The Worcester spy. [volume] (Worcester, Mass.) 1898-1904, 1898-10-18
RESUMED
On
w alter Cases.
THE KETTLE BROOK.
City Opens Case and VIII
Take Two Weeks.

cases was resumed before the special
commission yesterday, after rest of
several weeks. The city opened its
case at the session and expects to have
all the evidence in in about two weeks
The opening was given up to City
Solicitor Arthur P. Rugg, who set forth
the citys position at length as follows:
The value Of water power, which has
been urged by the counsel for the petit
TONERS, is not the rule of damage ac-
cording to the decision of the supreme
court. The real test is how much
less the property, privileges and rights
are worth than they were worth before
the taking. 1t is not a question of what
IL would cost to reproduce the horse
power taken away. Taking a part of
system can not cause a damage which
is worth more than the whole This
test can be applied to the privileges
located below the point of taking. For
the property above the point of taking
worth
A great deal has been said by the
counsel for the petitioners relative to
market value. The city in its argument
Wlshes TO take the definition of mar
ket value as given by the supreme
court in the case of Lawrence VS.. the
Guy OIL boston, in which it is stated
tnat market value is what a certain
piece of property is worth as between
a man willing to sell and a man willing
10 puy. Market value is not determined
by unusual conditions. 1t is not deter
mined IN a case where there is a. will
ing seller but an unwilling buyer. or
vice versa 1t is not determined nv
speclal adaptability of piece of prop
erty for a specific purpose, but it must
be determined by cases where the own
er Is Wiling to sell and the buyer will
ing to buy.
In many ways the testimony Of the
petitioners and that of the city will
agree put, on the other hand, there
are points on which there is a variance
Gile OF them is relative to the area. of
the watershed, with especial reference
10 the shed drained by Peter brook
IAat shed has an area of about three
quarteFs or a square mile. The city
T pnl as that the shed drained bv
refer brook should not be included IN
the area taken by the city. The civ
contends that the natural DISCHARGE IF
Leler brook is in Waite's reservoir and
snat IL cid flow into that body of water
LOT years. This reservoir is below tba
punt OF seizure by the city and con-
sgquently the Peter brook watershed
in f1a,r .
damages. ~ 'iie award OF
The petitioners on the other hand
SistlIii that the natural course of Patar
prook would flow the water info viii
son reservoir, which is above the noir+
VI taxing. The brook flows in thar Ill
fectlon now, but the city alleges mat
ene reason for it is found in fbe fact
eiIal lew days before the seizure was
i Iru[ualiy maze, and when it was well
h ny that the seizure would be made
ana after the matter had been disni1esi
ed at length in the city council tbe e nro
prleors of the Lakeside Manufa ct1,rj,1e,
company. who We're as much Interested
IA III the SEIZURE as any one Of the peti-
TONERS, DUG s. trench without authcr-
ity ana without right, which diverted
the brook from its natural course in+o
the new course, so that 1t would be in
ciuoeo IN the area taken by the cjtv
~ ls the purpose of the city to p.Sye
thls Dy cross sections and measure.
ments, and also by taking the commits
sion 10 view the locations in question.
another variance as between tha tas-
tlmony OF the petitioners and the citv,s
witnesses will be found in the measure
menus OF the area and contents of the
reservoirs taken by the city. In these
measurements considerable differences
VIII pc found, and we propose to show
laDle, because the measurements were
taken in some cases when the ponds
We're completely drawn down and in
some cases through the ice Both of
these conditions allow for more accur-
ATE measurement of the bottoms of the
ponds, and consequently of the contents
OF the ponds than could possibly be OBJ
famed by the petitioners engineers I'M
der the conditions which prevailed
when their Y11pp 1i11,aY,oe1 r,-o,,1,
Another variance will be found in the
estimate of the amount of land taken
at Mann's privilege and the decision
VIII be mainly q matter of law. AS
VIII doubtless be remembered, the res
ervoir at Mann's is considerably above
the mill, and the water is carried from
the pond to the mill in canal which
the city alleges is no part of the reser-
Nolf, although the water stands at the
same level in both the pond and the
canal. The city in it's taking described
the property seized as all the 'reser-
Voirs and ponds" and, consequently, it
did not include the Mann canal. In ad-
dition to the actual ponds and reser-
voirs, the city took land within ten rods
Of high-water mark on al! sides of the
ponds and reservoirs. The petitioners
claim, then, that land within 10 rods OF
the Mann canal was also taken, but
this is denied by the city, on the
ground that the canal was not included
in the seizure. The practical result of
the petitioners claim is that the Mann
mill and several tenement houses are
included in their description of the
property seized. 1t is not included in
ours.
Another variance will be found in the
testimony relative to the damage sus-
tanned by d. Golf & Son and the privi-
lege holders on Sargent's trench in
Pawtucket. The owners along that
trench were allowed by law to take a
certain amount of water per day or
year, as the case may be, from the
stream. Before the taking there was
always enough water to supply the
amount allowed the owners and since
the taking there has always been
enough water to supply that amount,
SO that the action of the city has in no
way interfered with the privileges, and
there has been no damage.
The cases of the petitioners are logi-
cally divided into three classes: Those
above the, point of taking those be-
lege of the Worcester and Suburban,
which is the first one below the dis
charge of the sewage of the city into
the Blackstone, and those between and
including the Worcester and Suburban
privilege and tide water. The privi-
leges above the point of taking are d.
vided into two classes, developed and
undevelooed.
The city claims that the undeveloped
privileges are of no value as privileges
and that they have sustained no dam
age and the fact that in a region where
every valued privilege has been devel-
oped to It's fullest extent some have not
been developed goes to show that they
have never had market value. The
damage to privileges below the point
of taking simply amounts to how much
fuel is necessary to supply the amount
of water power taken away.
The Detitioners have laid mich Stress