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Commonwealth where every person is presumed to know the law, to regard the authoritative exposition of the law by the regularly constituted judicial tribunals as public property, to be published freely by any one who may choose to publish them. And such publication may be of every thing which is the work of the judge, including the syllabus and the statement of the case, as well as the opinion. The copyright of the volume does not interfere with such free publication. It protects only the work of the reporter. that is to say, the indexes, the tables of cases, and the statement of points made, and authorities cited by counsel. Wheaton v. Peters, 8 Pet. 653; Little v. Gould, 2 Blatchf. 165 and 362; Chase v. Sanborn, 4 Cliff. 306; Myers v. Callaghan, 5 Fed. Rep. 726; S. C., 10 Biss. 139; Myers v. Callaghan, 20 Fed. Rep. 441. Counsel for complainants cite Judge Drummond's dictum in Myers v. Callaghan, 5 Fed. Rep. 728, that 'if an adequate compensation was paid by the State to the reporter for the work done by him in preparing volumes of reports, then whatever property there was in the volumes arising from the labors of the reporter ought to belong to the State and not to him.' 'Now,' say counsel, 'in Ohio the State undertakes to pay the reporter 'adequate compensation,' and by the statute that amount is all he can receive. He has no perquisites. The theory is that the State pays him for his labor, and that the result of his labor belongs to the State.' And counsel proceed to claim that 'this is precisely the theory upon which the State is entitled to the decisions of the judges. They are paid a stipulated price or sum for their services, and this by their consent -impliedly given when they accept the office is in full of their services, and the result of their labors is the property of the State.' Mr. Drone, in his work on Copyright, page 161, states substantially the same view, although he says he has seen no sound, clear exposition of the law governing copyright in judicial decisions, and that it has not been expressly declared in any modern case that copyright will vest in a judicial decision. Mr. Justice Story, one of the judges who concurred in the decision in Wheaton v. Peters, said (in Gray v. Russel, 1 Story, 21) that while it was held in that case that the opinions of the court, being published under the authority of Congress, were not the proper subject of copyright, it was as little doubted by the court that Mr. Wheaton had a copyright in his own marginal notes, and in the arguments of counsel as prepared and arranged in his work. Whether the State, through its reporter, can secure a copyright in the opinions of its judges, is however not a question arising, nor can it be decided in this case. It is sufficient to say that the❘ State has not adopted legislation for such copyright, that the enactments providing for copyright for the volumes of reports, or of the reports, do not authorize copyrights of the opinions of the judges."

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In Lathrop v. Thayer, Massachusetts Supreme Court, January, 1885, it was held that a tenant at

will is not liable to his landlord for the destruction of the premises by fire by the mere negligence of the tenant. The court said: "The diligence of the counsel for the plaintiff has not shown us any case in which it has been held that a tenant at will is liable to his landlord for injuries occasioned by his negligence in kindling or keeping fires in stoves, fireplaces or chimneys intended to be used for heating the premises. Such a case is presented in Scott v. Hale, 16 Me. 326, but the defendant had a verdict. In the case cited of Parrott v. Barney, 1 Deady, 405, App., 1 Sawyer, 435, the tenancy was from year to year, and the damage was for explosive substances stored in the building. There is nothing in United States v. Bostwick, 94 U. S. 53, or Robinson v. Wheeler, 25 N. Y. 252, that decides that a tenant at will is liable for the negligent burning of a building let. The law of negligence has been largely developed in recent times, and is argued that there is no sound reason why it should not be applied in the same manner to real property as to personal, and to tenancies at will as well as to tenancies for a term. It may well be doubted whether the existing condition of the law of negligence is altogether satisfactory, and whether it would be well to establish an unlimited liability on the part of every tenant at will of real property to his landlord for every injury occasioned by any act of negligence on his part, or that of his servant in the use of the property. However this may be, we do not feel at liberty to overturn long-established rules of law governing real property. It is competent for landlords and tenants to make in writing any stipulations they see fit. When there is no writing, and the tenant takes the precarious estate of a tenancy at will, we think it has been generally understood that the tenant is not liable for the burning of the tenement let occasioned by his negligence or that of his servant in the keeping of fires set for the purpose of, and in the places designed for, heating the premises so that they may be fit for occupation. The fact that no action can be found to have been maintained for this cause of action is strong evidence of this. The ancient law has been acquiesced in, and consciously or unconsciously the cost of insurance to the landlord, or the value of the risks, enters into the amount of the rent. We think on this part of the case the exceptions should be sustained. If the law were to be established anew, it might with much force be contended that the test of the liability of the defendants in this case ought to be the same as to all of the property destroyed, but it would deserve consideration whether in such a case as this is, it would not be more reasonable to hold the defendants liable only for gross negligence amounting to reckless conduct. The existing law has however introduced many distinctions. A bailee of chattels for hire is liable only for the want of ordinary care, but if the bailee promises to return the chattel absolutely, then he is liable, although the chattel is destroyed by inevitable accident. Harvey v. Murray, 136 Mass. 377. The obligations of tenants under a written lease to

