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Dorey v. Estate of Spicer, revised 8-14-98
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MAINE SUPREME JUDICIAL COURT				Reporter of Decisions
Decision:	1998 ME 202
Docket:	Cum-97-588	
Argued:	June 10, 1998
Decided:	August 5, 1998 


Panel:	WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, and SAUFLEY, JJ.




PETER M. DOREY v. ESTATE OF WILLIAM C. SPICER, JR. et al.


SAUFLEY, J.

	[¶1]  Peter M. Dorey appeals from the judgment of the Superior Court
(Cumberland County, Brennan, J.) declaring that he does not have the right
to control the flow of water through the dam at the outlet of Foster Pond in
Bridgton, thereby raising and lowering the Pond's water level and affecting
the property of the pondfront landowners, in order to generate a private
supply of electricity.  We affirm the judgment.
I. Background
	[¶2]  Dorey owns property in Bridgton which lies downstream from
Foster Pond{1} along Gristmill Brook.  At the outlet of Foster Pond stands a
dam which provided power for a sawmill from the mid-1800's to the
mid-1900's.  In 1991, Dorey filed a declaratory judgment action, naming as
defendants forty-four owners of waterfront property on Foster Pond, and
seeking a declaration of his right to operate the dam at the outlet of Foster
Pond, inclusive of a right to flood the Pond's waterfront land.{2}  He also
sought an injunction precluding any of the defendants from interfering with
those rights.  Eight of the named defendants moved for summary judgment,
asserting that Dorey did not hold any flowage rights relative to the outlet
dam.
	[¶3]  The court (Brennan, J.) agreed with the defendants and granted
them a partial summary judgment.{3}  Following Dorey's motion for
reconsideration and a subsequent trial management conference, the court
held an evidentiary hearing to resolve the issue of Dorey's legal rights with
respect to all of the defendants.  The court then declared that Dorey did not
have the right to flow the dam at the outlet of Foster Pond and thereby raise
and lower the Pond's water level.  This appeal followed.
II. History of Conveyances
	[¶4]  Because Dorey bases his rights to operate the dam on his
ownership of real property and purported purchase of flowage rights, a
review of the conveyances giving rise to his claim is necessary to an
understanding of the issues.{4}  At the heart of this litigation lies real property
located at the outlet of Foster Pond and along the outflowing Gristmill Brook
to the northeast.  In 1774, Asael Foster acquired the land encompassing this
property from the proprietors of the Bridgton Township.  Soon thereafter,
Foster built a gristmill and a dam (not the dam in dispute here) on what is
now known as lot 9,{5} which lies downstream from the Foster Pond outlet
along Gristmill Brook.  In 1839, Asael's son Francis conveyed to Benjamin
Knapp the right to use the land at the outlet of Foster Pond to construct a
dam and use its water power to undertake sawmill operations.  Knapp and
Joseph Foster, Francis's son, built the dam and sawmill the same year.  
	[¶5]  In 1849, Joseph Foster conveyed to Knapp a one-half interest in
the sawmill property, "[r]eserving to the mills on the old privilege below,
and the owner & occupants of the same, the right to draw water for the use
of any mills which are, or may be on said old privilege when needed[.]" 
Knapp, however, relinquished that one-half interest back to Foster in 1860
in order to establish a third mill site downstream from the gristmill
property.{6}  The gristmill and sawmill properties then remained in the
Foster family until 1916, when Edward Bennett inherited the properties
upon the death of his mother, Almira Foster.  By 1946, Bennett or his
successors in title had conveyed to Everett and Frances Johnson four
parcels of land along Gristmill Brook, spanning from the southwestern
boundary of the original sawmill property, which encompassed the dam at
the outlet of Foster Pond and the sawmill, to the northeastern boundary of
the original gristmill property, which lay further downstream.{7}
	[¶6]  During the 1960's, the Johnsons conveyed the central portion of
the gristmill property, lot 9, the northeastern portion of the gristmill
property, lot 9-2, and a small portion of the sawmill property, lot 9-1, to
William and Margaret Sewell.  When the Sewells died, those lots became
part of the Margaret B. Sewell Revocable Trust, and on January 18, 1980,
the Trustee of that Trust conveyed lots 9, 9-1, and 9-2 to Dorey.  
