Montpelier examiner. [volume] (Montpelier, Idaho) 1895-1937, 1911-12-08

VI tue Wdter TOT Jnat mill, (In6 on
ject and purpose of the question being
to show that William Quayle, the pre-
deeessor of plaintiff, had only a permis-
sive right to the use of the waters OF
said creek for said mlll) and said wit
ness was asked said question for said
purpose; the court then and there sus-
tanned PLAINTIFF s objection to which the
defendant then and there excepted and
still excepts."
'sl6. The defendant then announced
that it offered the said John Perkins as
witness to prove that the plaintiff had
no right, except permissive one to the
use of the waters of said creek, to
which the plaintiff objected and the
same was sustained by the court, 10
which ruling Of the court the defend
ant then and there excepted and still
excerpts. /"
The fact that the city did not take
these exceptions to the supreme court
for review along with the Judgment
roll would seem to indicate that it con-
sidered the ruling of the court correct.
So you will observe that in order to
give these protests due consideration
it is necessary that you have legal ad-
vice on the following questions, to-wit.
l Can the city again legally litigate
the question OF permissive use of the
water of Montpelier creek by the mill
ing company and its predecessors after
the question has once been decided
against it by court of competent jur-
isdiction?
Ii the city can again ltigate the
question, and can establish the per-
missive use of the water of said creek
by the milling company and its prede
cessors by preponderance of the evil
dence, will this fact give the city le-
gal right to change the point of diver
sion of the water it is using in its water
system from below to above the mills
intake?
! AS | was one of the attorneys for the
mill compsny in the recent case it
would be improper for me to advise
you MS to these questions. And l sug
gest that yon employ some able attor-
ney who has not heretofore taken any
part on either side of this matter to ad-
wise you in the matter, submitting the
full record in the recent case and all
other material facts to him.
Respectfully submitted,
A. B. GoUaH.
City Attorney.
For further information of the
council, Mr.. Cough filed copy of
the decision of the supreme court,
in which the city's petition for a
rehearing in the case was denied.
This decision will be published mex
week, together with the previously
filed protest against the payment OF
any damages to the milling com.
pany.
, Mr.. Cough informed the council
that he would pay for the service.
of the attorney and advised them te
secure the ablest counsel possible
9 and not to qulbble with him as I,
? his fee.
: Attorney Glenn, on behalf of tn
: protestants, replied to the commun
= iCation of the city attorney, il
which he contended that it coul'
l. now be proven that the millin,
company is nsing the water o
. Montpelier creek by permission an
: not by appropriation.
Il After some further discussion o
u the question by the two attorney
= and members of the council, tn
! suggestion of the city attorney tha
le the question be referred to disir
le terested attorney was accepted, an
90 on motion the mayor appointe
Councilmen Douglas and Reese an
re DIR. Guyon as committee to gatht
m all facts possible in the case fn
1e submission to ali attorney, who wi
N be selected later.
- Ordinance No. 12S was passe
= without opposition. This is I'll
n anti splitting ordinance and all pc
ed sons who now spit on the sldeWal
ss or on the floor IN any public buil'
y = ing In the city, are liable TO a fiji
m. not exceeding $25.
he The ordinance granting the Tell
'p- ride Power Company a franchi
X vas then taken up for final passag
uU Some slight amendments were ma
no to several sections. The only 81
W. tion which brought out much dIsct
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