Exceptions from Supreme Judicial Court, Washington County, at Law.

Action by the Inhabitants of Marion against Frederick Tuell. Verdict for plaintiff, and defendant excepts. Exceptions sustained. Argued before SAVAGE, C. J., and SPEAR, KING, and PHILBROOK, JJ.

all the assets applicable to the payment of debts in the class to which this petitioner's debt belonged. Such sharing can only be accomplished now by directing the receiver to pay to this petitioner the amount prayed for before making a further dividend among creditors of the same class to which the petitioner belongs. Thus we shall preserve the idea of the unity of the different component of Lubec, for plaintiff. C. B. & E. C. DonAshley St. Clair, of Calais, and J. H. Gray, parts which make up the assets of a copartner-worth, of Machias, for defendant. ship, and deal equitably and fairly with all creditors of the same class. So without violation of any principles of law or equity, but rather in harmony with all fundamental principles, we shall do substantial justice and equity by ordering the receiver, before making any further payments or dividends to creditors of the class to which this petitioner belongs, to pay to this petitioner the sum of $1,327.22.

[Ed. Note.-For other cases, see Navigable Waters, Cent. Dig. §§ 133-166; Dec. Dig. § 26.*] 2. NUISANCE (§ 64*)-COMMON NUISANCE.

A lawful structure cannot be a common nuisance.

[Ed. Note.-For other cases, see Nuisance, Cent. Dig. § 138; Dec. Dig. § 64.*] 3. NAVIGABLE WATERS (§ 20*)-OBSTRUCTION

-BRIDGES-COMMON NUISANCE.

A bridge built by a town over a navigable or floatable stream, so as to unreasonably interfere with navigation or floating, is a "common

nuisance."

[Ed. Note.-For other cases, see Nuisance, Cent. Dig. §§ 135, 136; Dec. Dig. § 59.* For other definitions, see Words and Phrases, vol. 2, p. 1333.]

5. BRIDGES (8 46*)-ACTION FOR INJURINGEVIDENCE.

In removing a nuisance, such as a bridge, placed in a stream so as to interfere with navigation and the floating of logs, defendant must do as little damage as possible consistent with its removal, and cannot wantonly injure the bridge, so that evidence was admissible, in an action against him for injuring the bridge in removing it, to permit him to float logs, tending to show due care by defendant in getting his

logs clear of the abutment.

[Ed. Note. For other cases, see Bridges, Cent. Dig. §§ 108, 110-122; Dec. Dig. § 46.*]

SPEAR, J. This is an action on the case in which the plaintiff town seeks to recover damages of the defendant for willfully, negligently, and wrongfully damaging a bridge by using dynamite or other explosives in such close proximity to the abutment of the bridge as to tear it apart and damage it, thereby rendering the superstructure unsafe and dangerous for public travel, so that they were obliged to close the bridge and repair it at a large expense. At the trial of the case it was admitted that the bridge was a part of the highway crossing Cathance stream in Marion. By the exceptions it appears that the stream was "a floatable highway, and has been used by the public from time immemorial for the purpose of floating logs and timber from the forests to the mills; that the defendant at the time of the alleged wrongful act was engaged with his crew in the performance of his contract to drive approximately 1,100,000 feet of logs from Cathance lake in and down said stream to the mill pond of Dennysville Lumber Company of Dennysville." The exceptions further show that the explosive was never used unless absolutely necessary, and defendant and his servants were in the conthat, in getting the logs by the abutments, the stant exercise of due care; that, if he or they caused any injury to the bridge or abutments by the use of dynamite or otherwise, such injury was wholly unintentional. The defendant also denies that any damage to the structure was caused by the explosion, claiming that, if any injury was occasioned to the bridge by the passage of his logs, it was done by the impacts of the logs against the abutments, and by the logs frequently being driven by the force of the current into the openings, and in the process of disengaging the logs when so interposed.

The declaration does not allege, nor is it anywhere contended, that the defendant, in the use which he made of dynamite, had any intention of disturbing any part of the bridge, simply because it was a public nuisance. The exceptions show that "there was no evidence that defendant, his servants or agents, placed or exploded any dynamite or other explosive substance under the abutment; nor was there any evidence that the defendant, his servants or agents, did any act with the direct purpose or intention of injuring the bridge or abutments."

any injury, although it was necessary in order to enable him to extricate the logs that had been driven into the openings of the abutment, and remove those that had jammed against it, so that perhaps the whole drive should not be held up.

