Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1906-02-23
THE LAW COURT
Continued from Page One.)

construction given by the parties is
some time Of great consequence in as
pertaining the intentions which should
be attributed to them by the language
used or omitted in their grants. But
such Interpretation is never admis-
sible to throw down language which is
defilite and certain, nor when it would
be in violation Of settled rules Of con-
, structiOn.
IL. Unless Il use of water for power
is in excess of right, and is continuous
for 20 years, and is adverse. and is
shown to have occasioned actionable
injury. no prescriptive right arises.
No such prescription is shown in this
case.
Il. The reaSonableness of the deten-
ton of running water by dams by the
riparian proprietor above to the injury
of the riparian proprietOrS below de-
penuS much upon the nature and size
of the stream as well as the use to
which it is subservient. A use of wa
ter followed by detention which would
he reasonable in pond that would fill
in night time would not be reason
weeks or months to fill the pond The
owner of the dam controlling the water
must not only see existing conditions,
but he must foresee probable consc-
quenceS. He must not, either by use
or sluIcing, lower the water in the dam,
so that in order to perform his duty
to those below, and give them the nat
ural flow at all times, he must de-
rrive the grantees on his own dam of
water 10 which they are entitled. He
must keep up the head so that they
can exercise their rights, and then.
the surplus Of water, either natural or
accumulated. which they are not en-
titled to. or do not use, he may use or
turn down stream.
il. Where upper proprietors had the
right. under grants from the owner of :,
dam, to use water for operating a srrist
| mill and wooden mill, they had the right
| to use the grants in the usual manner.
! returning the water to the stream with
| out unnecessary loss or detention. al
| though a riparian proprietor below which
was also the owner of the dam. was a
public service corporation, charged with
| the performance of upblic duties
| il. Under a grant of the use of water
unlined as to the number Of hours use
the grantee may use the water as many
hours in the day as he pleases.
II. Under the grant and upon the ev;-
dence in this case, it is held that the
plaintiff. Oakland Wooden Co. is entitled
/ to the use of 800 square inches of water
or water which would pass through an
orifice having a superficial area OF 5N
square inches under the grants of the
tannery privilege; and under the grants
of the woodshop privilege, to the use Of
six square feet of water. or nine square
feet when the water runs over the dam,
hut not exceeding the quantity granted in
1919. which was onc-thrd of the water
running in the stream, subject to the
right of the tarnery privilege. both OF
these uses being under the usual heads
at the times of the grants. The plaintiff.
Oakland Water Co, is entitled to tho
/ privilege to draw water for the grist mill
subject to the tannery grant of 1915. but
! subject to the use of no greater guam
| tity of water for the tannery privilege
than was required for the grant in 1929.
The measure of right under the crist mill
grant of 1886 is considered 20 be the pres
ent ordinary use of the grist mill. with
the present wheels, under the usual work
ing head Of water as it was usually kept
before the controversy arose. All the
grants are unlimited as to the number Of
hours they may be used in the day.
t 16. The cause will be remanded below.
and there referred to n master in chan
Gerry who will. upon the present evidence
and such other evidence as the parties
may present. ascertain and report. in
cubic feet per second, the quantity Of W.
ter the plaintiffs are entitled to use I'M
der each of their grants, and under what
! head, as determined by him in accord
! ance with the opinion. He will also as
certain and report in cubic feet per sec
ond. the quantity of water which tho
plaintiff wo1len company's present wheels
use under the heSd ascertained by him.
| l.. For their damages. the plaintiffs
| will he RENTED to their remedy at law.
is. Upon the coming in Of the mas
| ter's report. n single justice will deter
mine the questions Of Injunction ant
| costs. and enter a final decree in accord
ance with the opinion.
Case remanded for further proceedings
in accordapca.with the opinion.