ers and strainers to protect against impurities that may get into the stream from the mills and works above the orators. It would seem that by proper modes and means, which they could, without unreasonable pains and expense, have adopted and put in use, they could have secured themselves from the troubles complained of while the defendant was using his shingle mill, and letting the saw-dust and waste from it go into the stream." The distinction between the above case and the case at bar in respect to the remedy suggested is that in the one case it is a prevention of the effect of the pollution, and in the other it contemplates the enduring of the effect of the pollution of the stream, but suggests the creation of an artificial watercourse to supply plaintiff's laud, and contemplates the abandonment of the stream, which is the subject of the litigation. The difference, as it seems to me, is radical in principle, and I do not think that the comparatively small cost at which plaintiffs might be able to supply water for their cattle from an independent source can be considered in connection with their right to have the stream remain uncontaminated in the manner shown by the pleadings and bill of exceptions. I cannot agree with the defendant in the assertion in the brief under the second point, that "the waters of the Papillion before the building of the defendant's barn were unfit for cattle.' I do not so understand the evidence. While it was doubtless inferior in sparkling clearness to the waters of streams of mountainous regions, where the soil is poor, consisting in great part of sand and gravel, the evidence as a whole fails to distinguish it from the general run of Nebraska streams of about the same size, in respect to the clearness and salubrity of its waters, and the height of its banks and firmness of its bottom. That it has been used by the inhabitants of the country along its banks for the purposes of stock water since the first settlement of the territory is sufficiently established by the evidence. Defendant in the brief under the third point uses the following language: "We admit the general rule that the proprietor above must so use the water as not to impair the enjoyment of it by the proprietor below, and therefore must not pollute it. But that general rule is subject to a qualification inherent in the nature of the subject, and the relative rights of the parties.' The rule is stated in nearly the same language by Judge Maxwell, in the article on injunctions, 10 Am. & Eng. Cyclop. Law, 844: "Every owner of land through which a stream of water flows is entitled to the use and enjoy ment of the water, and to have the same flow in its natural and accustomed course, without obstruction, diversion or pollution. The right extends to the qualtity, as well as the quantity of water. If, therefore, an adjoining proprietor corrupts the water, an action will lie against him;" and this is the law substantially as laid down in the cases there cited, especially Holsman v. Boiling Spring Bleaching Co. 14 N. J. Eq. 335; Richmond Mfg. Co. v. Atlantic De Laine Co. 10 R. I. 106; Gardner v. Newburgh, 2 Johns. Ch. 162; Baltimore v. Warren Mfg. Co. 59 Md. 96. These cases are authority for the plaintiffs in the case at bar as to all its branches. In most or all of them it was held that an injunction would be granted without regard to the magnitude of the interest enjoined. It is true, as stated by the defendant in the brief, that no complaint is made that the defendant's barns were improperly built or negligently managed. Nor can it be denied that the defendant's business might be legitimately carried on without damage to adjoining land owners upon a stream of the size of the Missouri or the Platte, but it is manifest from the evidence that it cannot, in the magnitude described in the evidence, be carried on without infringing upon the rights of the lower land owners upon a stream of the size of the Papillion. I do not deem it necessary to discuss the question whether the plaintiffs have a remedy by action at law, for I understand it to be settled by the authority of the cases cited, as well as many others, that a continuing nuisance by polluting the waters of a stream, and others of a like character, may be proceeded against either by law or in equity at the election of an injured party. See also Webb v. Portland Mfg. Co. 3 Sumn. 189; Ang. Watercourses, § 444, and cases there cited; Atty-Gen. v. Steward, 20 N. J. Eq. 415; Lyon v. McLaughlin, 32 Vt. 423. The injury complained of by the plaintiffs is the pollution of the watercourse, and not the improper or unreasonable use of the water of the stream by the defendant. This is a question of fact, and, as the decree of the district court was for the defendant, it must be presumed that it found that there was no pollution of the stream; but such finding is unsustained by the evidence as contained in the bill of exceptions, and is clearly against it. The decree of the district court is reversed, and a decree for the plaintiffs, as prayed, will be entered in this court. Reversed. The other Judges concur. from a great natural pond or lake, have no right 3. An injunction may be granted to prevent drawing down the water of a pond below its natural low-water line where defendants avow an intention to do so whenever, in times of drought, the water is needed, and have already lowered the outlet to some extent, although the damages have thus far been nominal only. (June 26, 1889.) report from the Supreme Judicial Court O for Knox County, for the opinion of