Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1906-12-20

| -ldduHhtuHk Dam ana Improvement
Company vs.. The +. T.. All, II
| Clothing Company.
i:escfipt, Peabody, J.
ASSumpsit brought by the Plaintiff
Ia corporation organized under the
Private Laws 1909. of Maine, to re-
cover against the Defendant. also a
Maine corporation. tolls on TWO million
feet of poplar and spruce logs. at fiji
teen cents per Thousand feet, $500.
The defense put in issue three propO-
slui"nS necessary for the plaintiff In
| establish, to recover under the act Of
its Incorporation:
!. The quantity Of logs which are
I he subject of tn" tolls.
= That the defendant WIS liable as
the party in interest, 10 pay the tolls
on the logs.
8. That the improvements made Ivy
the plaintiff facilitated the driving OF
logs.
The act Of Incorporation of the plain
tiff corporation authorized it TO erect
ana maintain dams. sluices and side
dams, on the Madunkeunk Stream in
the County Of Penobscot, and its tribu-
tarieS, 70 remove rocks therefrom.
and 10 widen, deepen and otherwise
improve said stream ana it's tribu-
tarieS. for the purpose Of facilitating
tn" driving Of logs and other lumber
H. same" It's Cnarter also conferred
upon it authority 10 receive n toll
upon all logs and other lumber, which
which passed over. or through it's dams
and other improvements. nnt to exceed
fifteen cents per thousand feet. stump
age scale, or when ~.;rn logs or oIiier
lumber have MT been scaled for
StuInpage by tn" scale rendered ut the
place of destination and gave it lien
thereon for ninety days after the log,
and lumber arrived at their deStina-
ton.
The logs specified in the writ We're
cut from lands owned by Townsend
and Pierce, and Engel and McNulty,
for whom Il stumpagc scale was made
by Joseph J. Porter, a scaler of luni =.
Der. TIL" logs We're hauled by T.. w.
AnniS, Who landed most of them on
the ice. leaving Il few only on the
bank Of the Madunkeunk Stream.
n" scale was there made by Fran
els NJ. Burr. tn" assistant Of Porter,
under his direction. and the principal
Scaler went there three different times.
and tested the scale Of the assistant
who kept a daily record of the num-
Der of logs and the number OF feet
each sealed, for his superior t. sec.
aud also had u book in which the daily
records were kept. Mr.. Porter retain
"a the book, ana from it he made Ep
tn" final figures for his scale bills lie
sent i seal" bill to the land owners
by whom H. was employed to make
t" stGtnpaGr scale and mailed one also
I" Ill" treasurer Of the defendant COM
pHny. 1T hi; request. lie testified that
in scaling this lumber he followed the
usual manner nf himself ana other
S''at'r% in scaling for Stumpagc
Tn" scale book though kept and
mad" ~ his assistant. acting under lis
direction. WAS properly used hv Mr..
Porter ~ refresh his recollection Of
the s.unln;sr sral,. ana his testimony
- given * competent evidence as to
the quantity Of logs in question:
If the plaintiff ana Defendant dill
not expressly agree upon scale, as;
TIL" act Of incorporation bases til, ton
the corporation was authorized To col
l'ct on logs driV..n over it, dams and
innroVenc on the Stunp"g,. scale
u
implied contract that they should be
bound by such 4 scale. made in az
Coriance with the method customari.y
adopted ~ scalnrs. between land own
crs ana operators The scale proved
by tn" Uncontrldictci testimony Of the
surveyor must b" regarded as proving
the amount Of tolls to be paid by the
Defendant. if otherwise liable.
The defendant claims that Edward
w. Annis should have been made tho
party defendant. The evidence shows
that q contract for Stumpage was
made with the land owners by AnuiS.
September :. 1901. to be tultielled by
him. on or before June /. 1908, and tie
logs Wci" t. he landed in Il suitable
place, So as to hr easily counted ara
sealed hy Il ScaIer To he appointed by
tho lana owners.
Another contract for the sal" ana
delivery Of poplar logs WAS made May
1. 1904, between Annis ana the Penob-
scot Mechanical Fiber Company. ana
the logs werC To be- delivered by Annis
during the rafting season .: 1905. ana
wcr" To be measured 10y some comp,-
tent surveyor when 50 delivered. to ~
appointed ana paid by the company.
Both contracts We're assigned to tho
defendant before the logs were float
ed. The rights Of the defendant under
the contracts We're subject to their
conditions and burdens Ii was llrccS-
sary. To ilnat the ,nSs down II" Ma
dukcunk Stream. and us it received as
assignee the benefit of the facilities
furnished by the plaintiff il should bn
held lianl" for tn" tolls. as We'll as for
other bills for driving the logs. when
it paid. The evidence both direct ana
clIcurlstantial shows that this was
III" understanding.
TIL" defendant denies that the inn
prnlrm"rts made by the Plaintiff werr
If SU II nature or extent as To fncili-
tate the driving Of logs. If the I'M
proNcmrn'S were of little value there
was not such Il compliance with rs
charter rs 10 give the plaintiff the
right t. exercise tho franchise ana
claim its benefit. But if they vern
substantial AMI actually facilitated
the driving of logs. although it Nigh,
have been possible for the owner or
driver Of logs IL float them. at times.
nj 4 ~, l,r