by statute to keep in repair, and therefore | Sebec river, as specified in the acts, but that. that he was lawfully upon the ground, and whenever during such period the waters in was lawfully repairing the way. On the other Sebec Lake should be needed for the said purposes or at any time for manufacturing and hand, the defendant contends that it is a stat-power purposes of the several privileges on Seutory private way, that the town was not bec river, the gates should be hoisted "to the bound to keep it in repair, and therefore had extent required to allow the escape of sufficient no right to do so. Accordingly it is claimed the county commissioners on petition to appoint water therefor." and by section 8 authorizing that the plaintiff, in digging up the soil, was an agent for the management of the gates. a trespasser, and that the defendant had Held, that the acts did not contemplate the use a right to prevent him from continuing to below the dam for the purpose of floating logs of water by a manufacturing company situated do so, using so much force as was reason- to its mill; but merely contemplating the use ably required. of water to turn the mill machinery. We assume that the rights of the parties, respectively, would not be the same if the way were private as they would be if it were public, like a town way or highway, so that the question is a material one. [4, 5] Whether this way was a town way, or whether it was a statutory private way, was a question of law for the court, to be determined from the records of the laying out. The court below decided this question, and instructed the jury, as appears from that portion of the charge which is made a part of the bill of exceptions, that the town in 1866 "did lay out a town way." And the context shows the court was referring to the way in question. No exception was taken to this instruction. And nothing in the bill of exceptions has any tendency to show that the ruling was wrong. We must assume that it was right. Under this ruling, the character of a private way, and the respective rights of parties therein, became entirely immaterial, and the requested instruction related to an immaterial issue. There was no reason for so instructing. There was good reason for not so doing. The court properly declined to do So. Exceptions overruled. (109 Me. 427) [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 45; Dec. Dig. § 53.*1 2. WATERS AND WATER COURSES (§ 53*) In view of the amendment of 1905 (Laws For other definitions, see Words and Phrases, vol. 4, p. 3225; vol. 7, p. 6764.] --- 3. WATERS AND WATER COURSES (§ 53*) PUBLIC WATER SUPPLY MANUFACTURING PURPOSES-DAMS ENTITLED TO PRIVILEGE"MILLS ON SEBEC RIVER.” The phrase "mills on Sebec river," used in the original act, did not refer alone to those mills upon the dam company's dam, but also to those upon privileges on the river below its dam and mills which might thereafter be located on such privileges, provided the power required be not in excess of that which could be furnished under reasonable management in the usual way. [Ed. Note. For other cases, see Waters and Water Courses, Cent. Dig. § 45; Dec. Dig. § MILO ELECTRIC LIGHT & POWER CO. 53.*] 1. WATERS AND WATER COURSES (§ 53*) GRANT. 4. WATERS AND WATER COURSES (§ 37*) PUBLIC WATER SUPPLY-STATUTORY REGULATIONS CONSTITUTIONALITY. The amendment of 1905 (Laws 1905, c. 339), when construed as in the preceding syllabi, is not unconstitutional as impairing any vested right, being authorized under Rev. St. c. 47, § 2, reserving to the Legislature the power to amend or repeal acts of incorporation, as a reasonable regulation of the use of the waters. [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 29; Dec. Dig. § 37.*] Report from Supreme Judicial Court, Piscataquis County, in Equity. Priv. & Sp. Laws 1866, c. 130, authorized the Sebec Dam Company to raise its dam to a height to "enable them to obtain a sufficient head of water to run the mills on Sebec river." and to demand tolls on logs driven through the dam. Priv. & Sp. Laws 1903, c. 141, amending the original act, restricted the dam company from July 1st to October 1st from drawing water below one foot from the bottom of the floodgates then existing, except the use of the water for manufacturing and other purposes for which; power might be used on the dam, and for creating power therefor and manufacturing on Sebec | river, and for the proper repair of the dam. Sebec Dam Company. Case reported. Bill Priv. & Sp. Laws 1905, c. 339, § 1. amended dismissed as to one complainant, and inthe Act of 1866, as amended in 1903, by adding junction granted as to the other complainthereto section 7. providing that all gates on the dam should be closed from March 1st to July 1st, except when necessary to hoist them for log driving and manufacturing purposes on Injunction suit by the Milo Electric Light & Power Company and others against the ants. Argued before SPEAR, CORNISH, KING, BIRD, and HALEY, JJ. J. B. & F. C. Peaks and Guernsey & Hall, all of Dover, for plaintiff. Hudson & Hudson, of Guilford, for defendant. BIRD, J. Prior to the year 1866 John