Middlebury register. (Middlebury, Vt.) 1886-1937, 1917-08-03
DEFENDANTS CONTEST REPORT
CONTINUED from Page y


from the fact that the dam held up the
waters, caused the same TO remain
higher in the channel of the river and in
the bitches that extend back therefrom,
So it was a case of holding up the wat
ers and preventing and delaying their
running off, thereby causing the water
TO remain longer on the ground and in
the soil that caused the injury.
These damages cover to very large
extent the lands lying on both sides of
the Otter Creek from Middlebury to
Brandon. The orators have joined in
their Bill of Complaint and much of the
testimony given by one applies to the
lands owned by others. AS the lands
are similarly situated, lying in the same
valley, and as many of the witnesses
and parties have given testimony APP
plying 10 the situation in the valley
generally, as well as to their own lands
and the lands lying Immediately adjoin-
ing, have thought best to average the
damages by acre.
The defendants requested specific
finding of damages for each land owner
but, in view Of the fact that many of
the parties own land Immediately adj
joining each other that seem to be in
most respects in practically the same
condition and subject to the same rule
of damages, il did not seem wise to at
tempt to separate such instances and
follow the idiosyncrasios of the individ-
ua in his testimony and thereby reach
different conclusions as to damages with
respect to adjoining lands similarly sit
uated in every way. If such rule had
been followed, however, il would have
led TO the imposition of greater dam
ages on the whole, as ] have given the
defendants the benefit Of the doubts in
arriving at the average,
On the whole it appears that the
amount of hay growing on these lands
was substantially the same in weight
during the dashboard period as before
and since, although some witnesses tes-
tilted that there was falling off both
in weight and in quality. In general
the evidence tended to show that the
land produced from ton and half to
two tons per acre, although many testi
fed that it produced more. On the
whole am inclined to find the average
to be ton and a half to the acre, AS
to the value, find that the hay pro-
duced before and after the dashboard
period was worth, at least, 81 ton
more than during the dashboard period.
This would make the average damage
six dollars (S6) per acre. AS to
the cultivated crops, the damages
were generally somewhat more
but, on the whole, the determination of
damages on the basis of the lessened
value or the injury to the hay crop, is
the most satisfactory !, therefore,
find that the damage to the meadows
was six dollars (S6) per acre per year.
excepting some cases in which the land
was differently situated with respect to
which ! have made specific findings.
There is also evidence that the dam
age during some years was worse than
at others and that seasons of excessive
rainfall increased the damages mater
tally. find that the year 1896, accor-
ding to the report of the Weather Blu
reau, was year Of the greatest rain
fall in that decade; and all agree that
the loss of crops was greater during
that year than any other. ! have,
therefore, given the defendants the
benefit of the doubt and the benefit of
their claim to that extent, that excess
sive rainfall occasioned damage to the
crop and have, therefore, excluded that
year from the dashboard period, and
the time during which the orators were
injured by the erection and maintain
ence eff the dam.
find also that the year 1903 was
year of more than average rainfall and
so, also, was the year 1905, and there
fore, have excluded these two years
from the flash board period and the
time during which | have computed
damages. In excluding these years
am giving the defendants more benefit
than they are really entitled to because
have no doubt but the injury to the
crops during these years, notwthstand-
ing the excessive rainfall, was mater
tally increased by reason of the main
tainance of the dam but, owing to the
of separating the damages
Occasioned by the excessive rainfall
from the damages occasioned by the
Of the dam, | have ex-
cluded the three years and given the
defendants the full benefit of these
years.
There is, however, some CONF ensa-
ton to the orators remaining from
these findings in favor of the defend
ants, because there is evidence in the
case tending to show that a season of
rainfall so affects the grass
and the turf as to carry some i'll effects
over upon succeeding years. On the
whole, however, this finding, in my
judgment is more favorable to the
defendants than to the orators.
LEMON FAIR
The Lemon Fair is a tributary to the
Otter Creek, rising in the town of Shore
ham and follows a northerIy course
through the towns of Bridport and
Cornwall and empties into the Otter
Creek in the town of Weybrdge below
This tributary like the
Leicester River and the Otter Creek,
flows through low lying country and |
during periods of high water overflows |
its banks. The grass land in this,valley
produce foul meadow or red top hay
and the river is subject to many of the
conditions of the Otter Creek.
Eight witnesses owning and occupying
land in this valley testified that there
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