Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1906-09-14

Penobscot--Levi O. Knapp. ct ais VS.
Great Works Dam Co. Rescript, CNc
opinion) Peabody. j.
This was an action on the case
brought by the plaintiffs to recover
damages of the defendant corporation
for alleged unlawful acts in maintain
ing dam across the Great Works
stream in Bradley. in the county of Pc
nobscot. whereby the water OF that
stream was raised and held back SO az
10 overflow their tillage and wool
lands.
The case comes before the law court
on the defendants motion for a new
trial and exceptions to the charge OF
the presiding justice.
The defendant was incorporated I'M
der the private and special laws Of
1867 and 1855, for the purpose Of erect
ing dams on the Great Works stream
in order to furnish improved facilities
for driving logs 1t erected in 1868 the
dam known as Meadow dam. 1t Is ad-
rnitted that it maintained the dam
since that date, and acquired a pre-
scriptiye right to flow the meadow
lands Of the plaintiffs along the stream
to a certain extent.
stone part Of the dam and the mate
rial at.the top was laid in cement; and
the plaintiffs claim that the water
above the dam was thereby raised two
and one-half feet higher than ever pre-
yious to that time, and was flowed
back over the meadow lands, injuring
their hay and destroying their trees.
The defendant, while denying that the
water was raised by the repairs, claims
that its right acquired by prescription
was to maintain the dam as original
~ built and to flow back the water to
the extent naturally resulting from its
effective height when in repair.
The land of the plaintiffs alleged to
have been OVERLOOKED by the additional
height.of the defendants dam. is a
tract Of 800 acres, but the claim was at
the trial narrowed to that portion on
which the PLAINTIFF have cut hay and
about 40 acres sof wooded meadow
which had been covered by growth Of
gray birch'trees. The damages brought
arc for injury to hay in December, 1901,
and for the destruction Of the growth
caused subsequently to January ], 1900.
The hay had been cut and stacked in
the usual manner upon saddles. and
was reached and considerably dam
aged by the water. The evidence shows
that a freshet of an unusual character
for the season of the year occurred. 1t
appears that the gates had been closed,
but were seasonably raised and the
water was allowed TO flow without IN
usual interruption. The defendant had
10 private interest to secure in closing
the gates. 1t allowed them to be closed
the previous fall, at the request of the
plaintiffs. and in the fall Of 1901 for the
accommodation of another hay owner,
but with the consent of the plaintiffs. to
afford facilities for hauling their hay
from the meadows on the ice, and it
is satisfactorily proved also that the
gates were raised before the quantity
of water was increased by the freshet.
Whatever injury there was to the hay
seems TO have resulted inevitably and
solely from the winter food.
The controversy as to the destruction
OF the birch growth is presented by diff
f-rent theories as to the causes
and upon conflicting testimony
az to effects. The growth in ques-
ton during the years 1900 to 1903 ap-
pears to have become valueless from
decay.
The plaintiffs contend that the birch
trees on their meadow land We're killed
by the additional depth and longer
continuance of the water caused by the
defendant in increasing the heighth of
thr dam.
The defendant contends that the dam
when repaired in 1895. was not made
higher in any particular than original
~ constructed; that the extent of the
fowage was not in fact greater after
1895 than i'm previous years, and hat
the destruct ion of the growth of birches
on the plaintiffs meadow land was
caused by n fire which ran over the en-
tire meadow in 1900.
The dying out of the gray birches on
the plaintiffs land was unquestionably
due either to the presence of water I'M
usual in quantity or duration or TO the
presence Of fire.
The estimates of the flowage since the
repairs on the dam in 1895. are from
txo and one-half to four and one-half
feet. Some of the witnesses testify as
to their opinion and judgment from
casual observation, and two from meas
urements and soundings made by them
in April. 1903. The phenomenon of the
sudden decay of the growth cannot be
explained by any material difference in
the depth of the water before and since
1895. The contention OF the defendant
that it was physically impossible for
a dam at this point capable of holding
only four feet of water to overflow the
meadows above to a greater extent
than two and one-half or three feet is
supported and explained by evidence of
the existence of run-rounds above the
dam through which any additional
height of water would escape before
reaching the wooded meadows. And on
the whole ii seems evident that the YER
dict of the jury was based upon a the
DRY rather than the facts proved in the
case. The evidence satisfactorily shows
that the growth was not destroyed by
water. but by the fire which passed
over the meadow in 1906. The habit of
the gray birches had accustomed them
to the presence of water to the depth Of
from two to four feet each spring. They
were observed to be in a sound condi-
ton I'D to 1901 five or six years after