their landlords, except as far as statutes have imposed arbitrary liabilities, are determined by the construction of the lease. But landlords are at common law exempt from many liabilities toward their tenants for the condition of the premises, which they are under toward strangers, who are lawfully upon the premises while in their possession. Bowe v. Hunking, 135 Mass. 380; Woods v. Naumkeag Steam Cotton Co., 134 id. 357; S. C., 45 Am. Rep. 344. Disregarding the use of fire in clearing land and for other agricultural purposes, and confining ourselves to the case at bar, which is the use of fire in stoves for the purpose of heating the building, it is manifest that in many cases prudence might require a reconstruction of the chimneys and the purchase of new stoves. In many cases it would be difficult to determine how far the bad condition of the premises contributed to the injury occasioned by the fire. We think the reasonable rule is that if landlords would protect themselves from the mere negligence of their tenants, they should take a written lease with proper covenants; and that a tenant at will is not liable to his landlord for the mere negligence of himself or his servants in kindling or guarding fires in stoves or chimneys for the purpose of heating the premises; that he is liable for willful burning, and also for such gross negligence as amounts to reckless conduct."

5. Fornication was a crime in Tennessee in 1860. In that year on the trial of an action for seduction, a witness is asked "if he knew of any man having had sexual intercourse with the girl?" The witness may refuse to answer (6).

6. A witness is asked: "Do you know of any one, other than yourself, being engaged in gamRULES AS TO THE PRIVILEGES OF WIT-bling during the last two years?" The question is proper (7).

7. In an action of trespass a witness is asked to state what he knew in regard to any person tearing down and arrying away the property in controThe witness refuses to answer because it versy. may tend to criminate himself. fusal is legal (8).

The witness' re

8. A witness is asked whether he had not testified falsely in a former case. The witness may refuse to answer (9).

9. In an action of libel a witness is asked (being shown the manuscript of the publisher's libel): "Did you write this paper?" The witness may refuse to answer (10).

10. In an action on a promissory note a witness is asked whether the note was not given for a gaming consideration. The witness may refuse to answer (11).

11. E. being indicted for sending a challenge and fighting a duel, several witnesses are asked: "Have you heard E. acknowledge that he sent a challenge to or fought a duel with F.?" They refuse to answer. Their refusal is proper.(12)

NESSES.
III.

RULE. No witness is compellable against his objection to answer questions (a), or to produce documents or other evidence (b) which may have a tendency to render him amenable to indictment for a crime (1), or prosecution for a penalty (c).

(A.)

I. R. was sued on a bill of exchange which it was alleged had been won at gaming. It appeared

that R. and others had played at the house of H. H. was called and testified that he saw no gaming in his house. He was then asked: "Was there a roulette table in the room?" H. was not compelled to answer this question (2).

