Roberts v. Peavey & a., 27 N.H. 477

Bell, J. The facts alleged in the bill and in the answer are admitted or proved, with the exception of the allegation of the bill, “ that if the dam should be rebuilt and the mill repaired, no head or fall can be obtained at said mill, by means of a dam sufficient to operate and use said mill for the purpose of sawing, to be of any profit, value or advantage, without overflowing the land conveyed or leased by "Watson to Peavey, or greatly injuring the same, or some-part of it.” This is distinctly denied in the answer, and the evidence-is in conflict in regard to it.

It is not deemed necessary or profitable to recapitulate the evidence on this subject. We think the difference in the testimony of the witnesses is rather apparent than real, and that it may be reconciled without questioning either the fairness, scientific skill or intelligence of any of the witnesses.

The conclusion which we draw from all their statements, giving to the answer its due weight, is that by deepening the stream for some thousand feet below the mill, and by blasting at the mill so as to increase the head and fall, by placing the wheel and its apron a foot and half or two feet lower, a pretty good privilege maybe made there.

But we regard this as a fact of no consequence in this case, since the privilege which might thus be made would be a new privilege, essentially different from that now owned by the parties; and we suppose it clear, that whatever the parties may agree to do among themselves, the powers of selectmen do not extend so far as to enable them to prescribe any thing beyond substantial repairs, a point to which we may revert again. It is not suggested that the owners of the mill have any right to interfere with the stream below, further than to restore it to its original state.

Supposing, however, that no substantial change is to be made in the character or construction of the mill, but the whole should be restored to its condition before the freshet, which carried away the dam, occurred, the dam rebuilt, the floom, wheel, race, and other works repaired, the wall in the river between the main stream and the raceway replaced and the raceway cleared out, as it was in the best condition in which it was kept by the mill owners, at any time after the mill was built, the result of the whole evidence, taken with the answer, we think, is to show that there would be, at the Jones mill, a privilege which could be used for the purpose of sawing, without flowing or injuring the Watson land, with a head and fall barely sufficient to drive the mill, and capable of affording a small profit, but falling short of the power heretofore used at the mill, by from two to three feet in the head of water, according to the varying testimony of the witnesses.

If we suppose it to be the least of these measures, it must make an essential difference in the character and value of the mill, a difference so great that a person might well be anxious to own a share of the more rapid and powerful mill, who would be entirely disinclined to invest his money in a mill of the slower and more feeble power, which could never afford more than the lowest grade of profit.

Upon this state of facts, several questions arise, and first, it is said that the selectmen, in eases of this kind, are a judicial tribunal, and exercise powers of a judicial character: and as such are not subject to the control of this court, sitting as a court of equity, and exercising their powers in a proceeding purely equitable. We think both these positions are true.

Where power is conferred upon one or more persons, upon an application made by one party for any kind of redress for wrongs committed or rights withheld, or duties unperformed by another, to cite such other to appear before them, and are then authorized to hear such parties and their evidence, and to pronounce a decision, and to make any decree or order in relation to their rights or duties, their decision is in its nature judicial, and all their proceedings in regard to it are judicial. Sanborn v. Fellows, 2 Foster’s Rep. 489. The State v. Richmond, 6 Foster’s Rep. 232.

Such, we think, beyond question, are the proceedings of selectmen in relation to the repairing of mills. This court has all the powers, when regarded as á court of law, of the highest common law tribunals in England, in. regard to all inferior tribunals. Cochecho Railroad v. Farrington, 6 Foster’s Rep. 428.

But its powers as a court of equity, that is, in cases commenced and prosecuted according to the course of proceedings in equity, do not extend beyond those' usually exercised by eourts of equity elsewhere, The court, as a court of equity, does not assume to exercise any control or corrective jurisdiction over inferior tribunals. Its powers of that kind are exercised only according to the course of the common law.

But all courts, whether of high or low jurisdiction, whether legal or equitable, possess the common right to inquire into the validity of the proceedings of all other tribunals, of whatever grade, whether domestic or foreign; not the right to rejudge their judgments, or to retry the cases they have decided; but to inquire whether they have acted, in the course of their proceedings, within the legitimate scope of their jurisdiction, because their proceedings are invalid, if their jurisdiction does not reach them.

