cretion of the presiding judge to refuse the rather extraordinary privilege asked for. Exceptions overruled.

WALTON, VIRGIN, EMERY, HASKELL, and WHITEHOUSE, JJ., concurred.

PROPRIETORS OF MAINE WHARF PROPRIETORS OF CUSTOMHOUSE WHARF.

the encroachment of said defendants' wharf from the shore to low-water mark.

That, thereafterwards, said defendants cut off and removed so much of said wharf as was upon said Randall's (now complainants') land from the shore to or near low-water mark; but the said defendants have ever since maintained all that part of said wharf below low-water mark which extends easterly over the westerly line of said complainants', extended from low-water mark to the harbor commissioners' line; and thereby the

1892.)

BOUNDARIES-RIPARIAN RIGHTS INJUNCTION. 1. Where a divisional line between adjoining riparian proprietors has been settled in a suit at law so far as the line runs from high to low water mark, the record of that suit is at least a prima facie settlement by law of the relative rights of property which the same parties possess beyond low-water mark in deep wa

ter.

2. Equity will restrain by injunction one riparian proprietor from maintaining a narrow strip of his wharf in deep water below lowwater line in front of another proprietor's wharf, when the nuisance is permanent, and the injuries caused by it, though small, are frequent and annoying, not easily measurable or adequately compensated for by actions at law. (Official.)

Appeal from supreme judicial court, Cumberland county.

In equity. Bill by the proprietors of Maine wharf against the proprietors of Customhouse wharf. Complainants had decree on demurrer to bill, and defendants appeal. Affirmed.

The case made by the bill and admitted by the demurrer shows that plaintiffs and defendants are adjoining owners of land and flats in Portland, on tide waters, the land of plaintiffs being easterly of that of the defendants. That the line between them is established and undisputed, and is known as the "Robinson Line." That each have a wharf upon their own land extending into the harbor to the harbor commissioners' line in deep water. That complainants and their predecessors in title have enjoyed without interruption for more than 30 years unimpeded ingress and egress to and from their land and flats for the whole width of the same, to and from the deep waters of the barbor at the harbor commissioners' line.

That in the year 1889 the defendants, by their president, Peleg Barker, built another wharf from the shore to a point about 50 feet below low-water mark, into and towards the deep water of the harbor. That said wharf extended over and upon plaintiffs' land about 2 feet for its whole length, being about 50 feet to low-water mark, and about 50 feet beyond low-water mark.

That John F. Randall, who was then the owner of the land and flats now owned by complainants, brought an action against said Peleg Barker, who in fact built said wharf for said defendants and as their president, and recovered judgment in said action for

use and enjoyment of their said land, flats, and wharf; and complainants pray that said obstruction below low-water mark, which extends easterly over the westerly line of complainants, may be removed.

Complainants claimed that the obstruction is not only a public nuisance, but occasions special and peculiar damage to the plaintiffs in the use of their property other and different from the public injury.

Strout, Gage & Strout, for appellants. Symonds, Snow & Cook, for appellees.

PETERS, C. J. The complainants and respondents are coterminous proprietors of upland and adjacent flats in the harbor of the city of Portland, having wharves on their respective properties. The respondents, in extending the structures on their premises towards the sea, built a wharf over the line between themselves and their neighbors about two feet upon the latter's land. A litigation ensued between the parties over the true location of the divisional line between them, which settled the question in favor of the complainants. Thereupon the respondents removed so much of their wharf as was built upon the complainants' land, the removal not, however, extending seaward below low-water line. The result, therefore, is that the respondents now maintain their wharf upon the true line as far outward from the upland as low-water mark, and from that point outward into deep water they still maintain their wharf for a space of two feet in width in front of complainants' land. Of this obstacle in front of the complainants' property they complain, and ask that the respondents be compelled to remove the same. Upon these facts and other facts stated in the bill, we think the prayer of the bill should be granted.