Morrison and two associates had erected a dam at the outlet of Sebec Lake to provide water power for the operation of their mills located at or near the outlet. Neither the height nor date of erection of this dam is shown by the record. In the year 1866 Morrison and his two associates were incorporated as the Sebec 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 Sebec river," and to demand and receive tolls on logs driven through the dam. Chapter 130, Priv. & 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 (chapter 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. eral privileges on Sebec river below Sebee dam; and, second, that defendant be enjoined from closing its gates when water is neeessary 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 Sebec pond to drive logs and run the mills on said Sebec river. The act of 1903 restricts the defendant from July 1st to October 15th of each year from drawing the water below one foot from 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 Sebec river, and the proper repair of the dam. This is coupled with a provision for seasonable notice to each cottage owner, millowner, and steamboat owner and hotel keeper on Sebec Lake and to the proprietors of the hotels on Sebec Lake and Sebec 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." Chapter 141, Priv. & Spec. Laws of 1903. In 1905 the act of 1866. as amended by the act of 1903 (chapter 141, Priv. & Spec. Laws 1903), was further amended by adding the following sections: Of the complainants one Milo Electric Light & Power Company is the owner of a dam across Sebec river some 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 Company, is the owner of a dam below Sebec dam and a mill at Milo village which it employs in the manufacture of excelsior. The other complainant, the American Thread Company, has a sawmill 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 Sebec 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 "Sec. 8. The county commissioners of Pisto the great loss and expense of complain-cataquis County on petition of any person ants. 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 when ever necessary for the purposes of manufac "Sec. 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 Sebec river as specified in said Chapter and amend ments, but whenever during the period afore said the waters of Sebec Lake shall be needed for said purposes or at any time for manufacturing including power purposes on the several privileges of Sebec river, said gates shall be hoisted to the extent required to allow the escape of sufficient water therefor. 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 Sebec Dam Chapter 339, | 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. § 1, Priv. and Special Laws of 1905. [1] 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 change 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. [2, 3] 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 Sebec 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 Sebec 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 (Mass.) 442, 450, 452: Kenney, etc., Co. v. Union Mfg. Co., 39 Conn. 577; Lockwood v. Lawrence, 77 Me. 297, 316, 52 Am. Rep. 763; Barrett v. Parsons, 10 Cush. (Mass.) 367, 372; Springfield v. Harris, 4 Allen (Mass.) 494, 496, 81 Am. Dec. 715. 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 others 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 Sebec river by raising the height of the dam. The waters thus stored were to be available for the purposes mentioned. 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. [4] Defendant contends that the act of 1905 with the construction we have given it is unconstitutional. Again, we are unable to assent. Under the construction we have given to various acts of the Legislature under consideration, no vested rights are im paired 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 section 2 of chapter 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, 25 L. Ed. 496. See, also, Bienville Wat. Sup. Co. v. Mobile, 186 U. S. 212, 222, 223, 22 Sup. Ct. 820, 46 L. Ed. 1132. 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. In an action for breach of promise of 3. BREACH OF MARRIAGE PROMISE (§ 23*)-163, 8 Ann. Cas. 912, where Douglass, Ch. J., person. [Ed. Note.-For other cases, see Breach of 4. BREACH OF MARRIAGE PROMISE (§ 25*)-443; Tyler v. Salley, 82 Me. 128, 19 Atl. 107; The damages assessed for a breach of [Ed. Note. For other cases, see Breach of 5. BREACH OF MARRIAGE PROMISE (§ 31*)- Where, in an action for breach of mar- [Ed. Note.