the full court, of a suit brought to enjoin defendants from drawing down the water in certain ponds below its natural level and to recover damages for injuries alleged to have resulted from such action. Judgment for plaintiffs. The case sufficiently appears in the opinion. Mr. J. H. Montgomery, for complainants: The public have a superior claim in the pond. Ordinance, 1641, 1647. Private persons may restrain a nuisance affecting the public rights, when they receive special damages. High, Inj. 1554. Injunction will be granted to restrain the depression of the outlet of a great pond for the purpose of drawing off its waters below its natural low-water mark, and damages given. Potter v. Howe, 2 New Eng. Rep. 167, 141 Mass. 357. Messrs. William H. Fogler, Charles E. Littlefield and T. R. Simonton for defendants. Walton, J., delivered the opinion of the court: This is a bill in equity, the prayer of which is that the defendants may be restrained by injunction from drawing off the waters of certain ponds named in the bill below their natural low-water mark. It appears that the plaintiffs own land bounded on the ponds, and that the defendants own mills on the outlet; and the complaint is that by excavating the channel the defendants are able, in times of drought, to draw down the water in the ponds below their natural lowwater line, and that this is a damage to the plaintiffs' land. We think the injunction prayed for must be granted. We do not think the owners of mills on a stream, flowing from a great natural pond or lake, have a right to lower the outlet, and draw down the water in the pond or lake below its natural low-water line. Such a right is inconsistent with the existence of the pond as a pond. If exercised to its fullest extent, it would destroy the pond. All the water might be drawn out, and its bed left dry, a mere stream of running water only remaining. And, if exercised to any extent, the necessary effect must be to widen the shores, and deprive the adjoining land owners of their natural water frontage; for it is the settled law of this State that lands bounded on a great pond or lake extend only to the natural low-water line, and that all beyond is owned by the State; and this natural water frontage may be as val that such a use of the water would be unreasonable; that great ponds belong to the public; that to draw down the water below its natural level is inconsistent with the common right to the use of the pond as a pond; that for such an abstraction of the water an information or an lic wrong; and that an adjoining landowner indictment would undoubtedly lie for the pubthereby deprived of his natural water frontage could obtain redress by injunction. Potter v. Hore, 141 Mass. 357, 2 New Eng. Rep. 167. As great ponds and lakes are public property, the State may undoubtedly control and the absence of legislative authority, no individregulate their use as it thinks proper. But, in ual or corporation can lawfully draw down the water of a great natural pond or lake below its natural low-water line. cures to mill owners the right to cut canals and It is urged in defense that our Mill Act sedivert water, and that the lowering of the outlet of a pond, and the drawing down of the think not. The language of the Statute is that water, may be justified under this Act. We a man may cut a canal on his own land, “and water of any stream," etc. Rev. Stat. chap. thereby divert from its natural channel the 92, § 1. To divert is to turn aside. The mere abstraction of water can hardly be called a diversion of it. The lowering of a natural channel can hardly be called the diversion of water "from its natural channel." Nor can the water of a pond properly be called the water of a stream. The terms "pond" and "stream" do not mean the same thing. Nor is there anything in the history of the Act, or the inconvenience to be remedied, which leads us to believe that the Legislature could have intended that the word "stream" should include a pond. We think the Statute does not apply. The evidence fails to satisfy us that at the time of the commencement of this suit the defendants had drawn down the waters of the ponds referred to in the plaintiffs' bill below their natural low-water level more than once, and then only for a short time, during the dry season of 1886. The damages, therefore, can be nominal only. But, as the defendants admit that they have lowered the outlet of the ponds some four feet more, and avow their intention to draw down the water below its natural low-water line, whenever, in times of drought, the water is needed for their mills, we think the plaintiffs are entitled to the injunction prayed for. Bill sustained. Injunction as prayed for, with nominal damages, and costs. Peters. Ch. J., and Danforth, Virgin, Emery and Haskell, JJ., concurred. Otis W. BROOKS v. uable to the land owner as the right to draw CEDAR BROOK & SWIFT CAMBRIDGE water is to the mill owner. But, whether of equal value or not, it is of equal validity in law, and entitled to equal protection. This precise question was recently considered in Massachusetts, and the court held that the water of a great pond could not be lawfully drawn down below its natural low-water line; RIVER IMPROVEMENT CO. (....Maine....) 1. A riparian owner has no right of ac NOTE.