The respondents urge objections to the complainants' claim:

First. That a remedy at law should be first resorted to. This proposition is that a court of equity will not undertake to restrain or remove an alleged nuisance until a court of law has first established the existence of the nuisance, excepting where an immediate and irreparable injury be threatened, or the complainants are deprived of the use of property long enjoyed by them without question or interruption. The answer to this objection is that the right of the complainants has been

substantially and sufficiently settled by the law. To be sure, the legal controversy was commenced by an action of trespass, in which the allegation was that the respondents had encroached upon the land of the complainants (or their predecessors in title) by an erection thereon extending from high to low water mark; but when the court settled the rights of the parties, so far as pertaining to land or flats above low-water mark, it settled their relative rights with each other beyond low-water mark. The one case settles the other. It is really but one controversy, nothing appearing to indicate the contrary.

The presumption is that an owner of land fronting on the sea has, as such owner, the right of egress and ingress from and to his land over deep water for the whole width of such frontage. The bill asserts such a legal right of the complainants, and the demurrer confesses it.

Another objection against the bill is that it discloses facts from which it is clearly perceivable that the complainants have a complete and adequate remedy at law for all supposable injury suffered by them. That is not so. Frequent annoyances may be occasioned by the encroachment which would be remediless at law. The injuries may be small, but would be many, and not easily measurable in damages; and the disfiguration caused by the overlapping structure, if allowed to remain, would be a blemish upon complainants' property. Furthermore, the complainants desire to have their premises clear of all unauthorized occupation or obstruction, and are entitled to have them so. Equity will restrain the continuance of a nuisance by injunction whenever substantial damages might be recovered at law, or when the nuisance is permanent, however small the damages. Crump v. Lambert, L. R. 3 Eq. 409; Attorney General v. Sheffield Gas Co., 3 De Gex, M. & G. 304; and see cases cited in note in last case. Demurrer overruled.

WALTON, VIRGIN, LIBBEY, FOSTER, and HASKELL, JJ., concurred.

CAMDEN & ROCKLAND WATER CO. v. INGRAHAM.

(Supreme Judicial Court of Maine. Dec. 14, 1892.)

CONDEMNATION PROCEEDINGS-PARTIES-INSTRUC

TIONS.

1. On a petition to assess the damages for land taken for public purposes it is not necessary to join a mortgagee of the land as a party to the proceedings, if the mortgagee files in the case a release of his right seasonably enough to protect the land takers from liability to pay the damages, or any part of them, twice.

2. Where a request is made for an instruction to the jury that the burden lies upon a person claiming damages to prove the amount of damages sustained by him, and the judge merely through inadvertence omits to give the instruction, a new trial will not be granted, un

less it is seen that some injury has been suffered by the requesting party by the omission. (Official.)

Exceptions from supreme judicial court, Knox county.

The Camden & Rockland Water Company appealed from an award of damages by the county commissioners to Gilman B. Ingraham for taking water from a certain pond, and from the judgment rendered thereon it brings exceptions. Exceptions overruled.

This was an appeal from an award of the county commissioners of Knox county assessing damages at $500 in favor of Gilman B. Ingraham for the taking of the waters of Oyster River pond to the amount of 750,000 gallons daily by the complainant corporation. The injury claimed by Ingraham was the diversion of the water from the outlet of the pond, which ran through, and, as it was claimed by Ingraham, furnished the only supply of living water to a pasture owned by him, and a part of and connected with his farm. It was admitted that the farm and pasture were the property of said Ingraham, subject to an outstanding mortgage to the Camden Savings Bank for the sum of $1,400. The presiding justice, upon this branch of the case, instructed the jury as follows:

"His title is admitted, except that the defendants deny that he has a right to recover in this action because of a mortgage upon the same to the Camden Savings Bank, and they request me to rule to you that he cannot recover in this action. I decline to so rule, because the Camden Savings Bank has filed a paper here which, in my judgment for the present, allows Mr. Ingraham to prosecute this suit, and will bind the Camden Savings Bank to abide any judgment or any amount of damages which you may assess. So, then, you will determine the case as though there were no mortgage upon Mr. Ingraham's property." The outlet of Oyster River pond, the Oyster River stream, runs through the pasture of said Ingraham, and does not touch any other part of his farm.

The pasture is from one-half to threefourths of a mile from Oyster River pond, with a descending grade nearly all of the

way.

