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

proving and erecting dams, ana con-
STRUGGLING and maintaining piers.
The plaintiff corporation has sustain
Ell the burden Of proof upon the mater
ial Propositions in issue.
Judgment for plaintiff Tor
$@.2."6 and interest from
the date of the writ
Reed Dec. 18th, 1906.
PenobscOt Log Driving Company VS.
West Branch Driving and Reservoir
Dam Company. ct ais. Rescript by
| WiSWell, &. j.
The West Hranch Driving and Reser-
Folf Dam Company. the original de-
ferdant, was incorporated by an Act of
the Legislature approved March thir-
tecnth, 1903, Chapter ia, Private Laws
| of 1893. By its act of incorporate the
| company was given the right to exer-
| else the power Of eminent domain for
the purpose Of taking certain real es-
tate, dams. and other property of the
Penobscot Log Driving Company, the
complainant, and it was therein pro-
| Nided that when the West Branch
| Company had acquired the property of
| the Did company. enumerated in the
act. that 'all the powers, rights and
| privileges of the PcnObScOt Log Dliy-
ihg Company pertaining to the driving
| of logs and the improving If the West
| Iranch of the PcnOb3cOt River above
| the head Of Shad Pond on said West
| Rt:'nrh hut not below the head Of said
| Shad Pond shall be and become the
powers, rights and privileges Of the
West Branch Driving and Reservoir
| Dam Company, and all the duties of
said Penobscot Log Driving Company
pertaining to the driving of logs be-
tween the head Of Chesuncook Lake
| and til" head Of Shad Pond shall be
and become the duties Of said West
| Branch Driving and Reservoir Com
pany which shall thereafter be holden
to perform said duties except as modi-
| fs-d by the provisions of this act.'
Section 10 Of the act of incorporation
provides in part as follows: said Com
pany in any ana all dams which may
be owned or controlled by it may store
water fer the use of any mills or ma
chinery which may use West Branch
water, &ubjec: to the provision that
dly and night throughout the year the
flow of water down the West Branch.
so long rs there shall be- any stored
water shall not be less than two thou
sand cubic feet per second, measured"
etc.
SECT ion Is of the act Of incorporation
Branch Driving and Reservoir Dam
Company shall have delivered the rear
of any annual drive of logs into Shad
Ip,,,.
low To low out of North Twin dam at
such times and at such rates Of dis
charge as the Penobscot Log Driving
Company may request for the purpose
Of driving said logs to The Penobscot
Doom on their several places of dos-
tirAtion above said BOOM water
equivalent to the amount Of water
he'll back by said dam as now con-
StruC ted when there is Il thirteen foot
head at said dam measured from th,.
bottom of the dam, or so much thereof
as shall be called for by said Pcnolscot
Log Driving Company for said pur-
pose, ana in determining the quantity
Of water which tn" PcnobScct Log
Driving Company shall be entitled to
request for driving purposes, the two
thousand cubic feet per second SpcCi
fed in section ten shall he considered
q mart thereof at such times and at
such times only as water is being al
lowed to flow from said dam at the in
stanc" ana request Of the Penobscot
Log Driving Company"
Prior To III" time Of commencement
Of tl.iS bill. the West Branch Company.
as contemplated by it's charter. had
~ 4. 4,
and had substituted therefor Il new
dam. located ! short distance below on
The riv,.. While III" water which the
company WAS To- allow To flow. by til"
charter. was from this new dam. Tho
amount Of water To b. allowed 10 flow
W;- To he measured ly the amount of
water hCll lack by said dam as HOW
constructed Chat is the old damn when
there is a thirteen foot head AT said
dam measured from the bottom Of TIE
dam Tie Compl2 inant'S contention
was that the standard uf measurement
OF the water To be allowed To How is Il
thirteen foot head IF water at the old
dam measuring from the bottom Of the
deep gates through thar dam. that the
important AMI rrincil III part Of the
claus, specifying the amount of water
t. be allowed to flow is the expression
~ thirteen foot head az said dam
The contcntinE Of the defendants was,
thHt these words are limited and OK
planned hy the following language,
"mcasured from the bottom Of the
dam" that this means the bottom OF
thr whole structure, and that To a*cer-
tain the thirteen foot head, referred to
IL the act, 4 measurement must be tax
en- from III" bottom of the whole dam
Held: That the thirteen foot head Of
water Il The old dam is to be ascer-
tain1 by measuring from the bottom
Of the dam. Not from the flooring Of
any gates through the dam, nor from
tho bottom 81 any part of the S:luc-
turc. nor from thu bottom Of the super
structure hut from the hottum Of the
WEOie structure OF the dam.
Also l:clI: That IL ascertain the
amount Of water held back by the old
dam. when there was thirteen foot
head Of water at that dam. measured
as provided by said section fifteen a
SIR h.l ~ from tl.A