Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1904-05-03
Law Court Decision.

The following rescript has been handed
down by the law court:
Pcnobscot case-Sarah #. Rollins VS.
Owen f. Blackdcn
Rcscript by Wiswell. c. J.
On a hearing ordered for the assess
ment of damages for rents and profits in
~ real action. after Judgment rendered in
faTor of demandant for the premises. the
dcnIandant can recover only such dam
ages as are actually proved. regardless
of the state of the pleadingS in defence.
BY means of an equeduct defendant had
drawn water to his own premises from a
well on the demandant'S premises He
had also supplied water thus taken to
other parties.
The demandant obtained her title to the
premises by deed which contained the
following covenant: That they Ghe de-
manded premses) are free from all in
cnmbrances except surplus water from
well beside road conveyed to l.. -. Hayes
and the right to maintain his aauaduct.'
This language shows that demandant took
title with actual notice of n water right
to Hayes, the predecessor in title to the
defendant. Although tn" deed to defend
ants predecessor granting the right to
take the water was not recorded until af-
ter demandant took her deed the Ian
Euage above quoted shows that she took
the title with actual notice of the prior
grant of the water right.
The grant to Defendants predecessor to
take water from the we'll in question con-
tanned the following reservations: When
ever the lot on which said We'll is SittIat-
cd shall become the property of any par
~ other than myself. then all rights here
by conveyed shall cease to this extent.
viz: Whoever may occupy said lot Shdi
have the preference of the water OF said
well for all purposes whatsoever useful
for the accommodation of said lot. or of
any buildings that may he placed thereon.
and said grantee. his heirs and assigns.
shall have only the right to said water
so far as not needed for said lot and
buildings"
Held. That the grantees right to take
water from the we'll was dotcrminahle. as
tn so much of the water as might ht
needed for the lot on which The well was
situated AMI the buildings there on. when
ever the lot should become the property
Of another than the Srantor of the water
right.
Also. That until the lot should l.ccome
the property of another than the grant"r
Of the water right. and afterwards even,
as to such water as should not he 81
ter" the grant was absolute.
Held Also. that the demandant had the
first + ut to so much water as was use
fol and needed for the lot ana buildings,
but to only so much.
Also. It cannot he said that demandant
has sustained damages unless she has
been deprived by defendant ct her rlEst
Of preference. or of water which she need
ed for the lot and buildings.
1t is not shown that the demandant has
ever sought to exercise any preference IN
use OF water, nor Is II Sth'Nu tuit 81
over needed any water for the ues of til"
lot and buildings. In fact no buildings
have ever been erected or placed upon
the lot ;.
case she needed the water for use OF the
lot ard buildings thereon. was do not de-
eide. 80
There can be no damages for taxing or
,,se of water from a well unless at the
time of the taking the party seeking to
recover had some beneficial interest or
right in the water taken.
The demandant will have Judgment for
the demanded premises. but Is not entitled
to DANA ges for rents and profits.
Judgment accordingly.