	[¶7]  Dorey then approached the Johnsons seeking to acquire the
entirety of the original sawmill property for the purpose of generating
electrical power for private use at his residence on lot 9.  Although the
Johnsons declined to sell the site of the outlet dam, identified as lot 27, or
the site of the sawmill itself, identified as lot 11A,{8} they sold Dorey three
property interests:  (1) lot 9-3, a parcel adjacent to the northeastern border
of the original gristmill property, (2) lot 9-4, a parcel lying in between lots 9
and 11A which straddles the original gristmill and sawmill properties, and
(3) the "flowage rights" relative to the dam at the outlet of Foster Pond on
lot 27. 
	[¶8]  Lots 9-3 and 9-4 were conveyed to Dorey through a single deed,
dated May 27, 1980.  The flowage rights were addressed through a separate
deed, dated May 28, 1980, by which the Johnsons purported to convey to
Dorey "[t]he exclusive and perpetual right to use that certain dam erected at
the outlet of Foster's Pond . . . and . . . all water power and rights as to the
waters of said Foster's Pond and the outlet stream however acquired, now
appurtenant, owned, used, and enjoyed in connection with the above
described dam[.]"  The May 28 deed further stated that "[t]he above
described dam and flowage rights and privileges shall be appurtenant to
those premises which [Dorey] recently purchased from David C. Hamblett,
Trustee of the Margaret B. Sewell Revocable Trust Agreement by deed dated
January 18, 1980[.]" 
III. The Mill Act
	[¶9]  The private right to operate a dam and flood the property of
upstream waterfront landowners, to the extent that it still exists, arises
from the Mill Act, 38 M.R.S.A. §§ 651-59, 701-28 (1989), which has its
genesis in the early statutory law of the Province of Massachusetts Bay.  At
common law, a dam that flooded the lands of upstream landowners was a
private nuisance that rendered its owner vulnerable to an action in tort for
damages arising from the dam's erection, an equitable order for abatement,
and successive actions for yearly damages.  See Jones v. Skinner, 61 Me. 25,
26 (1872).  In 1714, however, the Province of Massachusetts Bay, in
recognition and support of the "public good and benefit" provided by mills,
enacted a law providing riparian landowners with the "free liberty" to
establish mills on their property and limiting their liability to injured
upstream landowners to the assessment and payment of yearly damages. 
See Id. at 27 (quoting Acts of 1714, ch. 111, Ancient Laws 404-5).  In 1796,
the Commonwealth of Massachusetts replaced the provincial law with "An
Act for the support and regulation of mills[,]" the first section of which
stated:
	[T]hat where any person hath already erected, or shall
erect any water Mill on his own land, or on the land of any other
person by his consent legally obtained, and to the working of
such mill, it shall be found necessary to raise a suitable head of
water, and in so doing any lands shall be flowed not belonging to
the owner of such mill, it shall be lawfull for the owner or
occupant of such mill to continue the same head of water to his
best advantage in the manner and on the terms herein after
mentioned.
Mass. Gen. Laws ch. 76, § 1 (1796).  The remaining sections of that Act also
limited the remedy available to the injured upstream landowner to the
recovery of yearly damages.  See Jones, 61 Me. at 27.
	[¶10]  Upon achieving statehood, Maine in 1821 enacted its own Mill
Act, virtually identical to the 1796 Massachusetts law both in the language of
its first section and in its limitation of remedies to the recovery of yearly
damages.  See P.L. 1821, ch. 45, §§ 1-16.  With the exception of an 1881
amendment that expanded the available remedies to include, at the election
of the mill owner, the one-time recovery of damages in gross, see P.L. 1881,
ch. 88, §§ 1-3, Maine's Mill Act has survived to this day in essentially the
same substantive form.  See 38 M.R.S.A. §§ 651-659, 701-728 (1989). 
Specifically, section 651 of the current Act provides that "[a]ny man may on
his own land erect and maintain a watermill and dams to raise water for
working it, upon and across any stream not navigable; . . . upon the terms
and conditions and subject to the regulations hereinafter expressed."  Id.
