Daily Kennebec journal., 1904-04-08

At the opening Of tie morning ses-
sion Mr.. Heath resumed his reply to
the argument of Mr.. Baker in defense
of the legality of the Devine lease. He
first took UP the contention of Mr.
Baker that the municipality can confer
rights in the public streets. and showed
its unSOundress as a legal proposition
in Maine. "Only the State Legislature
can give these rights unless there is q
general law on the subject, and no
such law exists in Maine. The Deyine
company had no legal right to lay its
pipes in Augusta streets until it was
chartered in 1874. 1t did not attempt TO
lease its franchise. CT its right to exist
indefinitely as 4 corporate body. but it
did attempt to lease its franchises. or
accumulated rights under its charter.
Such lease can only be made by specia!
authority and no such authority WAS
given in this ease. Moreover, it re-
quires special authority for one public
service corporation to take the property
and franchises of another as much as
such authority is required to enable the
later to give them. IN this instance.
the Augusta Water company had no
more legal right to acquire the Devine
plant than the Devine company had to
give it away. The Devine water COM
pany is n public service corporation to
the extent that some sections OF this
city are wholly dependent upon it for
their supply. and as such the courts
would certainly sustain writ of
mandamus compelling it to perform its
duties under its charter. 1t does not
matter that the DcVine company got its
real estate by purchase rather than by
exercising the right of eminent domain.
Nor does it matter whether this conf
T0ny is supplement or Il competitor
Of the Augusta water company, 50 long
rs it is Il public servant It is true
shat the DeVinc company can lay pipes
on other streets. but it cannot lay pipes
on those streets. ana al the law shows
that public service corporation dis
ablcs itself when it leases or sclls
Part Of its rights. AS to the contention
that the lease is only vod&lle ana not
void, 1t has been held by the highest
courts tnat such leases have no stand
ing in court, and the parties must pay
the penalty of breaking faith with the
state. Tie rights Of parties are to be
determined by the facts as they are.
not by the possible action of a future
Legislature. on March l. 1904 the
date of this valua ton. this Devin" lease
was void and worthless. The plea ar
having held this lease in good faith for
| Il years Is not well founded. Thi:
property was taken by the Augusta
Water company solely for the purpose
| of supprcssing competition. in defiance
| of all law. 1t does not harm the De-
vine company to exclude The Lease ana
declare it void. The District can deal
| with that company in the future"
| 1t 11.20 Mr.. Heath concluded his able
ana cyhaustiv" argument. ana q recess
| of fifteen minutes was taken. When
the hearing WAS resumed the apprais-
ers announced that they mad decided
| not to admit the lease in evidence
| Chairman Ryder had reduced to writ
| ing the reasons of the appraisers for
excluding the lease ana these were
| read. The opinion in rricf rcc;tcd
| that the pevine water company wag /,
public service corporation. given cor
tain rights by the State ana with Ger
| tain duties to perform. Ey It's lease to
| the Augusta Water company of all IT'S
property it disabled itself from na,-
forming these duties. It had no legal
authority to dispose OF its property ana
rights. nor had the Augusta Water
company any legal authority to take
them. The lease was void and passed
no title Therefore. the lease is not to
be admitted il evidence nor are the
property and privileges rurportinr 10
be transferred by it for % wears 10 ha
valued by this commission
Mr.. Eaker took exceptions TO this de-
I a.
company. The final witness for tha
company vas then sworn This war
Frank r. Smith Of this city who cavn
an estimate of sii1 as the replacement
value Of the balance value brick huiId-
ing. 2Gy12 feet, near the Insane hos
pital.
Ar noon A. NJ Goddard hauar IL