-Riparian rights, how conferred. See notes to Haines v. Hall (Or.) 3 L. R. A. 609; Fulmer v. Williams (Pa.) 1 L. R. A. 603. tion for the washing away of the soil of the banks and bottom of a stream across his land in consequence of the increased flow of water at certain times, occasioned by a dam, made with legislative authority, for the purpose of facili tating the driving of logs. 2. Incidental injuries to land by the washing away of the soil of the banks and bottom of a stream, caused by a reasonable increase of the flow of water at certain times produced by a dam authorized by the Legislature to facilitate the driving of logs, is not the taking of the property of a riparian owner for which compensation is necessary. 3. A clause of a charter authorizing land to be taken, which makes the corporation "accountable to the owners thereof for all damages," does not include consequential injuries. (June 5, 1889.) report from the Supreme Judicial Court The Legislature authorized the defendant Company, among other things, to build dams across this river for the purpose of facilitating the driving of logs and improving the navigation. Spec. Laws 1875-77, chap. 106. The defendant Company, in pursuance of its charter, and for the purposes named, built a dam across the river, about four miles above the plaintiff's laud. There is no suggestion, in the statement of facts, that the dam is not properly constructed, and not wholly within the terms of the defendant's charter. The head of water accumulated by this dam increases the flow below the dam, when the gates are opened for the passage of logs. This increased flow facilitates the driving of the logs, which is the object of the Company's charter and works. The greatest increase in the height of the river, where it passes through the plaintiff's land, caused by this increased flow, is one foot. The action of this increased flow of ON Supr the opinion of the water, and of the logs borne along upon it, full court, of a suit to recover damages for injuries to plaintiff's lands, which were alleged to result from the interference by defendant with the natural flow of a certain stream which crossed them. Judgment for defendant. Defendant was incorporated and given power to improve certain streams for the purpose of facilitating the driving of logs. It built a dam across the Swift Cambridge River above plaintiff's lands, and thereby accumulated a head of water which it permitted log owners to use in driving their logs upon payment of certain tolls. The action of the logs and water injured plaintiff's lands, and he brought this action to recover damages therefor. The case was submitted on an agreed statement of facts, and in case defendant was liable damages were to be assessed by a referee, otherwise judgment to be for the defendant. Mr. D. Hammons for plaintiff. Mr. A. E. Herrick, for defendant: The provisions in the Constitution of the State, art. 1, § 21, as to making compensation for property taken, applies only to such a taking as transfers the title from the owner to others for public use. Cushman v. Smith, 34 Me. 247. The State is above the individual, and has created this Company with certain rights. In the exercise of these rights it is not liable for injurious consequences unless so done as to constitute actionable negligence. Lawler v. Baring Boom Co. 56 Me. 443; Spring v. Russell, 7 Me. 273; Whittieer v. Portland & K. R. Co. 38 Me. 27; Boothby v. Androscoggin & K. R. Co. 51 Me. 318. That indirect and remotely consequential injury might arise would not make the defendant liable when such injury was not the result of its action. Sumner v. Richardson Lake Dam Co. 71 Me. 109. Emery, J., delivered the opinion of the court: Facts agreed. Swift Cambridge River in Maine is a non-tidal stream, but is capable, in its natural state, of floating to market logs and other products of the forest, and hence is a public highway for all the people of the State. Brown v. Chadbourne, 31 Me. 9. "has tended to widen and deepen the stream by gradually wearing away the soil of the banks and bottom across the plaintiff's land." The plaintiff brings this common-law action to recover damages for that injury to his land. He makes no other complaint. None of his land has been appropriated by the defendant. It has not flowed nor occupied his land. It has not diverted any water from or upon it. So far as appears, it has by their erections detained the water a reasonable time, and let it down in reasonable quantities, at proper seasons. This is just what is being continually done on nearly every stream in the State, and what every riparian owner submits to, with little thought of claiming damages. The plaintiff's injury, if any, does not flow from the wrongful act of anyone, and hence is damnum absque injuria. To hold otherwise,to hold that the mere tendency of an increased flow of water, at times, in its natural channel to wear away soil, is in itself a cause of action against the owners of mills and dams,-would prevent all improvement of inland navigation, and would paralyze all industries dependent on water power. A law requiring such a judgment can never have been established by the people. The plaintiff urges, however, that the Legislature cannot authorize the improvement of the navigation of the public streams of the State without providing compensation to riparian owners for such injuries as his. It may be at once conceded, fully, that the Legislature cannot authorize the taking any property of a riparian owner, for use in improving the navigation, without providing compensation. If riparian land is taken for storage of water, or for a receptacle for discharged waters, or for dams, locks, etc., the owner is entitled to compeusation for the injury caused by such taking. This concession, however, does not include incidental