The comet. (Johnson City, Tenn.) 1884-1916, 1902-12-04

and its works are concerned,
would result only in the saving of what
would, between the reservoir and high
err points, be lost to all parties. The
pipe from the Harvey farm is to save
what would there and along the bed be
lost by percolation. This pipe returns
its full flow to the creek bed one-half
mile above the reservoir, whence it
flows in its natural channel to within
about 700 feet of the reservoir, where,
to prevent further percolation, it is
again picked up. This total flow, at
the time OF the filing of the bill, was
only Az, 200 gallons per day; and this
pipe line was completed two months or
more before the filing of compliments
bill. Hence respondent denies that
there is or is about to be, or that
complainant had any just grounds for
anticipating, any difference in the stat
us of affairs, so far as he is concerned,
other than has existed for the twelve
years as aforesaid +; and complainant
has no grounds whatever for extraordi
nary relief, even if he can Justly claim
any infringement of any rights what
ever, which is denied.
VII
Respondent denies the allegation Of
the bill that complainant, and those
through whom he claims, have never
waived or sold to defendant any rights
or privileges in Sinking creek or its
watershed or any of its tributaries.
Respondent shows. that at the time Of
the construction of its reservoir, in
1890, the farm now owned by complain.
ant aud mentioned in his bill and on
which are the Smith springs, was owned
by and was the home of one A, B.
Bowman. Said Bowman continued to
be the owner of said farm until April
1896, when complainant Smith (who
has resided in johnson City since about
May 1880 took from said Bowman, as
respondent is informed and believes, a
trust deed on said farm to secure a debt
due from Bowman, though it seems
that another debt was given priority
over that of complainant Smith. How
ever, the farm was sold by the trustee
on or about April 20, 1899, and bought
by complainant, whence his present
title.
Respondent shows that A. B. Bow
man was public-spirited man, inter
ested for the good of Johnson City, and
ready to do what he could to promote
any enterprise for its good. Respond
ent shows that said Bowman knew al
the time that respondents plant was
being built and of the immense amount
of money that was being invested there.
in, and of the purpose for which 1t was
being constructed yet said Bowman
stood by, at the time, knowingly, and
neither then nor during any Of the sub.
sequent years during which he owned
said land did he utter a word of obiec
ton or make single remonstrance
not only this, but, as respondent be-
lieves and charges, he was, for reasons
aforesaid, willing and glad to have this
enterprise of public good go on, and
there never was from him an intima.
ton that his farm was damaged thereby
So, also, has complainant, during the
time thereafter while he was the owner
of said farm, stood by without an init
nation of injury and without objection
or remonstrance until the summer Of
1902, when, in seemingly jocular man
ner, he announced that unless respond
ent would put in a pipe line from it,
main to his farm he would have tt
bring suit against respondent; and {
few days before filing his bill he served
on respondent a written notice that hi
would resist the diversion of water.
Complainant has since January, 1896
been by contract user of the water
that he now charges was wrongfully
diverted and because the water was
sometimes muddy by reason of Sinking
creek flowing into the reservoir during
tides, complainant, while chancellor
sometime in the month Of August, 1897
before director of respondent, made
such bitter complaint of the character
of the water furnished by respondent
and spoke so earnestly of the damages
that respondent would likely have t.
pay unless it ceased to furnish sucl
water as it had up to that time fur
nished that, influenced more by thu
complaint and threat of complainant
than by any other cause, responder
shortly thereafter, and at a cost of up
wards of $4,000, put its plant into {
better condition by building divid
ing wall, so that the creek which haC
hitherto flowed through the reservoir
of respondent could be shut out o.
turned in at pleasure, thus getting riC
of the mud carried down by it at time
of rains. Since that time, while re
spondent has never abandoned the us,
of the creek at pleasure, it has, in fact
outside of occasional and temporary
uses of same to wash or flush out sale
reservoir into the old creek channel
never made use of same at all, excep
in very dry weather when the creek bee
was dry below. Complainant stood b,
and saw this large sum, also, expended
upon respondents plant, nor did b,
utter a word of protest or warning
Complainant also knew by reason 0
the suits hereinbefore mentioned, whicl
were in this Court of which he wa
then chancellor (even if he did no
know sooner of the purchase by re
spondent of the Story and other spring
in the upper valley nor did he obiec
or warn. 1t may be, however, tina
complainant had not then conceived
TIC luSd VI ulNeIoiono VI LIS OWh az
count.
Complainant alleges that by reason
of the acts Of his privy, A. B. Bowman
and by reason of his own gross lache
as hereinbefore set out, that complain
ant is forever estopped both in law an
equity; and having slept so long o.
his rights, even If he may have any, b
! he certainly can have no standing in
court of chancery, but must resort t
law; and this respondent pleads an
charges that the bill is without equity
VIII
Respondent further shows to tn
Court that on January 30, 1892, tn
aforesaid A. B. Bowman and his wifi
May G. Bowman executed and acknowl
edged in due form deed to The Gra
ham Ice Manufacturing Company,
I 1