# Kennebunk, Kennebunkport & Wells Water District v. Maine Turnpike Authority

> Supreme Judicial Court of Maine · February 9, 1950 · 145 Me. 35

URL: https://www.frixlaw.com/law-library/cases/9731013

## Case

- **Full name:** Kennebunk, Kennebunkport and Wells Water District vs. Maine Turnpike Authority
- **Court:** Supreme Judicial Court of Maine
- **Decided:** February 9, 1950
- **Citations:** 145 Me. 35; 71 A.2d 520; 1950 Me. LEXIS 7
- **Precedential status:** Published
- **Opinion:** Dissent by Thaxter
- **Judges:** Murchie, Thaxter, Merrill, Nulty, Williamson
- **Cited by:** 21 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9731013

## How later opinions describe it (automated extraction)

- holding that a water utility that had no right to obtain water from a brook except as a member of the public could not recover for public nuisance against a polluter of the water supply

## Opinion text

Dissenting opinion.
Thaxter, J.
Ordinarily in a case of this kind, where I find that I am unable to assent to the views of my associates, *56 I would content myself with a mere notation of non-concurrence. Here, however, because I feel that the court is disregarding a well established principle of practice, I believe I should explain the reasons for my disagreement.
We have been able in this jurisdiction to soften the asperities of common law pleading and adapt its forms to the needs of changing conditions because of the wisdom of our predecessors on this court who interpreted liberally statutes and rules designed to settle promptly the issues which the parties have intended to try. Thus to avoid a variance between allegations and proof, an amendment of a declaration has been permitted even after verdict; and in other instances specific proof of a necessary fact has been held to have been waived, if the case has been tried on the assumption that such proof was not required. Cowan v. Bucksport, 98 Me. 305 ; Wyman v. American Shoe Finding Co., 106 Me. 263 ; Cyr v. Landry, 114 Me. 188 ; Clapp v. Cumberland County Power & Light Co., 121 Me. 356 ; Burner v. Jordan Family Laundry, 122 Me. 47 ; Isenman v. Burnell, 125 Me. 57 ; Benson v. Inhabitants of the Town of Newfield, 136 Me. 23 . In Cowan v. Bucksport, supra, it was argued on a motion for a new trial that there was no evidence in the record before the Law Court to show that the fourteen days’ notice required by the statute to render a town liable for a highway defect had been given within the required time. Justice Emery, afterwards Chief Justice, who by no possibility could be regarded as tolerant of loose pleading or practice, had this to say in disposing of this contention, page 308, “There was no evidence or suggestion at the trial that the notice was not received within the fourteen days. Must the verdict now be set aside, and the parties and the court subjected to the burden of another trial of the case, because it was not more explicitly or precisely stated in the colloquy over the notice that it was received within fourteen days? We think not. We think the point now made is within the category of points to be made at the trial, or to be considered *57 as waived. It was not made at the trial and no intimation was given that it would be made. Had it been made at the trial and sustained, the plaintiff would either have supplied the evidence or submitted to an adverse verdict. If not sustained, the defendant could have excepted and thus regularly and seasonably brought the question here. The point, not having been made at the trial, cannot be sustained here, even if it be otherwise sustainable.”
The instant case between two quasi-municipal corporations was tried by agreement of the parties before three referees. Although the specific source of the plaintiff’s title is not directly alleged or proved, it is obvious that the case was tried on the theory that the plaintiff had lawfully acquired the right to take water from Branch Brook to serve the territory wherein it was authorized to supply water for domestic and municipal purposes. It had been so using the water of Branch Brook for more than twenty years, and its predecessor in title for some time prior to that. Its right to do so had never been questioned. It was not questioned at the hearing which lasted for many days and resulted in a record of well over a thousand pages. The taxpayers have been put to great expense not only for court charges but for attorneys’ fees and expenses. Is it possible that this case must go back for a hearing de novo simply because the plaintiff did not affirmatively show the source of its title, a title which the parties have inferentially admitted ? If the plaintiff did not have a valid title, there was a complete defense and no need of going through a long and expensive hearing. Should we not apply the language of Judge Emery: “The point, not having been made at the trial, cannot be sustained here, even if it be otherwise sustainable.”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9731013. Public record. Not legal advice.