Opinion
Memorandum. — During the summer vacation the Hon. John M. Clayton, Chief Justice of the State resigned; and the Hon. Richard H. Bayard was appointed to succeed him.
In this vacation also, to wit: on the third of September, 1839, the Hon. James R. Black, Associate Judge of the Superior Court died; and the Hon. John J. Milligan was appointed to succeed him.
Ridgely, Rogers, jr., and Bates for plaintiff.
Cullen and Booth for defendant.
CAPIAS CASE, by one mill owner against another on the same stream, for damage done by discharging water without notice. Plea, not guilty.
This was an action by McIlvaine, the owner of a saw-mill, and part owner of a grist-mill, called the "Tam Mills," against Marshall, who was the owner of a saw and bark-mill next above, on the same stream, for discharging an unusual quantity of water on the 29th Dec. last, without notice to plaintiff; whereby his dam was broken and mill swept away.
The action was for double damages under the act of 1819, for the preservation of mill property. This act provides, that "if any person or persons being the owner or possessor, owners or possessors of any mill within this State worked by water power, shall at any time after the passing of this act, wilfully and knowingly by any means, discharge or cause to be discharged from any mill-dam an unusual quantity of water, or if by the accidental breaking or over-flowing of any mill-dam an unusual quantity of water should be discharged, it shall be the duty of such person or persons owning, possessing or having the charge of, and residing at or near the said mill, as soon as the nature of the case will admit, to give notice of the wilful or accidental discharge of such water to the owner, possessor or keeper, or to either of them, who may reside at or nearest to, any mill which may be situated next below upon the same stream; and for omitting or neglecting to give such due and reasonable notice, the offender shall, on due proof thereof being made, forfeit and pay double the amount of all damages, with costs of suit, which may be sustained by the owner, possessor or keeper of any such lower mill as aforesaid, to be recovered as debts of a like amount are or may be recoverable by the laws of this State."
The declaration contained six counts, charging the defendant, 1st. as the owner or possessor of the mills above; 2d. as the owner; and 3d. as the possessor.
The defence upon the facts was, 1st. That the defendant though the owner, was not the possessor of the mills above, but resided several miles off, and that the mills were in the hands of a tenant. 2d. That there was no unusual discharge of water; and 3d. That the breaking of plaintiff's mill arose from her own defective construction, and the rottenness of her works about the pier-head and flume.
On the law and facts it was contended for the plaintiff by C. G. Ridgely, Rogers, jr., and Bates, that the act of assembly was a remedial law, and ought to receive a liberal construction; it was so decided in Hendrixen vs. Huey, 2 Harr. Rep. 303, on a similar statute, for not satisfying judgments: That the statute gave a right of action to the owner, possessor, or keeper of a lower mill against the owner or possessor of an upper mill; and not against the keeper of such upper mill, who was but the agent of the owner or possessor. That in this case there was no proof of a tenancy, but that Marshall was both owner and possessor, and the person who lived at and attended to the mill was but a hired servant, and that the water was discharge by Marshall's orders: That the owner is liable for his wilful discharge of water, unless notice be given by him, or by his tenant, or person in charge; the tenant or possessor is liable for his wilful discharge of water, unless notice be given by him, or by the owner or person in charge; and if the discharge of water be accidental the owner, tenant, or person in charge is liable, if residing at or near the mill. Cullen and Booth, contra, for the defendant argued, that neither the owner, possessor, nor person having charge of the upper mill was liable to an action under this statute unless such owner, possessor, or person in charge resided at or near the mill: that an owner residing at the distance of four miles from the mill, and only going there occasionally, was not liable to this action: that this mill was in the possession of a tenant, who resided at or near the mill, and whose duty it was to give notice of any unusual discharge of water: that this duty could not be transferred from the tenant to the landlord, even by the landlord's orders to let off water, because he had no power to interfere with the conduct of the tenant, nor were his orders to him binding; and that if the mill was in the occupation of a tenant Marshall would not be liable to the plaintiff in this action, even for wilfully discharging an unusual quantity of water: that the act of Assembly was highly penal in its character and must receive a strict construction, not extending it beyond the terms, especially as the party aggrieved would not be without remedy at common law.
