Am. Woolen Co. v. Kennebec Water Dist.

• Citation: 102 Me. 153,66 A. 316
• Parties: AMERICAN WOOLEN CO. v. KENNEBEC WATER DIST.
• Decision Date: 30 November 1906
• Court: Supreme Judicial Court of Maine (US)

66 A. 316

102 Me. 153

AMERICAN WOOLEN CO.

v. KENNEBEC WATER DIST.

Supreme Judicial Court of Maine.

Nov. 30, 1906.

Report from Supreme Judicial Court, Kennebec County. In equity.

Bill by the American Woolen Company against the Kennebec Water District, praying that the defendant, its servants, agents, or attorneys, be enjoined and restrained by temporary and perpetual injunction from taking its supply of water from China Lake, in Kennebec county, until certain condemnation proceedings, which the plaintiff alleges are required by law, shall have been had, and for such other and further relief as the nature of the case may require. To this bill the defendant filed a general demurrer.

At the hearing before the justice of the first instance, and by agreement of the parties, it was ordered that the cause be "reported to the law court to be heard on the bill and demurrer." Bill dismissed.

Argued before WISWELL, C. J., and EMERY, WHITEHOUSE, SAVAGE, PEABODY, and SPEAR, JJ.

Raymond & Gordon and Charles F. Johnson, for plaintiff. Harvey D. Eaton, for defendant,

EMERY, J. This is a case in equity reported upon demurrer to the bill. The material allegations in the bill may be stated concisely as follows: China Lake, in Kennebec County, has an area of some six square miles, and the outlet of its waters is through Mile brook, into the Sebasticook river. The defendant corporation, the Kennebec Water District, composed of the territory and people of Waterville and Fairfield village, had legislative authority, by chapter 200, p. 351, Priv. & Sp. Laws 1890, to take water from China Lake for the purpose of supplying the inhabitants and municipalities of Waterville, Fairfield Village, Benton, and Winslow with pure water for domestic and municipal purposes. Acting under this authority, the water district has laid a large pipe from China Lake to its pumping station in Waterville, with an intake lower than the bed of the natural outlet of the lake, and through this pipe is constantly drawing a large quantity of water from the lake materially lowering its natural level and the natural flow of water through the outlet down Mile brook. This diversion of water from the lake materially reduces the capacity, efficiency, and value of a pre-existing mill privilege and mill of the plaintiff on Mile brook below the outlet.

The water district was not required by its charter to go through any process of condemnation of the right to take water from China Lake, and did not do so. It simply laid its pipe and diverted the water as under a grant from one having the full right. By its charter, however, the water district was made liable for all damages that should "be sustained by any person or corporations in their property by taking of any land whatsoever, or mill privileges within the district or water from Snow pond, or by flowage, or by excavating through any land for the purpose of laying pipes, building dams or constructing reservoirs. If any person sustaining damages as aforesaid and said corporation shall not mutually agree upon the sum to be paid therefor, such person may cause his damages to be ascertained in the same manner and under the same conditions, restrictions and limitations as are or may be prescribed in case of damages by the laying out of highways." Section 3 of the Charter.

The prayer of the bill is that the water district be enjoined from taking any water from China Lake until it shall have acquired the right to do so by due proceedings for condemnation. Hence the question now presented is, not whether the plaintiff is entitled to any compensation for the injury done its property by the water district's diversion of water from China Lake, but is whether the water district could lawfully begin and continue such...