Furbish v. County Com'rs of Kennebec County

• Decision Date: 23 June 1899
• Citation: 44 A. 364,93 Me. 117
• Parties: FURBISH v. COUNTY COM'RS OF KENNEBEC COUNTY. FURBISH et al. v. SAME.
• Court: Maine Supreme Court

44 A. 364

93 Me. 117

FURBISH

v. COUNTY COM'RS OF KENNEBEC COUNTY.

FURBISH et al.

v. SAME.

Supreme Judicial Court of Maine.

June 23, 1899.

(Official.)

Report from supreme judicial court, Kennebec county.

Petitions for mandamus by Sarah H. Furbish against the county commissioners of Kennebec county and by Sarah H. Furbish and Willard B. Arnold against the same defendant. Cases reported by agreement. Petitions granted.

Argued before EMERY, HASKELL, WHITEHOUSE, WISWELL, STROUT, and FOGLER, JJ.

S. S. & F. E. Brown, O. D. Baker, and F. L. Staples, for plaintiffs.

E. F. Webb, H. M. Heath, and C. L. Andrews, for Maiue Water Co.

FOGLER, J. Petitions for mandamus, in which the petitioners pray that a writ of mandamus issue to the county commissioners of Kennebec county commanding them to issue warrants of distress against the Maine Water Company and its property to enforce payment of the sums awarded by the commissioners to the petitioners, respectively, for real estate taken by the company as for public use. The water company comes in as a defendant in interest. The cases were heard together, the rights of the respective parties depending upon the same facts.

The Maine Water Company is the successor of the Waterville Water Company, and has the same rights, and is subject to the same liabilities, as that company. The last-named company was chartered by chapter 141, Priv. & Sp. Laws 1881, which was approved March 16, 1881. By section 3 of said act it was authorized "to take and hold by purchase or otherwise any land or real estate necessary for erecting and maintaining dams and reservoirs, and for laying and maintaining aqueducts for conducting, discharging, distributing and disposing of water, and for forming reservoirs therefor." Section 4 provides that the company shall be liable to pay all damages that shall be sustained by any person or corporation in their property by the taking of any lands or mill privileges, or by flowage, or excavating through any land for the purpose of laying down pipes, building dams, or constructing reservoirs; "and if any person sustaining damages, as aforesaid, 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 by law prescribed in case of damages by the laying out of highways." By an amendment to its charter (chapter 59, Priv. & Sp. Laws 1887), the company was authorized to take and hold sufficient water of the "Messalonskee Stream," so called, in the towns of Waterville and Oakland. In 1896, the respondent the Maine Water Company, successor to the Waterville Water Company, owned and occupied, as a pumping station, certain lands situate on the westerly side of the Messalonskee stream, in Waterville, and possessed certain rights in the waters of the stream; and the petitioners were then the owners of certain lands, mills, machinery, and other property connected therewith situate in Waterville, on the easterly side of the same stream, and possessed also certain rights in the waters of the stream.

August 18, 1896, the petitioner Sarah H. Furbish filed in the supreme judicial court in Kennebec county a bill in equity against the Maine Water Company, in which she alleged that the company was then, and for a long time had been, using a larger quantity of the water of the stream than it was entitled to by right, and thereby had diverted, and was then diverting, from her mill a large quantity of water to the use of which she was entitled; and prayed that the company be temporarily and perpetually enjoined from further diverting the water of the stream to her injury. A hearing on the prayer for temporary injunction was appointed on September 8, 1897.