"When cases, elsewhere decided, are brought incidentally in question, they are neither revised nor reversed as to their merits ; but if they are properly authorized, they are regarded as absolutely conclusive, if rendered within our jurisdiction, or in tribunals entitled to the like credit with our own, or as presumptive evidence, if rendered elsewhere, or, if unauthorized, they are merely disregarded or rejected. This court, in the present case, may well inquire, if the selectmen had jurisdiction to make the order against which the plaintiff asks relief.

And as their jurisdiction is very closely confined, both as to the cases and persons and modes of proceedings, there can few questions arise except such as are in their nature objections to the jurisdiction. No objections are suggested here to the manner of the proceedings. But the questions whether this property is such that the statute applies to it, or the interest of the parties in it is such that the process lies in their ease, or the order such as the selectmen could rightfully make, are all open to inquiry here, as necessarily involving the powers of the tribunal.

Courts of chancery have a very broad jurisdiction over the persons of parties, in cases where judgments have been rendered by courts of competent authority, and which are in themselves neither erroneous or reversible, on grounds entirely collateral to the merits of those judgments. It may be entirely inequitable and unjust for a party to avail himself of such a judgment on other grounds; and it is a familiar practice in these courts to enjoin a party from insisting upon or enforcing a judgment which it is unjust and inequitable for him to take advantage of.

It is admitted, Indeed, in the defendants’ argument, that the court may interfere in cases where the party is justly chargeable with fraud, or is attempting to take an unconscionable advantage. The questions involved in this ease, as to the order of the selectmen, seem to us clearly open to investigation on both of these grounds, if the positions taken by the plaintiff are sustainable, or if the objections which appear on the bill are well founded. The principal question presented by the case relates to the jurisdiction of the selectmen, which depends upon the construction of

chapter 135 of the Revised Statutes. By the first

section of this chapter, it is provided that “ all necessary repairs in any mill, mill dam or flume, owned by joint tenants or tenants in common, or in any mill dam or flume, owned in severalty, when the privilege of the water is owned jointly or in common, shall be made by such owners in proportion to their respective interests therein.” By the statute of 1801, of which this

chapter is a revision, u all necessary repairs in any mill, mill dam or flume? owned by joint tenants or tenants in common, shall hereafter be made by such tenants, each contributing thereto in proportion to his interest therein and the statute then provides, as in the Revised Statutes, for an application to the selectmen, a notice and hearing, and an order by them, prescribing the repairs to be made, and by whom and in what proportions.

At the close of the section, it is provided that ■“ where the mill dam or flumes have been divided, and are held in severalty, and the owners thereof shall be joint tenants or tenants in common, of the privilege of the water, and the owner or owners of any particular part of such mill dam or flume shall suffer his part thereof to go out of repair, any one of the other owners may apply to the selectmen in like manner, and the selectmen shall proceed in the same way to notify the parties as herein directed, where mills,, mill dams or flumes are owned by joint tenants or tenants in common.” By the Revised Statutes, the provisions relating to the two cases contemplated by the statute are united, but we see no indications that there was any intention materially to change the construction of the statute.

Under the first

section of this

chapter of the Revised Statutes, the question arises whether joint tenants or tenants in common of mills or mill dams have any rights under this statute, where they have not the ownership of the water power necessary to operate their mills, or, in other words, where they have no legal right to obstruct the natural flow of the water, for the purpose of raising the necessary head of water to drive their mills. Such a state of facts may be supposed to occur from various causes.

The most natural and frequent of these would be the expiration of the contracts or leases under which rights of flowage have been obtained, and the refusal of the owners of the property injured to permit the flowage to be continued.

In such a case, however perfect and complete in themselves such mills and their machinery may be^ their value as such, in that place, has ceased, and, we think, that with the loss of their moving power, that is, of the privilege of the water tó carry them, they lose their character as mills and mill dams, and the statute relative to the repairs of mills, has no longer any application to them, and they stand on the ordinary ground of joint and common property, which the parties may rebuild or repair, as they think proper.

