Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1906-09-19
TWO LATE REscRlPTs
Decisions Handed Down in Andres.
cog9'n ard Sagadahoc Cases,
ANDROSCOGGIN COr1NTy

,Ni'iN'S,OiGlN COUNTY
mon Water Power Co VS.. City of
Lewiston.
ltcScriDt by Emery ],
l. Inc owner of dam lawfully main
'i'ic" across river to raise a head
VI wafer Tor generating power has the
exclusive right to the use of such head
"I water for that purpose, though not
for other purposes.
:. The right of any other pcrson ia
draw water from "a lawful dam for.
power purposes is derived solely from
grant and Is defined and limited bv
he terms of the grant.
3. In constituting written instrument
of grant it should he assumed. unlas.
the language used clearly indicates H..
contrary. that the purpose of the par-
ties in reducing the terms to writip~
was TO avoid future litigation by lcay-
ing as little as possible indeterrninate.
40 Ear as the language is susceptible
81 such meaning it should be so con-
strued
4. The rule that when the language
ut 4 grant is susceptible of more than
one meaning that meaning should he
adopted which is most favorable to the
SIHntec, mas less force even if appli-
| cable, where the instrument OF grant is
| in the form of an indenture signed by
| both parties and follows the Language.
| OF IL priCr written contract agreed L.
| by them. In such case the language OF
the grant is selected by the grantee as
well as by the grantor
D. While dlsprOportiOnatencsS OF con-
sideration may be reason for reforming
or cancelling an instrument of grant.
it has little, if any, effect upon the
meaning of the words of the grant.
| 8. When one intention appears in
one clause in an instrument, and Il DIFF
ferert, conflicting intention appears in
Iancthrr clause in the same instrument
that intention should be given effect
which appears in the principal or more
important clause.
| I. While the habendum clause in an
INSTRUMENT of grant may sometime.
lcnlarSc the estate in the thing granted
it cannot enlarge the thing itself.
| s. \ particular word. phrase, OF
term may express a meaning different
from its common meaning When uStt
| in instruments concerning Il subject
matter in relation to which such DIFF
ferent meaning is generally undcrstoo,
| and accepted.
| g. In actions Of tort. il is not obliGa-
tory upon the Court or jury in assess
ing damages to add interest from tn,
time Of the injury.
| 10. The FRANKLIN Company. the thc>
owner of Il dam lawfully maintained
across the .hndrnScoggin River at Lew
| iSton for raising Il head of water 70
generating power, granted by an i'll
| strumcnt of indenturc to the City o
| Lewiston the right to draw from it
dam water to the extent of 600 horse
power for the purpose of pumping, etc
! uhc head of water being fixed at no
less thaS p nor more than 80 feet
| After full consideration Of the SubJcc
matter of the grant, the situation, IN
history and character of the negotiil
tons, and all the language used b,
the parties in the instrument fnail.
| signed by them as defining their right
and obligations hereunder, Held
4. The grant is not Of water power
. but only of water for power, ana IN
city is entitled not to a certain guam
tity of power but only to draw "a Ger
! aim fixed quantity of water from Wlllcl
| to extract as much power as it ma
by it's own agents and appliances.
HI H. From the evidence ana the al
missions Of the plaintiffs it appear
thai the phrase Ito the extent OF 0
| horse power means in It's conhectioi
efficient. practical horsepower upon
| we'll understood and recognized paS'
of seventy five per cent of efficiency
and hence the city is entitled to druV
for pumping purposes water 10 tIic y
! tent or 500 nominal or theorctlcal morse
| power and no more.
G.. 1t appears from the evidence ina
the city has been drawing water IN eX
ccss of its right under the grant, an
that the value of such excess drawn 10
six wears next before the date OF III
writ is $3i6S5o.
q. As the city seems I" have draw
tho excess under Il claim of right mao
in good faith no interest should ne ai
! loved before the date of the writ.
Judgment for the plalntlff l"
s3lGS.53 with interest from the da'" y
4 the writ.
| Ont 18TH 1906