The daily morning journal and courier., 1896-01-30
P4TrEY WINs HIS CASE.


 Muddy River, Which Flows Through Ills | North Haven Farm-An Interesting Suit | Which Has Been stubbornly Fought.
 The case of B, w. Patten against the borough of Wallingford appealed from the court of common pleas, which court issued am injunction re- straining the borough from taking wa ter from Muddy river which flows through Patten's farm in North Ha- ven, was further heard in the supreme count in session in this city yesterday.
 Judge l.. M, Hubbard appeared for | the borough and concluded his argu- ments yesterday morning. Attorney T. | II. Russell, who appeared for Patten, then prefaced his argument by bringing up anew motion denied him the other day, to strike from the docket the case | on the ground that the appeal of the borough had been withdrawn and the judgment paid. It Will be remembered | when the case was before the court | last week, counsel for borough claimed the committee, consisting of o. H. D. Fowler c. A. Harrison, and William | Hassett, who had assumed to with draw the case had no, power ito do so because a vote of the borough under which they acted, was passed at a meeting not called for any such pur- pose, and that the only parties who could withdraw the case in the pres ent circumstances was the counsel who had been in the case from the be- ginning as the only attorney of record; unless possibly, MT, Fowler, who had " hnpn rn1ar,tlN annnipta6 ihprnnpsb a it. torney for the year, chose to enter his name on the docket as such and with draw the case. Mir Fowler in court was asked by the chief justice if he wanted ito do so, but he declined. It seems the people of Wallingford had | come to have a good deal of feeling amounting to a great state of excite lnent with reference to the matter and the taxpayers, and substantial peo- pie of the town turned out in big numbers at a meeting held a week ago Saturday night and defeated a motion to ratify the Illegal vote of the previous meeting. But a remarkable thing was that the warden of the borough, although he had signed the warming for this meeting, and for the express purpose of enabling the voters to take further action, went on the very day of the meeting and paid Pattens lawyer the judgment of $1 damages and $56 costs, that had been awarded by the lower court.
 | Yesterday at the conclusion of Judge Hubbards argument, as above stated, MT, Russell renewed his contest to have the case stricken from the dock ct. The judges held a long and ami mated consultation, and statements were presented pro and con by Judges Stoddard, Hubbard and MT. Russell. MT. Fowler, who was in the court room, was again asked by the court, if being now qualified as borough at torney, he wished to withdraw the case. He replied that unless the court found that the case had been legally withdrawn by the committee in ac- cordance with a vote of the annual borough meeting, he would not now withdraw it. Since he had qualified as borough attorney, he had been in- structed to proceed with the case
 The chief justice then remarked that the paper filed by the committee reeeiv- ed only an agreement to Weithdraw and did not appear to be of itself an actual withdrawal Then Judge Fenn asked MT. Fowler if he supposed and intended the paper to be an actual withdrawal of the case, to which MT. Fowler replied that he did. The court then upon fur ther consultation was boiled by the chief justice and Judges Baldwin, Tor rance and Fenn voted that the with drawal should be accepted. Judge Ham, ersley voted no. the chief justice not voting, though it was thought by those in court that from what had been said the chief justice concurred with Judge Hamersley in his opinion.
 This will be a great surprise to the people of Wallingford, who were stoutly opposed to withdrawing the case and supposed that question had been finally disposed of last week. This disposition of the matter leaves the injunction on the borough permanent and by it's pro- visions not drop of water can be taken from Muddy river by the borough which has already spent s12000 in a pumping station and water rights. un- less they first make compensation tc Patten, who, 1t is claimed sustained , only nominal dama ge. It would have , been of great interest to the people oi the whole state to have had the supreme court pass upon the principal question , here whether in such circumstances an , injunction will lie restraining muni. , cipal body from taking any small , amount O. water for its public uses , from the streams of the state unti they have first incurred the great in. convenience and expense of settling with all parties on the line of the stream, no matter how slight the dam age. Ii is believed that if the case ha6 : been proceeded with the borough would have been successful with it's suit Al least Judges Stoddard and Hubbard hat , the greatest confidence in their case The result of it will no doubt greatly increase the excitement in Wallingford on the question, and the indignation oi , 8 large part of it's inhabitants at the course which has been taken, as it is , felt the interests of the borough have suffered great injustice.
 Counsel Goodhart's Opinion.
 , Town Counsel Goodhart handed in ar oDiniOn to the Selectmen yesterday re.