Ellsworth American. [volume] (Ellsworth, Me.) 1855-current, 1907-11-27
THE WEAVER DRAIN.
,,dee Cornish's Decision is For the
city OF Ellsworth.

r.doe Cornish's Decision Is For the
city Of Ellsworth.
Alexander j. Weaver must not obstruct
80 drain which carries the water from
weaver's fats across his property. Judge
Cornish, OF the supreme court, has decided
i favor Of the city in the equity case
+ hesrd before him at Bangor recently, and
nermanent injunction restraining Mr..
weaver from interfering with the drain
has been issued.
This cause was heard at Bangor on Nov.
1907, and by agreement Of parties, an
srer having been filed, the cause was heard
mon its merits, and upon the issuing Of a
permanent injunction instead OF merely
upon motion for preliminary injunction,
~ at first intended.
Judge Cornish's decision in full is as
follows:
After due consideration Of the evidence and
the law find as follows:
+ find as fact that the water course OBJ
s.ructed by the defendant was an ancient
natural brook flowing across the road and
through the defendants field. On this point
The evidence Of the plaintiff, from witnesses
whose recollection went back fifty or even
sixty years was overwhelming. Even the
agreement for deepening and widening, re-
.erred to hereafter and signed by the defend
ants father, speaks Of it as the "original
watercourse".
q 1t is practically admitted by the defend
ant that the city mas the right by prescription
or user to turn into this watercourse guam
al 80 hat tr,r to-, 81
the changes made In 1900. The defendant ties.
OF any more than the quantity added by the
changes OF that year. )
g. find that under an agreement signed by
Alexander J. Weaver, father Of the defendant
On August Is, 1900, the city Of Ellsworth &C
ouired the right to turn into said watercourse
the additional water accumulated by the
change in the bitches along the side Of the
highway. This water formerly ran westerly
and caused more or less trouble each year to
the residents Of that section. As q part Of
one plan this water was turned by dam near
the westerly line Of the defendants lot, the
bitches were deepened toward this brook, the
brook itself deepened and widenedso as to be
four feet wide at the bottom and seven feet at
the top, and the surface water was thus taken
down and across what IL now the defendants
field and pasture. The water in the ditch ON
the southerly side Of the road comes from the
defendants own land.
This agreement was signed bv Alexander J.
Weaver, the husband Of Theodosia Weaver,
in whose name the title stood, but without
rehearsing the evidence showing the fact, l
find that in making such agreement he was
acting in behalf OF aud IS agent for his wife,
and that she ratified his acts SO that she was
bound thereby. The fact that during her life
time and that Of her husband NO claim Of any
sort was made upon the city, although the
evidence shows that she was vigilant and per-
sistent in setting up whatever rights she
had and that it was not until after they were
dead and this defendant had inherited the
property that such claim arises, Is significant
on this point.
4. find that under this agreement made
on August Is, 1900, the city Of Ellsworth &C.
CURED the right to use the widened and
deepened watercourse OF. ditch to the extent
to which the same has been used since that
time; that this right was in the nature OF an
easement, and that when the defendant &C
quired title to this property he took 1t subject
to this easement.
s. therefore find that this defendant had
and has no right to obstruct said watercourse
to any extent whatever, and that his acts and
threatened acts are OF such . nature as to call
for equitable interference.
Bill sustained with costs. Permanent in
junction to issue.