City of Auburn v. Union Waterpower Co.

• Decision Date: 29 October 1897
• Citation: 90 Me. 576,38 A. 561
• Parties: CITY OF AUBURN v. UNION WATERPOWER CO.
• Court: Maine Supreme Court

38 A. 561

90 Me. 576

CITY OF AUBURN

v. UNION WATERPOWER CO.

Supreme Judicial Court of Maine.

Oct. 29, 1897.

(Official.)

Report from supreme judicial court, Androscoggin county.

Proceeding by the city of Auburn against the Union Water-Power Company for the taking of water for public purposes, under the provisions of Priv. & Sp. Laws 1891, c. 82. On petition of the company, damages were assessed by the county commissioners at the sum of $24,500, and the city appealed. Submitted on report. Petition dismissed.

The fourth section of the act authorized the taking, and provides that, in any case in which damages are to be allowed, if the city and the landowner were unable to agree upon the damages to be paid for such taking, application should be made to the commissioners of the county of Androscoggin, "who shall cause such damages to be assessed in the same manner and under the same conditions, restrictions, limitations and rights of appeal as are by law prescribed in the case of damages for the laying out of highways so far as such law is consistent with the provisions of this act."

The case was submitted to the law court on report, the parties stipulating that, if the Union Water-Power Company was not entitled to damages, judgment should be rendered in favor of the city as the appellant, but that, if it should be determined by the law court that the Union Water-Power Company was entitled to damages, then the amount of such damages should be determined at nisi prius.

The petition of the Union Water-Power Company, praying for an assessment of damages, represented that "it is the owner of certain water rights, water sources, and easements in the waters of 'Wilson Pond,' so called, situated in Auburn, in said county, and of certain lands and rights of flowage around said pond and' the outlet stream thereof, and also of certain lands, dams, water power, water rights, and privileges upon said outlet stream, and of the right to hold, accumulate, and store the waters of said pond by means of said dams, and to draw off the same by means of gates and sluices in said dams.

"And said company also says that it is the owner of an extensive system of dams, canals, water rights, and privileges on the Androscoggin river, at said Lewiston, and of certain lots of land at said Lewiston, situated on the main canal of said company at said Lewiston, and known as the 'Mill Site Lots,' and which lots, by the terms of the conveyances thereof to said company, can only be used for manufacturing purposes. And said company says that the value of said lots for manufacturing purposes depends upon the quantity of water and water power capable of being furnished by the Androscoggin river at said Lewiston. And said company owns and controls all the rights of flowage on both sides of the Androscoggin river above said dam at said Lewiston to the point and beyond where the outlet stream from said Wilson pond flows into said Androscoggin river, and it has the right to hold and store the waters of said river by means of its dams at said Lewiston in the same manner and to the same height at which it and its predecessors in title for a long time hitherto have done.

"And said company says that it and its predecessors in title have heretofore made perpetual leases and conveyances of water and water power to certain individuals and corporations at said Lewiston and Auburn, all of which leases and conveyances are now in full force; and said company is bound by the terms and obligations thereof to furnish and supply the quantity of water and water power specified in said leases and conveyances.

"And said company says that heretofore all the flow of water from said Wilson pond ran through said outlet stream to said Androscoggin river, and from thence commingling with the waters of said river into the mill ponds and canals of said company at said Lewiston; and that said company, as the owner of the dams, water rights, and privileges at the outlet of said Wilson pond, has the right to have the natural overflow of said pond flow through said outlet stream without any dimunition or diversion thereof; and that, as the owner of the lands, water power water rights, and privileges on the Androscoggin river, at said Lewiston, it is entitled to the full benefit of the natural flow of said pond Into said river, as the same has heretofore forever been accustomed to flow.