2. It is alleged that a bond sued on was given for an illegal consideration, viz., the sale of the commerce of a ship, contrary to law. The obligee declines to answer not only as to this fact, but also as to what the consideration was, and why the debt had not been proved in bankruptcy, as having tendency to accuse him of violating the law. His refusal is proper (3).

3. On the trial of S. a witness is asked whether he knows the handwriting of an advertisement referring to the libel, and if so, to name the person. He is bound to answer the first question but not the second (4).

4. In an action on a bill of exchange a witness is shown the bill and asked whether it has ever been in his possession. He replies that as he is under indictment for usury in the same transaction he must refuse to answer. His refusal is proper (5).

(1) Cartwright v. Green, 8 Vesey, 407 (1802); Bishop of London v. Fytche, 21 Brown, 97; Ex parte Tymes, 11 Vesey, 525; Claridge v. Hoare, 14 id. 65; Paxton v. Douglas, 16 id. 241; Oliver v. Haywood, 1 Anstr. 83; Amherst v. Hallis, 9 N. H. 108 (1837); Janvren v. Scammon, 29 id. 290 (1854): Macarty v. Bard, 9 La. 381 (1836); State v. Foster, 23 N. H. 354 (1851); Eaton v. Farmer, 46 id. 200 (1865); Warner v. Lucas, 10 Ohio, 340 (1840); Phelin v. Kenderline, 20 Penn. St. 363 (1853); Poole V. Perritt, 1 Speers, 128 (1842); State v. Edwards, 2 N. & M. 13 (1819); Floyd v. State, 7 Tex. 251 (1851); People v. Mather, 4 Wend. 229 (1830); State v. Olin, 23 Wis. 318 (1868); Kirschner v. State, 9 Wend, 140 (1859); State v. Talbott, 73 Mo. 858 (1881); State v. Marshall, 36 Mo. 401 (1865); Byass v. Sullivan, 21 How. Pr. 52 (1860); Re Tappan, 9 id. 394 (1854); Pleasant v. State, 15 Ark. 624 (1855); People v. Lobman, 2 Barb. 216 (1848); Curtis v. Knox, 2 Denio, 341 (1845); Hayes v. Caldwell, 10 Ill. 33 (1848); Taney v. Kemp, 4 H. & J. 348 (1818); Higdon v. Heard, 14 Ga. 255 (1858); Neale v. Connigham, 1 Cranch C. C. 76 (1802); United States v. Strother, 3 id. 432 (1809); Southard v. Rexford, 6 Cow. 258 (1826); Lister v. Boker, 6 Blackf. 439 (1843); Emery's case, 107 Mass. 173 (1871); Sodusky v. McGee, 5 J. J. Marsh. 621 (1831); Newcomb v. State, 37 Miss. 383 (1859); Campbell v. State, 23 Ala. 82 (1853); Re Lewis, 39 How. Pr. 155 (1869); People v. Herrick, 18 Johns. 82 (1816); United States v. Dickinson, 2 McLean, 328 (1840); State v. Staples, 47 N. H. 113 (1866); Douglass v. Wood, 1 Swan, 393 (1852): Forney v. Fernell, 4 W. Va. 729 (1871); Moloney v. Dows, 2 Hilt. 247 (1858); East v. Chapman, 1 Mood. & Malk. 46 (1827); King v. Adly, 1 M. & Rob. 94 (1831); Friend's case, 13 How St. Tr. 16; Rosewell's case, 10 id. 165; Hardy's case, 24 id. 720; O'Corgley's case, 26 id. 1351; Lord Macclesfield's case, 16 id. 1146.

(2) Fisher v. Ronalds, 12 C. B. 763 (1852).
(8) Paxton v. Douglass, 19 Vesey, 227 (1812).
(4) R. v. Slaney, 5 C. & P. 218 (1832).