§ 651.  Section 655 provides a cause of action for damages for "[a]ny person
whose lands are damaged by being flowed by a milldam[.]"  Id. § 655.  And,
finally, sections 711, 706, and 721, respectively, provide for the primary
remedy of yearly damages, the alternative remedy of damages in gross, and a
ban upon all other remedies otherwise available at common law.  See id.
§§ 711, 706, 721.
	[¶11]  The Mill Act is not only in derogation of common law riparian
rights,{9} it also constitutes a state-sanctioned form of private eminent
domain, whereby upstream landowners' rights relative to their waterfront
property are taken, with compensation in the form of limited damages, for
the "public good and benefit" provided by the otherwise private mill.  As
early as 1855, however, this Court questioned the necessity and
constitutionality of the Act's "privatized" eminent domain, but nonetheless
accepted the Mill Act as constitutionally valid because of "its great antiquity,
and the long acquiescence of our citizens in its provisions."  Jordan v.
Woodward, 40 Me. 317, 323-24 (Me. 1855). 
This act . . . arose out of the necessities of the people in the early
days, when small water mills of various kinds were essential to
the very existence of the settlers, but is now regarded somewhat
as a legal anomaly, because at the present day, and under
modern industrial conditions, its effect is the acquisition of
property rights from one individual or corporation against their
will for the benefit of another individual or corporation, by the
mere payment of damages.  Were it a new proposition, its
constitutionality might well be doubted.  But it has been so long
acquiesced in as the policy of the State, and so constantly upheld
by judicial decisions, that its validity is no longer debatable.
Opinion of the Justices, 118 Me. 503, 516-17, 106 A. 865, 873 (1920)
(citations omitted) (emphasis added).  Due to unique nature of the Mill Act,
we construe its provisions strictly, declining "to extend [those] peculiar
provisions by implication."  Jordan, 40 Me. at 324.{10}
	[¶12]  Because the intent of the Mill Act was to permit industrial use
and control of the water flow,{11} the flowage rights arising from the Act are
directly tied to the ownership of the mill land, and are in the nature of an
easement appurtenant, benefiting the mill site as dominant tenement and
burdening the upstream landowners, collectively, as servient tenement. 
[T]he riparian proprietor . . . can build dams upon his own land
to develop power for milling and manufacturing purposes,
subject to the provisions of the Mill Act and to the payment of
damages for all flowage caused thereby; but the flowage rights
thus acquired become property rights in the nature of an
easement appurtenant to the manufacturing plant.
Id. at 507, 106 A. at 869 (citation omitted) (emphasis added).  "[A]n
easement that is appurtenant is incapable of existence separate and apart
from the particular messuage or land to which it is annexed, there being
nothing for it to rest upon."
  Ring v. Walker, 87 Me. 550, 558, 33 A. 174,
176 (1895); see also Gilder v. Mitchell, 668 A.2d 879, 881 (Me. 1995) ("An
appurtenant easement is created to benefit the dominant tenement and runs
with the land.").  Consistent with this description of flowage rights and with
the language of the Mill Act, only the owner of the land upon which the dam
is erected and maintained may be held liable for the damage caused by the
flooding of upstream lands.  See Stevens v. King, 76 Me. 197, 200 (1884);
Nelson v. Butterfield, 21 Me. 220, 232 (1842). 
IV. Dorey's Claims
	[¶13]  The flowage rights at issue here came into existence pursuant
to the Mill Act when Benjamin Knapp and Joseph Foster built the sawmill
and dam at the outlet of Foster Pond in 1839.  It is undisputed that the
sawmill is no longer operational and that Dorey does not own the land on
which the dam or sawmill sit.  Notwithstanding the plain language of the Act
limiting its benefits to any person erecting or maintaining a mill "on his own
land[,]" however, Dorey claims present rights under the Act by virtue of
three sources:  (1) his May 28, 1980 purchase of flowage rights separate
from any transfer of real property, (2) his May 27, 1980 purchase of a
distant portion of the original sawmill property, and (3) his ownership in fee
of the original gristmill property, which he alleges benefits from an 1849
reservation of flowage rights relative to the original sawmill property.
