Rocky Ford Canal, etc., Co., 83 Cal. 84. Michigan. - Stone v. Roscommon Lumber Co., 59 Mich. 24; Koopman v. Blodgett, 70 Mich. 610, 14 Am. St. Rep. 527; Turner v. Hart, 71 Mich. 128, 15 Am. St. Rep. 243; A. P. Cook Co. v. Beard, 108 Mich. 17; Mastenbrook v. Alger, (Mich. 1896) 68 N. W. Rep. 213. Missouri. - Smith v. Musgrove, 32 Mo. App. 241; Springfield Waterworks Co. v. Jenkins, 62 Mo. App. 74. Nebraska. Nosser v. Seeley, 10 Neb. 460; Stumbo v. Seeley, 23 Neb. 212; Culver v. Garbe, 27 Neb. 312; Eidemiller Ice Co. v. Guthrie, 42 Neb. 238. --- New Hampshire. Eastman New Jersey. 3 Eq. 25; Quackenbush v. Van Riper, 3 N. J. Eq. Oregon. Esson v. Wattier, 25 Oregon 7. Rigney v. Tacoma Light, etc., Co., 9 Wash. 576. Wisconsin. Sheldon v. Rockwell, 9 Wis. 166, 76 Am. Dec. 265; Patten v. Marden, 14 Wis. 473: Crossby v. Smith, 19 Wis. 449; Wisconsin River Imp. Co. v. Lyons, 30 Wis. 61; Patten Paper Co. v. Kaukauna Water-Power Co., 70 Wis. 659. See also the title INJUNCTION. 2. Abatement by Injured Party. Jewell v. Gardiner, 12 Mass. 311; Lindeman :. Lindsey, 69 Pa. St. 93, 8 Am. Rep. 219; Adams v. Barney, 25 Vt. 225; Richardson v. Emerson, 3 Wis. 319, 62 Am. Dec. 694. See the title ABATEMENT OF NUISANCES, vol. 1, p. 63. 3. Miner v. Gilmour, 12 Moo. P. C. C. 131. 33 L. J. P. C. 98; Graham v. Burr, 4 Grant's Ch. (U. C.) 1; Moffett v. Brewer, i Greene (Iowa) 348; Gates v. Blincoe, 2 Dana (Ky.) 158, 26 Am. Dec. 440; Heath v. Williams, 25 Me. 209, 43 Am. Dec. 265; Hodges . Raymond, 9 Mass. 316; Colburn v. Richards, 13 Mass. 420, 7 Am. Dec. 160; Winchell v. Clark, 68 Mich. 64; Great Falls Co. v. Worster, 15 N. H. 412; Dyer v. Depui, 5 Whart. (Pa.) 584. See also Langford v. Owsley, 2 Bibb (Ky.) 215, 4 Am. Dec. 699. 4. Abatement Must Be Within a Reasonable Time. - Moffett v. Brewer, I Greene (Iowa) Shreve v. Voorhees, 3 N. J. 348. necessary to remedy the injury he will be liable in damages therefor to the owner of the dam. Abatement of Dam Obstructing Navigation. — A dam obstructing navigation in a navigable river may be abated by any one, though it has stood for more than twenty years.2 b. DAMAGES. Any person injured by the erection or maintenance of a dam may recover damages in a common-law action against the owner for the injury done him, unless the right has been taken away by statute.3 Possession Sufficient. - In order to recover it is not necessary to show a title to the land injured; an actual possession is sufficient.1 Equity Will Interfere to Prevent Great Loss or Inconvenience. Where the abatement of a dam would produce great loss to the owner and great inconvenience to the public, equity will prevent such abatement until the question as to the dam owner's right to maintain his dam is decided. Crenshaw v. Slate River Co., 6 Rand. (Va.) 245. 2. Dam Obstructing Navigation. Renwick v. Morris, 7 Hill (N. Y.) 575, affirming 3 Hill (N. Y.) 621. But in New Brunswick it has been held that though a dam erected in a stream which is capable of being used as a highway for floating lumber may be a nuisance as regards the public, and the owner of the dam may consequently be liable to a prosecution for erecting it, yet no person who has not been thereby obstructed in the exercise of his public right to use the stream is justified in destroying the dam. Davis v. Hayden, M. Rolls (1864), Stevens's New Bruns. Dig. 1251. 3. Person Injured by Dam May Recover Damages - England. — Mason v. Hill, 5 B. & Ad. 1, 27 E. C. L. 11. Connecticut. - Noyes v. Stillman, 24 Conn. 15; Robertson v. Miller, 40 Conn. 40. --- Illinois. Stout v. M'Adams, 3 Ill. 67, 33 Massachusetts. Baker z. Sanderson, 3 Pick. (Mass.) 348; Sumner v. Tileston, 7 Pick. (Mass.) 198; Charles v. Monson, etc., Mfg. Co., 17 Pick. (Mass.) 70; Barrett v. Parsons, 10 Cush. (Mass.) 367; Brace 7. Yale, 10 Allen (Mass.) 441, 97 Mass. 18; Hatch z. Dwight, 17 Mass. 289, 9 Am. Dec. 145. Michigan. - Thunder Bay River Booming Co. v. Speechly, 31 Mich. 336, 18 Am. Rep. 184. New Hampshire. Great Falls Co. v. Wors Vermont. Johns v. Stevens, 3 Vt. 308. Obstruction Need Not Be Continuous to Authorize Action. - An obstruction caused by the back flowage from a dam need not be continuous to authorize an action. Cory v. Silcox, 6 Ind. 39. Contributory Negligence. A person injured by a dam cannot recover damages if the injury was caused by his own neglect to use due precaution to prevent it. Richards v. Peter, 70 Mich. 286. See generally the title CONTRIBUTORY NEGLIGENCE, vol. 7, p. 368. Nor Can He Recover Where He Caused the Water of a Stream to Flow upon the Land of Another and the dam was