64 Me. 171 | Me. | 1873
The defendant is the owner of a grist mill and privilege situate on a stream issuing from Hebron Pond in Monson. The evidence shows that in 1820, a dam and grist mill were erected at the outlet of said pond. In 1841, the then owner of the privilege rebuilt and enlarged the grist mill and deepened the channel thereto. Formerly fifty bushels of wheat or corn were daily ground at this mill. More recently the number has been reduced to a daily average of about twenty bushels. The consequence is, that a much less quantity of water is now vented than formerly.
The plaintiff’s mill and dam situated some distance below on the same stream, was built in 1844. The defendant’s privilege and darn have been occupied and enjoyed by him and those under whom he derives his title for a much longer period than is necessary to acquire an adverse title by prescription. Without detailing the evidence, we think it is satisfactorily proved that the defendant has all the rights which prior occupancy can give as well as those which can be acquired by prescription, so far as regards the height of his dam.
The defendant then has a right to keep and maintain his dam at its present height with all the water necessary to propel his machinery. But of this the plaintiff makes no complaint. The defendant claims the right to retain water not needed in any way for the use of his mill nor necessary for its full enjoyment, and to the loss and injury of those whose mills are below him on the same stream.
So far as the defendant or those under whom he derives his title have by artificial means improved the stream, those improvements enure to the benefit of those below. The result is that the defendant has a right to use the water in his pond for the running of all the.machinery upon his dam. He has a right to detain it
The question of reasonable use of the water is one of fact, to be determined by the jury. The parties have referred that question to the court. Upon the whole evidence we are of opinion that the defendant has unreasonably withheld water, neither necessary nor required for the use of his mill.
Accordingly, there must be Judgment for the plaintiff for $25 damages.