Cratty v. City of Bangor.

nor contracts, were not the subject of set-off. "Nor are taxes," observes SHAW, C. J., "contracts between party and party either express or implied, but they are the positive acts of the government through its various agents, binding upon the inhabitants, and to the making and enforcing of which their personal consent, individually, is not required." In Shaw v. Peckett, 26 Vt. 482, it was held that the assessment of taxes did not create a debt that could be enforced by suit, or upon which a promise to pay interest could be implied. In Lane County v. Oregon, 7 Wall. 71, it was decided that the clauses in the several acts of congress of 1862 and 1863, making United States notes a legal tender for debts, had no reference to taxes imposed by state authority, the court holding that congress had in contemplation "debts originating in contract or demands carried into judgment, and only debts of this character."

The only clause in the constitution of this state relating to taxes is found in article 1, section 22, and is in these words: "No tax or duty shall be imposed without the consent of the people or of their representatives in the legislature." But this section relates only to the imposition of taxes. It in no respect limits or restricts the power of the legislature to repeal any act by which taxes have been imposed, or to prohibit their collection. The legislature have the same right to remove a burden as to impose it. It was a matter for their determination, and it is not for this court to say that a tax shall be enforced, which they, by statute, decree shall not be enforced. Plaintiffs nonsuit.

CRATTY V. CITY OF BANGOR, appellant.

(57 Me. 423.)

Unlawfully traveling on Sabbath day - Defect in highway.

A person traveling on the Sabbath day to the house of a friend for pleasure is so far in violation of a law against traveling on the Sabbath day, unless for charity or necessity, that he cannot maintain an action against a town for injuries from a defect in the way.

THE action was brought to recover for injuries received by the plaintiff from a defect in defendant's highway while he was traveling on foot on a Sunday, with some other persons, to make a visit of pleasure at the house of a friend.

Cratty v. City of Bangor.

The defendant contended that the plaintiff was, at the time of the injury, traveling for pleasure on the Sabbath day, in violation of the statute prohibiting traveling on that day, except for charity e necessity. The objection was overruled and a verdict rendered for the plaintiff. The defendant alleged exceptions.

Mace & Laughton, for plaintiff.

A. L. Simpson, for defendant.

DANFORTH, J. That the statute renders towns and cities liable for injuries, on account of a defect in the highway, to travelers on foot, as well as those with horses, has been too often and too long recognized by the courts to be now reversed without an act of the legislature. Upon this point the ruling is right, and we think in accordance with a fair rendering of the statute.

A person traveling upon the Sabbath, unless for charity or necessity, is so far in the violation of law that he cannot maintain an action for injuries by a defect of the way. Hinckley v. Penobscot, 42 Me. 81.

No distinction is made between those who travel in town and those who travel from town to town. The former are as much in violation of the law as are the latter. Tillock v. Webb, 56 Me. 100. Nor does the statute for the due observance of the Sabbath make any distinction between those who travel on foot and those who travel in carriages. It is the traveling which is prohibited. R. S., chap. 124, § 20, as amended by Public Laws of 1864, chap. 281.

The plaintiff was not out for a walk, only, as in Hamilton v. Boston, 14 Allen, 475, but was going to a place other than his home, and that, too, for pleasure. In the opinion in the case last cited, GRAY, J., says: "But, confining ourselves to the facts disclosed by this bill of exceptions, we are of the opinion that a person walking with a friend on Sunday evening, less than half a mile, with no apparent purpose of going to or stopping at any place but his own. home, much less of passing out of the city, and no object of busi ness or pleasure, except open air and gentle exercise, is not guilty of traveling," etc., thus plainly intimating that in such a case as the one at bar the decision would have been different.

If our statute is wrong, if those who pass to a place other than their home, within their own town, for purposes of pleasure, should VOL. II.-8

Dennett v. Penobscot Fair Ground Company.

be exempt from the provisions of the statute, the legislature is the proper tribunal to make the change. It is, however, very clear that the plaintiff met with his accident while in the violation of the plain provisions of the statute, and it is not competent for the court to make exemptions from the law which the legislature have not. Exceptions sustained.

DENNETT V. PENOBSCOT FAIR GROUND COMPANY.

(57 Me. 425.)

Vendor and Purchaser — Occupation under contract to purchase — Rent. When a person occupies real estate under a contract for the purchase of it, and the contract is ultimately carried into effect, the law will not imply a promise on his part to pay rent, and an action for use and occupation cannot be maintained against him in the absence of an express promise to pay rent.

