Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1919-06-06

organization and machinery it is not
adapted to acquire. own. manage or
make a profit out of lands or other
property except for public uses.
1T might be that in order to de-
velop power to b applied by the
State to some admittedly public pur-
pose, SUCH as public lighting or a
power plant to aid in the operation
Of a railroad, the power Of taxation
could be lawfully invoked, hut that is
not the purport Of the question un-
der consideration. The dominant
purpose here is for private benefit
and not for the benefit Of the peo-
ple,' and therefore the power OF tax
alton to promote it does not exist.
I'VE therefore answer Question No.
l in the negative; but while So an
swering We wish it to be understood
that our opinion is not TO be con-
strued or extended beyond our in
depreciation Of the question answer
ed.
Question No. 2. In the case the
construction and development Of wa
ter storage reservoirs and basins is
held to be legal, may the State
charge to the owners Of water pow
ers located on rivers below such
storage reservoirs and basins, a pro-
portional part Of the cost OF such
construction and development. or in
lieu thereof a sum in the nature ~
rental or tax. based upon the in
creased power thereby made avail
able for use Of said water power
owners?
"As an answer to this question is
only desired in case the former
question were answered in the az
f1rmative. the justices infer that no
further answer need be made.
Since, however, we have indicated.
although that inquiry was not in the
contemplation of your honorable
body. that the State might create
storage reservoirs for conserving the
waters of great ponds and regulating
the flow for the purpose of increas-
ing the navigability of the outlet
rivers and streams, the question
might arise under No. whether in
such cases and tax or rental might
be based upon the increased power
thereby made available at the variou /
mill sites. We must answer that we
know of no such tax that could ba
assessed on the increased capacity,
except an increased tax on the en-
HANGED value of the dam site. That
would be in violation of the constitu-
tional provision requiring all taxes
assessed by authority of the State to
be "apportioned and assessed equal
ly to the just value thereof"
Question No. 3. Where the Legis-
lature has granted private corpor.
alton the right to erect a dam to
control the waters Of public lake or
great pond without raising the nat
ural high water level thereof, in or
Ger that the waters therein, may be
impounded and used for purposes Of
such corporation. may the Legisla-
ture subsequently impose a tax upon
such corporation based upon the in
creased amount and use of water
from sad lake or pond which the
corporation enjoys by reason of hav-
ing erected such dam?
Question No. 4. Where the Leg
isiature has granted a private cor
poraticn the right to erect dam to
control and alSo to raise the natural
level CT the waters CT Pubic lake
or great pond in order t. 'mpourd
additional waters TO be used for the
purposes If such corporation, may
the legislature impose tax upon
such corporation based upon the in
creased amount and use CT water
from said lake or pond which the
corporation enjoys by reason of hav-
ing erected such dam and Of having
raised the natural level of the wat
ers of said lake or pond?
These questions involve the same
principles and can be answered to-
sether. In No. 3. the question as
sumes the erection of a dam to con-
troll the waters of a great pond with
out raising the natural high water
level Even under those conditions,
rights of flowage must be acquired,
because every little littoral propri-
etor, owning as he does the shore to
low water mark. is entitled to his
land between high and low water
mark in its natural state. No person
or corporation would have any more
right to flow land that. in a state Of
nature would at any season of the
year remain uncovered. than to flow
above the high water mark.
Either act requires authority from
the Legislature. general or special.
Question No. assumes the main
tenance of f1owage between high and
low water and also above the natur-
al high water level. The same prin-
ciples are therefore involved in both
questions. although the damage
would be greater in the one case than
in the other.
'These two question. 1t will be OBJ
served. are complete in themselves
and Independent of interrogation
One and Two. The purpose for
which the waters are to be impound-