No such dam shall be erected, or watercourse made or altered, to the injury of any mill lawfully existing on such watercourse, or on the stream upon which such dam is to be erected, or from or into which such watercourse flows, or to the injury of any millsite on the same on which a mill or milldam has been lawfully erected and used, unless the right to maintain a mill on such last-mentioned site has been lost or defeated by abandonment or otherwise.
(1949 Rev., S. 8190.)
This protects waterpower near a mill, held by the mill owner with the intention at some future time to use it for the mill; 35 C. 496; 36 C. 310; although purchased with the knowledge that the petitioner was negotiating for the right to flow it. Id., 319. An abandoned millsite may be flowed. 35 C. 159. Setting up small mills, simply to protect the privilege from condemnation, and of no practical use, will be of no avail. Id., 513. A mill is a “lawfully existing” one, notwithstanding the dam may be a little higher than it should be, whereby land of the petitioner is overflowed. 40 C. 43. Continuance of intent to build on millsite is a question of fact. 49 C. 350. The question of the existence of and injury to a millsite and dam is one of fact. 52 C. 462. Cited. 92 C. 221.
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