The complainant corporation contended that, on account of the watershed below the pond and springs along the line of the outlet of the pond, for the purpose of watering cattle, there was as much water flowing in said outlet during the dry seasons of the year as there was before the taking during equally dry seasons, and that as an element of irrigation said outlet was of no appre ciable value to said pasture or farm. The complainant corporation requested the presiding justice to instruct the jury as follows:

"Complainant, Ingraham, is not entitled to recover any damages unless he has satisfied you by a preponderance of the evidence

that the taking of the water of Oyster River pond by the Camden and Rockland Water Company has diminished the flow of water through his pasture.

"The burden is upon complainant, Ingraham, to satisfy you of the amount of water that ran in the Oyster River brook before the taking by the water company, and that the amount flowing there since the taking is perceptibly less than before, so as to injure the complainant's pasture for pasturage purposes, and the amount of such injury, if any.

"If the taking of the water by the Camden and Rockland Water Company has not resulted in the practical diminution of the flow of water through the complainant's, Ingraham's, pasture, then the complainant is only, entitled to nominal damages.

"The damages sustained by the complainant, Ingraham, are the amount that the pasture through which the brook runs, situated as it is, connected with the farm of said Ingraham, is worth less after the taking by the company than it was before, with interest from the time of taking.

"The difference between the fair market value of the pasture, situated as it was, connected with and a part of the farm of said Ingraham, before the taking by the water company, and its fair market value situated and connected as aforesaid, after the taking, with interest on the same from the date of taking, is the measure of damages which said Ingraham is entitled to recover."

All of which instructions he declined to give, except as they were given in the charge.

The presiding justice instructed the jury as follows on the question of damages:

"Now, gentlemen, this plaintiff is the owner of a farm, consisting of tillage and pasture, a homestead upon which he lives. It had the benefit and advantage of Oyster brook running through the pasture. That pasture, according to the evidence, is suited for and is used by him for grazing, as a part of his farm, enabling him to thereby support his cattle in summer by grazing that he sustained in winter by the hay which he cuts upon his tillage land. I say to you that the farm you are to treat as a whole. If the plaintiff has suffered damages by reason of the taking of this water in the whole of that farm, you are to compensate him; and you are to do no more than that. How much more is this farm worth with this water than it is without it? What is the difference, if you choose to put It that way, in the market value of the farm before this water was taken and after it was taken? Or, as the counsel for the defendant has very fairly put it to his witnesses, what is the difference in the value of the pasture as a part of the farm and in connection with the farm before and after." The presiding justice also gave other and

full instructions upon the question of damages, which were not excepted to.

The jury returned a verdict for $425, with interest, $108.38, in all amounting to $533.38, and the complainant corporation excepted.

C. E. & A. S. Littlefield, for plaintiff. J. H. & C. O. Montgomery, for defendant.

PETERS, C. J. While the case of Wilson V. Railway Co., 67 Me. 358, decides that a mortgagee of land taken for public purposes should be made a party to proceedings instituted to ascertain the landowner's damages for such taking, the necessity for such joinder is mostly, if not wholly, for the protection of the parties who take the land, that they may not be exposed to the risk of paying the damages twice. The mortgagee cannot be regarded as an indispensable party where such protection is not needed; and such is the principle deducible from the opinion in that case. Some courts do not admit the necessity of making mortgagees parties in such proceedings in any circumstances. The mortgagee certainly cannot be required to become a party when he has effectually disclaimed all claim or interest in the damages recoverable.

The presiding judge instructed the jury that no attention need be paid to the fact that the Camden Savings Bank had a mortgage on the land of this complainant because the bank had filed in the case a waiver of all claim to damages. This was correct, provided the paper filed was a sufficient waiver; but that fact the other party denies. It seems that the paper first filed as a waiver, upon objection to it as insufficient, was taken off the files by counsel for the landowner, and another substituted by him in its stead, without the assent of opposite counsel or of the court. We think a new trial should not be granted on that account, whether the first paper filed was valid for the purposes for which it was intended or not, inasmuch as the sufficiency of the second paper is not questioned. The absence of the mortgagees as parties could not be of consequence so long as they cannot in the future make any claim to the damages. The management of the trial would be the same whether the mortgagees were in or out of the litigation; the question in relation to parties and title being incidental merely.

