92 Me. 364 | Me. | 1899
Eagle lake is a great pond. Defendant company by its charter, Act of 1874, c. 449, was authorized “to take, detain and use the water of Eagle lake and Duck brook, or either of them, in said town of Eden, and is also authorized to erect, maintain dams and reservoirs, and lay and maintain pipes and acqueducts necessary for the proper accumulating, conducting, discharging, distributing and disposing of water and forming proper reservoirs thereof.” It was also authorized to take and hold necessary lands therefor and was required to pay “ all damages that shall be sustained by any persons by the taking of land or other property or by flowage, or by excavating through any land for the purpose of laying down pipes and acqueducts, building dams and reservoirs, and also damages for any other injuries resulting from said acts.” Unless the parties should agree upon the damages a method for their assessment was provided. The act also required surveys to be made locating dams, reservoirs, pipes and other fixtures, and plans thereof to be filed in the office of the town clerk of Eden and notice thereof by publication.
Prior to condemnation proceedings in 1894, the Water Company paid damages for the diversion of water from the Hamor mill on Duck brook. One suit to recover these damages was Hamor v. Bar Harbor Water Company, 78 Maine, 127. In 1894 the Water Company filed in the town clerk’s office its notice that “it has taken and proposes to take, detain and use the water of' Duck brook,” and has caused surveys and profile plans to be filed in the town clerk’s office, “showing the taking of the water of Eagle lake and Duck brook” under the provisions of its charter. “ The quan
The plaintiff as tenant joined with the owner of the Iiamor mill in a petition to the county commissioners under the provisions of defendant’s charter to have his damages assessed. The petition alleges that defendant company “entered upon, took and detained for its own use for the purposes set forth in said act of incorporation (meaning defendant’s charter) the water of said Duck brook, as more fully appears by the notice of location published by said corporation .... and by the plan therein referred to.”
This petition, fairly interpreted, means damages for the taking of water through the twenty-four inch pipe before mentioned out of the lake, above the outlet, whereby the flow of Duck brook was diminished. To be sure, water had previously been taken from the brook below the lake, and for this damages had been paid. But by condemnation proceedings the Water Company limited its right to water from the lake by means of the twenty-four inch pipe, and for that damages could only be assessed. The lake was eminent domain, and, for that taking, mill owners on the stream had not suffered, in law, any damages, because the state had seen fit to grant only its own, without reserving any condition in favor of the riparian owners on the stream, as it might have done. Auburn v. Union Water Power Co., 90 Maine, 576. Here, as in that case, the grant was for the taking of water for domestic purposes. How the use can curtail the power of the legislature is not plain, so long as it had not already made some grant of the water to others.
For this taking, however, the Water Company paid $210-0, and the plaintiff released all his claim for damages in the premises, by which he is firmly bound. He asserts that defendant company has made use of the water for purposes other than authorized by its charter. The use, however, does not concern him. The volume
For many years there existed an old dam at the outlet of Eagle Lake that the owners of the Hamor mill had been accustomed to use in regulating the flow of water so as to give a head at their mill. The plaintiff claims an easement in this dam, for his more convenient use of the water, acquired by adverse use for á long period by the owners of the mill. The evidence does not establish such easement; and if it did, it became an interest in the dam that was extinguished by the taking of it under the exercise of eminent domain, granted by the charter of defendant company, wherein a method is provided for the assessment of damages therefor. These damages were a full compensation for all persons having any title to the dam or the land on which it stands, and all such are confined to this remedy to the exclusion of all others. The taking of the old dam and the land on which it stood was clearly within the scope of the original charter, and the maintaining of a new dam in its place so as to raise the level of the lake and increase its storage capacity was authorized by Act of 1895, c. 299. By raising the water in the lake littoral owners only could suffer injury, and their damages were provided for by the act. The new dam raised the outlet some three feet, and held the water at that level, but did not divert it. No more water was thereby taken from the stream than the capacity of the twenty-four inch pipe would divert. That quantity might be taken, even if no water should be left to flow in the natural channel. The natural flow was substantially tbe same with the new dam as with the old or without any dam. What the plaintiff wants is not the natural flow, but an intermittent flow. This he is not entitled to by means of another man’s dam that does not disturb the natural flow. There is no phase of the case that can give the plaintiff damages.
Judgment for defendant.
