The opinion
STATE OF MAINE SUPERIOR COURT
PENOBSCOT, ss. CIVIL ACTION
DOCKET NO. CV-08-65
FILED & ENTERE-O
LEWIS E. MATTESON and ) SUPERIOR COURT
BETTY J. MATTESON, )
) !ll~J 2 Lx" 2008
oJv,
Plaintiffs )
) PENOBSCOT COUNTY
v. ) ORDER
) (Title to Real Estate Involved)
MALCOLM BATCHELDER, )
)
Defendant )
Pending before the Court is Plaintiffs' Complaint for Declaratory Relief and Motion for a
Preliminary Injunction.
Procedural History
Plaintiffs' Complaint and Motion for a Preliminary Injunction were filed on
March 8, 2008. Defendant filed an Answer with affirmative defenses and an Opposition
to the Preliminary Injunction on April 10,2008. 1 A bench trial on the matter was held on
June 5, 2008, where counsel for both parties argued their positions. No testimony was
heard, and the parties instructed the Court to rely on the affidavits submitted. Having
considered the affidavits and arguments of counsel, the Court issues this order.
Factual Findings
Plaintiffs own real estate in Corinna, Maine, located on French's Stream. They
acquired title to this property on July 29, 1993. Defendant owns real estate in Exeter,
Maine, also located on French's Stream. He acquired title to this property from his
IThese filings are deemed timely pursuant to the Court's April 8,2008 Order granting
Defendant's request for an extension of time to respond.
1
mother on November 5,2002.2 Plaintiffs' and Defendant's parcels used to be part ofa
larger parcel, which was conveyed from Francis Hill to Levy Stevens on August 22,
1844. The deed for this conveyance included a clause in which Mr. Hill granted to Mr.
Stevens the "right to flowage on the north side of the Stream for the benefit of the mill as
high as the dam is now built and as far west as the above describe lots extends."
Adjacent to Defendant's property, on French's Stream, is a dam, which at one
time serviced a mill on his property. Defendant's father entered into a lease with the
Town of Exeter ("Town") on August 14, 1970, which included "all the rights and
privileges of flowage described in the deed from Level Stevens to Francis W. Hill. .. ,,3
The lease included a clause requiring the Town, as the Lessee, to "keep and maintain the
dam hereinafter mentioned in good condition and repair." On August 23, 1983, the lease
was terminated.
The purpose of the lease between Defendant's father and the Town, and in
particular, the use of the dam, is not discussed in the affidavits or counsel's briefs. The
facts do not show whether the dam was maintained after the lease was terminated, though
Defendant states that the dam has fallen into disrepair over the course of the last decade.
There are also no facts to show that Plaintiffs' property was similarly flooded while the
lease between the Town and Defendant's father was in effect.
In August 2007, the Town approved and issued a permit to Defendant for "in-kind
replacement of boards on an existing dam." To date, Defendant has replaced four planks
in the dam, each approximately 10 inches in height. Plaintiffs allege that Defendant's
2 Defendant's mother inherited the property upon the death of Defendant's father on February 6,
1987.
3 The Court notes that the lease has reversed the parties of the 1844 conveyance. This error does
not appear to be an issue with the parties.
2
actions have caused the water level in French's Stream to rise and flood, damaging the
soil and trees on their property. Plaintiffs Complaint seeks to enjoin Defendant from any
further reconstruction of the dam.
Analysis
A. The Maine Waterway Development and Conservation Act
Defendant argues that Plaintiffs' claim falls within the purview of the Maine
Waterway Development and Conservation Act ("Act"), 38 M.R.S.A. §§ 631 et seq; that
the Act applies "to [a]ny person whose lands are damaged by being flowed by a milldam,
or by the diversion of the water by such canal" 33 M.R.S.A. § 655; and that this Act
limits Plaintiffs' remedy to one of damages. Id. While the Court agrees that the Act
limits one's remedy to damages, the Court finds that the Act is not applicable here. The
plain language of the Act and a review of how the Act has been interpreted supports this
conclusion.
Beginning with the language of the Act itself, its purpose is "to support and
encourage the development of hydropower projects." 38 M.R.S.A. § 631(2). A
"hydropower project" is defined as "any development that utilizes the flow or other
movement of water ... as a source of electrical or mechanical power or that regulates the
flow of water for the purpose of generating electrical or mechanical power." Id. at §
632(3). The projects contemplated by the Act are those that will produce power.