ACTION of assumpsit for use and occupation of certain premises. The plaintiff and defendant entered into a contract in April, 1864, by which the former was to convey and the latter to purchase the premises in question. The defendant went into occupation soon after, and continued until June 1865, when the contract was consummated.

N. Wilson and J. E. Rowe, for plaintiff.

C. P. Stetson, for defendant.

WALTON, J. When a person occupies real estate under a contract for the purchase of it, and the contract is ultimately carried into effect, and there is no express promise on the part of the purchaser to pay rent, the law will not imply one, and an action for use and occupation cannot be maintained against him. The circumstances under which he occupies repel any such implication. The price agreed upon is presumed to be a sufficient consideration for the inermediate occupation of the land, as well as the ultimate conveyace of the title to it. The title of the purchaser, so far as his ight to occupy is concerned, relates back to the time when he first ook possession under his contract to purchase; or, as the rule is

Lee v. Pembroke Iron Company.

sometimes expressed, the previous tenancy is merged in the subsequent conveyance of the fee. Thus, in Gould v. Thompson, 4 Met. 224, where the plaintiff recovered because the defendant continued to occupy the premises after having refused to execute his contract to purchase, the court say, that, "had the deed in fact been given. pasuant to the parol agreement, then the tenancy at will would be considered as merged in the executed contract, which, by its terms, would relate back to the time that possession was given under that agreement." Similar language is used in Woodbury v. Woodbury, 47 N. H. 11. And in Dakin v. Allen, 8 Cush. 33, SHAW, C. J., says: "But it is sometimes said that one who is in thus under a contract for a sale is tenant at will to the owner; in a certain sense he is a tenant at will, as a mortgagor is tenant at will to the mortgagee, because he may enter upon and eject him, if he can do it peaceably, or maintain a real action on his title, and thus gain the possession; he is under no obligation to pay rent unless upon an express agreement."

No express promise to pay rent is proved in this case. The defendants entered under a contract to purchase. This contract was not executed within the time first agreed upon, and the plaintif could have treated it as rescinded if he had chosen so to do. But he did not so treat it. He renewed it from time to time, making no claim for rent, till it was finally consummated, and the conveyance actually made. Under these circumstances the law will not imply a promise to pay rent. The relations of the parties, and the circumstances under which the defendants occupied, repel any such impli cation. Plaintiff nonsuit.

LEE V. PEMBROKE IRON COMPANY.

(57 Me. 481.)

Riparian rights- Legislative authority to build dam.

The defendants, in pursuance of authority granted them by the legislature, built a dam, which backed the water upon the ancient mill of plaintiff Held, that defendants were liable for the injury occasioned.

A legislative authority to do an act which will naturally result in damages to private property must be coupled with provisions for ascertaining and pay. ing such damages in order to protect persons acting under such authority from liability at common law.

Lee v. Pembroke Iron Company.

ACTION to recover damages occasioned to an ancient mill owned by the plaintiff, by a dam built across the Pennemaquan river by defendants in pursuance of an act of the legislature.

The facts appear in the opinion.

J. Granger, for plaintiff.

Brian Bradbury, for defendants.

BARROWS, J. The plaintiff claims in this action to recover damages done to his grist-mill, situated on the Pennemaquan river, by means of back water caused by defendant's dam at Bluff Head, a short distance below the plaintiff's mill. The Pennemaquan is a small stream having a succession of rapids near its mouth. Technically speaking, it is navigable at the plaintiff's mill, the tide flowing there, as the jury have found, six or eight inches.

The plaintiff, and those under whom he claims, have been in the occupancy and use of the mill and privilege, continuously, since 1832; and were so for more than twenty years before the passage of the private act by the legislature, under which the defendants claim that they are relieved from the payment of damages.

Plaintiff's title to his mill, his right to the undisturbed use and enjoyment of it as his own private property, cannot be successfully impeached. Defendant's dam was built in 1853, and has been maintained under the authority conferred by chap. 164, Private and Special Laws of 1853, which makes part of the case.

The only ruling complained of is, that "if the plaintiff is otherwise entitled to recover, and the maintaining the dam at Bluff Head was the immediate and sole cause of the overflowing of the plaintiff's mill, the legislative grant of authority to maintain said dam on tide-waters would not protect the defendants from a liability to pay such damages as were the direct and natural consequences of the overflowing of the plaintiff's mill." The act of 1853 authorizes the parties whom the defendants represent to maintain the dam on their own land at a point described, in a manner specified, affording certain conveniences to those wishing to make use of the stream as a highway, but making no provision for assessing the damages caused to private property thereby.