Western Carolina Democrat and French Broad hustler. [volume] (Hendersonville, N.C.) 1913-1915, 1915-09-30

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fected- For the space of the wing
dam the cross dam to its its lower enG
would pond the water on the defends
ants side but would in no wise
affect its height height either by
raising or lowering it on the
either by raising or lowering it on the
plaintifx's side. The defendants do
not propose to take one drop of water
out of the stream but merely to take
out of it that intangible, invisible, i'm
perceptible power known as the force
of gravity which by turbine wheels or
otherwise will generate the electricity
which will run their street cars, cleo
trio lights and heating in the town of
Hendersonville, and will enable theE1
to execute their contracts.
This division of the water of the
stream by wing dams without in any
wise lowering or raising the water in
the PLAINTIFF shalt of the stream is a
matter of common knowledge. In the
evidence in this case the witness Seas
yer tells of two such developments
near Waynesville in this State. The
witness Sherer, also tells of a similar
development in Caldwell County.
Both of these witnesses we're expert
enced engineers, and found by the
court to be experts.
In the "Oficial Electrical Directory
of the United States" there are named
many wing dam developments" of the
water power in one half Of the stream,
them the famous KeOkuk plant
on the Mississippi at Keokuk, Iowa,
developing in this manner 100000 H.
P. Another is at McCall's Ferry on
the Susquehanna River, which fur
all the power for Baltimore,
Md. : At Minneapolis, MINI, is the
well known development Oh
power on either side of the river for
Minneapolis and St. Paul. Another
is at st. Croix, Wis, where half the
power is on the Minnesota side and
the other on the Wisconsin side.
Likewise, there is a similar develop
at International Falls, Mimi,
the Canada half is operated on
the Ontario side and the other half In
Minnesota. The most striking in
however, is the development
Of water on both banks of the Niagara
River.
The defendants, offered evidence
that their offer of 100000 for the
plaintiffs half was bone fide, and that
hey wished to use the entire 27OO II.
if the plaintiff would sell, and if it
would not that they needed the 1860
P. on their own side as an absolute
necessity to enable them to carry out
he contracts already made, for which
heir other plants were insufficient
they had the aid of their half
interest in this power.
In the case of Power Co. v. Naviga-
ion Co., 152 N. c. 472, the objection
vas made by the lower proprietor
the upper proprietor on the
anne side, that the water was divert
out the stream by a canal which
arried the water behind the lower
mill and emptied into the
liver several miles below, thus, as
he lower proprietor claimed, reduc-
ng the quantity of water which would
e utilized for running his own mill
over down on the same side with the
intake.
Here the plaintiff and defendants
re, opposite owners, and the defend
nts are only seeking to place a dam
n their line in the middle of tho
tream curving back to the bank by
rhich they will not take any water
ut of the stream but will take the
line, conducted it by fume to
alf that comes down their side of the
lie turbines which will take out the
tangible force that by means of the
will generate electricity, thus
the water on the plaintiffs
de of the stream at no time higher
: lower than it would be without the !
on the dividing line. The plain :,
# contends that this cannot be done. .
he defendants offered evidence that I
could be, giving the opinion of ex- q
ert engineers who testified as to s
any places in which this was being
one. The matter should have been
to. the jury as an issue of
ct.
The defendants, as riparian owners,
l n side of the stream had a right .
make a reasonable use of the water /.
/ their side, either for domestic or E
purposes, and whether :
cir proposed use would be unreasoG- E
lie was a question for the jury to :
,termine under all the facts and cir E
If the jury should find s
the evidence, that the defend :
IT'S half of the water power could E
used as they proposed to generate E
ectricity without building entirely z
the stream then this water E
'wer was specifically exempt from E
by Oh. "a. laws 1913. E
was so held in the litigation between :
csc same partoes in R. r. ". Oates, E
4 N. C. 10. E
The question whether the use made Z
the riparian owner of the water E
a stream upon its own riparian land E
a reasonable use is one of fact and E
It of law Prentiss v. Geiger "a n. e
/, 341. Billiard v. Mfg Co., II N. Y. E
s.. Gould on Waters Section $50; g
1mont ". Kellogg Is Am. Rep. (Mich) {
2; Hayes, v. Waldron "a Am. Dec. &
/. H.) los; Merryfield V. Worcester e
Am. Rep. (Massl 592; Ulbrith v. e