W. B. Peirce and B. L. Fletcher, for plaintiff. W. H. Powell and Martin & Cook, for defendant.

PEABODY, J. This was an action of assumpsit brought by the plaintiff, a corporation organized under the laws of Maine, against the defendant, also a Maine corporation, to recover on account annexed tolls on 2,000,000 feet of poplar and spruce logs at 15 cents per 1,000 feet, $300.

The case is before this court on report. The organization of the plaintiff corporation under chapter 315, p. 485, of the Private Laws of Maine of 1903, and the rate of toll at 15 cents per 1,000 is admitted.

The defense put in issue three material propositions necessary for the plaintiff to establish in order to entitle it to recover under the act of its incorporation:

1. The quantity of logs which are the subject of the tolls must be proved by competent evidence. The defendant contends that no admissible evidence was offered on this point. By the act of incorporation, the plaintiff was "authorized to erect and maintain dams, sluices, and side dams on the Madunkeunk stream in the county of Penobscot and its tributaries, to remove rocks therefrom and to widen, deepen and otherwise improve said stream and its tributaries for the purpose of facilitating the driving of logs and other lumber down the same." Its charter conferred upon it also authority to demand and receive a toll upon all logs and other lumber which passed over or through its dams and other improvements, not to exceed 15 cents per 1,000 feet, stumpage scale, or when such logs or other lumber have not been scaled for stumpage, by the scale rendered at the place of destination, and gave it a lien thereon to be enforced by attachment, to continue for 90 days after the logs and lumber arrived at their destination. The logs specified in the writ were cut from land of O. S. Townsend, J. M. Pierce, owners of fourteen-sixteenths, and Engel and McNulty, owners of two-sixteenths. A stumpage scale was made for them by Joseph J. Porter, a scaler of lumber. The logs were hauled by E. W. Annis, who landed most of them on the ice, leaving a few only on the bank of the Madunkeunk stream. The scale was made there, and Francis M. Burr, the assistant of Porter, under his direction counted and scaled the logs, and Porter went there three different times and tested his scales. The assistant kept on shingles a record of the number of logs and the number of feet each log scaled for his superior to see, and he also had a book in which he kept his daily records, where they were put down from time to time. Mr. Porter retained the book, and from it he made up the final figures for his scale bills. He sent a scale bill so made to each of the landowners by whom he was employed to make the stumpage scale, and mailed one also to

the treasurer of the F. E. Allen Clothing Com pany, E. F. Gellison, Bangor, at his request. The returns he made show 990,720 feet of logs, and 1,650 cords scaled by the cord, reck · oned at 2 cords to the 1,000 feet, a total of 1,815,720 feet of lumber. The scaler testifies that he had been a scaler of lumber about 18 years, and in scaling this lumber he followed the usual manner of himself and other scalers in scaling for stumpage.

The scale bill of a surveyor agreed upon between the parties in a logging, log-driving, or similar transaction requiring a survey is, in the absence of fraud, binding upon them (Haynes v. Hayward, 41 Me. 488; Bailey v. Blanchard, 62 Me. 168), and the survey book is evidence of the scale (Whitman v. Freese, 23 Me. 212; Fornette et al. v. Carmichael, 41 Wis. 200).

The scale book, though kept and made up by his assistant acting under his direction, inspected and retained by him, may be used by Mr. Porter to refresh his recollection of the stumpage scale, and his testimony so given is competent evidence as to the quantity of logs in question. If the plaintiff and the defendant did not expressly agree upon a scaler, as the act of incorporation bases the toll the corporation was authorized to collect on logs driven over its dams and improvements on the stumpage scale, it must be deemed that there was an implied contract that they should be bound by a scale made in accordance with the method customarily adopted by scalers and between landowners and operators and recognized as the stumpage scale. Smith v. Kelley, 43 Mich. 390, 5 N. W. 437; Peterson v. Anderson, 44 Mich. 441, 7 N. W. 56. The scale proved by the uncontradicted testimony of the surveyor must be regarded as proving the amount of toll to be paid by the defendant, if otherwise liable.