The Act allows for the building and maintaining of a "watermill and dams to raise
water for working it." 38 M.R.S.A. § 651 (2008). Historically, a mill was a building
with machinery for grinding grain. The term now incorporates a variety of industries. A
watermill is a mill whose machinery is driven by water. "Dams to raise water for the
3
working of it," are "dams to raise water for working a mill." Brown v. Denormandie, 123
Me. 535,542, 124 A.2d 697,699 (1924). The language ofthe Act makes clear that the
structures covered by the Act are those mills and dams constructed for the purpose of
harnessing the energy of flowing water.
Further support for this purpose is found in the case law interpreting the Act. See
Central Maine Power v. Public Uti/. Comm'n, 156 Me. 295, 327, 163 A.2d 762, 779
(1960) stating "the riparian proprietor may use the [water] power for manufacturing and
industrial purposes" (emphasis added); Clarkv. Rockland Water Power, 52 Me. 68, 78
(1860) stating "[u]nder our mill Act, riparian proprietors, who are owners of mill sites
may raise a head of water, by the construction for the purpose of working their mills"
(emphasis added); Brown, 123 Me. at 541, 124 A.2d at 699 stating the statute was
"enacted to develop water power by private initiatives" (emphasis added); See also
Duncan v. New England Power Co., 113 NE 781, 782 (1916) explaining the term "mill"
as follows: "The thing which makes or does not make the mill a water mill within [the
Massachusetts Mill Act] depends upon the power which drives its machinery. A mill to
grind corn, to saw boards, to roll iron, to manufacture goods, to generate electricity or to
make any other article or thing is a water mill within R. L. c. 196, § 1, provided the
motive power which drives its machinery is in whole or in part water power (emphasis
added).
The cases that apply the Act are those where the dam or mill in question
generated, or was going to generate, mechanical or electrical energy. The Act's language
is clear and the case law interpreting the Act is consistent. Those with flowage rights are
4
allowed to flood the property of another only when the dam or mill in question produces
electrical or mechanical power.
B. Easement Appurtenant
The Court recognizes that Defendant may have a flowage easement on the portion
of French's Stream adjacent to his property. An easement is an "interest in land owned
by another person, consisting in the right to use or control the land, or an area above or
below it,jor a specific purpose." BLACK'S LAW DICTIONARY 527 (7th ed. 1999)
(emphasis added); see also Great Cove Boat Club v. Bureau afPub. Lands, 672 A.2d 91,
94 (Me. 1996) "An easement appurtenant is a non-possessory interest in the owner of one
parcel of land...to use the land of another for a specific purpose." The specific purpose
of the easement here, as stated in the 1844 deed, is "for the benefit of the mill." The
purpose of flowage rights as benefiting a mill or dam is also articulated in case law. See
Trask v. Public Utilities Comm 'n, 1999 ME 93, , 12, 731 A.2d 430,432-33; Town of
Waltham v. PPL Maine, LLC, 2006 ME 88, , 10, 902 A.2d 816, 819 stating "Thus
[Defendant, a hydroelectric plant] by virtue of its ownership of the flowage rights, has a
right pertaining to the flooded land of the upstream landowners, which is in the nature of
an easement appurtenant that benefits the dam." Flowage rights are not absolute; they are
tied to the operation of a mill or dam and must benefit that mill or dam.
The dam Defendant seeks to restore and maintain is one for irrigation, fire
fighting, and recreational purposes. Such uses are not within the specific purpose of the
easement set forth in the 1844 deed. While the community may benefit from this excess
water, Defendant's project does not benefit a mill or dam. Accordingly, Defendant's
easement cannot legitimize the flooding that has occurred on Plaintiffs' land.
5
C. Equitable Relief
Because neither the Act or Defendant's easement is invoked, common law
applies. "At common law, a dam4 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." Dorey v. Estate o/Spicer, 1998 ME 202, ~ 9,715 A.2d 182,184
(citing Jones v. Skinner, 61 Me. 25, 26 (1872)). Here, Plaintiffs have asked the Court to
use its equitable powers and issue a permanent injunction. Before granting a preliminary
or permanent injunction, however, the Court must find that four criteria are met:
"(1) that plaintiff will suffer irreparable injury if the injunction is not granted,
(2) that such injury outweighs any harm which granting the injunctive relief
would inflict on the defendant,
(3) that plaintiff has exhibited a likelihood of success on the merits (at most, a
probability; at least, a substantial possibility),
(4) that the public interest will not be adversely affected by granting the
injunction." Ingraham v. University ofMaine, 441 A.2d 691, 693 (Me. 1982).