October 14, 1896, at a special meeting of the directors of the water company, legally called, it was voted: "That whereas, the company is authorized by its charter to take and holdeam,' sufficient water of the 'Messalonskee Str so called, in the city of Waterville, for supplying the inhabitants of the said city of Waterville, the towns of Winslow and Benton, in said county of Kennebec, and the town of Fairfield, in the county of Somerset, with pure water for domestic, manufacturing, and municipal purposes, including the extinguishing of fires and sprinkling of streets; and whereas, the reasonable accommodation of the appropriate business of the Maine Water Company makes it necessary that the said company shall take and hold, as for public use, for the purposes aforesaid, the following described real estate, mill privilege, dams, penstocks, water and water power, situate in said Waterville, on the Messalonskee stream, at 'Crommetf s Mills,' so called, and bounded as follows [Here follows description of the property described in the petitions for mandamus]: Therefore, on motion, it was voted to take the above-described real estate and other property for the above-described uses and purposes of said company, and to file in the office of the county commissioners in the county of Kennebec, where said land and other property is situated, the plans and descriptions of all such lands and other property so taken; and that the president of the company be authorized to execute, for and in behalf of the company, all papers necessary for the taking of said real estate and other property as above." The title to the property described in the foregoing vote was in these petitioners. October 17, 1896, the company filed in the office of the county commissioners a plan and description of the real estate and other property mentioned in said vote, alleging that the property and lands were taken and were necessary for its purposes. October 19, 1896, the company made application to the county commissioners for an estimation of damages which the company should pay by reason of taking the property taken as aforesaid. Upon such application the county commissioners, after notice and hearing, made and filed at their December term, 1896, the following report, signed by them:

"Award of County Commissioners. "County Commissioners' Court. Dec. Term, 1896.

"31st Day of Dec., A. D. 1896.

"Maine Water Company, Petitioners, vs. W.

B. Arnold and Sarah H. Furbish.

"We make no determination upon the question as to the necessity for taking the land and privileges described in said petition. We estimate the damages which the petitioners shall pay to Sarah H. Furbish for the taking of the first parcel of land described in said petition at seven thousand five hundred dollars, without costs. We estimate the damages that the petitioners shall pay to Sarah H. Furbish and Willard B. Arnold for the taking of the second parcel of land described in said petition at two hundred and fifty dollars, without costs."

From this report no appeal was taken, and at the April term of the commissioners' court, being the next term after the filing of the report, their report was accepted, and the proceedings closed. April 26, 1897, the petitioners in the case at bar, by their counsel, requested payment of the damages awarded by a letter addressed to the president of the company. At a special meeting of the directors of the company, legally called, it was voted "to rescind the vote of the directors of this company passed October 14, 1896, whereby it was voted to take and hold, as for public use, and for the purposes of this company, certain water, water power, and mill rights in Waterville," etc., and "that Weston Lewis, president of this company, be authorized to execute to said Sarah H. Furbish and Willard B. Arnold a notice of abandonment and surrender of all our rights to said premises, if any, under and by virtue of said vote." In pursuance of such vote, on the 6th day of May, 1897, an instrument of the tenor following was executed, caused to be recorded, and delivered to the petitioner, Sarah H. Furbish:

"Notice of Abandonment and Surrender.

"To Sarah H. Furbish, of Waterville, in the County of Kennebec and State of Maine: "Whereas, the Maine Water Company, a corporation established by law, and having its place of business at Waterville, in said county, on the seventeenth day of October, A. D. 1896, filed in the office of the county commissioners of Kennebec county a plan and description of certain real estate, mill privileges, dam, penstocks, water power, and water situated in said Waterville, with a view of taking the same for the purposes of said corporation as for public use; said premises being described as follows: 'Commencing at an old iron bolt set in the ledge in east bank of the Messalonskee stream on the dividing line between the old grist-mill lot and the old fulling-mill lot; thence south, 41 deg. 23 min. east, 61 5/10 feet, to a granite monument in the westerly line of the Pearson tannery road; thence north, 48 deg. 7 min. east, 77 83/100 feet, to a granite monument set in the easterly line of said Pearson tannery road; thence northerly, 62 deg. 23 min. west, 65 17/100 feet, to an old iron bolt set in the ledge; thence westerly in the same direction to the center of said Messalonskee stream; thence down the center of said stream to a point which shall be opposite or coincident with the first line mentioned in this description; thence southerly 41 deg. 23 min. east to the point begun at.'

"And whereas, said Maine Water Company has never entered upon said premises, or taken possession thereof:

"Now, therefore, know all men by these presents, and you will take notice, that said Maine Water Company hereby abandons, surrenders, and yields up to you all its rights, title, and interest, if any, in said premises; and hereby notifies you of its intention not to take said property, or make any claim thereto, under said proceedings.

"In witness whereof, the said Maine Water Company has caused the corporate seal to be affixed, and these presents to be subscribed by Weston Lewis, its president, thereto duly authorized, this 6th day of...