2. That the defendant was liable as the party in interest to pay the tolls on the logs. The defendant contends that Edward W. Annis should have been made the party defendant. As the charter gave the plaintiff a lien on logs, the party whose interest would be directly affected by such a lien must be considered liable for the tolls. The evidence shows that a contract for the stumpage of pine, fir, spruce, and cedar logs was made with the landowners and Edward W. Annis, on the 5th day of September, 1904, which was to be fulfilled on the part of Annis on or before the 1st day of June, 1905; the logs were "all to be landed in a suitable place and manner for scaling, so as to be easily counted and scaled by the scaler, who shall be appointed by the parties of the first part, and whose scales shall be final and binding between the parties hereto." Another contract for the sale and delivery of poplar logs was made on the 4th day of May, 1904, between Edward W. Annis and the Penobscot Mechanical Fiber Company; the logs were to

be delivered by Annis during the rafting season of 1905, and were to be measured by some competent surveyor when so delivered, to be appointed and paid by the company. Both these contracts were assigned to the defendant, the first October 1, 1904, and the second August 18, 1904. Whatever may have been the purpose of the assignments, the defendant became in fact the party in interest, and its rights under the contract are subject to their conditions and burdens. In the nature of the case, and by the obligations the assignee assumed, it was necessary to float the logs down the Madunkeunk stream, and, as it received the benefit of the facilities furnished by the plaintiff for floating the logs, it should be held liable for the tolls, as well as for other bills for driving the logs which it paid. Johnson v. Cranage, 45 Mich. 14, 7 N. W. 188; Bohanan v. Pope, 42 Me. 93. The evidence, direct and circumstantial, shows that this was the understanding of the defendant's managers. The treasurer requested the scale bill, directed the logging operations, furnished teams for hauling the logs in question, and communicated with the plaintiff in reference to the payment of the tolls, from which it clearly appeared that it did not deny that the defendant was the party in interest, but questioned the right of the plaintiff to receive toll on the logs.

This brings the discussion of the case to the remaining ground of defense.

3. That the improvements made by the plaintiff facilitated the driving of logs. This is mainly a question of fact to be determined by the nature and extent of the improvements. The only question of law involved has relation to the degree of perfection in the improvements necessary to give the plaintiff the right to exercise the franchise and to claim its benefits. If the improvements were of little value, there being no compliance with its charter, the plaintiff cannot maintain the action. Improvement Co. v. Brown, 77 Me. 41. But if they were substantial and facilitated the driving of logs, although it might have been possible for the owner or driver to float the logs at times without the aid of the improvements, they were sufficient to comply with the condition upon which toll may be demanded. Genesee Park Improvement Co. v. Ives. 144 Pa. 114, 28 Atl. 887, 13 L. R. A. 427. There is testimony somewhat negative in character which tends to show that there was little improvement in the facilities for floating logs down the Madunkeunk stream and its tributaries, by any work done by the plaintiff; but there is clearly a preponderance of the evidence proving that important improvements had been made by the plaintiff, in the removal of rocks, widening and deepening the stream, improving and erecting dams, and constructing and maintaining piers and dams, before the logs in question were floated down the stream. Accordingly, we find that the plain

tiff has sustained the burden of proof upon these propositions by competent evidence. Judgment for plaintiff for $272,36 and interest from the date of the writ.

(102 Me. 251)

YOUNG v. CHANDLER.

(Supreme Judicial Court of Maine. Dec. 15, 1906.)

1. TRIAL-DIRECTION OF VERDICT.

At a jury trial the presiding justice is authorized to direct a verdict for either party when a contrary verdict could not be sustained by the evidence.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, §§ 376-380.]

2. SAME.

Also, if a plaintiff's evidence, when taken to be true, is not sufficient to make out a prima facie case, the presiding justice may direct a verdict for the defendant.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, §§ 381-389.] 3. SAME.

But, when different conclusions might be drawn from the evidence by different minds, then the evidence should be submitted to the jury.

[Ed. Note. For cases in point, see Cent. Dig. vol. 46, Trial, §§ 338-341.]

4. FIXTURES WHAT CONSTITUTES PART OF REALTY-ANNEXATION BY LICENSEE.

Where a structure is affixed to the premises of another by a temporary occupant thereof or by a licensee, it is deemed temporary in its purpose, and not part of the realty.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 23, Fixtures, §§ 1-14.]

5. SAME-RIGHTS OF SUBSEQUENT PURCHAS

ERS.

Annexations with the consent of the owner or mortgagee of the realty, made by a bare licensee, are presumed to be removable and to remain the property of the one annexing, in the absence of facts indicating a contrary intention, even against a subsequent purchaser without notice.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 23, Fixtures, § 19.]

