Milo Electric Light & Power Co. v. Sebec Dam Co. , 109 Me. 427 ( 1912 )

Bird, J.

Prior to the year I-866 John Morrison and two associates had erected a dam at the outlet of Sebee lake to provide water power for the operation of their mills located at or near the outlet. Neither the height not date of erection of this dam is shown by the record. In the year 1866, Morrison and his two associates were incorporated as the Sebee Dam Company. The corporation was authorized “to raise their dam to a height to enable them to obtain a sufficient head of water to drive logs and run the -mills on Sebee river,” and to demand and receive tolls on logs driven through the dam. Ch. Í30, Priv. and Sp. Laws of 1866. We assume the charter was accepted and the dam increased in height. This act has been thrice amended. The first amendment, in point of time, simply reduced the tolls for driving logs (ch. 26, Priv. and Sp. Laws of 1899) and will not be hereafter referred to. The other amendments, enacted in the years 1903 and 1905, are devoted principally, if not wholly, to provisions restricting or regulating the use of the water held by the dam of defendant. They will be considered later.

Of the complainants, one, Milo Electric Light and Power Co., is the owner of a dam across Sebee river somle distance below .defendant’s dam and engaged in the generation of electricity for light, heat and power. Some months before the bringing of the bill of complaint it entered into a contract to pump the water required for the plant providing the town of Milo with water. The third complainant, Boston Excelsior Co., is the owner of a dam below Sebee dam and a mill at Milo Village which it employs in the manufacture of excelsior. The other complainant, the American Thread Company, has a saw mill at Milo Village upon the river upon the water of which it depends for the floating of logs as required in its mill. In their bill, they allege that they are entitled to sufficient water, the first and third complainants to run their mills, and the other, to float its logs as required; that in the fall of 1910 the water was insufficient for their respective purposes; that they made demand upon defendant for sufficient water; that the demand was refused; that thereupon they opened the gates in Sebee dam which defendant closed; that the gates were again opened and that the agents of the complainants who opened the gates were subjected to arrest at the instance of defendant to the great loss and expense of complainants. They pray, first, that defendant be ordered and decreed to hoist its gates in its dam to the extent required by its charter to allow the escape of sufficient water whenever necessary for the purposes of manufacturing, including power purposes on the several privileges on Sebee river below Sebee dam and, second, that defendant be enjoined from closing its gates when water is necessary for the purposes set out in the first prayer for relief. The answer is a substantial denial of all the important allegations of the bill and a claim that complainants are entitled only to the natural flow of the river, which it alleges they have enjoyed, or, if held to be entitled under the amendment of 1905 to more than -the natural flow, the amendment is unconstitutional and therefore void. The case is here upon report.

As we have seen, the original charter of 1866 authorized the corporation to raise its dam to a height to enable it to obtain a sufficient head of water on Sebee pond to drive logs and run the mills on said Sebee river.

The act of 1903 restricts the defendant from July first to October fifteenth of each year from drawing the water below one foot from the bottom of the flood gates in the dam then existing, except the use of the water for manufacturing and other purposes for which power may be used on said dam and for creating power for the same and manufacturing on Sebee river, and the proper repair of the dam. This is coupled with a provision for seasonable notice to each cottage owner, mill owner and Steamboat owner and hotel keeper on Sebee Take and to the proprietors of the hotels on Sebee lake and Sebee village before making repairs.

The amendment of 1903 further provides that “Any person injured by any violation of the provisions of ¡this charter shall have a remedy by injunction and by an action for 'damages.” C. 141, Priv.-and Spec. Taws of 1903.

In 1905 the act of 1866, as amended by the act of 1903 (c. 141, Priv. and Spec. Taws, 1903), was further amended by adding the following sections:

Section 7. All gates of said dam shall be kept tightly closed from the first day of March to the first day of July in each year. And during said period of time, from the first day of March to the first day of July in each year, none of said gates shall be hoisted except when necessary for log driving and manufacturing purposes on Sebee river as specified in said Chapter and amendments, but whenever during the period aforesaid the waters of Sebee Take shall be needed for said purposes or at any time for manufacturing including power purposes on the several privileges of Sebee river, said gates shall be hoisted to the extent required to allow the escape of sufficient water therefor.