The act of assembly (Dig. 405,) provides, that if the owner or possessor of a mill shall wilfully discharge an unusual quantity of water, or if by accident an unusual quantity of water shall be discharged, "it shall be the duty of such person or persons owning, possessing or having the charge of, and residing at or near, the said mill," to give notice to the owner, possessor or keeper, or to either of them, who may reside at or nearest to the mill next below; and for neglecting to give such notice the offender shall pay double damages.
This act is for the preservation of mill property; and, although it does impose upon persons offending against its provisions, double the damages occasioned by their neglect to give notice, and is in this respect penal, it is a highly beneficial statute, and ought to receive a construction consistent with its object, though not in extension of its provisions.
The act provides for two cases — a wilful and an accidental discharge of water; and it refers to three classes of persons, in reference to the duty of giving notice, the owner, possessor and person in charge.
If any person being the owner or possessor of any mill worked by water power, shall wilfully and knowingly discharge or cause to be discharged an unusual quantity of water, or if by accident an unusual quantity of water should be discharged, it shall be the duty of such person owning, possessing or having charge of and residing at or near the said mill, to give notice of the wilful or accidental discharge of such water, to the owner, possessor or keeper, who may reside at or nearest to the mill next below, c.
Upon this it is contended in behalf of the defendant here, that the words "residing at or near the mill." have reference to the owner and possessor, as well as to the person in charge of the mill, and also to a case of wilful as well as one of accidental discharge of water; and consequently that no person being an owner or possessor of an upper mill, can be liable under this act even for a wilful discharge of water without notice, unless such owner or possessor resides at or near the mill. The act must receive a reasonable construction, not extending its terms, but not violating its object and making it a dead letter. The object of the law was to increase a responsibility already existing at common law, on the owner or possessor of an upper mill in case of the wilful discharge of water, and to impose a duty, not existing at common law, on the owner and possessor, and also on the person in charge, when such persons respectively resided at or near the mill, to give notice of an accidental discharge of water. In such case the qualification of residing at or near the mill is necessary, for otherwise the persons charged with the duty of giving notice, not being informed of the accidental discharge, would not be able to perform it. But to extend this to the case of wilful discharge of water by the owner or possessor, would leave the common law liability of an owner as it was, and extend no remedy except in the single case of a residence at or near the mill; and if neither the owner, possessor or person in charge resided at or near the mill, the act would be a dead letter; and would not extend even to the case where all three owner, possessor and person in charge, wilfully discharged the water without notice.
We think this would be an unreasonable construction of the law, and such as we are not authorized to give it.
In our view, the owner of an upper mill wilfully discharging an unusual quantity of water is bound by this act to give notice to the mill below; and even if his mill were in the possession or charge of another, although this might also impose on such tenant or person in charge the duty of giving notice, this would not excuse the owner unless notice was given by one of the others.
It is admitted that the defendant is the owner of the upper mill, and resides at the distance of three or four miles from it; whether the mill is in his occupation or that of a tenant is for the jury on the proof, but may not be of much consequence under our view of the law now stated, if the jury should also be of opinion that there was an unusual discharge of water by the defendant's orders; otherwise that question will he extremely important.
It is also proved that the plaintiff is the owner of the lower mill; the sole owner of the saw-mill and part owner of the grist mill; and that the plaintiff's mills were swept away by a flood of water on the 20th of December last.
Was this flood occasioned by the wilful discharge of an unusual quantity of water by the defendant, Marshall, from his mills, by his own act or orders? What is an unusual discharge of water must be ascertained by reference to the ordinary use and wastage; that is, the usual discharge of water; the natural supply of water afforded by the stream the quantity used and surplus; having reference to the condition of both mills, and the common mode of discharging water from one upon the other. On this question the jury should also recur to the proof in reference to the head of water in Marshall's pond, at and before the 29th of December; the head of water in McIlvaine's pond; the volume of water discharged as well as it can be estimated by the number and size of gates up, and the rise in the pond below; the condition of McIlvaine's mill-dam, pier-head and flume; and judge from all these whether the damage was occasioned by the sending down of an unusual quantity of water, or arose from the defective construction or bad condition of the plaintiff's mill-dam, flume, sheeting or other works.
And if the jury shall think the plaintiff entitled to recover, they will assess his damages according to his interest in the property; and the amount so found will be doubled by the court as required by the law.
The jury returned a verdict for plaintiff for $300 which, on motion of his counsel, was doubled.