6. SAME-AGREEMENT OF PARTIES.

By agreement between the owner or mortgagee of the realty, personal property may retain its status after annexation, and such agreement or intention may be inferred by circumstances.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 23, Fixtures, §§ 3, 32-41.]

7. SAME-FIXTURES AS BETWEEN LANDLORD AND TENANT.

As to what are fixtures, substantially the same rules prevail between grantor and grantee as between mortgagor and mortgagee, but different rules apply in relation to landlord and tenant from considerations of public policy and because of the temporary nature of the tenure.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 23, Fixtures, §§ 22, 44-55.] 8. SAME.

In the case at bar the plaintiff purchased from James Fyles, Sr., a greenhouse with its contents, consisting of potted plants, and plants maturely grown, but not severed from the soil, and loam prepared for gardening purposes. The greenhouse had been removed by the vendor from its original location and placed on posts upon land belonging to his son, James G.

Fyles, with his consent, and had attached it to the barn, through which he cut a door and in the cellar of which he had set up a boiler and connected pipes into the greenhouse for heating the same, and subsequently he and his son carried on business as florists, using the greenhouse in connection therewith. The land on which this structure was erected had been previously mortgaged by James G. Fyles to the defendant. The mortgage was subsequently foreclosed and the equity purchased by the defendant, and James Fyles and son became his tenants at will until their tenancy was terminated by notice immediately before the date of the alleged trespass. The plaintiff had already removed the plants which had been in the greenhouse, and had taken down the structure. He was in the act of removing the glass frames when the defendant ordered him not to remove his property. The plaintiff testified that the defendant ordered him to remove nothing from the premises. The defendant testified that he forbade the removal of anything which was a part of the realty, and that his interference was confined to the class of property which the plaintiff was at the time removing.

Held: (1) That the evidence should have been submitted to the jury.

(2) That the greenhouse was a part of the realty, and belonged to the defendant.

(3) That the plants in the pots and fertilized loam remaining on the premises at the termination of the tenancy were not of the nature of fixtures, but movable personal property.

(4) That the stock plants which, though matured, had not been severed from the soil, were emblements, and the tenant or his vendee had the right to remove them during the term, or within a reasonable time after its termination.

Bryant v. Pennell, 61 Me. 108, 14 Am. Rep. 550, distinguished.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 23, Fixtures, §§ 23-31.]

(Official.)

Exceptions from Supreme Judicial Court, Cumberland, County.

Action by Albert A. Young against James E. Chandler. A verdict was directed for defendant, and plaintiff brings exceptions. Exceptions sustained.

Action of trespass. The writ contained three counts. The first count alleged the detaining with force and arms, by the defendant, of certain goods and chattels, consisting of greenhouse frames, plants, loam, and compost, property of the plaintiff, from the plaintiff's possession. The second count alleged the conversion by the defendant of the goods and chattels described in the first count. The third count alleged the forcible taking and carrying away by the defendant of the same goods and chattels.

The writ was sued out of the superior court, Cumberland county. Plea, the general issue. Tried at the February term, 1906, of said court. At the conclusion of the plaintiff's testimony, the presiding justice, on motion of the defendant, directed the jury to return a verdict for the defendant. To this instruction the plaintiff excepted.

The case is fully stated in the opinion. 'Argued before WISWELL, C. J., and WHITEHOUSE, SAVAGE, POWERS, PEABODY, and SPEAR, JJ.

Dennis A. Meaher, for plaintiff. L. L. Hight and H. P. Sweetser, for defendant.

PEABODY, J. This was an action of trespass commenced by writ declaring under three counts, the first alleging the detaining, with force and arms, by the defendant, of certain goods and chattels, consisting of greenhouse frames, plants, loam, and compost, property of the plaintiff, from his possession; the second, the conversion of the goods and chattels described in the first count; and the third, the forcible taking and carrying away of the same property.

After the evidence of both the plaintiff and defendant was presented, the presiding justice, on motion of the defendant's counsel, directed the jury to render a verdict for the defendant. To this instruction the plaintiff excepted, and upon his exception the case is before the law court.