[1] We do not understand this to be the law. Upon the assumption that the bridge was a nuisance, which the jury might have found if the question had been open to them, it was the undoubted right of the defendant to do whatever was reasonable and necessary to remove so much of the structure as deprived him of the lawful use of the stream for driving his logs. This rule is founded, not only upon authority, but necessity. In the case at bar the defendant was driving down this floatable river, a legal highway for the passage of all lawful traffic, more than a million feet of logs, worth from $10,000 to $20,000. It is common knowledge that the driving pitch of water at best is short, and at times very limited. It is equally well known, if a drive of logs is stalled and has to lie over for a season, there is a great depreciation of value. Accordingly, unless the defendant was permitted to interfere with this nuisance in his path, to the necessary extent of making a passageway, his whole drive might have been held up on the river for a year. Resort to the courts for the abatement of such a nuisance would be entirely inefficient and futile. And the law does not require it.

The case comes up on motion and excep- | proceeded to say: "Now, you will determine, tions, but the motion is withdrawn. It seems first, gentlemen, whether the defendant or his to have been conceded that, if this bridge was servant or agent did explode this dynamite an obstruction to public navigation so that there, as it is claimed. If they did, I instruct it impeded the passage of the defendant's you that they are liable for it, and the defendlogs, it was a public nuisance. The court in ant must make the town whole for the damage its treatment of the case seems to have as he caused in blowing up or damaging the sumed that the bridge was a public nuisance, abutment there, if he did it either by himself and to have based his rulings upon the theory or his servant or agent." These rulings are that the plaintiff, in the use of dynamite to erroneous. As already noted, they proceed extricate his logs from the bridge, was under-upon the ground that the bridge was a public taking to abate a public nuisance, and acted nuisance, and, because it was a public nuiupon the assumption, if it was a public nui-sance, the defendant had no right to do it sance, and the defendant's logs were impeded in their progress by it, that the defendant, although in the exercise of due care in the process of removing his logs, would be responsible for any injury to the abutment, in so doing. That this was the theory of the ruling will appear from the following testimony and colloquy: John A. Robinson, called by defendant, was asked on direct examination: "Q. When a log was under water, what did you do? A. If the log was under water we cut it with dynamite. Q. Why didn't you shut the gates down above and let the water run out, so it would be on the surface? A. No river driver does that. Q. Why didn't you do it? The Court: It don't make any difference why he didn't do it. We are not trying out the right of Mr. Tuell to drive logs there because he had a right to. He has got a suit against the town for being obstructed in doing it. That don't have anything to do with this case. Whether they did this or didn't do that don't have anything to do with it. Mr. E. C. Donworth: If the court please, our contention is that if this man Tuell used reasonable care, and used dynamite when it was reasonably necessary, and the bridge was injured thereby, we are not chargeable. The Court: I shall rule that if he blew this bridge up, or an abutment to it, by the use of dynamite, and thereby destroyed it, he is liable in this action. A man cannot abate a public nuisance by saying that he exercised reasonable care. He may abate a private nuisance and may not be liable in damages, but a public nuisance must be abated by officers chosen by the public to do it. If you leave it for every man to determine whether he may abate a public nuisance, we shall be blowing up all the bridges in the state. The law says Mr. Tuell had no right to blow the bridge up, if he did. Mr. E. C. Donworth: He is chargeable in damages if he did it accidentally? The Court: | Yes, I shall so instruct the jury." And the court did so instruct them, saying: "(1) If it was a public nuisance, neither the defendant nor his servant or agent had any right to abate it, or remove it, or destroy it. (2) If you should find it was an obstruction to public navigation, so that it impeded the passage of the defendant's logs, it was a public nuisance, and neither he nor his servants had

[2-4] The plaintiffs, however, contend that the bridge, having been located by municipal authority, is a legal structure, and, if a common nuisance, cannot be abated by a private individual, and cites State v. Leighton, 83 Me. 419, 22 Atl. 380, as authority for this doctrine. The brief interprets the opinion in this language: "A lawful structure, though a public nuisance, cannot be removed, or the public nuisance abated, by one whose individual rights are affected thereby." This statement is inconsistent with itself. A lawful structure is not a common nuisance. In other words, a common nuisance is not lawful. Nor does this case hold or intimate that the bridge destroyed by the defendant was a common nuisance. The decision is based solely upon the ground that the bridge was authorized to be built over tide waters, not under the general powers of municipal offi

Upon authority, as well as reason, the defendant had a right to interfere with the bridge to the extent of removing so much of it as became a nuisance in the path of his logs in their course down the stream.

