Wooster v. Great Falls Manufacturing Co.

AppletoN, J.

It appears that the defendants built a dam across the Salmon Palls river, on their own land, and erected a grist-mill connected therewith, and receiving its power from the water flowed thereby. The river, at the place where the dam was built, is the boundary line between this State and New Hampshire. The mill is in Somersworth, in the latter State. The land of the plaintiff in Berwick, in this State, having been flowed and his real estate injured by the defendants’ dam, he brought an action on the case against the defendants to recover damages for the injuries thereby sustained.

The law seems to be well settled, that for all injuries to real estate, the remedy must be sought for in the jurisdiction where the wrong was committed. It was held in England, that trespass could not there be maintained for breaking and entering a house in Canada. Doulson v. Mathews, 4 D. & E. 503. The law was so held by Mr. C. J. Marshall, in the famous controversy relating to the batture at New Orleans. Livingston v. Jefferson, 1 Brock. 203 . It was decided *249 by tbe Supreme Court of Now York, that an action will not lie for an injury done by the diversion of a water-course, when the premises injured are situated in another State. “ It appears to be conclusively settled,” remarks Nelson, C. J., in Watts' Adm'r v. Kinney, 23 Wend. 484 , “that an action on the case for diverting a water-course, so far savors of the realty as to be classed with local actions, and must be tried in the county where the injury happened. It stands on a footing in this respect with real and mixed actions, such as trespass quare clausum fregit, ejectment, waste, &c., where, if the lands lie in a foreign country, they cannot be tried here.” The judgment of the Court in this case, was subsequently affirmed by the Court of Errors. Watts' Adm’r v. Kinney, 6 Hill, 82 . It was decided in New Hampshire, that an action on the case to recover damages for flowing the plaintiff’s land is local, and must be brought in the county where the land lies. Worsler v. Winnepiseogee Lake Co., 5 Foster, 525 . It is apparent, therefore, that the plaintiff can maintain no action in New Hampshire for any injury he may have sustained, and that unless he can seek and obtain redress in this State, he is without remedy.

An action on the case has been regarded as the appropriate remedy at common law for any injury arising from an unlawful diversion or misuser of a water-course. This seems to be the form of action in use in New Hampshire, for any injury occasioned by flowage. Woodman v. Tuffts, 9 N. H. 88; Worster v. Winnepiseogee Lake Co., 5 Foster, 525 . But in Massachusetts, as well as in this State, this mode of obtaining redress has been superseded by Acts in these States regulating mills and mill-dams. Stowell v. Flagg, 11 Mass. 364 .

It is well settled law that whatever relates to the remedy to be enforced, must be determined by the lex fori, the law of the country to the tribunals of which appeal is made. The learned counsel for the defendant, relying upon this principle of law, insists that this case is within the provisions and entitled to the benefits of R. S., c. 126, § 28, which pro *250 vides that “no action shall be sustained at common law for the recovery of damages occasioned by the overflowing of lands as beforementioned, except in the special cases provided in this chapter, to enforce the payment of damages after they have been ascertained by process of complaint, as aforesaid.” As there has been no previous ascertainment of damages by complaint, if the statute is to be held to apply to a case circumstanced like the present, this suit is distinctly within the statutory prohibition. The question for determination, therefore is, whether, when the mill to be benefited by the dam is in another State, the party whose land is flowed by its dam, can maintain an action on the case for such flowage, or is restricted to the statutory remedy by complaint.

All legislation is necessarily territorial. The statutes of a State are binding only within its jurisdiction. The Legislature cannot, if they would, authorize acts to be done in a foreign territory. “Every Legislature,” remarks Mr, Justice Story, in Farnham v. Blackstone Canal Corp. 1 Sum. 62 , “however broad may be its enactments, is supposed'to corn-fine them to cases or persons ivithin the reach of its sovereignty.” They cannot affect or control property elsewhere, and it is not to be presumed they intended to exceed their-jurisdiction. , ,

From a perusal of R. S., c. 126, concerning mills and’mill-dams, it is abundantly apparent that the design of the Leg- ’ islature was only to affect lands and' mills within the limits of the State. The right to erect mills. — the provisions as to the height to which the water may be raised, and the length of time during which it may be kept up each year — the appointment of commissioners, and the proceedings under the commission — the right to require security for yearly damages — the lien given upon the dam and mills — the mode of enforcing that lien, and the effect of a sale under the process provided by statute — the right of redemption— the right of either party if dissatisfied with the annual compensation to file a new complaint — each and every *251 provision of the statute, from the commencement of proceedings -under it, to their final conclusion, contemplate action within our territorial jurisdiction. The dam which causes the flowing — the mill for the benefit of which such flowing is permitted, and the land overflowed, or the property otherwise damnified by these erections, are assumed to be within the boundaries of the State, and within legislative jurisdiction.

