Little Falls herald. [volume] (Little Falls, Morrison County, Minn.) 1889-1950, 1917-03-30
GETS JUDGMENT FOR POWER
WATER POWER COMPANY GIVEN
JUDGMENT AGAINST J. w.
STEPHENSON FOR $2563.13:

The Little Falls Water Power com
pany is given judgment for $2,563 13
and interest against j. w. Stephenson,
proprietor of the Northwestern Mill
ing company of this city for excess
water used in operating the -four mill,
by Judge w. J.. Parsons of Fergus
Falls, in a decision fled with Clerk of
Court StoA .-ere last Friday afternoon.
The case was tried by the court, with
out jury, at the June, 1916, term Of
court, occupying the time Of the court
for several days, and was ordered
submitted on briefs.
In December, 1915, the Water Pow
er company brought action against the
milling company to recover compensa-
tiOn for excess water used to operate
the mill. According to evidence in
troduced in the case, the mill pen
stock or wheelpit was defective and
leaky at the time Mr.. Stephenson pur-
chased the mill in 1909. By reason
thereof a greater amount Of water
than was necessary to develop power
for operating the mill was drawn from
the canal. The wheelpit was fixed i'll
the summer Of 1909 but there was 10
agreement Or understanding between
the parties, the judge says in his find
ings, that there should be read
justment Of the amounts to be paid
the power company other than ex-
pressed in the lease. The action
brought against the milling company
was on tho calendar for the June,
1916, term of court, and in the mean
time, on March 25, 1916, the Water
Power company served notice on the
plaintiff to cease using more than
three mill powers and threatened to
shut off the power supply if the notice
was not complied with. The milling
company secured temporary injunc-
ton restraining the Water Power COM
pany from shutting off the power but
was required to give bond for So 900
as an assurance that the amount claim
ed to be due by the Water Power COM
pany be paid in event of an order by
the court allowing the claim at the
June term Of court.
When the two cases came up in
court on July 8, 1916, it was under
stood that only one Of the actions be
tried and it was understood that the
Water Power company would dismiss
its former action, the trial of which
would have necessitated detailed
statement of the amount Of water used
for a number Of years. The injunction
case Of j. w. Stepheson VS.. the Water
Power company was tried and briefs
ordered submitted to Judge Parsons. {
III his decision Judge Parsons AZ
lows the Water Power company $2,-
563.13 for excess water used by the
milling company, with interest from
April 3, 1916. In his order he further
states that upon the payment thereof
by the plaintiff the defendant should
be enjoined and restrained from clos
ing the gates across the fumes enter
ing the plaintiffs said mill, or other.
wise preventing water from entering
said fumes or in any way depriving
the plaintiff Of sufficient water to op-
crate said mill. A stay of 40 days
from the date the order was fled, was
given. An appeal, by Mr.. Stephenson,
is likely.
The judge stated in his findings that
the Water Power company had never
recognized or acquiesced in any right
! or claim on the part of the plaintiff
| to draw water from defendants canal
and works in excess of the amount ex-
pressly provided for in the leases, with
out paying for such excess. He quoted
ing the lessons having the right to
! stop water from entering the mill g
fumes by closing the gates across
them or by any other method, until the
waste or excessive use be guarded
against and also giving the power COM
pany the right at the same time to
have their action at law for damages
at double the value Of the power furn-
ished, and stated in regard to this that
for a considerable time prior to March
25, 1916, the plaintiff was using no
greater amount Of water from the ca
nal than used by plaintiff and his pre-
decessors for many years prior thereto,
all we'll known to defendant. That
defendant waived the provision Of the
1909 lease in so far as the use Of more
water was concerned, and in 80 far
as same purported to authorize the de-
fendant to shut off the water, and in
so far as same gave defendant the right
to recover the double value of water
so used.
The plaintiff claimed that The 1909
lease should be reformed as it did not
express the agreement Of the parties;
that the lease was intended to con-
stitute a settlement of all questions Of
power between the two parties. The
judge held that the evidence did not
support this claim. The plaintiff also
claimed that the power should be
measured by the output Of the mill,
but the judge held that the direct
method of measurement seemed pre-
ferable as to making nearer approach
to substantial accuracy. He said the
plaintiff knew that the defendant was
claiming a large sum each month for
excess water. The results of the daily
measurements were put in the plain
tif's possession monthly and they
would no doubt have elected protest
had they been substantially inaccur-
ate. The means Of checking were in
the plaintiff g han4s, the Judge said.
The judge held that the defendant
cannot recover double value for the
excess water used. It comedies the
plaintiff 8 right to necessary excess
water upon paying defendant what it