Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1913-01-03
Decision in
Flowage Case.

The plaintiff is the owner of several lots
of land in the town of Abbott in Piscata-
quis county, bounded by the Piscataquis
river, or near said river and its tribu-
taries. szss+i
The defendants are owners of Wooden
mills ip the town Of Guilford, and the
complaint alleges: THAT the said Piseata-
quis Wooden Co, long time ago, to wit:
a. d. 1881, erected and has ever since
maintained a water mill, to wit: WOODEN
mill or factory so called, at Guilfor1
village. in said county, on the north side
of said Piseataquis river, and upon its
land; and the said NJ. L. Hussey Wooden
CO., long time ago, to wit; a. D. 1905,
erected upon its land and has since main
tanned water mill, to wit, wooden
mill or factory, so called, at Guilford
village aforesaid, on the south side of
said river, which said river is not naviga-
BILE; and the said defendants in a certain
year, to wit, A. ID. 1863, erected a mill
dam and have maintained the same to
the date of this complaint, upon and
across said river at said Guilford village,
to raise water for working said mills and
still maintain the same to this date ana
still maintain said mills; said dam eX-
tending from and upon land of the SAID
PiScataquis Wooden Co. on the north side
of said river across to and upon land OF
the said Hussey Wooden Co, on the south
erected and maintained and is still main
tanned by said defendants for the pur-
pose of raising the water in said river to
work and operate said mills;
THAT by means of said dam the said
defendants have caused the water in said
river to overflow and drown, damage, in
lure and destroy from the date aforesaid,
to wit the year of our Lord 1919 to the
present time the compiainantS land
aforesaid whereby said land has been
rendered useless, and your complainant
has sustained great damage in hrs said
land by reason of said fiowage by said
mi!l-dam, yearly. since the erection and
during the maintenance of said dam as
aforesaid, in a. large sum of money to
~ thnlISnn1 dollars. -
Tie defendants plead the general issue,
and by brief statement say; First that
they have right to MAINTAIN the dam
set out in the complaint Of said pla1ntlf1
and flow the lands of said plaintiff with
out any COMPENSATION
second: That said dam has been MAIN
tanned at its present height for more than
80 years, and that said defendants have
acquired the right by prescription to have
and maintain said dam at its present
height.
Third: That when the concrete dam
which now exists across said river was
built in the summer of 1903 it was not
built to any greater height than the
wooden dam which was taken down at
the time said concrete dam was built
The land described in this complaint is
located about one and one-haiI miles
above defendants dam. That the de-
PENDANTS had a right to construct new
concrete dam a few feet below the old
dam is not questioned.
After the plaintiff introduced the testi-
mony of civil engineers and his own tes
timony as to the location of the dam, the
property claimed to be flowed, the course
of the river and distance of the land
flowed above the dam, the presiding JUS
tice ruled that the defendants plea adj
mtted the tiowage as claimed by the
plaintiff had made out pfima faele
case and that under the pleadlngS the
burden of proceeding changed.
The defendants thereupon introduced
evidence tending to show; that since 1864
the actual height of the various dams,
,,,ta in, ranair has hppn the
that the new dam did not, and does not.
flow any more land than the dams oil
1864, 1881, 1903, and 1906 hoWed when on
repair and in good order; that any addl-s
tionai fowage occurring in April or May.
1911, as claimed by plaintiff, was due to
an unusual freshet at the time, and also
due to the presence of n large boom of
logs in the river at point one-half mile
above their dam, belonging 70 the Piss
cataquis Lumber Company and over
which the defendants had no control.
The plaintiff insists that the case should
proceed and be governed by the points
shown, upon plan, TO have been reached
by the water on April 49, 1sl,-as con-
elusive that larger area was ho%ed on
that date than ever before
In answer to this contention the de-
PENDANTS claim that on April ~, 19ll, there
was an unusually high run of water, due
to the spring freshet and the case shows
that on that day the level of the river
was 80 inches above the dam, a point so
high defendants claim, that no act OF
theirs could influence the flow and While
at such stage their mills could not De
used.
The defendants introduced the, testi-
mony of one Elmer Crowley, a civil enSi-
neer who had made survey or the river
in January. 1911 and again on May 10,
1911, after the freshet had subsidized ana
MAY Is, 1911. he found a boom of logs in
the river at a steam saw-miil located
one-half mile above the concrete dam.
and while there ascertained the level of
49, q aInNp the logs and
found the elevation of the water above
the logs to be five inches higher than be-
low the logs and the water was at the
top of the dam but not running over g
This testimony is uncontradicted and
cor4oborates the theory. of the defendants
that the increase in the height OF the
water in the river above the logs on April
29th and May 18th was not due to the
height of the dam, or the fault Of the de-
PENDANT. 49, -
1903 had acquired a preseriptive right to
flow the plaintiffs land to the extent That
it would be flowed by the water held back
by the dam at its effective helght as SAID
dam existed in that year prior to any
repairs changes or additions made in said
What was the effective height of the
dam in 1903, before il was repaired?
Counsel disagree as to the actual height
of the structure of 1903 and 1909, but are
in agJ cement that the definition of "er-
fective height as given in Voter vs. vs.
ID,
accurate In that case the complaint and
pleadings were the same as in the case
at bar The issue to the jury was on the
defendants right by prescription and 1t
was found in their favor, and upon eX-
ceptions, was sustained. 1t was there
held, that 1.-THE effective height of the
dam is the height which flows That is
what is to govern, and that is precisely
what the presiding justice instructed the
Jury was to govern. The amount of land
flowed would depend on the effective
height of the dam. and the right to flow
would be limited by it. Dams need re-
pairing. They vary in tightness. The
water may be used with more or less
economy, at different times, depending
upon the exigencies of business. AS was
remarked by Shaw, C. j., in Ray VS..
Fletcher, 70 Cush 200 although the water
actually raised by it (the damn may to
some extent vary from one season, or one
year to another, owing to the tghtness
of the dam, the mode of using the
water the different seasons, as being dry
or wet and the like. yet these consid-
erations are too variable and uncertain TO
be adopted or relied on as the basis of a
right acquired by grant or prescription
The prescriptive right having been ac
CURED the right to flow with a dam OF
the prescribed effective height necessarily
follows 1t is not what the dam may alb
solutely flowf at particular time, but
what the dam in good condition ordt-
narily will flow The dam is assumed to
be in good condition, and being in such
ba tS what %