injuries, where no land is appropriated, and no water is diverted. The riparian owners on all public streams in this State hold their riparian lands subject to the paramount right of navigation of such streams by the public. The public right of navigation existed before the private ownership of the land under or adjoining the public streams. The title to the whole, lands and rivers, was first in MAINE SUPREME JUDICIAL COURT. JUNE, no cause of action. The decision was put on the ground that the State had the control of the river, and the right to improve its navigation by any appropriate means, and that every grantee of land on the river took subject to that right. River Co., 20 Fed. Rep. 71, the same doctrine was upheld by the federal court in the ConIn Holyoke Water-Power Co. v. Connecticut necticut District. the defendant company, in pursuance of legislative authority, constructed works that turned In Henry v. Vermont Cent. R. Co. 30 Vt. 638, the current of a stream, so that it washed away the plaintiff's land. It was held that the injury was consequential only, and that the plaintiff could not recover. the sovereign, whether king, province or State. | ually away. It was held that the plaintiff had In all the grants of lands from the sovereign, there is always, at least unless otherwise expressly stipulated, a reservation of the public right to use all navigable rivers as public highways. Such a reservation naturally and properly retains with it the right for the sovereign to make and authorize all reasonable improvements, from time to time, to facilitate the use of the river by the public, even though the land owner thereby suffers inconvenience or loss, so long as none of his property is actually appropriated by the sovereign. This sovereign right has been continuously exercised in this State since its first settlement, and by the general, if not universal, consent of all its citizens. The statutes of nearly every legislative session contain Acts authorizing the improvement of rivers as public highways, by the erection of dams, and applying to nearly all the public rivers of the State. All these Acts assume the right of the State to make such improvements, without making compensation, except where private property is actually appropriated. The General Statute authorizing the erection of dams for creating water power contains no provision for compensation to riparian owners, when the stream is not diverted, nor the land overflowed. universal acquiescence in the exercise of such The early, long-continued and a right is the strongest evidence of its existence. A judicial decision can hardly be necessary to establish it. The courts, however, have recognized this right of the State. In Moor v. Veazie, 32 Me. 343, 357, the court, through Chief Justice Shepley, declared (quoting from Hale, De Jure Maris, chap. 4, prop. 3) that "the common law accorded to the sovereign power the care, supervision and protection of the common right of navigation in navigable rivers," and the court further used the following language: "The power which has the care, supervision and protection' of a common right is bound to regulate its use in such manner that it may be safe and convenient. The duty to make the use safe and convenient involves the right to remove obstructions, to improve, or to render more safe and convenient the water for the purpose of navigation." In Sumner v. Richardson Lake Dam Co., 71 Me. 106, it did not appear that the defendant's dam in any way caused the injury complained of, and hence the case is not directly in point. Still, the defendant company was chartered to build dams to improve the navigation of a public stream, and the court plainly intimated that the charter was lawful, though it did not provide compensation for consequential injuries, such injuries as are complained of here. In other States, this question between the State and the riparian owners has been directly presented and adjudicated. In Hollister v. Union Co. 9 Conn. 436, the defendant company was authorized by the Legislature to build piers, wharves, bridges, etc., in the Connecticut River, to improve its navigation. The company's works, built under its charter, deflected the current of the river against the plaintiff's land, washing it grad7 L. R. A. 64 city, under legislative authority, made a In Alexander v. Milwaukee, 16 Wis. 264, the prove the harbor. The current flowing through this straight cut came against and wore away straight cut" across a point of land, to imthe plaintiff's land. Held, that the plaintiff had no cause of action. ants, by legislative authority, changed the current of American River, so as to make the floods In Green v. Swift, 47 Cal. 536, the defendcaused the current to wash the lands of the less dangerous at Sacramento. This change plaintiff. Held, that the defendant was protected by the legislative authority. the company, under its charter, built dams and In Monongahela Nav. Co. v. Coon, 6 Pa. 383, navigation. These works so held back the water as to retard the current in the Youghiolocks in the Monongahela River to improve its gheny River above, to the injury of the plaintiff. Held, that the State had the right to improve the navigation of its rivers, and that the plaintiff had no cause of action. Pennsylvania_case, McKeen v. Delaware D. charter makes it responsible, in this action, for Company is authorized to take land and mate- Virgin and Haskell, JJ., concurred. Larkin THORNDIKE v. Inhabitants of TOWN OF CAMDEN. (......Maine......) 