It is contended, in the argument for the defendants, that the statute reaches the case of all kinds of mills, whether they are carried by wind or steam or by water, and that it applies with equal force and propriety to the case where they were driven by horses or by hand, and that it is wholly immaterial as to the manner in which the driving force is owned or obtained; that if parties own a mill in common, as, for example, a cider mill, and the agreement is that each owner shall supply his own horse, when he has occasion to use the mill, it is a case clearly within the provisions of the statute.

It is not necessary to decide, at this time, any question in relation to the application of this statute to other cases than those of water mills. If it were necessary, there might be room for reasonable doubts, if the statute admitted of so broad an application. But no point of that kind arises here. It is very apparent that these parties engaged in no common enterprize for erecting a mill, to be carried by the power which each might'find himself able to supply, on the days assigned for his use of it.

The history of the mill, as stated in the answer, shows that they undertook to build a mill together, at their joint expense, to be owned in common, and that having several rights to the land, which they supposed subject to be flowed, they agreed to an appraisal of those lands, to be used afterwards as a common flowage for the mill.

There is no indication that they expected the mill to be driven by hand, or by horses, or by steam ; but it was evidently supposed it was to be put in motion by the Cochecho river, by means of the fall or mill privilege, which they supposed they had secured by their arrangements with each other.

When the mill was erected and put in operation, it was found that, in order to operate it to the best advantage, it was necessary to raise the water to such a height that it overflowed a part of Watson’s low meadow, high up on the river, and they were forced to pay him damages, and they continued to pay such damages till Watson sold to Peavey. But it does not appear that they ever made any contract with each other, or with Watson, on this subject, nor that the original contract or understanding was in any way changed by this unfortunate embarrassment.

When the mill dam was swept away, the power relied upon to drive the mill was lost; it then became a question of rebuilding it, or of suffering the mill to be lost.

Independent of the provisions of the statute, each had a right to judge for himself whether he would rebuild or not, as he would in the- ease of any other building, so that whatever might be the rule where parties had engaged in building a mill, upon an agreement or understanding that they were to hire the water necessary for its. use, it seems very clear that that rule would not apply to the case of those who, from accident or miscalculation, have found themselves without the requisite moving power.

But the view thus urged upon us would not be sufficient for the purpose of the defendants, if it was well founded ; because, in this case, the order to repair, made by the selectmen, is not confined to the repair of the mill, but extends to the repair of the dam and flume.

If the mill were even required to be repaired, at any rate, whether there was water for it or notjWe cannot imagine any justification which could be given for requiring an individual to rebuild a dam, which he had no lawful right to use, and which he could not use for the only purpose for which it is capable of being used, without subjecting himself to an action at law, and ultimately to an injunction from this court. It is not readily to be supposed that the selectmen can have the right to compel a man to erect a dam, which must be, or which naturally will be, a nuisance to the land upon the stream above.

Such a dam as has been heretofore used for this mill, it is very apparent from the case, must be a nuisance to the owner of the Watson land, as is admitted by the payment of damages by all these parties, or those whose estates they have, to Watson. Assuming, as we think is clearly proved, that two feet of the upper part of the dam could not be used without flowing the Watson land, and that the plaintiff had no right to flow that land, several questions may be raised, bearing upon the authority of the selectmen to make an order to-^repair in such case.

And we think it clear that the selectmen had no power to order any repairs to be made, which will leave the mill, or mill dam, or flume substantially different from their previous form; as, for instance, to substitute a dam of six feet head and fall for one of eight feet.

If this tribunal had such a jurisdiction as would énable them to make such an order as the exigency of each case might require, it seems evident that their order should require the plaintiff to repair so much of the dam as he has an interest in, and no more, which would be, in this case, to repair the dam to the height of six feet or thereabouts; and if other owners were interested in having the dam constructed of the height of eight feet, they might have been ordered to repair the residue of the dam to its original height. But the selectmen had no power to do this.

Upon this point we have the authority of Bellows v. Dewey, 9 N. H. Rep. 278. There, was an order of the selectmen to the defendant to repair a dam; it was disregarded, and the plaintiff built a new dam, which was, at one extremity, seventy feet distant from the place of the old one. The court say, by Parker, C. J., “ It is very evident that, under this statute (of 1801,) one party is not authorized to call upon the other to- erect a mill or dam in a different place, or of a different character from that already existing.