[5] But in doing this it was incumbent upon the defendant to do as little damage as was consistent with the accomplishment of his purpose. Accordingly the defense offered, tending to show due care on the part of the defendant in extricating his logs from the abutment, was admissible, and the ruling excluding it erroneous. It was the duty of the defendant, in pursuing the lawful right of passage through this bridge, to do only what was reasonable and necessary to attain his end. He was bound to act within the standard of due care. He could not wantonly and willfully do damage that was unnecessary. The last paragraph of Corthell v. Holmes, 88 Me. supra, confirms this view. It says: "The defendant's plea avers that he removed the incumbrances placed in the way by the plaintiff, with due care and without damage more than necessary to secure the passage for himself and his teams, agents and servants over the same." All this is admitted by the demurrer, and is a good defense.

Legislature giving specific authority to build Marston, 12 Me. 32, and in Hamilton v. Godover this specific water. The word "nui-ing, 55 Me. 419, in which the language of sance" is not to be found in the opinion. Brown v. Perkins is cited with approval. In True, a bridge built by municipal authority Corthell v. Holmes, 87 Me. 24, 32 Atl. 715, is not of itself a common nuisance. In the the court say: "When a public nuisance obcase at bar the offending thing is not the structs an individual's right, he may remove bridge itself, but the manner of the placing it to enable him to enjoy that right"-and aland construction of it. The town had a so cites Brown v. Perkins. In a case beright to build this bridge under authority of tween the same parties in S8 Me. 376, 34 Atl. the general statute. But a bridge built by 173, the court sustained this doctrine, citing such authority over a navigable or floatable many cases. stream, in such a manner as to unreasonably interfere with navigation or the use of a stream for floatable purposes, is per se a common nuisance. Windfall Mfg. Co. v. Patterson, 148 Ind. 414, 47 N. E. 2, 37 L. R. A. 381, 62 Am. St. Rep. 532. In a broad sense a common nuisance is an unlawful condition. A municipality has no more right to establish such a condition than an individual. Mootry v. Danbury, 45 Conn. 550, 29 Am. Rep. 703, is a case which seems to be on all fours with the case at bar. It involved the erection of a bridge that flowed the water back upon the plaintiff. A general demurrer was filed to the declaration and argued upon the ground that the duty of towns to keep their highways in repair was imperative under the statute. Upon this contention, after alluding to the statute regarding the liability of towns for defects, the court say: "The liability of the defendants, therefore, if liable at all, must rest upon broader grounds than that statute. The statute simply compels them to do by making them liable in damages if they fail to do. A principle of universal application that every man shall transact his lawful business in such a manner as to do no unnecessary injury to another compels them to do what they are required to do in a proper manner. In other words, towns will not be justified in doing an act lawful in itself in such a manner as to create a nuisance any more than individuals, and if a nuisance is thus created, whereby another suffers damages, towns, like individuals, are responsible." To the same effect is Danbury R. R. Co. v. Norwalk, 37 Conn. 109. Upon this theory of the law that a town 1. MASTER AND SERVANT (§ 80*)—ACTIONS FOR .has no right to create a nuisance, the principle laid down in Brown v. Perkins et al., 12 Gray (Mass.) 89, must control this class of cases. Shaw, C. J., clearly states the rule as follows: "The true theory of abatement of nuisance is that an individual citizen may abate a private nuisance injurious to him, when he could also bring an action, and also, when a common nuisance obstructs his individual right, he may remove it to enable him to enjoy that right, and he cannot be called in question for so doing. As in the case of the obstruction across a highway, and an unauthorized bridge over a navigable water course, if he has occasion to use it, he¦ may remove it by way of abatement." This theory of the law was followed in Mann v.

Exceptions sustained.

(111 Me. 573)

PRICE v. McEACHERN et al. (Supreme Judicial Court of Maine. May 5, 1914.)

COMPENSATION EVIDENCE,

In assumpsit by a servant for a balance due him for labor, evidence held sufficient to sustain a verdict in his favor.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 107-127; Dec. Dig. § 80.*]

2. COMPROMISE

AND SETTLEMENT (§ 23*) – WHAT CONSTITUTES SETTLEMENT.

Where a master claimed that his servant. who accepted a check for part of his wages, was precluded from collecting the balance because the burden of showing, not only that the paythere had been a settlement, the master has ment was offered as a discharge of the entire obligation, but that it was so accepted; a com promise and settlement arising only out of a new and distinct contract.

[Ed. Note.--For other cases, see Compromise and Settlement, Cent. Dig. §§ 91 94; Dec. Dig. § 23.*1

3. COMPROMISE AND SETTLEMENT (§ 23*)--Ac- | was agreed that he should receive the same TION EVIDENCE. wages which he had "received before" for working on the log hauler.

