Oxford County ME Archives Court.....Clement, Mr 1829
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Source: Reports Of Cases Argued And Determined In The Supreme Judicial Court Of The State Of Maine
Written: 1829
Recorded: 1829

Clement vs. Durgin.

April Term 1827, pages 9-15

In a prosecution by complaint against the owner of part of a mill dam, for 
flowing lands, the owner of another part of the same dam, in severalty, is a 
competent witness for the respondent.

Where a commission issues to any judge or magistrate of another State, to take 
depositions in a cause pending in this Court, the official certificate of the 
judge or magistrate is received as prima facie evidence of his authority.

The right to flow the lands of another, in order to raise water sufficient to 
carry a mill, subject to the claim of the owner for damages, is given, by 
necessary implication, in the statute regulating mills, and tberefore needs 
not to be proved by writing, under the statute of frauds.

The damages occasioned by such flowing may be waived or relinquished by parol.

This case, which was a complaint for flowing the lands of the complainant by 
the respondent’s mill-dam, [Vid. Vol. 1 p. 300.] came again before the Court, 
at the last October term in this County, for trial of the issue whether the 
respondent had good right to erect the dam, and flow the land of the 
complainant, without the payment of any damages therefor.

At the trial of this issue, before Preble J. the respondent offered James 
Osgood as a witness, whose competency to testify was denied, on the ground of 
interest. And it appeared, from his own examination to this point, that he 
held a mortgage deed of one half of the privilege on which the dam was 
erected, and of whole of a fulling-mill erected thereon; of which he had been 
in possession more than four years; but that his title was not derived from 
the respondent, nor did they hold any thing in common. This objection the 
Judge overruled.

The respondent also offered a deposition taken under a commission issued from 
this court, "to any Judge of any court of record in the State of New York," 
the return of which was signed "Smith Stilwell Judge of St. Lawrence Common 
Pleas." To this the complainant objected, for want of evidence that the person 
making the return was a Judge of a Court of record. But this objection also 
was overruled.

The complainant further objected to the admission of parol evidence to prove 
the issue on the part of the respondent; contending that the claim of the 
respondent was an interest in land, which could only be sustained by deed or 
other instrument in writing. This objection also the judge overruled and a 
verdict was returned for the respondent; to wlüch the complainant filed 
exceptions.

Dana, for the complainant, argued against the admission of Osgood, because, 
though only a mortgagee, the legal estate in the privilege and half the dam 
was in him, and he had the actual occupancy; so that this process would lie 
against him, by the statute; and his interest must necessarily be affected by 
the judgment in this case, so far as the judgment might regulate the height of 
the dam. 4. Mass. 50. Goodwin v. Richardson 9. Mass. 469. 2. Greenl. 132. 1. 
N. Hamp. Rep. 169. 6. Mass. 50.

He argued against the admission of the deposition, from the abuses which such 
a rule might occasion; as corrupt parties might themselves personate the 
magistrates of other States, or procure others to do so, if the bare signature 
of the magistrate were to be received as satisfactory evidence of his official 
character. The rule of this court, which requires higher evidence where the 
deposition is taken without a commission, and the statute of the United States 
regulating the mode of authenticating the judgments of State Courts, are 
proofs that this objection is founded in authority and good reason.

He further contended that the right claimed by the respondent was a perpetual 
right to flow the land of the complainant, and intercept his pernancy of 
profits. It went to take away from him all beneficial use of his soil forever, 
and vest in a third person a permanent and exclusive interest in it. Such a 
title, being "an interest concerning lands," was within the statute of frauds, 
and therefore could be proved only by writing. Cook v. Stearns 11. Mass. 537. 
Ricker v. Kelly 1. Greenl. 117. The cases which would seem to support the 
contrary doctrine, he said, were cases of license to do a particular act, or 
for a limited time; or where a valuable consideration had been already paid, 
and the contract had been partially executed.

Greenleaf and Bradley, for the respondent, insisted on the admissibility of 
Osgood, on the ground that the dam was a personal chattel, which an out-going 
lessee might lawfully remove, being merely of timbers and plank; alleged to 
have been erected solely by Durgin, and by him justified. Osgood therefore 
could have no interest in its existence. Nor would he be bound by the verdict 
and judgment in this case; because he was not even a party in interest; nor 
had he a right to cross examine the witnesses, nor to interfere in the trial. 
Nor could a recovery in this case affect a future process against him, since 
Osgood held nothing in common with Durgin, and the respondent might have 
grounds for an exemption from damages totally different from any defence which 
another could set up. 1 Phil. Ev. 232. 1 Stark. Ev. 184.