"And said company alleges that it has the right to raise and store the waters of said pond by means of said dams at the outlet thereof to the present height of said dams, and to draw off all of said stored waters, from time to time, by means of the gates and sluices in said dams through said outlet stream for the use and benefit of its lands, mill sites, water power, and privileges at said Lewiston, and to enable it to furnish and supply its said several lessees and grantees with water and water power as it has for a long time heretofore been accustomed to do; and that it has the right to manage and control, accumulate, and draw off the waters of said pond by means of said dams, gates, and sluices, for its own use and benefit, and in such manner as it has heretofore for a long time done.

"And said company further alleges that it has heretofore for a long time used, managed, and controlled all the waters of said Wilson pond for its own use and benefit, and accumulated and stored the waters thereof by means of its said dams upon the outlet stream thereof, and drawn off the same through said outlet stream at such times and in such quantities as it deemed necessary for the use and benefit of the water power and privileges owned by it, and located on the Androscoggin river, at said Lewiston; and that said company has the right to so manage, hold, store, control, and draw off the waters of said pond, including all the natural flow of the same, as well as all the stored waters thereof through said outlet stream, without any denial, diversion, or interruption of the same or any part thereof by the city of Auburn or any person or corporation whatsoever, except so far as the same has heretofore been conveyed by the Franklin Company, its predecessor in title, to the Auburn Aqueduct Company, of said Auburn.

"And said company alleges that the entire natural flow of said pond through said outlet stream into said river, and the right to hold, use, and draw off all the stored waters of said pond from time to time through said outlet stream, is necessary to enable said company to furnish and supply the quantity of water and water power required to operate the various mills, manufacturing establishments, and industries located at said Lewiston and Auburn, during all seasons of the year, as the same has heretofore for a long time been done; and that from time to time during each year, for a period of more than thirty years hitherto, said company and its predecessors in title have used and drawn the waters of said pond, by means of its dams, sluices, and gates upon said outlet stream, for the purpose of supplying water and water power at said Lewiston; and that, during all said time, said pond has been used by said company and its predecessors in title as a reservoir from which to draw in times of drought and shortness of water in the Androscoggin river at said Lewiston.

"And said company alleges that the city of Auburn, acting under and by virtue of the power and authority conferred upon it by chapter 82 of the Private and Special Laws of Maine, approved February 19, 1891, have taken the waters of said pond for the uses and purposes specified in said act, by means of pipes leading from said pond to various parts of the city, of the dimensions and locations particularly specified in the notice of such taking filed by said city in the registry of deeds for this county," etc.

"And said company alleges that, by such taking, the city of Auburn has thereby diverted the natural flow of the waters of said pond from said outlet stream, and have drawn off the waters accumulated and stored in said pond, as hereinbefore set forth, and diverted the same from said outlet stream, and prevented this company from drawing and having the natural flow of the waters of said pond run through said outlet stream, and prevented this company from holding, storing, accumulating, managing, and controlling the waters of said pond, and from drawing off the stored waters thereof through said outlet stream, as it has the right to do, and has thereby destroyed this company's property rights in the waters of said pond, and the water sources, water rights, and easements therein owned by said company, and caused this company great and irreparable injury and damage.

"And in and by the premises your petitioner has been greatly damaged in its property by the taking of and injury to its land, real estate, water, and water rights, and by said interference with and injury to the use and management of the water of said pond, to which the petitioner at the time of said taking was legally entitled.

"And your petitioner alleges that it has been unable to agree with said city as to the amount of damages sustained by it in its property on account of the taking of the waters, water sources, water rights, and easements, as hereinbefore set forth.

"Whereupon your petitioner applies to this honorable court, in accordance with the provisions of said act of February 19, 1891, and asks that the damages sustained by it in this behalf be assessed and determined."

An appeal from the award of damages, made by the county commissioners, having been taken by the city of Auburn, a complaint on appeal by the city was duly filed in this court below on the third Tuesday of January, 1896.

The material portions of the appeal are as follows:

"That your said complainant was aggrieved by said determination and adjudication that the said Union Water-Power Company was damaged as aforesaid by the said taking of the waters of said pond—

"First. Because said Union...