In an action for a balance due a servant, evidence held insufficient to show that a payment was made on condition that it should be accepted in settlement of the entire claim. [Ed. Note.-For other cases, see Compromise and Settlement, Cent. Dig. §§ 91-94; Dec. Dig. § 23.*]

4. COMPROMISE AND SETTLEMENT (§ 6*)---WHAT

CONSTITUTES.

due him because he had to have funds to make

[1] The defendants deny any such agreement and testified that no wages were set with the plaintiff at the time he entered their employ, but that just before beginning work on the log hauler it was agreed that he should receive both for the "ordinary work" and his Where an injured lumberman accepted. un- work as engineer the same wages that deder protest, a check for a sum less than was fendants were paying their other help for his way home, and would otherwise have been similar services. It is not in controversy unable to leave the lumber camp, there was no that they were paying for "ordinary work" settlement, the master not having expressly im- $30 per month and their engineers $3 per day. posed any conditions upon acceptance for the receipt of a check purporting to be for the The plaintiff makes no question regarding balance of an account, and its acceptance will the amount he was to receive for ordinary not work a settlement unless there is an agree-work, but claims that he was entitled under ment to that effect. his agreement to $4 a day while employed as engineer upon the log hauler, the same per diem he had received before from these same APPLICA-defendants for similar work. That the plaintiff received $4 a day for his former employment upon the log hauler is sufficiently prov

[Ed. Note.-For other cases, see Compromise and Settlement, Cent. Dig. $$ 35-50; Dec. Dig. § 6.*]

5. TRIAL (§ 252*)-INSTRUCTIONS BILITY TO EVIDENCE.

In assumpsit for a balance due as a laborer, where defendants set up a settlement, they could not complain, where it did not appear that the payment accepted was made on any condition, that the charge failed to refer to any condition.

en.

Accordingly, the only controversy upon this feature of the agreement is whether it was understood that the plaintiff was to receive the same wages he had "received before" or the same wages the defendants were

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.*] 6. APPEAL AND ERROR (§ 1064*)-REVIEW-paying their other help for similar services.

HARMLESS ERROR.

A charge, though erroneous, which is shown not to have affected the jury, is harmless. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 4219, 4221-4224; Dec. Dig. § 1064.*]

On Motion and Exceptions from Superior

Court, Kennebec County, at Law.

Assumpsit by Stewart W. Price against

Alexander McEachern and Collin W. Mc

Eachern. There was a verdict for plaintiff, and defendants excepted and moved for a new trial. Exceptions overruled and motion

sustained unless plaintiff enter a remittitur.

Argued before SAVAGE, C. J., and SPEAR, KING, HALEY, HANSON, and PHILBROOK, JJ.

F. W. Clair, of Waterville, for plaintiff. Williamson, Burleigh & McLean, of Augusta, for defendants.

Nor is there any controversy that the defendants were paying their engineers on the log hauler $3 per day. Whether this agreement was as claimed by the plaintiff or as claimed by the defendants was a pure question of fact, which the jury found in favor of the

plaintiff. That is, the jury found that the

plaintiff was entitled to $4 a day. And we

do not think it so clearly wrong as to require us to disturb the verdict upon this issue. though the plaintiff was entitled to $4 a day for his services on the log hauler, they paid him by check at the rate of $3, under such

But the defendants contend that, even

circumstances as to compel the legal conclusion that the plaintiff received the check in full settlement for all that was due him; and upon refusal of the presiding judge, at the close of the testimony, to order a verdict upon the theory of such a settlement, exceptions were taken and allowed. Exceptions were SPEAR, J. This is an action of assumpsit, also taken to specific parts of the charge of tried in the superior court, in which the plain-the judge upon this question; but we think tiff seeks to recover of the defendants the that the exception to the refusal to direct a balance alleged to be due him for labor per- verdict for defendant raises every legal quesformed for the defendants. The defendantstion in issue. Under the verdict of the jury are lumbermen and operated a camp in Bow-in determining what took place at the time doin township during the winter of 1911 and of the alleged settlement, we should give full 1912. In the fall of 1911 the plaintiff, who had been in the defendants' employ about four years before, was hired by them with the understanding that he should do "ordinary work" until they came to use their log hauler, when he was to act on that as engineer. The plaintiff testified that there was no understanding as to what he should receive for the "ordinary work," but that it

credit to the testimony of the plaintiff. His testimony upon this point is found upon crossexamination, and is as follows: "Q. Now, on what day did you settle with the defendants? A. I think the 27th day of March. Q. Were the defendants settling with all their help at that time? A. I think so. Most of it, anyhow. Q. Just how did they settle? What was the procedure they went through? A.