Nor can he, upon the neglect of the other to repair, proceed to erect a mill, or dam, or flume, substantially different from the former, and compel the other to pay. A rebuilding may, perhaps, under some circumstances, be considered a repair within the meaning of the statute, but it cannot be extended beyond a substantial rebuilding.

It does not authorize one party to erect a new mill or dam, varying substantially in its dimensions and situation, from the old.” This case seems to us to have been decided upon the soundest principles, and it is conclusive against any power of selectmen to order a dam of six feet, or to require a new privilege to be created by blasting the ledge or deepening the channel. Being confined, then, to order the dam rebuilt of its original height, the question arises whether they had power to do this.

And if we leave out of the question the lower six feet, the question is, if they had power to order the plaintiff to rebuild the two upper feet in height of the dam, was the plaintiff tenant in common of this proposed part of the dam, within the meaning of the statute? We think not. If the dam continued in being, so that the parties could be properly spoken of as tenants in common of it, in any sense, still they were not such, within the meaning of this statute.

They were tenants in common of the structure, but they had no common interest in that which constituted its sole value, the right to use it for the purpose of raising the water to drive the mill. Peavey had an unqualified right to use the dam to its entire height, because it flowed no land which he had not a right to flow. Perhaps the other defendants may have the same right by contract with him. But this plaintiff has no right to make any use whatever of this part of the dam.

He cannot raise the water upon it a single inch, without committing a nuisance to the land of Peavey, for which he must be liable in damages. Though these parties were, to some extent and for some purposes, tenants in common of this mill and its appurtenances, and probably so for the purpose of availing themselves generally of this statute, yet it is to be borne in mind that they were not tenants in common of the use of the mill.

They did not share with each other the use or profit of the mill, and had no common interest in its use, because, as is shown by both the bill and answer, the use of the mill was divided into twenty-four equal parts or days, so that each owner had the sole and exclusive use of the mill one day in every twenty-four days for each share owned by him, so that this plaintiff could derive no benefit from the use of the entire dam by Peavey, on the days he was entitled to use it; and Peavey would bear no part of the loss on the plaintiff’s days of use.

Now we think it clear that it could not have been the intention of the statute to subject persons to the burden of maintaining a dam, who, though tenants in common of the structure, had no common interest in its use, nor any right to use it all. But if parties so interested were to be regarded as tenants in common for this purpose, still the order of the selectmen could not be supported. By the statute before quoted, the owners are required to make the necessary repairs, in proportion to their respective interests therein.

Now it is apparent that the selectmen have apportioned the repairs they have ordered to be made among the mill owners, in proportion to their shares in the mill, as they should have done in case the owners had all possessed equal and similar rights in the property for each share in the mill, which is, we think, the only case in which selectmen can rightfully act under this statute. But, in this case, the interests of Peavey and the plaintiff in the dam ordered to be built, were not equal or similar for their respective shares.

Peavey, as to the two upper feet of the dam, had the unqualified right to use the whole, at his pleasure, on the days of using the mill, while the plaintiff had no right to use it for a moment. If then, the other defendants had the same rights as Peavey, the whole costs of raising the dam to eight feet, above that of raising it six feet, should have been assessed to them, and no part of it to the plaintiff, for in that part they had the exclusive interest.

It can make no difference in our conclusions in this case, that one of the joint tenants, or tenants in common, of the mill, has acquired in severalty the right to the land required for the use of the mill or the rightto restrain the other owners from raising the water to the height which is necessary to operate the mill. As to this property, at law, at least, his interest and his rights are entirely unconnected with theirs, and they have no control over him as to this property.

Neither would the court be justified in assuming that the relation of the parties in respect to the mill would afford any security to the plaintiff against the exercise of the power of the person who controlled the Watson meadow. Experience, perhaps, would rather justify the conclusion, that their chance of realizing something from such property would be better in the hands of strangers.

It is said that Peavey has always been willing to allow ■ the other owners of the mill the privilege of flowing his lands in the usual manner, in their turns, for a reasonable equivalent, the same they have heretofore paid; • and that he agreed to execute a permanent lease of that right to the plaintiff, and that it was not' his fault that the lease was not executed. But we think no inference can be drawn, either from these facts or the professions in the bill, that the plaintiff will be allowed to exercise any but his legal rights.