(5) Cates v. Hardacre, 8 Taunt. 424 (1811).
(6) Lea v. Henderson, 1 Cold. 146 (1860).

(7) Richman v. State, 2 J. Greene, 532 (1850).
(8) Prentz v. Cheeney, 11 Iowa, 469 (1881).
(9) State v. Blake, 28 Me. 353 (1845).

(10) Simmons v. Holster, 13 Minn. 253 (1868).
(11) Poole v. Perritt, 1 Speers, 128 (1842).
(12) State v. Edwards, 2 N. & Mc. 13 (1819).

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"1

In case 1 the answer might have a tendency to involve him in the danger of being indicted as the keeper of a common gambling house, or as a conspirator to defraud. "The question here put, said Maule, J., "is just one of the questions which would necessarily have been asked on an indict-ants, ment against the witness for keeping a gambling house. I think it is impossible to put a case of the more proper application of the rule which protects a witness from committing himself." And Williams, J., added: "I think it was abundantly clear that his answer in this case must have a direct tendency to place the witness in danger."

In case 2 the chancellor said: "I have looked into all the cases, and I find the distinctions between questions supposed to have a tendency to criminate and questions to which it is supposed answers may be given, as having no connection with the other questions, so very nice that I can only say the strong inclination of my mind is to protect the party against answering any question, not only that has a direct tendency to criminate him, but that forms one step toward it."

In case 3 Lord Tenterden said: "He is not bound to do that, because it may be himself. You cannot only not compel a witness to answer that which will criminate him, but that which tends to criminate him, and the reason is this, that the party would go from one question to another, and though no question might be asked, the answer of which would directly criminate the witness, yet they would get enough from him whereon to found a charge against him.”

In case 4 Lord Mansfield held the witness' course proper. "Your questions," said he, "go to connect the witness with the bill, and they may be links in a chain."

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fied, and in such case an affirmative answer would have a tendency to implicate him. But clearly as the question was put, he could not claim the benefit of the rule."

In case 7 it was said: "The act of the defendfor which the plaintiff sought to recover, is a criminal offense under our statute, and the question asked tended to obtain from the witness certain facts which would prove that he was present, and aided in the commission of the offense. An answer directly given to the questions propounded by the plaintiff might not have implicated the witness, but when once answered the right of defendant to a cross-examination to test the truth of such answer, might have compelled the witness to state some fact that would have been a link in the chain of evidence that would criminate him." In a case in its facts almost like case 7 (13), Redfield, J.,said: "It is well settled that a witness is not bound to answer any question, the answer to which might tend to criminate him, i. e., expose him to a prosecution for crime or penalty. It is doubtless true that this is not the most effectual mode of shielding the witness, for the mere fact of claiming the privilege tends very much to show him guilty of the offense. A rule that the testimony should be given in all cases, but should never after be used for the purpose of procuring a conviction of crime, would be more conducive to the reasonable ends of justice, and at the same time afford full protection to the witness. But such is not the law. It is well settled that the testimony, if freely given, may be afterward used against the witness. I know indeed of no rule to exclude the testimony being given in evidence against the witness, even in a prosecution of a criminal nature, although the witness were compelled to testify under the requisition of a court of justice (14). It is obvious then that the only security of the witness is in silence. The rule should be so administered as to afford full protection to the witness, and at the same time escape simulated excess. From this view of the subject it is obvious that the witness must first de

* * *

termine whether he can make a full disclosure without stating any fact tending in any degree to criminate himself. If he informs the court upon oath that he cannot testify without criminating himself, the court cannot compel him to testify, unless they are fully satisfied such is not the fact, i. e., that the witness is either mistaken or acts in bad faith, in either of which cases the court should compel the witness to testify."

