66 A. 1046 | N.H. | 1907
Upon trial of the question of the extent of the defendants' reservoir right, that right has been found to be a reasonable use of the reservoir until it is drawn down four feet below the top of the dam; and such reasonable use has been found to consist in letting down not exceeding 130 cubic feet per second for ten hours each working day until that point is reached. Berry v. Hutchins,
Even, therefore, if the question as to the flow of the stream had *227
been under investigation, the refusal of the court to fix and determine the size of gates such as existed in 1854 would not present anything for consideration here. But if the law were otherwise, the extent and capability of the reservoir having been already determined, error of law cannot be predicated upon the refusal of the court, upon the facts stated, to reopen the question and grant the plaintiff a new trial, which it is found was the object of the motion, and which must of necessity have been its purpose if any result was expected to follow the desired investigation. Hutchinson v. Railway,
The plaintiff excepted to the refusal of the court to change the orders made and now in force for managing the water or wheels of the different mills. The only order to which objection has been made here is the third order, filed December 14, 1903. That order is objected to so far as it modifies order No. 1, filed July 25, 1902, which limited the Berry privilege to thirty-eight cubic feet per second when the water did not run over the wasteway. The modification objected to provided that the limitation of the Berry privilege should not take effect until the water fell eighteen inches below the top of the wasteway. In the original brief, the plaintiff bases his objection to the modification upon the preferential right of the gristmill. As the owner of the gristmill was not a party to the proceedings in which the order now objected to was made, and as it has since been determined that the gristmill has the right to require all the mills to shut down when the water falls six inches below the top of the wasteway (Hutchins v. Berry,
Horne v. Hutchins,
Whether justice required that the plaintiff should be permitted to amend his petition, so as to present for adjudication his right to use the water at the gristmill for other purposes, is a question of fact. The denial of the motion presents no question of law.
It was said in Hutchins v. Berry,
Case discharged.
YOUNG, J., did not sit: the others concurred. *230