The Portland daily press., 1877-01-29
PREsUMPsCOT wATER.
The Hearing fer an Injunction before
Judge Virgin.

Judge Virgin.
| The hearing On the bill in equity, fled by the
Oriental Powder Company on the 10Th instant,
to restrain the Cumberland Mills Company
from interfering with the management of the
| fiood-gates in the dam, at Wescott's Falls, on
the Presumpscot river, began Saturday morn
| ing, before Judge Virgin, in the Supreme Court
room.
The hearing was opened by the reading of the
bill in equity by the Hon. Nathan Webb, who,
with the Hon. W. W. Thomas, Jr., and I. II.
Haskell. Esq appeared for the complainants,
| while the Hou. I. b. Reed appeared for S. d.
Warren & Co., Moses NJ Butler, ESQ, for John
Lindsey, and Hon. VIM. L Putnam appeared
for the Sebago Wood Board Company, Lisk s.
Weston, and the Westbrook Manufacturing
Company, who were all cited to appear and de-
fend with the Cumberland Mills Company, as
it had been represented that they were also
parties 10 raising the food gates
The points advanced by the compliments
were substantially those already published ia
these columns. They showed their title claim
ing that the Cumberland and Oxford Canal
Corporation, about forty years ago, built
the dam at the outlet of Lake Sebago into the
Presumpscot river, at Wescott's Falls, always
known as the head dam. By il they raised the
water of the lake, and river down as far as the
dam, about six feet, to sufficient height for
navigating their canal, which opened with
guard lock from the basin caused by the dam,
and ran into Portland Harbor The dam and
canal were built under charter rights from the
State, which gave the canal corporation an
easement in the water and in the right of way
down their canal for the purposes of navigation.
But the dam itself being built on the property
of Nathan Winslow, who owned the bed and
both banks of the river, became the property of
Mr. Winsow by being attached to his soil, and
all uses Of the dam and flow of water, not in
consistent with the rights of the canal corpora
ton. became the property of MIR. Winslow.
Mr.. Winslow, soon after, in 1882, erected mills
on the dam, which have been in operation ever
since.
In 1884 Mr.. Winslow conveyed all Of his real
estate at the head dam, including the dam
itself, the land on both banks, the mills, and
all privileges thereunto appertaining, to Oliver
M. Whipple, who was then running the powder
mills at Gambo Falls, and the right to hoist
and shut the flood gates in the head dam, and
all the control of water at that point not incon-
sistent with the rights of the canal corporation,
have ever since remained in Whipple and his
successors, who have run the Oriental Powder
Mills to this day. The right is now vested in
the Oriental Powder Mills, and Mr.. Whipple
and his successors in the Powder Mills have
always exercised exclusive control in these |
water privileges. In the meantime the Cum
berland and Oxford Canal Corporation have
become extinct, their charter having been de- |
clared void, and all their rights forfeited, by |
the Supreme Court of Maine, thus leaving the |
Oriental Powder Mills in the exclusive control |
of the water at the head dam. The particulars
of the overt acts by the Cumberland Mills
Company ct, ais, were then rehearsed.
The position taken by the complainants was |
supported by some thirty five affidavits, signed
by parties we'll known on the Presumpscot, who |
stated that when the ether mills wanted water |
they went to the compliments for it.
The Hon. Il. B. Reed, for the respondents, |
claimed that in the fall Of 1860 they opened |
the gates and Kept them open some six or |
eight weeks, when the complainants brought |
bill in equity, praying for an injunction, |
WuiCu ibJuuCtiVu was leiuoCO, uuu ehC oli',
after lingering along several years, was drop |
ped, the complainants paying costs to respon- |
dents. 1t appeared that on June LIST, 1861, |
the owners of the Westbrook Manufacturing |
Company filed an answer to the bill of the |
Oriental Powder Company, stating that upon |
the Presumpscot river, at the village of Sacca- |
Kappa, there are two falls which. for more than |
a hundred years, have been impro we'd by dams |
and mills, and used for manufacturing purpo- |
ses that at the time of the filing of the bill, |
and for TWO years prior the Westbrook Manu- 4
featuring Company were the owEers of one |
half Of the lower falls at Saccarappa, and also |
of large and valuable water privilege and |
power on the upper falls, and owners of mills |
at Saccarappa engaged in manufactures depen-
dent for motive power on the supply of water
from the upper falls; that Luther Fitch was |
owner of valuable water power and privilege |
on the lower falls that supplied defendants
mills, and this power was leased by them from |
Fitch; that this water power was an arcient |
privilege occupied and improved by dams and /
mills by said respondents and those under them |
for more than hundred years, and they had |
always claimed and had free and nninterrupt- /
ed use of the flow of the Presumpscot from Sc |
bago Pond to SAID falls and mills at Saccarap- |
pa without moestation of any kind until the |
summer of 1860, SO far as the water was neces- |
sary for the use of their mills. The respon-
dents also claimed right to the natural flow |
of the water from Sebago Pond into the Pre-
sumpscot, and had used it without Interruption
or hindrancs for seventy years prior to $780,
At that time the Cumberland and Oxford Ca |
nal Company did construct dam at Wescotts |
Falls, but illegally, without any right or au-
thority, and neither Winslow, nor those under |
him, or the Canal Company, have any rgh hts to |
retain and detain the waters Of Sebago Pond |
by the dam, or deprive the mill owners at Sac |
carappa of water This they claim the Wes- |
colt dam did. Consequently the mill owners |
constructed food-gates in the dam, in order |
that the water should flow through when be- |
low the top of the dam, and supply their |
mills. The right to keep these gates open, |
when necessary, was always recognized by the |
Canal Company, its agents. and the owners of |
the water power at Wescott's dam, and the |
Oriental Powder Company, since 1880, always |
opened the gates in that dam and furnished the |
water called for in re cognition of the respon- |
dents rights.
In 1857, the dam at Wescott's Falls being out /
of repair, an arrangement was made by the |
Canal Company, John Lindsey, Oriental Pow.
der Company, Grant, Warren & Co., Bridg- |
ham, Clements & Warren, and the Westbrook |
Manufacturing Company. to build and con-
struct new dam at their joint expense at |
Wescotts Falls, which dam was the joint and |
common property of the respondents, who
built the same for their common benefit and |
advantage, with proper gates to supply the |
mill owners below with water whenever the |
pond was so low that the water did not run |
over the dam in sufficient quantity to operate |
the mills at Saccarappa. During the summer |
of 1860 the respondents did not get sufficient
supply of water, and they took the same action
the respondents in this case have done.
The respondents deny that the compliments
have claimed aud held .possession of the flood
gates to open and shut at their pleasure. On
the contrary they have been under the control
Of all the mill-owners, to open whenever they
needed the water They have had the right to