The Portland daily press., 1895-06-03
CUMBERLAND COUNTY.

q Somerset Railway, in equity, VS.. Lewis
Pierce ct ais.
Rescript by Strout, July /, 1871, the
Somerset Railroad company made mort
gage of its road and franchise to trustees
to secure the payment of it's bonds The
condition of this mortgage having been
broken and so continued for more than
three years, the mortgage bond holders in
1885, organized a new corporation, under
the statute, by the name of the Somerset
Railway. This corporation, the COM
plainant, took possession of the mortgage
property on the first day of September,
1883, and have ever since retained it, and
operated the road. On the eighth day of
July, 1884, complainant purchased, at ex-
ecution sale, the equity of redemption
from the mortgage, from which sale no
redemption has been had. Full title has
thereby been acquired by the Somerset
Railway. Under the statute, complain
ant represents all the mortgage bond
holders, and its title to and possession of
the mortgaged property enures to their
benefit. Each mortgage bond holder
thencefOrward became share holder in
the property covered by the mortgage, in
the proportion that his bonds bore to the
and the bonds themselves are paid to the
extent of the value of the mortgaged
property, full title to which passed to the
Somerset Railway. A large part of the
bondholders have exchanged their bonds
for stock in the Somerst Railway, par for
par and are now stockholders those who
have not SO exchanged, remain share
holders, and entitled to receive from the
earnings of the road, the same pro-rata
dividends as the stockholders, if they de-
cline to exchange their bonds for stock.
but the possession and operation of the
railroad will continue in the Somerset
Railway. The trustees under their
nod 10,
vey whatever legal title remains in them
| to the Somerset Railway on payment Of
any sums that may be due them for
| services or disbursements, and viii be
perpetually enjoined from the further
prosecution of their pending suits, and
from interfering in any way with the
title, possession or use, by the Somerset
scribed in the mortgage of July l, 1871,
except so far as it may be necessary for
them by suitable legal process, to enforce
any lien, if any, which they may have
upon the property, for the payment of
such sums as may be found due them as
such trustees. Master to be appointed to
ascertain this amount and report to the
court. ~
Bill sustained with costs against the
trustees Pierce, Heath and Drew, and
dismissed as to all the other respondents
Decree in accordance with the opinion.
Warren ct ais. in equity, VS.. Westbrook
Manufacturing Company, ct ais.
Rescript by Emery, jim the last de-
cision of the court upon the rights of the
parties to the use of the waters of the
Presumpscot river for mill purposes, (36
Maine. 32), it appeared that there were
two channels, eastern and western,
around an island, flowing past the
riparian parties at Saccarappa upper falls.
| The court there decided upon the issue
tIof,
of three out of four shares of two channels
upon the same river does not itself estab-
| lish right to use threefourths of all the
water of the whole river, and (2) that
where no statue contract or prescriptive
right is invoked, the court will not un-
dertake to wholly or partially apportion
| the waters of the river between the two
channels, but will leave the parties to
accommodate themselves to the division
made by nature.
In this proceeding other facts appear
and further allegations are made under
which the plaintiffs claim, among other
things, that the increased use of the
waters by the defendant renders the
waole power insufficient for the mills of
all the riparian owners; that unless they
car be assured of the steady and regular
Use of their full rightful proportion of
the water power they cannot profitably
operate their mills and cannot venture to
undertake further operations, by reason
Of the cloud thus thrown over their
rights. Held; that the controversy here
relates solely to the use of the flow of the
water for the propulsion of machinery,
and that the court can and should make
such division of the use of the flow of
water between the opposite riparian pro-
prietors as will secure to each a use or
enjoyment equal to his right.
| Also held, that the bill should be
further amended in statement to present
all claims of right in any part of the falls
and waters arising from riparian owner