In case 6 the court said: "The witness should have answered this question. An affirmative or In case 9 it was said: "The question asked the negative reply could not in any manner have crim- witness referred to the manuscript from which this inated him. The inquiry does not embrace all the libel was published, and which was already in evigaming within the knowledge of the witness, butdence in the cause. A libel is an indictable offense, only such gaming as was known to the witness in the direct tendency therefore of this question was which he was not a party. If the witness had not to criminate the witness." been excepted in the interrogatory, there would have been more propriety in his refusing to answer, as he might have been a party himself to all the games within his knowledge within the time speci

In case 10 the court said: "If he had won the amount at gaming unlawfully, which was very sup

In case 5 the party might be the witness himself. "It is well settled," said the court, "that where it reasonably appears that the answer will have a tendency to expose the witness to a penal liability, or to any kind of punishment, or to a criminal charge, the witness is not bound to answer the question. If the fact to what he is interrogated forms but a link in the chain of testimony which would convict him, he is protected, without being requested to explain how he might be criminated by the answer. If it be one of a series of questions, the answers to all of which would establish his criminality, he cannot be compelled to answer that or any of the

series."

(13) Chamberlain v. Wilson, 12 Vt. 491 (1840). be inadmissible against him. See rule. (14) The evidence would be given under duress, and would

posable, any affirmative answer must have led to the time and place, if not attending circumstances, the how and wherefore of his knowledge- all asked under the guise of his own assumed right of concealment, but leading to the exposure of his guilt, and the man would have been soon trapped, or at least exposed to a prosecution for gaming. The judge therefore decided correctly in permitting the witness to be silent upon his own assurance that his answer would tend to criminate himself. The decision was within both the reason and letter of the adjudications and the meaning of the rule, that no man shall be compelled to criminate himself; by which I understand he may not expose himself to the charge of a crime or misdemeanor by law, in contradistinction to dishonor or liability to a civil action, and the protection must be full.”

In case 11 it was said: "I presume no rule on the subject of evidence is better established than that a witness shall not be bound to criminate himself. The only difficulty arises in the application of the rule. It must be admitted that if the question has a tendency to criminate the witness, according to the rule he is not bound to answer. But it is said the court should decide this point as to some questions. It is utterly impossible that the court can decide without possessing a full and complete knowledge of all the facts which it may be important for the witness to conceal; therefore something must necessarily be left to the witness; and we have the same security for a knowledge of the fact that he may be implicated by the answer, that we have for the knowledge of any other fact. It was urged that an ignorant man might not be able to decide. The court will always so instruct a witness as to enable him, if he possess any understanding, to determine whether he may be jeopardized by the answer, and if the answer may form one link in a chain of testimony against him, he is not bound to answer. Phillipps on Ev. (Dunlap's Ed.) 206; 2 Espinasse Dig. 405; 16 Vesey, Junr., 242; M'Nally, 257; King v. L. G. Gordon, 2 Douglass, 593; Honeywood v. Selwin, 3 Atkins, 276; Cates v. Hardacre, 3 Taunt. 424. Under the act against duelling all who counsel one to fight, as well as the seconds who are engaged, are made liable to the penalties. If the witness stood in either of those relations he might be implicated by answering the question. It is not necessary that the privity of the witness should at once appear by the answer; nor will it be contended that that would have been the case here; but it may have formed a link in a chain of testimony extracted from him, or obtained from other sources, which may have tended to criminate him. It was contended that in a cross-examination the witness may have refused to answer any question which had a tendency to criminate him. This appeared to admit the whole argument of the counsel for defendant, for both the court and the witness thought that it might, when connected with other matters, produce the consequence. But supposing the answer had not

such a tendency, and that the State had closed there, the defendant, upon his cross-examination, would naturally have asked at what time and place, and under what circumstances was the confession made. I presume it will be admitted that an answer to this might have implicated the witnessthen he was permitted to refuse to answer — - that would be the result.

1. D. is required to produce on a trial certain books and papers. D. refuses because they may criminate him. D.'s refusal is proper (15).