As to the deposition, they relied on the uniform practice to receive the 
certificate of the commissioner as prima facie evidence of his official 
character, and sufficient, till it should be repelled by counter proof.

To the point of the license, they argued that this was given by the statute, 
which permitted the flowing of any lands, where it was necessary to raise a 
sufficient head of water for a mill, without the consent of any owner of the 
lands. It was a perpetual license, appurtenant to every mill; and where the 
owner of the lands can interpose no negative, it cannot be necessary to obtain 
his consent. Tinkham v. Arnold 3. Greenl. 120. But here the right to flow is 
not an interest in lands, but only an easement, and so not within the statute 
of frauds. Wood v. Lake Say. 3. 1. Phil. Ev. 335. Webb v. Paternoster Palm. 
71. 7. Taunt. 384. 2 Stark. 588. 589. The sole question was upon the right to 
damages, and this was open to inquiry by parol.

The opinion of the court was delivered in the following June term, at Augusta, 
by WESTON J. With regard to the objection to the competency of James Osgood, 
on the ground of interest, it appears that the witness owned on one side, and 
the respondent on the other, each to the thread of the stream, over which the 
dam was extended. They were not therefore owners of the dam in common but each 
of a part in severalty. A verdict for or against the respondent, could not be 
used for or against the witness in a complaint or action. The respondent might 
possess, by purchase or otherwise, the right, so far as he was concerned, to 
flow without payment of damages, which might not extend to or protect the 
witness. Their interest being several and not joint, neither would have remedy 
against the other for contribution, where the party injured complained against 
them severally. Whether by the nature of their occupancy, they might not have 
been joined as respondents in the same complaint, is not a question before us. 
This process has no effect to remove the dam; therefore the witness is in no 
danger on that ground and we are satisfied, as the case is now presented, that 
the witness had no such interest, as would exclude him as incompetent.

A question was raised at the trial, and is reserved for our consideration, 
whether a deposition taken under a commission, by a person who represents 
himself as a judge of the St. Lawrence Court of Common Pleas in the State of 
New York, which was objected to by the counsel for the complainant, could be 
received, without proof of the official character of the judge. By ch. 85 of 
the revised laws, prescribing the mode of taking depositions, sec. 6, which in 
this particular is a re-enactment of the old law, it is provided that all 
depositions taken out of this State, before any justice of the peace, public 
notary, or other person legally empowered to take depositions in the State or 
county where such depositions shall be taken and certified, may be admitted as 
evidence in any civil action, or rejected, at the discretion of the court. In 
the exercise of this discretion, prior to the promulgation of the existing 
rule of this court, on the subject of commissions, if the deposition appeared 
to have been taken with formality and solemnity, having an official 
authentication, presenting upon the face of it no ground of suspicion, it was 
usually received as evidence. But the rule before alluded to, having afforded 
every facility for the issuing of commissions to take depositions out of the 
State, upon application to either of the judges or to the clerk, and the court 
being disposed to regard with more favor such as are taken under commission, 
by interrogatories and cross interrogatories, prescribed by the rule as a more 
satisfactory mode of eliciting truth, have therein declared that in all cases 
of depositions taken out of the State, without commission, it shall be 
incumbent on the party producing such deposition, to prove that it was taken 
and certified by a person legally empowered thereto; thereby plainly implying 
that no such evidence would be required in the case of depositions taken under 
commission. And we can perceive no well founded objection to the receiving of 
the official certificate of the judge or magistrate in these cases, as prima 
facie evidence of his authority. Upon a suggestion of fraud or collusion, 
supported by affidavit or otherwise, to the satisfaction of the court, they 
would either reject the deposition, or afford opportunity to ascertain more 
perfecly the official character of the person by whom it might be certified, 
and the circumstances under which it may have been taken. As there is no 
objection to the execution of the commission in question on the face of it; 
and no proof or suggestion that there is any thing false in the caption the 
objection to its being received was, in our opinion, properly overruled.