The plaintiff has no right to expect, after refusing to execute the lease and involving Peavey in this litigation, that he can ever acquire any right to this flowage. The strongest equity exists between the owners of the mill, that neither of them should consult his own interest, by any purchase or speculation, at the expense of his fellows. And this principle is constantly applied in the case of co-partners. Story Partn. 272.

Owners of- mills, merely, as such, are not partners, but their position in regard to each other ought to place them under similar obligations of good faith and fair dealing to those of partners, and no man can fail to see the fairness and abstract justice there would be in holding, that any property in its nature indispensable for the use of a mill can be purchased by one, only for the common benefit of the owners, and that it would be just he should be held to convey it in just proportions to his fellows, at the price he paid for it. Van Horn v. Tonda, 5 Johns, ch. 407.

Without inquiring whether courts of equity have ever applied any such doctrine, in cases like the present, we are satisfied that this view is a sufficient answer to the suggestion, that the plaintiff ought in equity to accept the lease he agreed to take of Peavey, and that he ought not tobe heard to ask for equity until he does it, as well as to the further suggestion, that the plaintiff resists the repair of the Jones mill to increase the profits of his own. The first step adverse to the common interest seems to have been taken by Peavey himself.

It is suggested, in the defendants’ argument, that the effect of a decree adverse to their right to rebuild this dam and repair the mill will be to deprive them, substantially, of their property, being the whole interest except the ^ths owned by the plaintiff. That they have endeavored, by all reasonable offers, to satisfy the plaintiff either to go on with them, or to dispose of his interest to them, and that he refuses to do either; and that he ought not to be allowed to refuse to use his own rights or to allow them to enjoy theirs.

And they urge that the plaintiff cannot be prejudiced by their being allowed to rebuild, agreeably to the order of the selectmen, because • the statute gives them no remedy by suit for the money they may expend, but merely allows them the exclusive use of the property until he shall choose to repay them their money, with interest at the rate of 9 per cent. At first look this has an air of plausibility, but it is substantially unsound.

This may, perhaps, be more distinctly seen, if we suppose for a moment that the state of facts, attempted to be proved by the plaintiff, was clearly established, namely, that without flowing the Watson land there was no privilege at the Jones mill which could be used to any profit whatever. A mill might be used, but could not be profitable. If, under such circumstances, the court «should sustain the order of the selectmen, and dismiss the bill, the effect would be to give to these defendants the entire interest in the mill. Without Peavey’s consent the plaintiff cannot use his part to any profit.

His money, if he puts any there, must be without profit, and he must lose not only his share of the mill and flowage, but his money paid to rebuild the dam. At that rate no man could be expected to advance his money or redeem his right, and the plaintiff’s right, for which the defendants say he has been offered from two hundred twenty-five to two hundred seventy dollars, would be effectually transferred to the defendants for nothing. To them it holds its full value, for they can use it, but he cannot.

The position that by a decree in favor of the plaintiff, the defendants must lose their interest, rests on the assumption that they have no remedy but by application to the selectmen, and if they cannot make such an order as is here relied upon, the defendants are without relief. But we do not so understand the law. This court has very broad equitable jurisdiction in relation to the concerns of joint .tenants and tenants in common, and we understand it to be' a part of the usual duty of courts of equity to decide upon and adjust the jarring claims of such cotenants. 1 Stor. Eq. Jur. § 505.

And we think it clear that in cases where selectmen are not authorized to act, this court has all necessary jurisdiction, and the powers to settle many questions which a tribunal of limited statutory powers would find it impossible to adjust.

Our conclusion, then, is, that where the owners of mills, as joint tenants, or tenants in common, or any of them, have lost the right to the water power necessary to operate them, whether the control of the water power is in the hands of one of their own number or of a stranger, the joint or common interest in the mill dam or mill," within the Revised Statutes, has ceased; there must in this case be a decree for the plaintiff.

Upon an intimation by the court that they would not deem» it necessary to injoin the defendants from rebuilding the mill, if the defendant, Peavey, should execute and deliver to the clerk, for the use of the plaintiff, the leases set up in the answer; this wás done, and the fact set forth in a supplementary answer, and a decree was entered up declaring the order of the selectmen to be unauthorized and not binding upon'the plaintiff, and injoining the defendants to set up or insist upon that order.