"The same rule," it was said in case 1, "which excuses a witness from answering questions which may tend to convict him of a crime or misdemeanor undoubtedly excuses him also from producing books or papers, the contents of which may he used as evidence against him, or tend to the same result."

JOHN D. LAWSON.

JURY REFORM.

BOTH

the public and the lawyers are getting very much dissatisfied with trial by jury as now conducted. It seems to be taken for granted however by most persons who discuss the subject that the only alternative to the present arrangement is trial before judges or referees. This the people will not yet, nor for a long time, be got to consent to, and ought not. It is the purpose of this paper to point out another plan, which seems to the writer feasible. Before doing so it will be well to note what are the good and bad points of the present system which we must seek to retain or get rid of.

The goodness of the jury system and its only advantage, as compared with a trial by judges-though as compared with the barbarous methods of trial in use before it, it has a thousand points of advantage—is the introduction of a lay element into the courts. Formerly the jury now and then had to stand between the citizen and the arbitrary power of the government. Now it is occasionally needed to protect them against the professional narrowness of lawyers. It is sometimes asked: Is it not reasonable to support that men of special training, experts who spend their lives deciding cases, will always be a better tribunal than men taken from the community at large? But the common sense of the community answers: No; not always; though perhaps usually. And the oases in which it will not, will be likely to be those that touch the popular heart. But even if a trial by judges would always be more likely to result right, still it would not be possible to make the people believe so. Courts entirely in the hands of lawyers would be looked upon with a little distrust; and it is nearly as important that people generally should trust the courts as that they should be in fact trustworthy.

The necessary weak points of the jury trial, that is, those which are not due to general maladministration in the State, are, in the writer's opinion, the requirement of unanimity in their verdict, and what is of much more importance, their power to render a general verdict. If a juryman is allowed to vote simply guilty" or "not guilty," or to find simply "for the plaintiff" or "for the defendant," nothing in a great many cases can prevent him from looking upon him. self in the light of a judge or an arbitrator, or rather -an ideal that still lingers in the popular mind-some(15) Byass v. Sullivan, 21 How. Pr. 52 (1860).

66

thing resembling the magistrate of ancient or patriarchal times, who sat in the gate or market place, and dealt out justice without much thought of fixed rules. No matter how strongly the judge may charge the jury that they must find their verdict according to the facts and the rules of law as expounded to them from the bench, they will too often insist upon taking the law into their own hands, and will decide on some general notion of what is about right, or on some mere whim or notion or cranky scruple. There is often no way of preventing this, or even of finding out upon what ground the jury have decided. Now if instead of a general verdict, the jury were called on to make a finding of specific facts, on which the court was to decide what the rights and liabilities of the parties were, and to pronounce the decision; if instead of being asked, "Is the prisoner guilty of murder?" they were asked, "Did he actually kill the deceased?" "If so, was it done intentionally?" etc., is there any doubt that they would as a general rule be more likely to report the facts correctly than they now are to render a correct verdict? A juryman who now will consent to no verdict but "not guilty," because he believes that capital punishment is unjustifiable, because he won't send such a pretty woman as the prisoner to State's prison; because he likes a drink on Sunday himself, and does not think it fair to punish the man who provides it; because he thinks a man has a right to shoot the seducer of his wife or daughter, or for any other reason which the law excludes, would not dare to sign a written finding that the prisoner did not kill the deceased, or was insane when he did it, or did not steal goods, or did not sell liquor or Sunday; or his overnice scruple would not oppress him so much if he felt that he was not pronouncing sentence, but merely getting up a narrative.

Again, the increased complication of cases nowadays, and the degree of special knowledge, not of law such as judges have, but of business and affairs, needed to comprehend many of them, make them unfit to be taken before juries as now composed.