Counsel for the land takers asked the judge to instruct the jury that the burden lay upon the landowners to prove that damages were sustained by the taking, and the amount of such damages. The judge did not refuse to give the requested instruction, but forgot to make mention of it. It is admitted that the omission was through inadvertence. In such case the judge should have been reminded of the request by counsel; but the omission was harmless in any view. The proposition was so self-evident as to speak for itself. The jury must have seen for

themselves that only such damages should be allowed as were proved. The course of the trial and the tenor of the whole charge were to that effect. Nothing to the contrary was suggested or indicated in any way.

Exceptions overruled.

WALTON, VIRGIN, LIBBEY, FOSTER, and HASKELL, JJ., concurred.

PERRY V. KNIGHT. (Supreme Judicial Court of Maine. Dec. 14, 1892.)

REFORMATION OF DEED-MISTAKE-EVIDENCE.

Where a grantor conveys a certain interest in real estate, and then in the same conveyance by mistake reserves to himself precisely the same interest he first conveys, the deed must be reformed according to the original design of the parties, although the mistake is averred by the complainant and denied by the respondent, the complainant's account of the transaction being more or less corroborated by the circumstances disclosed in the testimony.

(Official.)

Appeal from supreme judicial court, Knox county.

In equity. Bill by James Perry against Henry Knight to reform a deed. Complainant having deceased since filing the bill, his heirs have been made parties by amendment. From a decree for plaintiffs, defendant appeals. Affirmed.

The case as disclosed by the bill, and which the plaintiffs claimed exhibits an obvious mistake, shows that Henry Knight and James Perry were the owners in common of a right of way 41%1⁄2 feet long, extending back from Mechanic street in Camden, and 14 feet wide. This right of way was between the Knight building and the building then owned by Perry. The building which Knight had then built upon his lot adjoining this right of way was about 50% feet deep, extending back from the street 9 feet beyond the 14-foot right of way. Knight was anxious to acquire a right of way over this 9 feet in the rear of the 412foot right of way. Perry was anxious to acquire the whole title to the portion of the right of way 9 feet in width adjoining his property of the right of way 41% feet long and 14 feet wide, which would leave a right of way in common 5 feet wide and 412 feet long to be enjoyed between himself and Henry Knight.

and 5 feet wide, to be used in common by both Perry and Knight. By a mistake of the scrivener in drawing the deeds, the deed of Knight to Perry contained precisely the same clause that the deed of Perry to Knight contained as to the use and occupation of the right of way, viz. "sald right of way to be kept open and free for passage and repairs for said Henry Knight and James Perry, their heirs and assigns, forever," and was thus made in fact, as the plaintiffs alleged, entirely inoperative as a conveyance of any interest in the 9-foot strip to Perry.

The bill, after setting out these facts, alleges that the "deed was accepted by Perry with the full belief that it was a full compliance with said agreement, and that its terms were in accordance with the clear, mutual intent and understanding of the parties thereto; that upon a more careful examination of said deed from said Knight is disclosed the facts that, by reason of a mistake of the scrivener (above stated) said Knight retained, and still retains, his interest in said right of way, and nothing in fact was conveyed by said deed to the plaintiff; whereupon he, said Knight, was requested to correct said error, or release and convey to the plaintiff in accordance with said agreement and understanding and intent of the parties thereto, which he refused to do."

The defendant inserted a demurrer in his answer, and alleged a general denial of the agreement. The answer was not required to be under oath.

The depositions of the scrivener who wrote the deed, son of the plaintiff, and the defendant were read in evidence. The former testified that his father did not read the deed until after it had been recorded, it having been left with the witness to send it to the registry, etc.

J. H. Montgomery, for appellant. C. E. & A. S. Littlefield, for appellee.

PETERS, C. J. An examination of the evidence in this case satisfies us that the decree below should be affirmed.