At a jury trial the presiding justice is authorized to direct a verdict for either party when a contrary verdict could not be sustained by the evidence (Bank v. Sargent, 85 Me. 349, 27 Atl. 192, 35 Am. St. Rep. 376; Bennett v. Talbot, 90 Me. 229, 38 Atl. 112; Coleman v. Lord, 96 Me. 192, 52 Atl. 645; Thompson v. Missouri Pacific R. R. Co., 51 Neb. 527, 71 N. W. 61; Stern v. Frommer, 30 N. Y. Supp. 1067, 10 Misc. Rep. 219), or if the plaintiff's evidence, when taken to be true, is not sufficient to make out a prima facie case, the court may properly direct a verdict for the defendant (Heath v. Jaquith, 68 Me. 433; Co-operative Soc. v. Thorpe, 91 Me. 64, 39 Atl. 283; Jewell v. Gagné, 82 Me. 430, 19 Atl. 917). But when the case is doubtful, and when different conclusions might be drawn from the evidence by different minds, the facts should be submitted to the jury. Luhrs v. Brooklyn Heights R. R. Co. (Sup.) 42 N. Y. Supp. 606, 11 App. Div. 173.

The plaintiff contends that he had the title and right of possession to all property specified in the writ, and that the defendant forcibly took and withheld it from him; and the defendant claims that a portion, at least, of the property was his as part of the realty, he having acquired title thereto by accession, which alone he withheld from the defendant at the time of the alleged trespass.

The

There are four classes of property which are the subject-matter of this action. material which had entered into the construction of a greenhouse which James Fyles, who was a florist, had placed on land then owned by his son, James G. Fyles, with his consent, potted plants, growing stock plants, and loam and compost prepared for gardening purposes. The correctness of the ruling directing a verdict depends upon two propositions: (1) Whether the evidence, that submitted by the plaintiff being taken as true, shows prima facie that the defendant forcibly took and withheld from the plaintiff, and converted, or took and carried away, any of this property; (2) whether such evidence so proves that the plaintiff at the time of the alleged taking had title and the right of possession to any part thereof.

It appears that in September, 1905, the plaintiff purchased from James Fyles, Sr., a greenhouse with its contents, consisting of potted plants, and plants maturely grown, but not severed from the soil, and loam prepared for gardening purposes. The greenhouse had been removed by the vendor from its original location, and placed on posts upon land belonging to his son, James G. Fyles, with his consent, and had attached it to the barn, through which he cut a door, and in the cellar of which he had set up a boiler and connected pipes into the greenhouse for heating the same, and subsequently he and his son carried on business as florists, using the greenhouse in connection therewith. The land on which this structure was erected had been previously mortgaged by James G. Fyles to the defendant. The mortgage was subsequently foreclosed and the equity purchased by the defendant, and James Fyles and son became his tenants at will until their tenancy was terminated by notice immediately before the date of the alleged trespass. The plaintiff had already removed the plants which had been in the greenhouse and had taken down the structure. He was in the act of removing the glass frames when the defendant ordered him not to remove his property. The plaintiff testifies that he was ordered to remove nothing from the place, and the defendant testifies, in effect, that he forbade the removal of any which was a part of the realty, and that his interference was confined to the class of property which the plaintiff was at the time removing. The plaintiff's theory is somewhat supported by the testimony of James Fyles as to the claim of the defendant when informed of the sale to the plaintiff: "He said everything belonged to him. What I claimed was mine he said belonged to him because they were on the place." If the plaintiff had the right to understand, from the words and acts of the defendant, that he intended to take and detain from him, not only the frame of the greenhouse, but the other property specified in the writ, there was no technical necessity for him to make any specific demand before bringing his action; the words and acts being equivalent to the defendant's exercise of control over the property inconsistent with the plaintiff's possessory and property rights therein. At least, it is not clear that his inference was not warranted, and, if his right of action depended upon this point alone, it should have been submitted to the jury; but we must still decide whether the plaintiff owned any of the classes of property specified in the writ as against the proprietor of the land at the time of the alleged trespass.

Where a structure is affixed to the premises of another by a temporary occupant thereof, or by a licensee, it is deemed temporary in its purpose and not part of the realty. Berwick v. Fletcher, 41 Mich. 625, 3 N. W. 162, 32 Am. Rep. 170; O'Donnell v. Burroughs, 55

Minn. 91, 56 N. W. 579; Meig's Appeal, 62 Pa. 28, 1 Am. Rep. 372; Andrews v. Auditor, 28 Grat. (Va.) 115.

