The Somerset reporter., 1900-07-12
Skowhegan Water Power Co. et
ais, VS.. Levi Weston ct ais.
Rescript of Law Court. Made Public.


Weston ct ais, an importsnt case that
has caused lengthy litigation.
The rescript is as follows:
Where there are two or more natural
channels in river, the respective rights
of the riparian owners upon each of
such channels, independent of grant,
contract, statute or prescription, are
well settled. The riparian owners upon
each of such channels are entitled TO
have flow through their respective
channels so much of the water of the
river as would naturally flow, and no
more. The owners upon one channel
cannot lawfully, by widening or deepen
ing their channel or by other means,
cause a greater proportion of the water
to flow through such channel than
otherwise would. But if the natural
flow through one channel is checked by
dams or otherwise, and the flow of
water through another channel Is there
by increased, the riparian owners upon
such other channel can lawfully make
use of this extra flow. They can law
fully use all the water that nature or
the acts of other parties send to them.
The Kennebec river at Skowhegan is
divided into two channels by an island
known as Skowhegan island, and the
island itself is again divided by a third
channel which extends across the island
near its north end, in northeasterly
direction, and substantially at right
angles with the general course of
the other two channels. These three
channels are known as the northern,
southern and m ddle channels
The defendants are owners OF the
northern part of this island, including
that portion through which the water
of the middle channel flows, together
with the land upon both sides thereof,
having acquired title thereto, by mesne
conveyances, under an original deed in
which the land conveyed, the north por-
ton of the island, was described by
metes and bounds.
Held: that the defendants acquired
under this deed, including from con-
sideration for the moment certain reser
vations therein, the ordinary rights of
riparian owners; that such rights were
acquired by them by becoming the
owners of the soil through which the
water flowed; that the grant was not a
water right, nor of land with specified
water rights, but of land with such
water rights as go with the soil.
In this original deed, the grantor,
who was the owner of substantially the
whole of the island together with a
tract of land upon the south shore of
southern channel, opposite the south
eastern portion of the island, made
various reservations for himself, his
heirs and assigns, the important por-
tions of which are as follows. The
right tat all times to enjoy the free and
unobstructed use of the water which
shall run or be turned into the southern
channel of Kennebec river at said
island"
"Also the right to erect and maintain
a dam or dams upon the channel or
sluiceway in which said Weston's mills
stand, 1.-THE middle channel) in order to
save the water for the use of the mills
upon the said southern channel, when
ever the said Weston, his heirs or as
signs, shall cease or omit to maintain
dams sufficient for that purpose"
Also, "the right 10 join dam which
may hereafter be erected to the north
part of said island, and the same to re-
pair, rebuild and maintain forever"
Other reservations contained in the deed
are not important in the determination
of the questions involved The defend
ants have acquired their title under this
deed and their rights and privileges are
subject to the reservation therein con
tanned: The complainants claimed to
have acquired all the rights and privi-
leges reserved by the grantor in his
deed to himself and his heirs and as
signs.
Held: that the language used In the
fret racarvot;np Ntba fraa apd ,pnb
structed use of the water which shall
channel' means and is equivalent to,
"the natural flow of the water and may
run or be turned" into that channel.
That by virtue of this reservation, those
claiming under that deed are deprived
of certain rights which as upper riparian
owners upon the southern channel they
would otherwise have had But that
there is nothing in the first reservation
which deprives the owners of the use
of all the water that naturally flows
through or is turned into their channel
by dams upon the other channels.
That the object and intent of the
second reservation was to prevent the
waste of water through the middle
channel, not it's use; that it does not
prevent, and WAS not intended to pre-.
vent, the use by those claiming under
that deed of any water that might be
used in its flow through this channel, 50
long as the capacity of that channel is
not improperly increased; and that the
relief prayed for, that the defendants
may be restrained from interfering to
prevent the erection by the plaintiffs of
dam across the middle channel be-
cause it is not claimed that any water is
wasted through this channel or that the
dams of the owners are insufficient 20
prevent such waste.
That the allegations in the bill that
the defendants "by using new, larger
and additional water wheels, are about
to increase greatly the amount of water
used therein beyond what they are
entitled to, and thereby deprive the
plaintiffs of large portion of the water
which they are entitled to have flow
through said middle channel does not
entite the plaintiffs to the relief prayed
for, because the defendants, having the
ordinary rights of riparian owners, sub
ject only to the limitation mentioned in
the second reservation. have the right
to use any of the water that may
naturally flow or be caused by the acts
of others to flow through this channel
and to obtain the most advantageous
use of this water for the development of
power, they may employ the most i'm
proved wheels and mechanical devices
But that the allegation that the de-
PENDANTS were contemplating increasing
the flow of the water through the
middle channel tthy enlarpinp and daan-