First, Defendant's dam has flooded the property of Plaintiffs, which in turn, has
resulted in the destruction of trees. The flooding and tree damage has interfered with
Plaintiffs' use and enjoyment of their land. lfthe flooding continues, Plaintiffs will
suffer irreparable injury, as that portion of their property will remain underwater.
Second, the potential injury to the Plaintiffs outweighs any harm an injunction would
inflict upon Defendant, particularly because the injunction merely orders Defendant to
refrain from flooding Plaintiffs land in an unauthorized manner. Third, to the extent this
showing is required, Plaintiffs have succeeded on the merits of their claim. Finally,
Defendant provides no case or statutory law, which authorizes the flooding of another's
4Use of the word "dam" in this instance contemplates those dams subsequently included in the
Act; that is, those dams used to general electrical or mechanical power.
6
property for the benefits he proposes. Thus, Defendant as not demonstrated a viable
public interest.
Having satisfied the required criteria for a permanent injunction, the Court grants
Plaintiffs' motion.
The entry is:
Judgment is entered in favor of Plaintiffs against Defendant on Plaintiffs'
Complaint.
Defendant is enjoined from restoring OJ maintaining a dam which floods the
Plaintiffs land when such flooding j.H AJt f~; the purpose of a hydropower project
as defined in 38 M.R.S.A. § 632(3) or for the benefit of a mill.
DATE:
~
I /
:>--~ 0,} M. Michaela Murph _
JUSTICE, SUPERIOR
7
06/26/2008 MAINE JUDICIAL INFORMATION SYSTEM ksmith
PENOBSCOT COUNTY SUPERIOR COURT mjxxi013
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LEWIS E MATTESON ET AL VS MALCOLM BATCHELDER
UTN:AOCSsr -2008-0023827 CASE #:BANSC-CV-2008-00065
SEL VD REPRESENTATION TYPE DATE
01 0000003904 ATTORNEY:BEAROR, EDMOND
ADDR:
F FOR:LEWIS E MATTESON PL RTND 03/04/2008
F FOR:BETTY J MATTESON PL RTND 03/04/2008
02 0000002764 ATTORNEY: DEVOE , WILLIAM
F FOR:MALCOLM BATCHELDER UEF RTND 04/10/2008
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STATE OF MAINE
PENOBSCOT, ss.
LEWIS E. MATTESON and )
I
BETTY J. MATTESON, )
PENOBSCOT COUNTY I
) I
Plaintiffs )
) ORDER
v. )
)
MALCOLM BATCHELDER, )
)
Defendant )
This matter is before the court on defendant's unopposed motion to reconsider. Upon
reflection the court agrees that the case was not ripe for a final hearing on the date the parties
convened to present arguments on plaintiffs' motion for preliminary injunction.
Accordingly, it is hereby ORDERED that the court's prior order entered on June 24,
2008, is hereby AMENDED by substituting "a hearing on the motion" for "A bench trial on the
matter" in the fourth sentence of the order, by substituting "preliminary" for "permanent" on
page 7 of the order, and by deleting the penultimate sentence granting judgment in favor of the
plaintiffs.
In all other respects the court's June 24, 2008, order stands.
Date:
ATRUECOPY
ATIES~~~~
CLERK
07/07/2008 MAINE JUDICIAL INFORMATION SYSTEM mcstn
PENOBSCOT COUNTY SUPERIOR COURT mjxxi.048
CASE PARTY ADDRESS BOOK
LEWIS E MATTESON ET AL VS MALCOLM BATCHELDER
UTN:AOCSsr -2008-0023827 CASE #:BANSC-CV-2008-00065
LEWIS E. MATTESON PL
ATTY BEAROR, EDMOND Tel# (207) 947-4501
ATTY ADDR:84 HARLOW ST PO BOX 1401 BANGOR ME 04402-1401
BETTY J. MATTESON PL
ATTY BEAROR, EDMOND Tel# (207) 947-4501
ATTY ADDR:84 HARLOW ST PO BOX 1401 BANGOR ME 04402-1401
MALCOLM BATCHELDER DEF
ATTY DEVOE, WILLIAM Tel# (207) 947-0111
ATTY ADDR:80 EXCHANGE ST PO BOX 1210 BANGOR ME 04402-1210