A. Separate Conveyance of the Flowage Rights
	[¶14]  Dorey cites Ring v. Walker for the proposition that flowage
rights are a unique type of easement appurtenant that can be transferred
apart from the mill site to which they are appurtenant and made newly
appurtenant to a downstream mill site.  Contrary to Dorey's argument,
however, Ring v. Walker did not directly address flowage rights or their
transfer.  Ring, rather, concerned two express reservations, made in the
context of conveyances, of the rights to build, maintain, and use a log sluice
through an upstream mill site for the benefit of certain downstream mill
sites.  See Ring, 87 Me. at 555-57, 33 A. at 175-76.  This Court explicitly
declined to treat the reservations as creating an easement appurtenant to
any specific downstream mill site, instead finding them to be in the nature
of "a prendre in alieno solo, as in Engel v. Ayer, 85 Maine 448."  See id. at
558, 33 A. at 176.  "[A] profit a prendre in the lands of another, when not
granted in favor of a dominant tenement, cannot properly be said to be an
easement, but an estate or interest in land itself."  Engel v. Ayer, 85 Me.
448, 455, 27 A. 352, 354 (1893) (citation omitted).  Accordingly, the rarely
addressed sluicing rights at issue in Ring are not analogous to the flowage
rights at issue in this case.  Ring therefore provides no support for Dorey's
proposition that flowage rights pursuant to the Mill Act are a unique type of
easement appurtenant that can be independently transferred apart from the
mill site to which they are appurtenant.
	[¶15]  To the extent that flowage rights to the Foster Pond dam still
exist, they are in the nature of an easement appurtenant to the dam site on
lot 27 and the sawmill site on lot 11A and cannot exist apart from those lots. 
See Opinion of the Justices, 118 Me. at 507, 106 A. at 869.  Accordingly, the
conveyance of flowage rights alone in the May 28, 1980 deed is of no legal
effect.  The court therefore was correct in concluding that Dorey did not
have flowage rights relative to the dam at the outlet of Foster Pond by virtue
of that deed.
B. Ownership of a Piece of the Original Sawmill Property
	[¶16]  Dorey next claims flowage rights by virtue of his ownership of
lot 9-4, which encompasses a piece of the original sawmill property to
which the flowage rights were originally appurtenant.  He has, however,
offered no law to support his contention that Mill Act rights should be
considered appurtenant to lot 9-4 merely because a portion of it was once
part of a larger parcel that encompassed the sawmill property.  Lot 9-4 is
not the site of either the outlet dam or the sawmill, which together
comprise the manufacturing plant to which the flowage rights are
appurtenant.  See Opinion of the Justices, 118 Me. at 507, 106 A. at 869. 
Because we construe the Act's provisions strictly, we conclude that only the
owners of the lots actually containing the dam and the sawmill may be
allowed to exercise flowage rights relative to the dam and thus be held liable
for the resulting statutory damages.  See Stevens, 76 Me. at 200; Morton v.
Franklin Co., 62 Me. 455, 456 (1872); Nelson, 21 Me. at 232.  Dorey's
reliance upon the May 27, 1980 deed is therefore misplaced.
C. Ownership of the Gristmill Property
	[¶17]  Finally, Dorey argues that he possesses flowage rights relative to
the outlet dam through his fee ownership of the original gristmill property,
located downstream from the dam and sawmill.  Here he relies on the 1849
conveyance from Joseph Foster to Benjamin Knapp of a half-interest in the
sawmill property, in which Foster reserved "to the mills on the old privilege
below [the gristmill property], the right to draw water for the use of any
mills which are, or may be on said old privilege when needed."
	[¶18]  Dorey asserts that this express reservation remains with the
original gristmill property he currently owns.  We need not reach Dorey's
argument, however, because he overlooks the fact that, in 1860, Knapp
relinquished his half-interest in the sawmill property back to Foster, thus
extinguishing the need for and existence of Foster's earlier reservation.  See
Great Cove Boat Club v. Bureau of Pub. Lands, 672 A.2d 91, 94 (Me. 1996)
("An easement appurtenant can be terminated . . . by conduct of both parties
(merger or estoppel)"); LeMay v. Anderson, 397 A.2d 984, 987 n.3 (Me.
1979) ("Unity of title to the dominant and servient estate, of course,
extinguishes an easement."); Fitanides v. Holman, 310 A.2d 65, 67 (Me.