It is provided by § 1, that “ any man may erect and maintain a water-mill, and a dam to raise water for working it, upon and across any stream that is not navigable, upon the terms and conditions, and subject to the regulations hereinafter expressed.” The license to erect is upon certain terms and conditions, and subject to certain regulations. If the terms and conditions are not complied with, and the regulations, subject to which the right is granted, cannot be enforced, the right to “ erect and maintain a water-mill, and a dam to raise water for working it,” is not given. To hold otherwise would bo to decide that the right is not upon terms and conditions, and subject to regulations, but that it is unqualified and without limitation. The statute itself is a liberal exercise of power on the part of the Legislature over the property of one citizen for the benefit of another. The party, therefore, seeking protection under this Act must show his erection to have been upon the terms and conditions, and to be subject to the regulations which the statute has prescribed for the benefit and protection of the land owner, else he does not bring himself within its plain and obvious meaning.

The relief of the mill owner from the multiplicity of suits to which, by the common law, he would have been exposed, was an object, the attainment of which the Legislature had in view in the passage of the Act under consideration. But the mill owners, to be relieved, must be those who were subject to such suits. The statute neither gives nor purports to give to the inhabitants of New Brunswick or New Hampshire any right within the limits of those governments to *252 build mills and erect dams for tbeir use, by which the lauds of citizens of this State may be flowed. The right is given to those only against whom the terms and conditions of the statute can be enforced, and when the mills and mill-dams are subject to the regulations prescribed.

The prohibition of section 28, is against the maintenance of any action at common law “ for the recovery of damages, occasioned by the overflowing of lands as before mentioned.” But the cases before mentioned are those to which the previous provisions of the statute apply. As to all such, the land owner receives the protection intended by the Legislature. But when, from the nature of the case, he cannot derive any benefit from the various provisions of the statute for his security, the section cannot apply. These proceedings are against the property, and protect the land owner by giving him a lien for his damages upon the same. When the mill upon' which the security is given is without the State-, all these statute proceedings are unavailing. As the land owner cannot obtain any of the benefits given him in lieu of his common law rights, he must be regarded as remitted to those rights.

The construction here given is in entire conformity with the authorities bearing upon the subject. In Fisk v. Framingham Manufacturing Company, 12 Pick. 68 , Mr. Chief Justice Shaw says, “ It is well settled, that in all cases where the party is entitled to his damages upon complaint, under the statute, his common law remedy is taken away.” It is obvious, that when the party cannot proceed by complaint, as where the mill is without the State, that unless the party aggrieved can proceed at common law, he is without remedy. So when the mill has ceased to be used or has been removed and not replaced, the dam ceases to be a mill-dam, under the protection of the mill Acts, and the remedy for the owner of the land which is flowed by it, is by an action at common law. Baird v. Hunter, 12 Pick. 556 . To entitle a party to the protection of this statute, it is not enough that he erect a dam across a stream run *253 ning through his own land. There must be a mill in connection with his dam, or an intention forthwith to erect one, else he is not a mill owner within the purview of the statute, and is liable at common law in an action on the case for damages occasioned by means of his dam flowing the dams of others. Fitch v. Stevens, 4 Met. 426 . There is no mill in this State connected with the defendants’ dam, and the defendants are not within the spirit or meaning of the statute which they invoke in their aid; for they have not afforded the plaintiff, by any erection of theirs, the security which the statute contemplates. United States v. Ames, 1 W. & M. 76.

It is not contended that the Legislature of New Hampshire have authorized the raising of the dam within that State, whereby the waters of the river may be flowed back to the injury of land situated in this State. The important and delicate question which might be presented in case the defence rested upon the local law, is not presented because the dam is partly in this State, and the defendants justify under no special legislation of New Hampshire.

Upon a careful examination of the statute, the conclusion is, that mills without the jurisdiction of the State, not being subject to the terms, conditions and regulations of the statutes, are not entitled to its benefits; and that the common law remedy remains unaffected by its provisions. The instructions given were in conformity with the unquestioned intentions of the Legislature, and the just construction of the statute, and the exceptions thereto must be overruled. Exceptions overruled.

Judgment on the verdict.