Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1905-06-05
Androscoqqin Rescript,
INNS. OF Durham VS.. Lisbon Falls Fibre
Co., Rescript by WhitehOuse. ].

lnhs. of Durham VS.. Lisbon Falls Fibre
Co, Rescript by WhitehOuse, J.
IL Is not in controversy that the de-
PENDANT company had legal right to
erect Il dam across the Androscoggin
river 1T Lisbon Falls for the purpose of
operating it's mill. 1t is provided hy
section l of the mill act(Ch. "a Sec. 1,
X. s. that ANY man may on his own
land. erect and maintain a water mill
ara dams to raise water for working it
upon and across any stream not navi-
gable; or for the purpose of propelIing
mills or machinery, may cut Il canal
and erect walls and embankincnts
upon his own land not exceeding one
mile IN length, ana thereby divert from
It's natural channel the water of any
stream not navigable," etc. 1t is adj
mittcd that the defendant owned the
land Oh both sides of the river at each
end of the dam, and the land on which
the canal was cut, the wing wall built
anu all the works in question con-
Struct'I "a. 1t is not in controversy that
the AndroScoGSin river at this point
was i STRAIN not naVigable. The de-
ien Rant WIS entering upon the estab-
IL
:crprise involving the development Of
a large and valuable water power. 1t
is in evidence and undisDuted that the
dams were located in pursuance of
plans devised by competent and skill
ful engineers, and all the works con-
structed under their dill ection and SUI
pcrvision. 1t is conceded in the plain
tiff s argument that the general plan of
In
rect principles of engineering as ia as
the defendants purposes were con-
cernef. There is nc allegation i'm the
writ that the peculiar location of the
works was Illegal or wrongful or the
particular method of construction
adopted by the defendant was negli-
gent, unskillful or improper. There is
no distinct allegation that the manner
Of building these dams was unrcaSona-
bic. or was not necessary in order to
secure the requisite strength ard eff
cheney for the defendants use AMI
convenience. There is no averment
that it was unreasonable or upneceS-
Sary or contrary to established rules of
engineering to locate the dam diago-
nally across the river. There is no al
was in any way defective or made
quate for the purpose for which it W?S
erected. There IS neither allegation
nor eviienc" that the canal. spillway.
wheels and tail races were not reaso,l-
ably and properly located and designed.
on the contrary the evidence is posi-
tive and undisputed that all of these
works were built according to the zap
proved fashion" under the immediate
direction Of competent engineers. Fur
thermOre, It has been seen that the de-
PENDANT company was expressly au-
thoriZcd by the statute above quoted,
to divert the water from its natural
chanr"l by tie construction Of Il canal
and wing wall. and it needs no expert
to tell us that such canal with wing
DAM in order to accomplish the ubjectOf
il in IL reasonable manner, must neceS
sariy be substantially parallel with
the shore and the water returned from
the canal to the river nearly at right
angles to the main current. This is
shown by the testimony to be the APP
proved ana customary method of con-
structing these works; and it is obvi-
Gus that to hold othe rwisc woulC prac-
the statute which confer upon TIE land
owner authority to construct such
works.
Nor is il satisfact orily shown by evil
dencc that the slightly obliquc course
If tho dam across the river. in itself,
exerts any appreciable influence upon
tho direction of the current of water
below the dam. In any event as al
ready stated. there is neither allegation
nor proof that the dam vas located ut
an improper angle with the river or
that the blasting off of 4 portion Of the
projecting ledge to obtain suitable
I,ndiuc was not reasonably necessary
and propcr under tie circumstances Of
this ease. in order that the defendant
might enjoy the benefits of the right
conferred by the statute.
I-non this state Of the evidence. the
question presented for determination is
whether the plaintiffs are entitled t.
oomnensation for the consequential in
,,,rx. to the highway below the defend
ort.s dam resulting at freShet seasons
fron an incre ase ir the volume, mo-
-,ontum ard velocity OF the water. and
- tho incidental pressure against the
D,,rham shore, tie dam being reasCna-
~. and properly located and riShtfuly
constructed by the defendant company
an it's own lard III accordance with the
.-nrasc authority Of the statute. for
.,,a nurpo<e of Crorclling n mill. 1t is
lila onininn of the court that the plain
.;ns haye thereby sustained 4 loss in