Inhabitants of Norton v. Hodges

Colt, J.

The allegation in the complaint, that the respondents have erected a dam on Rumford River for the use and benefit of their mills below,is not supported by the facts admitted or proved. The dam was erected and is maintained by a corporation specially chartered for that purpose, and authorized to construct and maintain reservoirs for the supply of mills on certain rivers therein named, including the Rumford, and to hold real and personal estate for that purpose.

The remedy under the mill act is against the person or persons erecting and maintaining a mill and dam to raise water for its use; Gen. Sts. c. 149, § 1; and lies against a corporation coming within its provisions. Reservoir dams for the benefi. *243 of mills upon the same stream have been held to come within the protection of the statute; and this although such a dam may not be immediately connected with or very near the mill. It is sufficient though at considerable distance or even upon a tributary stream, provided it be directly and obviously subservient to the purpose of driving a mill or mills and increasing the power. Shaw v. Wells, 5 Cush. 539 .

In some of the earlier charters granted to corporations for the erection of reservoir dams, a personal liability is imposed upon the stockholders, and a remedy by complaint under the statute is given to recover damages for flowing. These provisions do not seem to be contained in the later charters, and are not found in the statute by which this corporation was created, or in any general law. Sts. 1854, cc. 41, 90. The respondents cannot therefore be charged as stockholders in this case. The fact that they are almost wholly the owners of the mills benefited does not change their relation as stockholders, or impose an individual liability for the acts of the corporation. It is not certain that the stockholders of today will continue to be stockholders. Their interest may be disposed of at any time to those who are in no way interested in the mills.

It does not follow that the complainants are without remedy against the corporation. If the dam is not protected by the mill acts, the remedies of the common law are ample for the redress of all injuries occasioned by flowing. The corporation has the same rights, and no more, which an individual has in this respect.

It is perhaps not essential under the statutes for the protection of mills that the legal title to the dam and the mill benefited should be in the same person, or that the lien for ascertained damages should be perfect upon the property of both. Sections 6,11 and 22 would seem to imply that the owner and occupant of the mill or dam may be alike proceeded against. It is plain that if the dam is protected it must be because it is erected to raise water for the wording of a mill or mills. And if so erected under an arrangement between the owners of mills below and the proprietors of the dam, then if. may follow that the parties *244 to such arrangement may all be joined as respondents in a complaint for damages for flowing. But of this it is not necessary to express an opinion.

Upon the allegations in this complaint, the instructions to the jury were correctly given. Fitch v. Stevens, 4 Met. 429 . Charles v. Monson 4* Brimfield Manufacturing Co. 17 Pick. 70 . Sampson v. Bradford, 6 Cush. 303 . Exceptions overruled.