Wood County reporter. [volume] (Grand Rapids [i.e. Wisconsin Rapids], Wis.) 1857-1923, 1901-03-21
THE WATER POWER CASE DECIDED.
The Supreme Court Renders Decision in
Favor of Thos. E. Nash, Defendant

| me SupFeme G0uft ncHutfS d UeciSion III
| Favor OF Thos. E. Nash, Defendant
The case of The Consolidated Water
| Power company against Thomas E.
Nash has been at last passed upon b,
1.-The Supreme Court of this state. that
court having on the 10Th day of March
1901, handed down its decision wholly
in favor of the Defendant Nash. re
Yersing the Judgment of the Circuit
Court and directing that the cause be
lremanded to the Circuit Court with
directions to enter Judgment dis
missing plaintiffs complaint.
On July Is, 1894, w. e. Mack, C. A
Spencer. It. E. Nash, John L. Nash
B. G. Chandos. B. @. Chandos as
administrator, T. Mackinnon, The
Wisconsin Wood Pulp Co., The Crane
Rapids Water Power Co. and the
Pioneer Wood Pulp Co. signed ar
agreement for the consolidation of the
Seyeral water powers into one property
for the reason as stated in said writer
agreement. that the water power al
said cities would be of more value il
consolidated and improved upon one
general plan with reference to the
value of the whole water power. ,
The presidents and secretaryS of saiC
three corporations signed said agree
ment without the authority of vote
of the stockholders or board OF
directors of either of said corporations
The arbitrat tors chosen to determine
the values and relative values of the
several properties covered by this
agreement were Peter r. Thorn and
T. w. Orbison of Appleton, and Frank
T. Russell of Neenah, Wisconsin. The
agreement was drawn by Lawyer
Hooper of Oshkosh, and he was the
lawyer who furnished legal advice tC
the three arbitratorS in their work.
The arbitrators delivered their de-
ciSiOn to a meeting of the SignerS OF
this agreement at the office of Gardner
& Gaynor in this city on the 18th day
of February, 1895. At that meeting
the decision of the board of arbitra-
| tors was so unsatisfactory to Nash
Brothers that they promptly gave
notice of their withdrawal from said
agreement and were never afterwards
N any way connected with any of the
consolidation proceedings.
Mrs. Bensley died in 1889, and at
| the time the agreement for cOnsoli-
dation was signed Judgment of
| foreclosure on mortgage was entered
against the Bensley property and a
sale by the sheriff of the county of the
| BenSley property was had in April,
| 1895, and Hooper of Oshkosh bought
| the property. 1t was then thought
| by our people that he was to become
| permanently interested in this water
| power, but he sold the property on
| May Is, 1895. to Johnson and Witter
| for sum less then he had paid for
it.
In June of the same year an action
| was brought on this agreement in
the circuit court of this county to
compel Nash Brothers to deed their
property to the Consolidated Water
Power company. The case was tried
before Judge Bardeen .ara had a
sensational ending. When the trial
| of the case was nearly over it deyel-
| oped that Mrs. Bensley had left ;is
| heirs twice as many brothers and
sisters as had been supposed, and
| hence that the foreclosure proceedings
| against her property had failed to
give full title. The action was
dismissed by the plaintiff and Nash
| Brothers had Judgment for costs.
1t was thought that such an under
| standing had been reached by the
parties that further litigation would
be avoided. A new foreclosure action
on another mortgage against the
BenSley property was promptly begun
after the termination of the first sui t
against Nash Brothers and was not
concluded until June, 1897.
DiSagreementS arose between the
parties who had decided their property
to the Consolidated Water Power
company and in March, 1898, W. e.
Mack brought an action in the United
States circuit court at Madison to
recover back his property. This case
on demurrer finally reached the U. S.
court of appeals at Chicago, which
| held with Mack overruling defendants
demurrer. Subsequently Mackinnon
brought a like action in the same
court to recover back his property.
These cases were all finally settled by
a sale of their properties to Johnson
and Witter. Spencer had in the
meantime died and his administrator
sold his stock to Mr.. Witter.
About the first of September. 1899,
the present action was brought
against T. e. Nash, who had a short
time before acquired the full interest
in Nash Brothers property. The
case was tried last April before the
late Judge Wyman, and his decision
| in the case is familiar to all our
people. The supreme court does not
pass on all the points raised by the
defendant in his defense to the action,
but does pass on all which in any way
affected his conduct or the conduct of
Nash Brothers. Mr.. Nash contended
that when he withdrew from all
furthur proceedings on this matter of
consolidation, February 13 1895, he
had right to do so. On this point
the supreme court fully SustainS his
position. They say in part: "We are
constrained to the conclusion that on
February 13, 1895, the So called contract
of July Is, 1894, had not been signed
and executed by the three corporations
whose names had been affixed thereto
without authority, and that locus
peraitentide still remained for Nash
and Nash to withdraw at their option:
that they did SO in an effective man
ner by notification to all of the
parties interested of their refusal to
be bound further and that as to them
said instrument never became d
binding contract.
| However. the point of greatest in
terest in the case was that relative to
the action of the arbitratOrs. Instead
Of apportioning the stock Of the
corporation to be formed among the
property owners according to the
relative values of their respective
properties, the arbitratOrS attempted
to distribute the stock according TO
the fall of water on the land of each
l. Il