1973) ("whatever claim to a right of way which might have existed ended
with merger of the subject lots in one owner").{12}
	[¶19]  In sum, Dorey does not own the property containing the dam or
the sawmill, did not acquire rights to operate the dam by purchasing a
distant piece of the original sawmill property, and could not acquire the
appurtenant right to operate the dam without also acquiring the land upon
which it sits.{13}
	The entry is:
Judgment affirmed.
 
Attorney for plaintiff: Stephen P. Beale, Esq., (orally) Skelton, Taintor & Abbott, P.A. P O Box 3200 Auburn, ME 04212 Attorneys for defendants: Stephen Hessert, Esq., (orally) Paul F. Driscoll, Esq. Norman, Hanson & DeTroy P O Box 4600 Portland, ME 04112-4600 (for Robert Senger and others) William L. Plouffe, Esq. Drummond, Woodsum & MacMahon P O Box 9781 Portland, ME 04104-5081 (for Town of Bridgton)
FOOTNOTES******************************** {1} Foster Pond is also known and referred to as Foster's Pond and Ingalls Pond. {2} The Foster Pond Association and the Department of Environmental Protection were designated as parties-in-interest. {3} The court also granted a partial summary judgment to Dorey declaring that he has the right to use the gristmill property's dam to flow the sawmill property and the right to enter the sawmill property to repair, improve, and maintain the various waterworks on that property. In light of the court's other rulings, this portion of the judgment has not been challenged on appeal. {4} In the proceedings below, the parties agreed to address only the issues concerning record title to the properties at issue, reserving argument on equitable theories related to the historical uses of the properties in the event that Dorey was found, from the documents, to have the legal right to flow the dam. Because consideration of the historical use issues depends upon Dorey's possession of flowage rights, his arguments sounding in equity are mooted by the trial court's ruling that he does not have such rights. See Bureau of Employee Relations v. Maine Labor Relations Bd., 655 A.2d 326, 327 (Me. 1995). {5} All lot numbers in this opinion are derived from Town of Bridgton tax maps. {6} No conveyances of the sawmill or gristmill properties since that time have contained any references to such a reservation. Although the 1859 and 1860 deeds between Knapp and Foster are not entirely clear concerning Knapp's relinquishment of his half-interest in the sawmill property, Dorey concedes that this relinquishment occurred. {7} From at least 1943 until the present, the gristmill property has been used solely for residential purposes. {8} The sawmill converted from water power to electrical power at some point during the 1950's or 1960's, and ceased all operations in 1979. {9} See Kendall, Water Law in Maine, Me. B. Bull., July 1970, at 1. {10} In Jordan, a mill owner built a dam, flooded the land of an upstream landowner, and then sought to exclude the landowner from using the portion of the mill pond that lay over his flooded land. See Jordan, 40 Me. at 320-21. This Court questioned the continuing need for the private takings allowed by the Act and declined to construe its express grant of a right to flood the upstream landowner's land as implying any additional or implied rights. See id. at 324. {11} Although neither the parties nor the court addressed the issue in the proceedings below, it is not clear Dorey could invoke the provisions of the Mill Act where his proposed use of the outlet dam is apparently private rather than commercial or industrial. See 38 M.R.S.A. § 651; Central Maine Power v. Public Util. Comm'n, 156 Me. 295, 327, 163 A.2d 762, 779 (1960) ("The riparian proprietor may use the [water] power for manufacturing and industrial purposes . . . subject to the provisions of the Mill Act and to the payment of damages for all flowage caused."); Clark v. Rockland Water Power, 52 Me. 68, 78 (1860) ("Under our mill Act, riparian proprietors, who are owners of mill sites, may raise a head of water, by the construction of dams, . . . for the purpose of working their mills[.]"). Because we conclude for other reasons that Dorey does not have a right to flow the dam, we do not reach this issue. {12} Moreover, it is not clear that such a reservation would likely be of any use to one who seeks to control the water, not for working a mill, but for private generation of electricity. {13} Because we conclude that Dorey does not hold the rights to flow the dam and flood the land surrounding Foster Pond, we do not reach the question of the continuing vitality or constitutionality of the Mill Act itself.