The Portland daily press., 1897-10-30
CITY HAS PRIOR RIGHTS.
Right to Take Water For Domestic Pur-
poses Takes Precedence of All Others.

The,following rescript has been handed
down:
Androscoggin IS.
City of Auburn appellant vs. Union
Water Power Co., petitioners.
Rsscript-This Is a petition for the as
sessnent of damages. 1t Is presented by
iston and the question is whether, under
the circumstances disclosed by the evil
dence the company is entitled to damages.
1t appears that in 1891 the legislature
authorized and empowered the city of
Auburn to take water from Wilson pond
sufficient for domestic purposes, the ex-
tinguishment of fires, the supply of hotels
and livery stables and laundries and for
sprinkling The streets. For water taken
under the authority of this act the Union
Water Power Co. of Lewiston claims that
it is entitled to compensation. The COM
pany claims that it has superior and
paramount right to the entire waters of
the pond including all the natural flow
of the same," and that if any portion
of the water is divertd and used by the
citizens of Auburn for domestic purposes
the company is entitled to damages. The
question is whether this claim can be
sustained.
1t is a settled rule of law in this state
and Massachusetts that all great ponds
that is, ponds containing more than 10
acres, are owned by the state. This is a
rule of law peculiar to this state and
Massachusetts. The right to the use of
water for domestic purposes is primary.
and the right to its use as mechanical
power is secondary; and to the extent
that the two rights conflict, its use as a
mechanical power must be surrendered.
| True, it is sometimes said that there
must be no diversion of the waters of q
%IoA 10
above must allow the water to flow on
in undiminished quantities to the riparian
proprietors below. But this is not cor
rect statement of the law and the inaccu-
racy of the Il statement has been often
pointed out. The true rule is that there
| must be no unlawful or unreasonable
dininution or diversion of the water.
The diversion and consumption of svater
for domestic purposes is neither unlawful
not unreasonable. The right Of people
living in the vicinity of our great ponds
and lakes to unreasonable amount of their
waters for domestic purposes is sus-
tanned by the rules of the common law
of this state as well rs by reason and
principles of natural justice. And further,
by virtue of the rule of property derived
from the Ordinance of 1641-7 as inter-
preted in this state and Massachusetts,
the title of all great ponds is in the state,
and the legislature may confer upon
towns and cities the right to take water
from such ponds for domestic purposes
without making such towns and cities
liable for the losses thereby sustained by
the owners of mill privileges. Health Is
OF more Importance than wealth, and
cleanliness is next to godliness, and we
hold that the right Of the people to an
abundant supply of water, by which their
health and cleanliness may be secured,
is paramount to the right of all mill
owners to have the water for propelling
their machinery and that, to the extent
that the two rights conflict. the latter
must yield.
The claim that the Union Water Power
company has become entitled to the whole
waters Of Wilson pond by an adverse can
cannot be sustained. The companyland lta
predecessors in title have used.the water
of the pond, or so much OF it as has howed
out of the pond through its natural chan
mel and become mingled with the waters
of the Androscoggin river; but this has
been a rightful use 1t has encroached
upon no ones rights, ,and no one has the
right to suppress it. Such use can new
er ripen into a prescriptlve title. Besides
the authority of the state to control the
waters of great ponds, and determine the
uses to which they may be applied is a
governmental power, and the govern
mental powers OF the state are never lost
by mere non-use
The city of Auburn has charter from
the LEGISLATURE. The Union Water Power
company is a self created corporation,
organized under general law. 1t has no
charter from the legislature. 1t has never
asked for and never obtained from the
legislature any property rights or any
special privileges in the waters of Wilson
pond. The court has recently decided that
it mas no property rights in the waite S
of the pond which are taxable in the city
of Auburn, and we think it has no such
rights in the waters as entities it to dam :
ages from the city of Auburn.
Petition dismissed.
e.. IL.