The Portland daily press., 1899-11-29
REsCRIPTS.
Two York County Cases aud One From
Franliin County.

Rescripe by Savage, J.-Ihe ueienuants
are suei for breach OF the following
agreement in writing;
"Barmington, February II, 1891.
"Ffei G. Robinson and Clarence III.
Eaton held ourselves responsible for tie
amount of debt and damage contained In
writ in favor of Savage, Flanders and
Co., and served upon Peter ID gree .ty
Diputy Sheriff G. E. Dyer, on tho above
date"
In confederation OF this agreement. the
deputy sheriff released an attachment OF
goods.
Held, that the agreemen mt Is a guaranty,
tnat the terms are mrds sufficiently GER
tain, either in the writing, or by refer
ence to the writ, to satisfy the statute Of
frauds, that ths consideration was law
fuI, and that The defendants are holden.
Dsfend.nts defaulted for s6S SO.
York, 81.
Simon Roderique vs.. Record Publish
ing Company. (No opinion.)
Rescript by Strout, 1.-THE drst three
counts In plainti IFS writ charge defend.
ant with publishing in a newspaper two
articles Iibellous Of him, in his capacity
rs u police ofiiosr.
They are copied In full In the declara-
tion. Taeir language imputed TO him the
Unreasonable and improper arrest OF a per-
son, actuated thereto by the feo which he
would obtain for the arrest. Such oon-
6uot, IL true, would tend to inJure him In
his office, and inJuriously effect his use
fulnsss tt terein. and expose him to pub
lie hatred, contempt or ridicule, or to de-
privs him OF the benefits of public oond-
uence" in his office. The charge therefore
was libel,ous, within K. s., O. la9, SEQ.
1. These counts are sufficient. The last
two counts allege o libel upon plaintiff
individually, by the same publication,
and not as an officer, and In the absence
of special damage which is not alleged,
the articles published can hardly be con-
sidered Iitellcus per Sc,
The demurrer was general to the whole
declaration, AS Eorne OF the counts are
good, the demurrer was rightly over
rulsd. Exceptions overruled.
York, IS.
John X. weare ct al, VS.. Josiah Oh ase.
ct ais.
Rescript by Savage, J.-This case pre-
serts controversy between upper and
lower riparian proprietors upon the same
stream. the plaintiffs being the lower
rroprietors and the defendants the upper
propristcrs. The plaintiffs claim that the
defendants 'unlawtully. unnecessarily,
and wilfully" managed the gates at the
foot Of CHASSIS Pond. which empties into
the stream in question. in such manner
as to obstruct the natural flow of the
water In the stream TO the injury Of this
plaintiffs.
They also claim that they themselves
had the right by prescription or contract
to. esntrol these gates, and that the de-
PENDANTS unlawfu,ly interfered with the
exercise CT this right.
IT is the opinion of the court that the
plaintiffs had no right to control the
gates at the foot of Chass's Pond. There
was no Iisnt by prescription. because the
prior use of the gates by the DEFENDANTS
predecessors. from which prescription Is
claimed, was mutually and eq qually bene-
hcial to the plaintiffs. as we'll as the de-
fsndants. There was no such fight by
contract, because an ea,ement or perma-
nent right In dam or watercourse oan-
not be acquired by parole agreement.
The plaintiffs were entitled to the rea-
scnable Use and enjoyment Of the water
In the stream and to tho natural flow
thereof, without obstruction and without
diminution, subjsct only to the reason
able and proper use or detention by the
proprletors above They were not entitled
to an intermittent flow, such as might be
created by using Chase's Pond as . reser-
voir, though such a iiow might be more
useful.
The defepfants do not show that they
had any beneficial use for the waters in
the pond. They admit that on several oc-
casions they let the waters out CT the
pond in order to be able to make repairs
upon the dam at Its foot and after COM
pletion of the repairs closed the gates and
allowed the pond to refill. This was an
obstruction of the natural flow, and un-
less justified, gives the plaintiffs q right
to recover the damages sustained thereby.
1t Is considered that the facts shown by
the defendants ara not Justification.
Therefore the verdict, SO far as 1t estsb-
fishes the liability Of the defendants,
should not be disturbed.
But the damages awarded are manifest
ly excessive Tbe plaintiffs are entitled to
recover damages for the obstruction or
detention Of the natural How only, the
same fiow they would have been entitled
to, IL there had been no pond, no dam
and no gates The comparison, evidently
adopted by the jury, between the flow in
1873, and the flow during the years for
which damages ara claimed. Is an unfair
test, for in 1858 the plaintiffs were get
ting the benefits of an intermittent flow,
which was more ufeful and more than
they could legally exact.
1he case must 90 back to be heard
again In damages only.
Motion sustsined. Verdict set aside as
to damages only.
York. 81.
Ge0roa namars VS. Erank q naarinn