Ingram v. Maine Water Co.

Constitutional Law. Mill and Mill Lams. Jury Trial, none to assess damages. R. S. (1883), c. 92, § 12. Const, of Maine, Art. 1, § 20. 1. The taking of private property under the Mill Act, R. S. (1883), c. 92, is sustained in this State on the ground that such taking is an exercise of the right of eminent domain. 2. There is no constitutional right to a jury trial to assess damages for property taken by eminent domain. 3. The second clause of sect. 12, chapter 92, R. S. 18S3, is constitutional.

Exceptions by plaintiff. Complaint for flowage of plaintiff’s land by defendant’s mill dam under the mill acts. The defendant was defaulted at the March term, 1903, and commissioners were appointed who seasonably made their report. At the request of the plaintiff a jury was impanelled to try the cause and the report of the commissioners was under the direction of the court given in evidence to the jury. Evidence tending to contradict the report of the commissioners was offered by the plaintiff. The court ruled that such evidence could not be received unless misconduct, partiality or unfaithfulness on the part of some commissioner was shown. To this ruling the plaintiff excepted. 1. A trial by jury in which the evidence that may be presented is restricted as in sect. 12 of c. 92, is not a trial by jury within the meaning of that term as used in sect. 20 of Art. 1 of the Constitution. A trial under the rules of evidence laid down in sect. 12 substitutes for the judgment of the jury that of three commissioners. It preserves the shadow of a jury trial, but divests it of its substance. King v. Hopkins, 57 N. H. 334, — An able and exhaustive exposition of the subject, deciding the issue squarely in our favor under a precisely similar constitutional provision, the court holding unconstitutional a statute making the report of referees under the mill act prima facie evidence only. Plimpton v. Somerset, 33 Vt. 283. Howard v. Moot, 64 N. Y. 262, where the court says: “It may be considered for all the purposes of this appeal that a law that should make evidence conclusive which was not so in and of itself, and thus preclude the adverse party from showing the truth, would be void as indirectly working a confiscation of vested rights.” Howard v. Moot is cited with approval in Holmes v. Hunt, 122 Mass. 519. The statements in Bryant v. Glidden, 36 Maine, 36, on this point are dicta, the case being decided on other grounds. In the same case, 39 Maine, 458, the point was not raised. While statutes may prescribe that matters which were not competent evidence at common law shall be admitted, the legislature cannot prescribe that evidence shall be conclusive which is not so in and of itself. We are able to find no case in which a compulsory reference has been held constitutional except where it related to an account and where also it was made only prima facie evidence. If the trial prescribed in sect. 12 is the kind contemplated by the Constitution, then the legislature may prescribe a similar rule in all causes, and all civil cases may be tried before commissioners whose decision shall be conclusive unless some unreasonable condition be complied with. legislatures may enlarge the sources of testimony, but cannot unreasonably restrict them. That a trial by a constitutional common law jury is not contemplated in sect. 12, is made still clearer by a compai’ison of its provisions with those of sects. 7, 8 and 9 of -the same chapter, where the issues to be submitted to such a jury are distinctly specified and all others relegated for decision to the commissioners. 2. The “cause” to be tried named in sect. 12, is both a civil suit and a controversy concerning property, and the exception of “cases where it has heretofore been otherwise practiced” does not.apply. The word “heretofore,” means at the adoption of the Constitution. This date was Dec. 6, 1819. Copp v. Henniker, 55 N. H. 191; King v. Hopkins, 57 N. H. 834, 3 Am. & Eng. Enc. Law, 1st ed. 720. The issues to be tried, first before the commissioners under section 9, and second before the jury under sect. 12, are: First: Is the land described in the complaint injured by the dam? This is the main or vital issue of the complaint. By the express terms of sect. 7 it cannot be tried under that section, and a long line of decisions holds it triable under sect. 12. If this issue is decided in favor of the complainant, the commissioners or jury then reach the' following issues. Second : What are the yearly damages done to the complainant by the flowing of his lands described in the complaint? Third: How far is the same necessary? Fourth: For what portion of the year ought such lands not to be flowed? Fifth: Whát sum in gross would be a reasonable compensation for all the damages if any occasioned by the use of such dam and for the right of maintaining the same forever estimated according to the height of the dam and flash-boards as then existing? Practice as to trial of these issues when the Maine Constitution was adopted: The Massachusetts statute then in force under which the first issue was