Annexations with the consent of the owner or mortgagee of the realty, made by a bare licensee, are presumed to be removable and to remain the property of the one annexing, in the absence of facts indicating a contrary intention, even against a subsequent purchaser without notice (Nelson v. Howison, 122 Ala. 573, 25 South. 211; Fisher et al. V. Johnson et al., 106 Iowa, 181, 76 N. W. 658; Sagar v. Eckert, 3 Ill. App. 412; Walton v. Wray, 54 Iowa, 531, 6 N. W. 742), also by agreement between the owner of personal property and the owner or mortgagee of the realty personal property may retain its status after annexation (Smith v. Odom, 63 Ga. 499; Marshall v. Bachelder, 47 Kan. 442, 28 Pac. 168; Handforth v. Jackson, 150 Mass. 149, 22 N. E. 634; Peaks v. Hutchinson, 96 Me. 530, 53 Atl. 38; Russell v. Richards, 10 Me. 429, 25 Am. Dec. 254; Tapley v. Smith, 18 Me. 12; Hilborne v. Brown et al., 12 Me. 162; Salley v. Robinson, 96 Me. 474, 52 Atl. 930, 90 Am. St. Rep. 410; Readfield Telephone, etc., Co. v. Cyr, 95 Me. 287, 49 Atl. 1047), and such agreement or intention may be inferred from circumstances (19 Cyc. 1048, 1049).

As to what are fixtures substantially the same rules prevail between grantors and grantees as between mortgagor and mortgagees, but different rules apply in relation to landlords and tenants from considerations of public policy and because of the temporary nature of the tenure. Maples v. Millon, 31 Conn. 598; Arnold v. Crowder, 81 Ill. 56, 25 Am. Rep. 260; Bishop v. Bishop, 11 N. Y. 123, 62 Am. Dec. 68.

In some jurisdictions it is held that, even without their consent or agreement, the rights of prior mortgagees, they having parted with nothing on the faith of the fixtures, are subject to those having rights therein (Broaddus v. Smith, 121 Ala. 335, 26 South. 34, 77 Am. St. Rep. 61; 19 Cyc. 1051), but in others, including Maine, it is held that a mortgagor cannot be any agreement with a third party diminish the rights of a prior mortgagee (Ekstrom v. Hall, 90 Me. 186, 38 Atl. 106; Wight v. Gray, 73 Me. 297; Meagher v. Hayes, 152 Mass. 228, 25 N. E. 105, 23 Am. St. Rep. 819; Thompson v. Vinton, 121 Mass. 139; Fisk v. People's Nat. Bank, 14 Colo. App. 21, 59 Pac. 63; Watertown Steam Engine Co. v. Davis, 5 Houst. [Del.] 192; FullerWarren Co. v. Harter, 110 Wis. 80, 85 N. W. 698, 53 L. R. A. 603, 84 Am. St. Rep. 867; Dame v. Dame, 38 N. H. 429, 75 Am. Dec. 195; Tyson v. Post, 108 N. Y. 217, 15 N. E. 316, 2 Am. St. Rep. 409; Jones on Mortgages, 429).

If the defendant's title to the realty had been acquired simply by his deed from James G. Fyles, by whose consent the greenhouse was erected, his rights would have been subject to the owner of the fixture, but as he was the mortgagee of the realty at the time the

structure was erected it became part of the mortgage security, and by foreclosure he became the owner by accession, in accordance with the doctrine recognized in Ekstrom v. Hall, supra, unless his consent to its erection is shown. There seems to be no evidence of his consent, and no fact or circumstance from which any agreement on his part may be presumed that the greenhouse should remain personal property after annexation.

The status of the other classes of personal property described in the writ is to be determined by the more liberal rule which prevails between landlord and tenant. The plants in pots and fertilized loam remaining on the premises were not of the nature of fixtures, but movable property, which the florist had the same right to sell as was his admitted right to sell the hothouse plants. The stock plants, which, though matured, had not been severed from the soil, were emblements which the tenant or his vendee, had the right to remove during the term, or within a reasonable time after its termination. Davis v. Thompson, 13 Me. 209; Cutler v. Pope, 13 Me. 377. As to this clause of property the case is to be distinguished from Bryant v. Pennell, 61 Me. 108, 14 Am. Rep. 550, where the mortgage included plants and shrubs, and it was there held that the cuttings passed to the mortgagee by accession; but these plants were a new acquisition of property, having no relation to any class existing at the time the mortgage was given, and belonged to the tenant as the fruits of his industry. Cannon v. Matthews, 75 Ark. 336, 87 S. W. 428, 69 L. R. A. 827, 112 Am. St. Rep. 64. According to these views the case should have been submitted to the jury. Directing a verdict for the defendant was error prejudicial to the plaintiff. Exceptions sustained.

