4 nnmu. nmrommn.
Hsmrnrou Woomm Go. v. Moons and others.
(Oircuit Uourt, DQ Oomwcticut. September 25, 1885.)
Srmcmic PmwonMA:<cm—OnAn Oonrmor as me Rrcur TO Fnow Warm:.
Ou examination of the facts in this case, held, that the bill praying for the
specific performance of a parol contract in regard to the right to flow water
‘ upon certain mill privilege owned by defendants should be dismissed.
In Equity. V
Alvun P. Hyde and A. J. Bartholomew, for plaintiff.
Mahlon R. West and Dwight Marcy, for defendants.
SHIPMAN, J. This is a bill in equity praying for the specific per-
formance of a parol contract in regard to the right to How water upon
the mill privilege now owned by the defendants. . The facts in the
case are as follows:
The averments in the bill in regard to the citizenship of the parties
are true. The allegations in paragraphs Nos. 1, 2, and 3 of the bill
are true, except that the conveyance to the plaintiff by Albert E. Weld,
mentioned in paragraph No. 2, was made on March 30, 1868, instead
of soon after January 1, 1865, as stated in said bill.
The plaintiff began to erect its reservoir dam on August 22, 1865,
and in November, 1865, decided to build it three feet higher than had
been contemplated. Such a height would cause the water to flow back ‘
upon the lands of sundry owners in Connecticut, and would cause an.
overflow of about three feet upon the mill-wheel at the saw-mill of
Albert Back, being the premises particularly described in paragraph
No. 2. Before deciding to raise said dam to said additional height,
Josiah Ballard, Jr., the treasurer of the plaintiff, and thereunto au-
thorized, had an interview with said Back for the purpose of obtaining
‘ the right to overflow his mill site. Said Back agreed to sell to the
plaintiff the right to flow his land and water-power for a fair compensa-
tion, to be determined after the water should come up to the height
that the dam should raise it, and consented that the dam should be
_ raised forthwith to the desired height. He stated that he did not
wish to put any obstacles in the way of raising the dam, because the
value of his mill-power depended largely upon the plaintiif’s good-
will, inasmuch as it might impose restrictions in the use of the water,
and advised that the work of raising the dam should be proceeded
with, and that the necessary authority should be obtained from the
owners who would be injuriously affected.
The plaintid, in November, 1865, in reliance upon this undertak-
ing of said Back, proceeded to take the necessary steps to raise the
_ dam,<by making a broader earthwork base and heavier walls, and by
• making the proper fills in the causeways at a large expense. Sub-
sequently, and in the month of November, 1865, and before the com-
pletion of the dam, said Ballard, as treasurer, and said Back made
a definite parol agreement that said Back would sell the plaintiff the