Brown v. Kennebec Water Dist.

• Decision Date: 20 May 1911
• Citation: 79 A. 907,108 Me. 2275
• Parties: BROWN v. KENNEBEC WATER DIST.
• Court: Maine Supreme Court

79 A. 907

108 Me. 2275

BROWN

v. KENNEBEC WATER DIST.

Supreme Judicial Court of Maine.

May 20, 1911.

Report from Supreme Judicial Court, Kennebec County.

Bill by Annie C. Brown against the Kennebec Water District. On report. Bill dismissed.

Argued before EMERY, C. J., and WHITEHOUSE, SAVAGE, SPEAR, KING, and BIRD, JJ.

Benedict F. Maher and Mark J. Bartlett, for plaintiff.

Harvey D. Eaton, for defendant.

WHITEHOUSE, J. In this bill in equity the plaintiff prays for an injunction to restrain the Kennebec Water District, the defendant named in the bill, from "entering in or on the plaintiff's land" therein described, "and from taking, using, or appropriating said land without the consent of the plaintiff." A preliminary injunction was granted upon the filing of a statute bond in the sum of $500. The defendant demurred to the bill, "and for cause of demurrer shows that the plaintiff has not made or stated a case requiring the intervention of the court." The case is reported to the law court upon bill and demurrer.

It appears from the allegations in the second paragraph of the plaintiff's bill that on the 12th of May, 1910, the defendant water district by its trustees, filed in the office of the clerk of courts a certificate of taking, declaring that "in accordance with the provisions of chapter 200 of the Private and Special Laws of 1899. as amended by chapter 152 of the Laws of 1905, for the purpose of preserving the purity of the water and watershed of China Lake, the Kennebec Water District hereby takes as for public uses" the plaintiff's land therein described.

It is further alleged in the bill that the defendant district is not authorized by its charter, nor by the law of the land, to take the plaintiff's land by the exercise of eminent domain; that the plaintiff's land is so far removed from the intake pipe, and otherwise so situated as to render any attempted taking by the defendant in the exercise of eminent domain, if the defendant possessed such right, for the purposes stated in its certificate, so gross and manifest a perversion of the power, as to be null and void; that the action threatened by the defendant will constitute a continuing trespass upon the plaintiff's property, working irreparable injury to her, for which she has no adequate remedy at law; and, finally, that the threatened action on the part of the defendant to enter upon and use the plaintiff's land prior to the payment of compensation therefor will constitute a taking of property without due process of law.

It is contended in behalf of the defendant district that the demurrer to the plaintiff's bill should be sustained for two reasons First, because the court does not have jurisdiction in equity, but at law by the writ of certiorari; and, second, for the reason that upon examination of the plaintiff's bill, in connection with the legislative acts constituting its charter, the proceedings of the defendant district will be found duly authorized, and in every respect legal and valid.

Assuming, without deciding, that the court has jurisdiction in equity in this case, it is the opinion of the court that the demurrer to this bill must be sustained.

It is provided by section 2 of chapter 200 of the Private and Special Laws of 1899, that the defendant district "may take and hold, by purchase or otherwise, any land or real estate necessary for erecting dams, power reservoirs, or for preserving the purity of the water and watershed, and for laying and maintaining aqueducts for conducting, discharging, distributing and disposing of water"; and section 3 of the same act provides that damages sustained by any persons or corporations in their property by the taking of any land whatsoever * * * may 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."

Furthermore, chapter 152 of the Private and Special Laws of 1905, amendatory of the original act of incorporation in 1899, prescribes the method of commencing proceedings for condemnation by the "defendant district in terms manifestly designed to be made applicable to section 2 of the act of 1899 above quoted, as well as to section 6; for it appears that, in addition to the general authority to "take and hold any land or real estate necessary for erecting dams," etc., granted by section 2, special authority was conferred upon the district by section 6 to take by purchase, or by the exercise of the rights of eminent domain, the entire property and franchises of the Maine Water Company within the district and the towns of Benton and Winslow." And it was held in American Woollen Company v. Kennebec Water District, 102 Me. 153, 66 Atl. 316, that the authority given to the water district in its charter was not merely authority to exercise the power of eminent domain, not merely authority to take water after condemnation proceedings for that purpose, but authority to take water from China Lake directly and at once.

It thus clearly appears that the provisions of the defendant's charter not only disclose a manifest intention on the part of the Legislature to confer upon the water district the power to take and hold, by the right of eminent domain, "land and real estate necessary for the purpose of preserving the purity of...