Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1906-02-23
Renders Decision in In
poftant ksnnebec Case.
Oakland Wooden Go. vs.. Union
Gas and Electric Co.
bights Of All Parties etiged...fuTiher
Proceedings in Order.

Bangor, Me-. Feb. 22.-An important
and lengthy opinion settling a number
of points OH the rights of grantees OF
water privileged and of riparian own
ers was handed down Thursday by
Judge Savage of the supreme court IN
the case of the Oakland Wooden Co.
ct al, in equity, against Union Gas and
Electric Co. ct AL, Kennebec county.
This IS the rescript:
Kennebtc county. Oakland WOODEN Co.
ct al, in equity, VS.. Union Gas ana
Electric Co. ct al. Rescript by Saw
age. j.
/. The court in equity has jurisdiction
to determine the respective rights OF
the owners of water power developed
by dam.
.. When the owner of dam and
water privilege grants a part of the
water power thereby developed, the
right of the grantee is superior, TO the
extent of the grant, to that of the
grantor Thereafter the grantOr has no
right to interfere with the grant, or to
diminish the quantity of water which
has been granted. Nor have those hold
ing under the grantor any such right.
The rights of the owner of the dam are
thereafter subject TO the grant.
3. But if the grantee is not using, or
has no wish or preparation to use the
water, the grantor or those holding I'M
der him may use the whole or allow it
to flow down stream.
4. All grants of water power are sub
jcct to the rights of riparian proprle-
tors below to have the natural flow OF
the stream transmitted to them, after
reasonable use or detention.
). A grant of the right to take water
from a flume or dam 'for carrying on
every branch of the tannery business
is not a grant of an indefinite quantl-
ty Of water, but only of such quantity
as would develope the power necessary
to carry on every branch of the tam
ming business. either as it existed at
the time of the conveyance, or was
then contemplated by the parties. And
their conduct afterwards. the use by
one and the acquiescenCe by the other,
would furnish satisfactory evidence of
what was in contemplation by them.
6. When :, grant is made by dam
owner of the right to draw water from
a fume or dam for the purpose OF Gre
atIng the power required for srec1led
purposes and the grant is silent as TO
the head of water to be maintained ana
there is no evidence of explanatory
conditions affecting the grant. 1t should
he held that a definite head was IN
tended AMI that il was the head Gus
tomarily and ordinarily used at the
time of the grant. The grantee becomes
entitled to water at that head, suill-
Gent to produce the power required.
:. When the amount of water IN an
ancient grant was measured by the
power required at its date and there
now remains no evidence of TIL" power
then required. the continued. unvary-
ing use by the grantee for long period
Of time. acquiesccd in by those in the
line of title of the grantors. will furnish
very satisfactory evidence of the eX-
tent Of the original grant, both as 10
head and quantity
s. a grant by the owner of a dam
of the right to use 500 square inches OF
water, for the purpose of creating pow
er. as a substitute for a prior grant. III
which the head was not mentioned. car
ried by implication the right to draw
the water from the dam, at the mead
at which water was ordinarily taken
under the prior grant.
2. a grant Of n lot together with
one divided third part of the mill dan
across said said stream. with the righ'
to axe and use one-third part OF the
water therein running after deductina
the right of water to grand bark ano
full hides formerly granted, was no.
also subject to a deduction OF water
used by the grist mill, on the grount
that the grist mill lot was excepted
from the conveyance.
10. In case OF doubt, the practIca
Continued on Page Two.l