erected to prevent such unlawful flowage. Avery v. Empire Woolen Co., 82 N. Y. 582; Wilhelm v. Burleyson, 106 N. Car. 381. Where a lower riparian proprietor can make use of the waters of a flowing stream only by means of a dam which floods the water back upon the land of an upper proprietor, he cannot recover damages for a diversion of a portion of the waters of the stream by the dam of the upper proprietor. Shotwell v. Dodge, 8 Wash. 337. Water Need Not Be Appropriated to Special Use. - It is not necessary for one to appropriate the water of a stream to some special use before he can maintain an action. Adams v. Barney, 25 Vt. 225. Remote Damages. — In Georgia, under the provisions of the code, if an action is brought to recover damages for an injury to land caused by a dam, and it appears that other and contingent circumstances preponderated largely in causing the injurious effects, such damages are too remote to be the basis of a recovery. Code of Georgia. § 3072; Rucker v. Athens Mfg. Co., 54 Ga. 84. 4. Title to Injured Premises Not Necessary to Support Recovery. - Palmer v. Keblethwaite, I Show. 64: Connors v. McLaggan, 4 New Bruns. 446; Eagle, etc., Mfg. Co. v. Gibson, A Tenant May Recover for the diminution in value of the use of the property during his term.1 Reversioner. And an action will lie by the reversioner for an injury to the reversion.2 Tenants in Common. One tenant in common may maintain an action against his cotenant for flooding the common property by means of a dam upon the cotenant's several estate. 3 A Town or Corporation which has sustained special damages in its corporate capacity has the same right of redress as an individual in like circumstances.* The Statute of Limitations will not bar an action for damages sustained within the statutory period by the wrongful continuance of a dam, although the injury has existed longer than the statutory period." Recovery of Damages under Milldam Acts. The milldam acts of the several states generally provide a special mode of recovering damages, which must be strictly followed, and is generally a bar to any other action for the damages incurred. Nominal Damages. If the erection or maintenance of a dam has violated the right of any person, he is entitled to nominal damages, whether any perceptible damage can be shown or not." 62 Ala. 369; Parker v. Hotchkiss, 25 Conn. 321; Norris v. Glenn, 1 Idaho 590; Case v. Weber, 2 Ind. 108; Brown v. Bowen, 30 N. Y. 519, 86 Am. Dec. 406; Pace v. Freeman, 10 Ired. L. (32 N. Car.) 103; Wattier v. Miller, II Oregon 329; Bigler v. Antes, 21 Pa. St. 288; Allen v. McCorkle, 3 Head (Tenn.) 181; Boyington v. Squires, 71 Wis. 276. 1. Tenant May Recover. Halsey v. Lehigh Valley R. Co., 45 N. J. L. 26. But see Baker v. Sanderson, 3 Pick. (Mass.) 348. 2. Reversioner May Recover for Injury to Reversion. Woodbury v. Willis, 50 Me. 403; Baker v. Sanderson, 3 Pick. (Mass.) 348; Lund 2. New Bedford, 121 Mass. 286; Halsey v. Lehigh Valley R. Co., 45 N. J. L. 26; Brown v. Bowen, 30 N. Y. 519, 86 Am. Dec. 406. 3. Hutchinson v. Chase, 39 Me. 508, 63 Am. Dec. 645; Odiorne v. Lyford, 9 N. H. 502, 32 Am. Dec. 387; Great Falls Co. v. Worster, 15 N. H. 412. 4. Shrewsbury v. Brown, 25 Vt. 197. See 5. Prentiss v. Wood, 132 Mass. 486. See also Baldwin v. Calkins, 10 Wend. (N. Y.) 167; Connors v. M'Laggan, 4 New Bruns. 446. generally the title LIMITATION OF ACTIONS. 6. Recovery under Milldam Acts. provisions of the local statutes. See the 7. When Nominal Damage May Be Recovered - England. — Norbury v. Kitchin, 15 L. T. N. S. 501; Bickett v. Morris, L. R. 1 H. L. Sc. 47; M'Glone v. Smith, 22 L. R. Ir. 559, overruling Williams v. Morland, 2 B. & C. 910, 9 E. C. L. 269. 337. Compare Elliot v. Fitchburg R. Co., 10 Cush. (Mass.) 191; Dwight Printing Co. v. Boston, 122 Mass. 583; McGee v. Fox, 107 N. Car. 766. See generally the title DAMAGES, ante, p. 537But in Ohio and South Carolina it has been held that no damages can be recovered unless actual injury has been sustained. Cooper . Hall, 5 Ohio 320; Garret v. M'Kie, 1 Rich. L. (S. Car.) 444, 44 Am. Dec. 263; Chalk . McAlily, 11 Rich. L. (S. Car.) 153. The Law Will Not Notice Theoretical Injuries. - Theoretical injuries, such as the insensible evaporation and decrease of water by dams, or the occasional increase and decrease of the velocity of the current and the quantum of the water below, the law will not notice. Dorman v. Ames, 12 Minn. 451. See also Thompson v. Crocker. 9 Pick. (Mass.) 59; Palmer v. Mulligan, 3 Cai. (N. Y.) 307, 2 Am. Dec. 270; Graham v. Burr, 4 Grant's Ch. (U. C.) I. |