Section 8. The County Commissioners of Piscataquis County on petition of any person having property rights affected, or which may be affected, under the provisions of the foregoing section, may appoint a resident of said county an agent who shall have the management of the gates of the Sebee Dam Company for such time as said commissioners may determine c. 339, § 1, Priv. and Special Daws of 1905.

The defendant urges that the use of water by American Thread Company for the purpose of floating logs to its mill' is not within the original act or its amendments. We are of the opinion that it is not. We think none of the amendments enlarges the purpose of the act of 1866 to afford water to run the mills which we must hold to mean to provide water for the turning of the machinery of the mills.

. Under the amendment of 1905, is sufficient water, simply the natural flow of the river as contended by defendant? We think not. The original act of 1866 authorized the raising of the dam to a height to enable the corporation to obtain a sufficient head of water to drive logs and run the mills on Sebee river. The word head was used in the sense of reserve and the authority granted was to make and maintain a reservoir of water sufficient to drive logs and run the mills. The inference is that the existing dam was inadequate and that the increase in the height of the dam was to provide stored waters for the purposes mentioned and consequently enable those in management of the gates of the dam to vent at times, when needed, more than the natural flow. Nor do we think “the mills on Sebee river” referred alone to those upon dam of defendant but to those upon the privileges on the river below the dam as well and not only to the mills then on the privileges below the dam but to such mills as might, in the development of industries, be located on those privileges, provided that the requirement for power be not in excess of the ability of the river to furnish when managed reasonably in the usual manner, or in accordance with rights acquired by prescription, if such exist. Gould v. Boston Duck Co., 13 Gray, 442, 450, 452; Keeney etc. Co. v. Union Mfg. Co., 39 Conn., 577; Lockwood v. Lawrence, 77 Maine, 297, 316; Barrett v. Parsons, 10 Cush., 367, 372; Springfield v. Harris, 4 Allen, 494, 496.

But the privileges below cannot require sufficient water in the broad meaning of the term. It is evident from the provisions of Section 8 of the amendment of 1905 that the Legislature used the term “sufficient water” in a modified sense and in the sense of sufficient water regarding the rights of other interested persons “having property- rights affected or which may be affected.” The mills upon the dam, when in operation, are by the terms of the act entitled to sufficient water as well as the privileges below.

Moreover, the act of 1866, as we have seen made provision for water to run the mills on Sebee river by raising the height of the dam. The waters thus stored were to be available for the purposes, mentioned. Even if the Legislature repealed the act of 1866, the result would- be a reduction of the dam to its former height with the right of the mills upon the river below the dam to its natural' flow.

Nor can we believe that it was the Intention of the Legislature in the enactments under consideration to require the venting of' sufficient water at any time without regard to the -duty which defendant owed the public of driving logs seeking a passage down the river.

Defendant contends that the act of 1905 with the construction w-e-have given it, is unconstitutional. Again we are unable to assent. Under the construction we have given to the various acts of the Legislature under -consideration, no vested rights are -impaired by the act of 1905. The act is but a regulation on the part of the Legislature-of the use of the waters, provision for the storage of which was-'made by the act of 1866, for the purposes indicated by that act. This it had power to do by virtue of the provisions of § 2 of c. 47, R. S., reserving to the Legislature the power of amendment, alteration or repeal of acts of incorporation. As construed, we must hold the alterations made by the Legislature in the charter of defendant-are not unreasonable, nor made in bad faith nor inconsistent with the object and scope of the act of -incorporation; Sinking Fund Cases, 99 U. S., 700, 721. See also Bienville Wat. Sup. Co. v. Mobile, 186 U. S., 212, 222-223.

A decree may be entered and an injunction granted by the sitting-justice in accordance with this opinion, the injunction to be granted upon a renewed motion therefor and hearing thereon. The bill is dismissed as to complainant, American Thread Company.

So ordered.