Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1900-07-11
IN FAVOR or PLAINTIFF.
Rescript Handed Down in Famous Skowhesan
Water Privilege Case.

|
portant legal battles to mill operators.
| lumbermen and land owners. ever
started in Somerset county, which fixes
the rights of the owners of mill privil-
eyes 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 up
on each of such channels are entitled
to have flow through their respective
channels so much of the water Of the
river as would naturally fiow and no
more The owners upon one channel
cannot lawfully, by widening or deep
ening their channel or by other means,
cause a greater proportion of the wa
ter 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
| thereby increased. the riparian owners
upon such other channel can lawfully
make use Of this extra flow. They can
| lawfully 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 third
channel which extends across the
| island near its north end. in n north
"asterly direction. and substantially
nj right angles with the general course
Of the other two channels. These three
channels are known as the northern,
southern ana middle 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 |
portion If the island, was described by |
metes and bounds.
Held: that the defendants acquired |
under this deed. excluding from con- |
sideration for the moment certain res |
ervatiOns 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 water right nor Of land with |
specified water rights. but of land with |
such water rights as 20 with the soil.
In this original deed. the grantor.
who was the owner NJ substantially |
the whole Of tho island together with |
a tract nf land upon the south shore
If the southern channel opposite the
southeastern portion Of the island
4.
his heirs and assigns. the important
portions Of which are rs follows. The
right at all times to enjoy the free
and unobstructsd use of the water
which Shall run Or lie turned into the
southern channel Of Kenncbec river at
said island"
Also the right t. erect and main
tain a dam On dams upon the channel
or sluiccWaY in which said Weston
mills stand Ghe idle channel in order
ii save the wattr for the use uf iii
mills upon the said southern channel,
whenever the said Weston his heirs pr
assigns. shall cease or omit 10 main
tain dams sufficient fnr that purpose" |
Also. "the right to join 4 dam which
may hereafter be erected to the Forth
part Of said island. ana the sam" to
repair rebuild and maintain forever"
Other reservations contained in the
deed are not important in the d,tcrmi
nation of the questions involved. The
defendants have acquired their title
under this deed and their rights ana
privileges are subject to the rcserva-
ton therein contained: The com
plainants claimed t. have acquired all
the rights ana privileges reserved by
the grantor In his deed tn himself ana
his heirs ana assigns.
Held; that the language used in the
first reservation. THE free ana unob-
s;ructed use Of the water which shall |
run or be turned into the southern
channel" means ana is equivalent t..
the natural flow of the water and
may run or he turned" into that chan
n'l. That by virtue Of this reservation.
those claiming under that deed are de
prived Of certain rights which aS up-
per riparian owners upon the southern
channel they would otherwise have
had. But that there is nothing in the
first reservation which derrives the
owners of the middle channel Of the .
use of all the water that naturally
flows through or is turned into their
channel by dams upon the other chan
nels.
Inal the ObJecl ana intent Of the ,
second reservation was to prevent the {
waste Of water through the middle ;
channel. not its 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 b.
used in its flow through this channel
50 long as the capacity of that channel |
is not improperly increased: and that |
the plaintiffs are not entitled to the
relief prayed for that the defendants i
may be restrained from Interfering t.
prevent the erection by the plaintiffs
of dam across this middle channel |
because it is not claimed that any {
water is wasted through this channel
or that the dams of the owners are in
sufficient to prevent such waste
That the allegations in the bill that the
defendants by using new. larger and adj
ditional water wheels. are about to in {
crease grettly the amount of water used z
therein beyond what they are entitled to ,
and thereby deprive the plaintiffs of a | /
large portion of the water which they are | q
entitled to have flow through said middle [
channel does not entitle the plaintiffs to |
the relief prayed for. because the defend /
ants. having the ordinary rights Of ripa- I
| Z