Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1904-04-19
FROM LAW COURT.
Important Decision in Kenne-
bee Land Damage Case.
Court 0verruIes Exceptions Taken b.
the Plaintiff
In Case Of Ingham VS.. Maine Water
Company.

Bangor, Me, April 18-A rescript from
the Law court Of Importance to owners
Of property liable to be affected by the
fiowage on account of the authorized
erection of dams by special acts Of the
legislature, was received by Charles F..
Sweet, Esq, clerk of courts, Monday.
In the opinion it is held that evidence
of proceedings before a commission ap-
pointed under the statute to assess
samages is to admissible in a common
law trial of the case unless the plain
tiff shows that the report of the COM
missioncrs was void on account of mis-
conduct. Partially or unfaithfulness on
the part of some one of the commits
siOners could be shown, otherwise no
evidence was admissible to controvert
the report of the commission. Excep-
tons of the plaintiff TO this ruling in
the lower court Were not sustained.
The rescript is. State of Maine. Ken
nebec county, Supreme Judicial court,
FEED Ingham VS.. Maine Water Com
pany. Rescript Peabody, j.
Complaint for fiowage of the plain
tiT's land by the defendants mill-daw
under the Mill Acts of Maine The de-
Tenant was defaulted. and commits
| sioners were appointed who made their
| report awarding damages annually and
| in gross. At the request of the plain
| tiff a jury was impanellcd to try the
cause. The report of the commissioners
was under direction of the court given
in evidence Of the jury, and evidence
| was offered by the plaintiff tending to
| contradict the report. The court ruled
| that such evidence could not be re-
ceived unless misconduct, partiality, or
unfaithfulness on the part Of some
commissioner was shown. To this rul-
| ing the plaintiff excepted.
The question raised by the exceptions
is whether the second clause of Sec. u,
| Chap. ~ of the r. S. relative to mills
and mill-dams is constitutional This
section is claimed by the plaintiff to be
! Inconsistent with the provisions of Sec.
20, Article l of the Constitution of
| Maine.
The Mill Acts of this state originated
| under the laws of Massachusetts 200
I years ago, when the conditions of the
| tountry and the necessity of utilizing
| water power were reasons therefor.
| which since the Introduction OF steam
and electrical power do not so obvious
" exist. Put they have been SO long
recofirized by judicial decisions that in
their gene. IL St oDc their constitution
atty is established. The principle OIL
which tkes., laws is founded is the right
/ of eminent domain. Their validity I'M
plies the power of the legislature to
authorize a private right standing in
the way of an enterprise. to improve
the water power to be taken without
the landowners consent, II suitable
provision is made for his just compen-
satior.
The construction which the courts
have generally given to the words.
, property taken in the constitution.
is that they include permanent damage
to property. The right given by these
laws to the mill owner to take or appro-
pirate the land of another is restricted
by the constitutional condition, that the
person whose land is flowed, or perIna-
ncntly damaged shall receive just COM
pensatiOn. In this case an important
controversy centers upon the tribunai
which is to assess the damages. lii a
complaint for howage there are some
elements of Il suit at law. but there are
others which might be only within the
jurisdiction of Il process in equity. IL IS
held by the weight of authority in de-
cided cases, that the claim for damages
is not civil suit or n controversy con-
corning property within the meaning of
the. constitution.
ID is not a case wnere as matter oil
right'a party entitled to trial by jury.
The proceeding is judicial in character
and II is Suffieient If the designated tri-
bunal is impartial.
1t is claimed on behalf of the plain
tiff, that he is entitled to n common law
Jury trial. because other issues beside
the question of damages. which are not
admitted by the defendants default re-
main to be tried namely, how far the
flowing of the compliments land IS
necessary and for what portion OF each
year the land ought not to be flowed
Rut these questions are involved in es-
timating the damages and their deter
mination serves to make the rights OF
the parties specific. 1t is also contend
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