1. A town has no authority to vote a tax for reimbursement of a collector who has improperly taken a note for taxes, and after accounting for it as money, been unable to collect it. 2. The designation of a person against whom a tax warrant is issued by a wrong name will not excuse the collector's failure to collect the tax where the mistake is too slight to raise any question of identity. 3. Citizens can be taxed only for lawful public purposes. (June 26, 1889.) defendants' exceptions to a judgment of sum, which was recorded. The taxes on the property of D. Knowlton Company, corporation, for years 1872 and 1877 were assessed in the name of D. Knowlton & Co., and paid to collector." Mr. Thomas A. Hunt, with Mr. T. R. Simonton, for defendants. Mr. J. H. Montgomery, for plaintiff: A municipal corporation has power to settle disputed claims against it, and an agreement to pay these is not void for want of consideration. Dillon, Mun. Corp. § 477. A vote by a town is in law a promise express, and if there be a consideration, it is a foundation for an action. Nelson v. Milford, 7 Pick. 25. The collector paid the amount of the tax to the Town under a mistaken idea of his rights, and the Town voted to refund the money inadvertently paid to it by the plaintiff. This is a good consideration for the vote and binds the Town. Nelson v. Milford, supra; Bean v. Jay, 23 O Nelson County (Danforth, J.) in favor of plaintiff in an action to recover back money paid by plaintiff as tax collector to the town treasurer, upon a certain tax warrant which he afterwards failed to collect. Sustained. The case was referred to the court without the intervention of a jury, upon the following agreed statement of facts: "This is an action for the recovery of an amount voted by the Town to be paid to the plaintiff, and interest on same. "It is agreed that plaintiff was collector of taxes of said Town for the year 1873, and that among the various taxes intrusted to him for collection for that year was one against D. Knowlton & Co. amounting to more than $300; that he failed to collect of them a portion of said tax, amounting to $316.06 except to take the note of said D. Knowlton & Co., running to himself; that said note was never paid to him, or any part thereof, owing to the insolvency of said D. Knowlton & Co.; that the plaintiff, supposing said note to be collectible, paid the amount of the same to the town treasurer for the said Town of Camden; that he did not, as collector, attempt to enforce any portion of said tax against the real estate of said company, as the tax was assigned to D. Knowlton & Co., while the property meant to be taxed belonged to and was in the name of D. Knowlton Company, a corporation, there being no such party as D. Knowlton & Co.; that in 1885, at the annual meeting of said defendant Town, on an article of the following tenor, to wit: "Art 31st. To see if the Town will vote to refund to Larkin Thorndike so much of the tax assessed to D. Knowlton & Co. in 1873 as was paid to the Town, but never collected, amt. to $316.06, and interest on same; also, what sum of money they will vote to raise to pay the same,'-it was voted as follows: Art. 31st. Voted the selectmen be authorized to pay Larkin Thorndike the sum of three hundred dollars ($300) the same to be raised by assessment;' that this sum was early in the year of 1885 demanded of the selectmen of said Town, but has never been paid to the plaintiff, nor assessed by said Town. Luke Upham protested against the payment of said Emery, J., delivered the opinion of the court: This case is presented by the defendants' exceptions to the ruling of the presiding justice awarding judgment for plaintiff on an agreed statement of facts. In submitting a case upon an agreed statement, the plaintiff has the burden of stating all the facts necessary for the maintenance of his action. He must not depend on inferences. Omissions will be construed against him. In this case we must assume that the plaintiff was the duly elected and qualified collector of taxes in the defendant Town for the year 1873; that he had a legal and sufficient warrant to collect a tax of $316, legally assessed against a party liable to taxation in said Town, and styled in the warrant, "D. Knowlton & Co.;" that he made no effort to collect said tax further than to illegally permit them to give their note instead of the money for their tax; that he took the note as money, and accounted for it as money to the town treasurer; that twelve years afterwards, in 1885, the note not having been paid, the Town voted, under proper articles in the warrant, to pay him $300 in consideration of the premises, the said sum to be raised by assessment. Has the Town the power to impose a tax for such purpose? Clearly not, unless the plaintiff's claim is incident to, or connected with, the exercise by the Town of its legal powers. A town is not a business or a charitable corporation. It is simply a political organization, created as a convenient agent for the performance of certain govermental duties and purposes. Its powers are almost entirely political, and are properly limited to its duties. It has only such control over the citizen and his money or property as is expressly granted to it, or is necessary to the performance of its duty to the public. Indeed, a town is only a trustee for the public. It does not own the money in its treasury, nor the municipal property generally, but only holds them in trust for the public, and subject to public control through the Legislature. Dillon, Mun. Corp. § 61; Meriwether v. Garrett, 102 U. S. 472 [26 L. ed. 197]. |