Well, they paid them a check in there-they ters up to that time in full payment of his paid them off with a check. Q. How did wages and was accepted by the plaintiff at they determine how much was due them? A. that time in full settlement of all due him I didn't see them settle with no man. Q. How for his wages, that is the end of the case, and did they settle with you? A. They wrote me you need not consider these other questions. out a check; they said my bill was $106, and On the other hand, if you come to the conthey wrote me a check. Q. Who wrote the clusion that the check was not accepted by check? A. I think the younger Mr. McEach- the plaintiff as full settlement, if he called ern, Collin. Q. So, as a matter of fact, the the attention of the defendants at that time clerk read off the time in your presence, to the fact that he was not receiving his didn't he? A. No, he told me it was 120 compensation of $4 per day, as he expected it, days. Q. Did he read off all your time at and that he simply took that check as part that time? A. That wasn't all of it. Q. payment, then there was no settlement, and Didn't the clerk at that time read off to you you should go on to the other points of the all your time as it appeared upon his books? case, as I have indicated." The defendants A. I couldn't say. I didn't see his goods. Q. say that this quotation is subject to excepWhat did you say to them, anything? A. I tions in at least two particulars: "(1) It retold him that he promised to pay me the quires the defendants, in order to prove a same as he paid me before, $4 a day. Q. settlement, to show something more than an What did he say? A. He said he was to pay acceptance of the check with full knowledge me the same as he paid the other man, or that it was given in full settlement; and (2) something to that effect. I didn't know what it permits the plaintiff to accept the check the other man got, so I didn't know what I offered in full settlement and apply it on acwas getting as he told it. Q. How much did he count, provided he called the defendants' atsay he would pay you? A. $3 a day. Q. tention to the fact that he took it as part And he gave you a check in full settlement payment." Under the first particular, the deat $3 a day? A. No, sir. Q. What did he fendants claim that "the inference is that do? A. He wrote a check and handed it to words of assent were necessary;" under the me before any talk was made. Q. Didn't second particular, that the court in substance he say it was in full settlement? A. No, sir; says that "calling the attention of the dehe didn't say it. Q. What did he say? A. fendants to the fact that he was I told him that was a mistake, that the pay not receiving his compensation of $4 a day, was not right, that he was to pay me $4 a as he expected, and that he simply took the day, what he paid me before. He said no, check as part payment," would amount to a he didn't say so, and the team was standing nonacceptance of the check, notwithstanding at the door, and to tell the truth I was crip- the fact that the plaintiff took and kept the pled so that I could not walk. I had strain- check with knowledge that it was offered in ed myself the Sunday before, and I could full settlement. In other words, defendants not have walked out, and it was a case of claim the rule of law to be: (1) That money settle or walk, and I thought we were so far taken on condition, though without words of apart that we would not come together, and assent, is taken subject to the conditions; I started. Q. When did you say that, before and (2) that a party accepting a check offeror after he handed you the check. A. After. ed in full settlement is bound by the condiHe didn't say what he would pay me. Q. tions, although protesting that he does not Wasn't the check written out by the young accept it in full. In support of this contenMr. McEachern pursuant to the time given tion, Anderson v. Standard Granite Co., 92 him by the clerk? A. I think so. Q. You Me. 429, 43 Atl. 21, 69 Am. St. Rep. 522, is knew when you took the check that it was cited. This opinion says: "The amount havin full settlement according to their books, ing been offered in full settlement, and havdidn't you? A. No, I didn't know. It didn't ing been accepted as such, impliedly at least, look to be full settlement to me. Q. You the plaintiff cannot treat this sum as a payknew that they gave it to you in full settle- ment pro tanto and recover the balance as ment? A. No, sir; I didn't. I thought they due on the original claim." were trying to beat me out of a winter's work. Q. Did you tell them so? A. I told them so afterwards. I didn't make any conversation then. Q. You did not give the check back to them? A. No, sir; he didn't ask me. Q. You accepted it? A. I was to Moosehead Lake and had to have something to get home with."

As we understand this case, and the other cases cited by the defendants, they hold, where the offer of money or a check is made upon the condition that the other parties accept it in full payment of the claim in controversy, they are bound by the condition. This rule of law, when analyzed, involves a simple principle of contract. The debtor [2-5] Upon this testimony and, of course, says, "I will give you this check or pay you the testimony of the defendants, the judge this amount of money on condition you acinstructed the jury: "If you come to the con- cept it in full payment of your claim." By clusion under all this testimony that there this language, a contract entirely independwas an understanding between both these parent of the original controversy is offered to ties, the plaintiff and the defendant, that the, the creditor. He can accept or reject it up