The following changes in the jury are suggested as tending, while preserving the lay element in the court, to obviate to some extent the evils above mentioned and others:

1. A jury of less than twelve would answer all purposes, and be less clumsy and expensive. Therefore let the parties fix the number of jurymen-not to exceed five except by permission of the court-by agreement, if they can agree. If not, let it be fixed at from three to five, with power in the court to increase it in any case, and with a right in any person accused of a capital crime to have it consist of at least five members.

2. If the parties can agree upon the persons who are to serve as jurymen, or any of them, and they are willing to serve, or are on the jury list and liable to serve, let such persons be placed on the jury. This power the parties now partially have in the selection of referees.

3. Give to either party or the court the right to require a special finding of facts, either the whole or on any special point, and to have it in writing if desired. In this case the jury might be allowed the assistance of an expert to help them put their statement into form. Either party in the court should have the right to present to the jury in writing questions material to the case, which the jury should be compelled to answer in their finding. The court should declare the conclusious of law resulting from the facts found.

4. The dissent of oue jury man, or perhaps of two if the jury consists of five or more, should not, except in prosecutions for capital crimes, prevent the finding of any fact. HENRY T. TERRY.

WATER AND WATER-COURSES — MILL-DAMS REASONABLE USE OF WATER.

MAINE SUPREME JUDICIAL COURT.

PEARSON V. ROLFE.*

A mill-owner upon a floatable river is not under legal obliga tion to provide a public way, for the passage of logs over his dam, better than would be afforded by the natural condition of the river unobstructed by his mills. The right of passage is to the natural flow of the river or its equivalent.

Nor is he under a legal obligation to furnish any public passage for logs over his dam or through his mills at a time when the river at such place, in its natural condition, does not contain water enough to be floatable if unobstructed by mills, although the river is generally of a floatable character.

Whenever a river, with mills upon it, is floatable, aud the mill-owner and those who want to float logs past the mills are desirous of using the water at the same time, all parties are entitled to reasonable use of the common boon; the right of passage is the superior, but not an usurping, excessive er exclusive right; the law authorizing mills puts some incumbrance upon the right of passage.

What is a reasonable use is a question of fact, and depends upon the size and nature of the stream, the extent and kinds of business upon it, and all other circumstances.

report.

The first action is for trespass. The writ dated August 31, 1880, alleged that the defendant at Oldtown, August 30, 1880, with force and arms willfully, aud without the consent of the owner, let loose the plaintiffs' boom in the Penobscot river by reason whereof a large number of logs ran by the boom into the plaintiffs' mill-poud, and the plaintiffs were put to great expense in sluicing the logs out of the pond. Ad damnum one thousand dollars.

The second action is case. The writ, dated September 18, 1880, alleges that the defendant on the first day of June, 1875, and various other times between that day and the date of the writ, unlawfully erected, maintained and kept a dam across the Penobscot river at Great Works in Oldtown, and uufawfully omitted, neglected and refused to provide a suitable sluice or place of passage for logs being driven down the river by the plaintiff, and caused great loss, damage and detention to the plaintiff in his business of driving logs. Ad damnum five thousand dollars.

The two cases were submitted together to the law court to render such judgment as the rights of the parties require in each case; damages if any, to be assessed at nisi prius.

Wilson and Woodward, and John Varney, for Pear

son.

Chas. P. Stetson, and J. A. Blanchard, for Rolfe. PETERS, C. J. The controversy in these cases arises from a conflict between log-owners and mill-owners as to their respective rights in the use of the water at certain falls in the Penobscot river at West Great Works, in the town of Oldtown Pearson represents millowners, Rolfe represents log-owners. Pearson has mill structures upon his privilege, with such appendages as dams, sluices and booms. Rolfe had a quantity of logs in the river which he was unable to drive over the dam at Pearson's mills, unless Pearson would shut down his mill-gates, thereby suspending his own business of manufacturing, until water enough should accumulate in his mill-pond to float the logs over. This

*S. C., 76 Me. 380.

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