Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1901-04-01
LAW COURT DECISIONS.

Rumford Falls Power Co. vs. Rum
| ford Falls Paper Co.
Rescript, Wiswell. c. J.-By an in
den:urc between the plaintiff and the
defendant, the former conveyed to the
latter the perpetual right to take from
one of the plaintiffs canals, and use,
subject to the conditions named in the
| indenture, q definite quantity of water
per second at an agreed head and tall.
during certain days and hours. for the
use of which the defendant cOvenantc
to pay n fixed yearly rental. The in
denture contained covenant upon tbs.
part of grantee. that the grantee shall
not use at any time more water than
is herein granted or than it is entitled
to use according TO the terms thereof
And another covenant in which vas
the following provision: Neither the
grantee, its successors or assigns, shall
be subject to any damages by reason
of any default herein. except from and
after written notice of such default
from the grantOr. it's successors or as
signs. or from any persons or corpora
tons injured" In an action of assulnp-
sit to recover compensation for an
amount of water claimed to have been
taken and used by the defendant in
excess of the water specified in the in
denture.
Held: That if water was taken and
wasted by the defendant in excess of
the quantity that it had a right to use
with the consent of the plaintiff and
under such circumstances as to raise
an implied promise upon the part of
the defendant to pay what the use of
the water was fairly worth. then the
action of assumpsit is proper and the
only form of action, except that of
debt, maintainable. And this is precise
ly what was claimed by the plaintiff
at the trial as shown by the instruc-
ton of the presiding justice to the
jury.
That the fact that the plaintiff had
conveyed to the defendant the right to
take and use precisely defined guam
tity of water. did not prevent the par
ties from subsequently making a new
and independent contract as to other
water the use of which had not been
conveyed. Such independent subsc
quent contract might be written or oral
expressed or implied. Nor was it nee
essary. before such new and independ-
ent contract could be made. in relation
to the use of water remaining undis-
posed Of that the prior indenture
should be in any way modified or re-
scpded by the parties.
= The plaintiff introduced in evidence,
subject to the defendants objection
and exception, certain bills rendered
from, time to time by the plaintiff to
the defendant, containing charges for
L sIh 70 h1 hnnn
by the defendant in excess Of the
amount specified in the indenture-
= Held: That for the purpose of prov
ing the implied contract relied upon by
the plaintiff. they were admissible in
evidence as having some tendency in
connection with other facts and cir
cumStanccS to prove such a contract.
Upon the plaintiff motion Tor new
trial upon the ground that the verdict
was contrary to the evidence in rhat
the amount of damages awarded by
the j,Irv was TOO small. the court Is not
satisfied that the amount of the YER
diet was SO rlapifostly Inadequate as
to Justify it's disturbance.
Defendants exceptions and plaintii1 $
motion Overruled.
Judgment on the verdict.
Edwin c. Bur!eigh VS.. Abigail "A.
Prrntiss ct ais.
Rescript by Wiswell. c. j.
The motion of plaintiff in n real
action. under r. S. c. 104, sec. IT, Tor
the court to order notice upon the
children of one of several defendants
who had died after the entry of the
action in court, cannot be granted II
it appears from the PLAINTIFFS aiicsa-
tons and formal admissions upon the
hearing of the motion, that the de
PENDANTS were sued as trustees ana
that the deceased defendant had no
interest whatever in the demanded
premises. except for her life. Unoer
such circumstances there is no one IN
terested in her estate. no one claiming
under her any interest in the demand
cd premises who should be summoned
in to enable the court to try ana de-