triable was the statute of Feb. 28, 1798. Under its provisions the first issue was triable by a common law jury at the bar of the Court of • Common Pleas, with a right of appeal and trial before another common law jury a.t the bar of the Supreme Judicial Court. In all preceding mill acts in Massachussets the right to have this question determined by a common law jury at the bar of the court was given either originally or by right of appeal to the Supreme Court of Judicature. This statute had been construed to this effect while Maine was a part of Massachusetts. Van Dusen v. Comstock, 3 Mass. 184 (1807). By the Maine laws the trial of this issue was taken from the common law jury and given first to the sheriff’s jury and then to commissioners as at present provided. Stat. 1821, c. 45; 1825, c. 976; B. S. 1840, c. 126, § 9; Stat. 1856, c. 269. This important change is uniformly recognized by the Maine Court. Cowell v. Great Falls, 6 Maine, 282; Nelson v. Butterfield, 21 Maine, 220; Underwood v. Scythe Co., 41 Maine, 297; Prescott v. Curtis, 42 Maine, 70. The history of this change is traced at some length in Nelson v. Butterfield cited above. The constitutional question was not raised in any of these cases for the reason that, until the decision in Bryant v. Glidden excluding evidence tending merely to contradict the report of the commissioners and the present statute making it incumbent to “show misconduct, partiality or unfaithfulness” (ch. 269 Public Laws of 1856), ft’ mattered little whether this issue was decided by a common law jury at the first or the second trial. It will be noted that the ptresent statute requiring proof of misconduct, &c., has never received judicial construction. To summarize as to the fifth issue: We claim first, that it was a novel controversy, unknown at.the adoption of the Constitution; and second, that its determination, aside from the assessment of damages, involves the determination of several questions of fact, among which are the height of the dam and flash-boards as then existing, and the nature and extent of the prospective injury forever. Further, that under the present law, the plaintiff is nowhere entitled to a trial by the jury upon these issues; that such trial is guaranteed him by the Constitution, and that therefore the second clause of sect.. 12, as applicable to the statute, must be unconstitutional. A complaint for' flowage is a civil suit: Clement v. Burg in, 5 Maine, 15; Bryant v. Glidden, 36 Maine, 44. This case declined to sustain a motion in arrest of judgment on the ground that no motion in arrest could be sustained in a civil action. Hall v. Decker, 48 Maine, 255. This holds that a complaint for flowage is a personal action and may therefore be served by a constable if otherwise within his jurisdiction. E. S. 1883, c. 77, §§ 63-67, give the Superior Courts jurisdiction over “all civil actions except complaints for flowage, real actions,” &c. While the case of Henderson v. Adams, 5 Cush. 610, cited without comment in Kennebec Water District v. Waterville, 96 Maine, 249, holds the contrary, this must be considered in connection with the important case of Howard v. Proprietors, 12 Cush. 263, in which Chief Justice Shaw says: “The complaint for flowing is essentially a civil suit. It is a remedy afforded to an individual, to recover damages in a special form for a private injury, in a case where, but for the special provisions in the mill act, founded upon well considered reasons of expediency, he would have a remedy in an action on the case.” Hersey v. Packard, 56 Maine, 395. We have found no case in which the sovereignty of the State is delegated to the citizens at large by a general act. In Kennebec Water Dist. v. Waterv.ille, supra, the right to trial by jury is denied because the plaintiff is seeking to exercise the sovereign power granted it by the State, and there can be no controversy between the sovereign and the citizen. We submit that the man who owns a mill is no more entitled to exercise sovereign power than is a land owner. There is another element of eminent domain which is ■ lacking. There is no taking. The mill owner does not even get an easement in the plaintiff’s land. It is sometimes said loosely that he obtains a right to flow the land, but he really gets no such right. He obtains simply a right to raise the water, and if the plaintiff sees fit he can build a dike and keep the water off his land. He cannot use the plaintiff’s land as matter of right for the storage of water if the plaintiff sees fit to keep him out. Jordan v. Woodward, 40 Maine, 323. If by prescribing a default at an early stage of the proceedings, and that the default shall admit nothing as to the main issue, the legislature can take away the right to a trial by jury on such issues in a complaint for flowage, it can do the same in any other class of actions, and thus totally defeat the provisions of the Constitution. Counsel cited: French v. Braintree Mfg. Co., 23 Pick. 220; Jordan v. Woodward, 40 Maine, 317; Ken. Water Dist. v. Water-ville, 96 Maine, 246-251; Cooley’s Const. Lim. pp. 534 — 5.