It is further insisted, that the issue tried between these parties, could only 
be proved on the part of the respondent by deed, or other instrument in 
writing; and not by parol proof, which was received by the judge, although 
objected to by the counsel for the complainant. This objection is founded uçn 
the statute of frauds; upon the ground that had the right to flow, without 
payment of damages, is an interest in land. But we regard it as rather in the 
nature of a license to do certain acts in, or upon, the land of another, oF 
which parol proof has always been deemed admissible; as, to cut trees upon, or 
to pass over the land of another, or to build a fence or a bridge thereon. In 
these, and many other cases of the like kind, proof of a parol license from 
the owner, would be a good defence to an action of trespass, brought by him 
for the doing of these acts.

Such a license is in its nature revocable; unless the party, to whom it is 
given, has been thereby led to incur expense; in which case it is not 
revocable; at least without tendering an indemnity.

In Taylor v. Waters, 7 Taunt. 374, the plaintiff averred that the proprietor 
of the opera house, or King’s theatre, in the Haymarket, had granted him six 
silver tickets of admission, to the same, for the space of twenty-one years, 
which he had not been permitted to enjoy. Among other objections made to the 
action, it was insisted that this was an interest in land, which could not be 
granted, but by written instrument. Gibbs, C. J. in delivering the opinion of 
the court, after adverting to a series of decisions, says "these cases 
abundantly prove that a license to enjoy a beneficial privilege on 1and, may 
be granted without deed, and, notwithstanding the statute of frauds, without 
writing." And he further deduces from the authorities, that such a license 
cannot be countermanded, after it has been acted upon.

Winter v. Brockwell, 8 East. 309, was an action of the case for a nuisance, in 
erecting a sky-light over the area above the plaintiff's window, by means of 
which the light and air were excluded; but it being proved by parol, that this 
was done with the express approbation of the plaintiff; who also gave 
permission to have part of the frame work nailed against his wall, it was held 
by the court, notwithstanding it appears in a note to the case that the 
statute of frauds was objected, that the defence was well sustained; upon the 
ground, either that a license of this kind is not revocable, until the 
expenses incurred by the party licensed are refunded; or that a license, once 
executed, is no longer countermandable ; for which lord Ellenborough cites 
Webb v. Paternoster, Palmer, 74. Wood v. Lake, Sayer 3, cited in 1. Phil. 
Evid. 354, Crosby v. Wadsworth, 6 East. 602, and Ricker & al. v. Kelly & al. 
1. Greenl. 117, are also authorities to show that this is not a case within 
the statute of frauds.

The right to flow, subject to the claim of the party injured for damages, is 
given by statute. These damages, the party may waive or relinquish by parol. 
He thereby gives the other party no new interest in, or right over, his lands; 
but he foregoes a right to damages, which he might have enforced by complaint, 
in the nature of a personal action. Suppose it be desirable to a neighborhood 
that a fulling mill, or a grist mill, should be erected at a suitable place 
upon a stream, the owner of which is not inclined to make the erection, from 
an apprehension that it may not prove sufficiently profitable to remunerate 
the expense. As an inducement, the owner of the land, which may be flowed by 
raising a suitable and necessary head of water for this purpose, engages by 
parol to set up no claim for damages. The owner thereupon proceeds to build a 
mill and dam, on the faith of this engagement. He is subsequently called upon 
by complaint, by the owner of the land, to answer in damages, for causing the 
water to flow back upon his grounds. The respondent proves, by parol, that he 
did so, by the license and permission of the complainant. We cannot doubt that 
this would be a good defence. He claims no interest in the land of the 
complainant; but he justifies a certain act done in relation to it, which, 
without the license of the owner, would have been unwarrantable. The license 
given might have been countermanded, before it had been acted upon; as if a 
party promise to give money, no action lies upon it; but having given it, he 
cannot recover it back. He cannot reclaim what he has given away. So in this 
case, having given the license, and it having been acted upon, he cannot 
enforce an action or complaint for damages. Judgment on the verdict.

Reports of Cases Argued and Determined in the Supreme Judicial Court of the 
State of Maine, by Simon Greenleaf, Counsellor at Law, Vol. V; Containing the 
Cases for May Term, 1827, through April Term, 1827. Portland: Printed and 
published by Shirley and Hyde, 1829.



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