Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1911-05-24
Law Court Decides for
KennebeC Water District
In Suit Brought by Annie C.
Brown, in Equity.
Case Involves Taking OF Plaintiffs
Lands Near China Lake.

kennebee county case has been re
ceived.
Annie c. Brown in Equity, VS.. The
Kennebec Water District.
Rcscript by Whitehouse. j.
In this bill in equity the plaintiff
prays for an injunction to restrain the
kennebec Water District, the defend
ant named in the bill, from entering
in or on the PLAINTIFFS land" therein
described. land from taking. using or
appropriating said land without the
| consent of tie plaintiff 3" A preliminary
| injunction was granted upon the filing
of statute bond in the sum of $500.
The defendant demurred to the bill,
"and for cause of demurrer shows that
| the plaintiff has not made or. stated
| case requiring the intervention of the
court" The case is reported to the law
court upon bill and demurrer.
Assuming without deciding that the
| court has jurisdiction in equity in this
case. ii is the opinion of the court that
the demurrer to this bill must be sus
| tanned.
II clearly appears that the provisions
Of the defendants charter not only
disclose manifest intention on the
.1Ttil u tiit lJtS Z u CbilICl bPpi
the Water District the power to take
and hold. by the right of eminent do
main, land and real estate necessary
for the purpose Of preserving the pur-
ity of the water and water shed OF
China lake. but that the terms en-
ployed in these several provisions, con-
strued in relation to each other. are
undoubtedly apt and sufficient to eff
fcctuate that intention.
1t inferentially appears from the al
legations in the plaintiffs bill that the
substantial ground Of complaint in
tended to be set forth is that the talk
ing of the plaintiffs land was not me
| cessary for the preservation of the pur
itv of the water and water she'd of
China lake.
But the question of the necessity eff
taking the plaintiffs land Tor the
public purposes specified in the GER
tiiicate OF taking is rot open to in
q'iry by this court According TO the
settled law of this state the decision
Of the Water District upon whom the|
Legislature conferred the power to|
determine. is conclusive upon the
courts, in the absence of evidence
showing a manifest abuse of power
or Tad faith in it's exercise. This rule
Of law was fully examined and the
leading authorities upon it eoliated
in the recent case Il Hdyford vs.
Bangor. 102 Maine, $40, and 1t was
there held that not only is the qles-
ton Of the eXigeaey or necessity fer
the taking matter for the Legisla-
ture, or those to whom 1t delegates
its authority, but also the extent TO
which property may be taken, and that
the decision Of those questions by
the tribunal body upon whom the
bower has been conferred by the
Ii gislature is not renewable by the
court. There is no constitutional
right on the part If the land owner
= have the question of the necessity
of the taking submitted to a court
or jury: and in The absence of any
statutory authority for a determine
ton or revision of the matter by the
court, the decision of the Legislature
or it's chosen agents is conclusive
In the case at bar il has been seen
that there is no distinct averment in
the plaintiffs bill that in taking her
land there was a manifest abuse OF
power or bad faith in its exercise, CT
tie part OF the trustees Of the de
PENDANT Water District. The bill
neither furnishes AIRY definite informa
ton in regard to the actual distance
of the plaintiffs land from the
defendants intake pipe. nor cor
tains any specific statement of facts
d, scriptive of the plaintiffs land and
its physical conformation with respect
70 the lake, from which an abuse of
power or bad faith on the part of
the trustees could be inferred. The
statements in the sixth paragraph OF /
the bill that the situation of the land
is such as to render any attempted
taking of il by eminent domain Tor
the purposes enumerated in the Ger |
tificate. so gross and manifest a per
version of said power as to he nutl
ard void, are obviously conclusions
If law from facts not stated, and
not allegations of the facts themselves
which would he admitted by demurrer.
Finally she complains in the bill that |
the threatened action of the Water
District prior to the payment of com
pensation for said land will constitute |
a taking of property without due pro-
cess of law" But the law has also |
tention on this branch of the case. |
Cushman VS.. Smith, 81 Maine, 247; |
Nichols VS. 3 & K. r. r. co. AZ Maine, |
356; Davis VS. Russell, a Maine, 343; |
Richie VS.. Bar Harbor Water Co. 70 |
Maine, 81 Section II of Article of |
the Constitution Of Maine declares that |
private property snail not be taken |
for public uses without just compen-
sation," but this does not compel the |
Legislature to require the payment OF |
such compensation 10 precede the tenn
porary occupation of land "as an in |
cipient proceeding to the acquisition |
of the title to it or to an easement in |
it," According to the rule established |
in this State that clause of the Con- |
stitution operates to prevent the per- |
manent appropriation of the property |
without the actual payment or tender |
of a lust compensation for it, and the |
right to such temporary occupation |
will become extinct by an unreasonable |
delay to perfect the proceedings, in
GLIDING, the payment of compensation. |
Unless such compensation be made