It is argued on the part of the respondent that it is an instance where witness appears against witness, and therefore it cannot be said that the complainants' proof is clear, convincing, and conclusive, as it should be in order to require the reformation of a deed. We, however, regard the testimony of the principal witness for the complainants as corroborated by circumstances much stronger than the oral evidence. But one conclusion can be derived from the different titles and the situation and wants of the parties. Perry, the father of the present complainants, who come into the case as his heirs, wanted to add to the width of his premises a strip already belonging to him, over which Knight, the respondent, had, in common with him, a right of passage. On the other hand, the re

of passage in another place over Perry's land, where he then had no right to pass. So an exchange of interests became desirable, and was arranged between the owners. Perry was to convey a new right of passage, and Knight was to surrender the old one; the result of which would be that Knight would have a way in a new location, and Perry would have the old way blocked up. It was merely the change of location of the respondent's passageway around his premises. While the exchange was beneficial to both parties, it was quite indispensable to the respondent, 'because it carried him around to certain land in the rear of his store, to which before this time he had no access from the street on which his structures and also those of Perry were situated.

It is not difficult to understand how the deed from Perry, in effectuating the contemplated exchange, came to be erroneously made. In the deed from Perry to Knight a passage was granted over the new territory, reserving a right of passage to Perry in common with Knight over the same premises. Now, the scrivener in writing the deed from Perry to Knight inserted a release of a right of way which Knight had upon Perry's other land, and then added the same kind of reservation to Knight which in Perry's deed had been made to Perry. While the reservation was right in the one deed, it was wrong in the other. The deed from Knight conveys a right, and then reserves and takes away precisely the same right that is first conveyed. intention was for Perry to give one right of way to Knight, in consideration of which Knight was to give up to Perry another right of way; while, as the deeds were written, Knight conveyed in effect nothing, but gets two distinct rights of way across his neighbor's premises, instead of one. The respond ent does not really pretend that the deed, as it stands, executes the intention of the parties, but he opposes such a reformation of the deed as the complainants ask for. His contention is not supported by the facts or law of the case.

The

Objection is taken to the bill that it is not definite enough. The objection is hardly tenable.

Decree below affirmed, with costs.

Casco bay, computed to extend for a distance of 30 miles along our coast, contains many minor bays, harbors, and inlets, within which the taking of porgies and menhaden by seines is inhibited by the statutes, provided the entrance to such waters is less than three miles between outside headlands.

3. Where the facts bearing on the question are undisputed, or, if disputed, have been settled by the aid of a jury, the court must ultimately determine as a matter of law where the geographical boundaries of a county are located.

4. Even if the map of Cumberland county, offered by the respondent and rejected, were admissible as tending to show the easterly line of that county, still its rejection became immaterial, inasmuch as its effect was overcome by other more controlling evidence. The alleged offense was committed in the waters between Flagg island and Wood island, in Casco bay; and by the act of incorporation, dated in 1760, all the islands in that bay are included in that county. (Official.)

Exceptions from superior court, Cumberland county.

Frank C. Thompson was convicted of tak ing fish contrary to law, and brings excep. tions. Exceptions overruled.

The material part of the indictment is as follows:

"At that part of 'Casco Bay,' so called, situated between 'Flag Island,' so called, and 'Wood Island,' so called, within the county of Cumberland and state of Maine, being the master and in control of the steamer Mary P. Bates then and there equipped and supplied with nets, to wit, purse and drag seines of more than one hundred meshes in depth. for the taking of fish, to wit, menhaden and porgies, did then and there unlawfully take, and cause to be taken, with said nets and seines, large quantities of menhaden and porgies, to wit, six hundred barrels of menhaden and porgies, in and from the waters of Casco bay, to wit, that part and inlet of said Casco bay lying, extending, and being between the islands aforesaid, in the county of Cumberland aforesaid, each and every entrance to said Casco bay and each and every entrance to that part and inlet of said bay lying, extending, and being between the islands aforesaid, being less than three nautical miles in width from land to land, and said part and inlet of said bay between the islands aforesaid being less than three nautical miles in width from land to land, to wit, from said Flag island to said Wood island; against the peace of said state," etc.

There was a second count, alleging that the offense was committed in Sagadahoc county. A nol. pros. was entered as to this count The inafter verdict against the defendant. dictment was found and the case tried in the superior court for Cumberland county.

At the trial the counsel for the respondent requested the court to give the jury the following instructions, which the court declined to give, except as given in the charge:

(1) "That vessels of the United States do not violate chapter 61 of the Public Laws of 1891 by fishing for menhaden or porgies in