The Emporia news. [volume] (Emporia, Kan.) 1859-1881, 1880-10-08

I
prove niatier of decided interest to our
readers. The practical effect OF the find
ing OF the conrt is TO sustain The injunc-
tim both as 90 tapping the river and
taking water from The well, and leaves
the city, - far as this decision is regard
ed, with very complete system of
water works barring the some What inn
portant exception OF water, a sort of
counterpart, so to speak, OF the play of
Hamlet with Hamlet omitted The city
has appealed the case 10 the supreme
court, and we withhold further com
ments until that tribunal is heard from.
The following is full report of the
finding of the court in this important
case:
William T. Soden, Plaintiff
The city of Emporia, -. S. Gilmore,
mayor, John S. Watson, II. Ii. Lowe,
l. ID. Fox, Van McCnlloch, Nelson
Whittlesey, e. 2 Theis, Jacob Taylor
and John Thatcher, councilmen of said
city and Russell and Alex
ander, partners as Russell & Alexan-
der, defendants.
LuC NOuIl lAAI lsACio nGANiAl 40 lOA-
lows:
list. That said defendant, the city of
Emporia, is a municipal corporation as
city OF the second class, situated in
Lyon county, state of Kansas and has
been such for five years last past That
said defendent ID. S. Gilmore is the may
or of said city; that all the other defend
ants, except said Russell & Alexander,
are councilmen of said city, and same
defendants John Russell and Z S. AL
exander are partners as Russell 81 Alex
ander.
Cd. That said plaintiff, William t.
Soden is now and ever since the Esd
day of November 4. D, 1860 has been
the owner and proprietor OF the real
estate, first mentioned and described in
plaintiffs petition, and which lies on
both sides of the Cottonwood river and
| includes same river and adjoining SAID
tract, in all twelve acres.
Sd. That said Cottonwood river is
large natural water course, but is not
navigable stream.
4th That for more than sixteen Q6)
years last past, said plaintiff has owned
and maintained mill dam across said
Cottonwood river, on the land first in
said petition described of q height of
not less than the height of the dam now
on said land and across said river, which
is about seven @ feet nine (9) inches
above the ordinary stage of water in said
| river.
9th. That connected with said dam is
| and has been during said time, q large
public custom Touring mill, with never
less than three (3) run of buhrs. and at
and before the commencement of this
suit with six (6) run of buhrs, also a
large saw mill and furniture factory, and
large stone building adapted to the
purposes of a wooden factory, but the
wooden mills have never yet been put in
said building, the building and power
having been heretofore used for other
manufacturing purposes. That all OF
these buildings and machinery have
been erected ard adapted to said water
power long before the city of EmpOria
ever contracted or voted bonds for the
purpose of erecting water works.
9th. That during the last nineteen 10
years said plaintiff has dammed up and
caused the water in said river TO flow
back SO as to form running head of Wa
ter of seven and half feet 90 above
the ordinary stages of water in said riv
or, except during one or two short inter
walls when repairing was being done on
said dam, and then no longer than was
necessary to make the repairs; and dur
ing the said time said plaintiff has beer
in the quiet and peaceable possession, oc
cupatiOn and enjoyment of said watcl
power, without any let or hindrance o.
obstruction, and during all of said time
the waters of said river have been accus
toned To flow along the channel of sai(
river To said mill and dam freely ant
unobstructedly, without any let or hin
dranee or diversion, in the same manne
as the waters of said stream have beer
accustomed To- flow from time immem
mortal.
9TH. That long before the 9TH day o
November, 1860, one Curtis Hiatt wa
the owner of the east half of the north
west quarter of section %, township IS
range IL, in Lyon county, Kansas
in fee simple, he being the origi
| nal purchaser thereof from the UniteI
States. That said Curtis Hiatt, bein!
such owner, did, on the 9th dal
t of November, 1860, by an instrumen
. in writing of that date duly executes
and acknowledged by himself and wife
granted and conveyed TO said plaintiff tn
] right and easement in, To and upon SAT-
last above described real estate TO cree
and maintain mill dam upon the rea
j estate of the plaintiff, first in plaintiff
C petition described. such as was erected an
has been since maintained by the plain
tiff, forever. and also the right and ease
| Sltlu AulllS IAldlb lduN W nav
n the said Cottonwood river run and fioN
over the said Hiatt land for the uses {
'' said mills and water power forever, an
L said Hiatt land thereby became and wa
a SERVANT estate TO said plaintiffs sal
lease to the extent aforesaid. That sal
instrument IN writing was duly recorde
/, on the 9th day of November, A. ID. 1861
II in book G, of deeds, at page 343, in III
e office of the register of deeds, in and fc
u said Lyon county, state of Kansas.
Sth That said Hiatt lands lie immed
| ately west and adjoining on to the qua
:, ter section of land in which said plail
u tiff's said land and mills are situated
d and the said Cottonwood river flow
t. through said Hiatt lands close to sal
- mill dam.
9th. That long before the bonds wei
voted for the location of water works
4 the city of Emporia the plaintiff ha
g laid out and expended large amounts {
money in improving said water powt
e and in procuring rights of fiowage frol
ct riparian owners above said mill and
Al erecting mills and factories at said dal
to the amount of forty thousand ($4(
000) dollars.
" 10th. That the said plaintiffs said mil
te and factories are propelled excl
"a sively by water power from said mi
Qdul, anu dTG dNldlItcu W TIC use VI L
le other motive power.
ne 18th. That said mills, water power an
privileges are of the value of over eigh
thousand $780, 00) dollars.
We 18th. That between the months
n April and July, 1880, said defendants, Il
!, city of Emporia and its said mayor al
council, through said defendant
at Russell & Alexander their agents ar
er employees against the positive interdi
of ton the earnest and repeated reno
strants and protests of said plaintiff
SAID mayor and council in session an
rs out of session, publicly and privatel
=. without any leave, license, warrant
"S authority of plaintiff or the law, by co
he demnation, purchase or otherwise, ere
IL or cause TO be erected ON the bank
~ said Cottonwood river by the side of u
> plaintiffs mill pond on the said Hi;
lands about one hundred 200 rods abo
ON said mill dam, q Holly system of wat
works propelled by steam, with a pi
hc connection from the pumps of 81
e- water works of one foot in the bore {
er tending down into said mill pond dc
w. into the waters thereof, and also into t
waters of well dug near the bank
III said mill pond % in diameter and
feet deep, and below the bottom of sa
mill pond, and a system of pipes wi
Ell SAID water works twelve (12) miles
I'm length extending over the streets a
he avenues of said city at reasonable int
We walls to supply said city and its inha
- tants with water, for the purpose of ST
INT plying water for said same city for eve
I'D purpose for which water works usua
supply water in city. That the ma
pipe extending from said water works
ne the city is ten inches in the bore.
ed 18th. That said city of Emporia
nd now city of over 5000 inhabitants, a
- covers an area of two sections of Ian
tn and is now rapidly growing and incre
The ing its number of Inhabitants, and Il
les its demands for water will increase