PENOBSCOT LOG DRIVING CO. v. WEST BRANCH DRIVING & RESERVOIR DAM CO. et al.

(Supreme Judicial Court of Maine. Dec. 17, 1906.)

WATER COURSES-DETENTION-RIGHTS OF DAM COMPANY.

The West Branch Driving & Reservoir Dam Company, the original defendant, was. incorporated by an act of the Legislature approved March 13, 1903 (Priv. Laws 1903, p. 277, c. 174). By its act of incorporation the company was given the right to exercise the power of eminent domain for the purpose of taking certain real estate, dams, and other property of the Penobscot Log Driving Company, the plaintiff, and it was therein provided that when the West Branch Company had acquired the property of the old company, enumerated in the act, that "all the powers, rights and privileges of the Penobscot Log Driving Company pertaining to the driving of logs and the improving of the West Branch of the Penobscot river above the head of Shad Pond on said West Branch but not below the head of said Shad Pond shall be and become the powers, rights and privileges of the West Branch Driving and Reservoir Dam Company, and all the duties of said Penobscot

Log Driving Company pertaining to the driving of logs between the head of Chesuncook Lake and the head of Shad Pond shall be and become the duties of said West Branch Driving and Reservoir Company which shall thereafter be holden to perform said duties except as modified by the provisions of this act."

Section 10 (page 281) of the act of incorporation provides in part as follows: "Said company in any and all dams which may be owned or controlled by it may store water for the use of any mills or machinery which may use West Branch water, subject to the provision that day and night throughout the year the flow of water down the West Branch, so long as there shall be any stored water shall not be less than two thousand cubic feet per second, measured," etc.

Section 15 (page 283) of the act of incorporation is in part as follows: "After said West Branch Driving and Reservoir Dam Company shall have delivered the rear of any annual drive of logs into Shad Pond in manner aforesaid it shall allow to flow out of North Twin dam at such times and at such rates of discharge as the Penobscot Log Driving Company may request for the purpose of driving said logs to the Penobscot boom of their several places of destination above said boom, water equivalent to the amount of water held back by said dam as now constructed when there is a thirteen foot head at said dam measured from the bottom of the dam, or so much thereof as shall be called for by said Penobscot Log Driving Company for said purpose, and in determining the quantity of water which the Penobscot Log Driving Company shall be entitled to request for driving purposes, the two thousand cubic feet per second specified in section ten shall be considered a part thereof at such times and at such times only as water is being allowed to flow from said dam at the instance and request of the Penobscot Log Driving Company."

The West Branch Company, as contemplated by its charter, destroyed the old dam at North Twin, and substituted therefor a new dam, located a short distance below on the river. While the water which the company was to allow to flow, by the charter, was from this new dam, the amount of water to be allowed to flow was to be measured by "the amount of water held back by said dam as now constructed [that is the old dam] when there is a thirteen foot head at said dam measured from the bottom of the dam."

Held, that the 13-foot head of water at the old dam is to be ascertained by measuring from the bottom of the dam; not from the flooring of any gates through the dam, nor from the bottom of any part of the structure, nor from the bottom of the superstructure, but from the bottom of the whole structure of the dam.

Also, held, that to ascertain the amount of water held back by the old dam, when there was a 13-foot head of water at that dam, measured as provided by said section 15, a measurement must be taken from the bottom of the dam, in the thread of the stream, where the dam rests upon the natural bed of the stream and holds back water by reason of its being immediately above the natural bed of the stream. The equivalent of that amount of water at the old dam must be allowed to flow from the new dam "at such times and at such rates of discharge as the Penobscot Log Driving Company may request for the purpose of driving said logs to the Penobscot boom or their several places of destination above said boom." In determining this quantity of water, the 2,000 cubic feet of water per second, which, by section 10 of the act, must be allowed to flow at all times, may be taken into consideration only when it is being allowed to flow from the dam at the instance and request of the Penobscot Log Driving Company.

(Official.)

Exceptions from Supreme Judicial Court, Penobscot County. At Law.