-For other cases, see Breach of Exceptions and Motion from Supreme Ju- motion overruled. Argued before WHITEHOUSE, C. J., and KING, J. This case is before the law court Sherman v. Rawson, 102 Mass. 399; Kelley The doctrine established by this decided If it be conceded that the plaintiff and tiff within the protection and respect of an that he had been married, and was keeping a country grocery store adjoining her father's dwelling house; that about six months after the engagement their relations became meretricious, resulting in her pregnancy, and that an abortion was performed upon her by him or by his procurement; that the marriage ceremony was deferred by mutual consent during the lifetime of the plaintiff's parents because of their opposition to the defendant; that, although they had petty quarrels, the engagement continued in force and effect; that the subject of their marriage was often discussed between them, and that on at least two other occasions he specifically promised to marry her, in 1909 after the death of her father, and in 1910 after the death of her mother; that she had never released him from his promise or in any manner waived it; and that it was a subsisting contract between them at the time of his marriage to a Miss Brown in January, 1911. her feelings, wounded by the rejection, ex- | was then about 24 years of age, and he 30; posed to the pains and sorrows incident to the humiliation and shame of her seduction. That was the situation of the plaintiff at the time of the breach of the promise, and that situation should be shown and taken into consideration in ascertaining the full damages she is entitled to by reason of the breach. In Sherman v. Rawson, 102 Mass. at page 399, the court well said: "The plaintiff is entitled to compensation, but that term implies indemnity for all that she has suffered by the defendant's bad faith. It includes injury to her affections and wounded pride. It involves necessarily a consideration of all the circumstances of the plaintiff's actual situation at the time of the breach of the promise. If by reason of an imprudent or criminal act in which both participated she is brought to such a state that the suffering occasioned to her feelings and affections must necessarily be increased by his abandonment, then that would be but an inadequate and poor compensation which did not take it into account." The jury was accurately instructed by the learned presiding justice as to the purpose for which the evidence of seduction was admitted. They were told that the plaintiff was not entitled to damages for the seduction itself, because she was a participant in that wrong. But, having been seduced by the defendant, if his subsequent refusal to marry her according to his promise subjected her to keener humiliation and deeper shame, because of the seduction, than otherwise would have been the case, then that addi tional element of aggravation of feeling was to be considered by the jury in estimating her damages because of the breach. The instructions were correct, and the evidence of seduction properly admitted, in accordance with a doctrine well settled in practice and decision, and which seems to us reasonable and just. [2] An exception was also taken to the admission of evidence tending to show that an abortion was performed upon the plaintiff in which the defendant participated, either by performing it himself or procuring it to be done. This evidence was admissible as tending to show that the defendant was guilty of the alleged seduction of the plaintiff. That was the only significance of that evidence, and the court in charging the jury expressly so instructed them. As to the other exceptions taken, we find no error in the rulings complained of, and they are not urged in the brief of the learned counsel for the defendant. [3] The motion. The plaintiff's contention, briefly stated, as we gather it from the record, is this: That, after she and the defendant had been "keeping company" with each other for several months, an engagement of marriage was entered into between them in the year 1905 or 1906; that she The defendant, on the other hand, admit ting that he kept company with the plaintiff during the period as claimed by her, and that their relations were meretricious, claimed that he never promised to marry her until the fall of 1909; that they had been having more or less trouble, and finaldition that she should conduct herself in a ly he then promised to marry her on conbecoming manner for six months; and that he was released from his promise. All this she did not fulfill that condition, whereby she denied. The Presiding Justice in his charge to the jury presented the issues involved in the question of the defendant's liability in these words: "If you find either that there was no subsisting valid contract between them at the time of his marriage to Miss Brownthat is, a contract made by both and still subsisting so far as she was concerned-she never having waived it or abandoned it-if you find there was no such contract, your verdict will be for the defendant. If, on the other hand, you find that there had been a promise of marriage which she never had waived, and which she had not forfeited by misconduct, then you will be authorized to return a verdict for the plaintiff." In addition to the testimony of the parties, there were other facts and circumstances shown more or less in corroboration of their respective claims and contentions. The evidence is voluminous. We have examined it with care, and we are not persuaded that the finding of the jury in the plaintiff's favor is unmistakably wrong. [4] As to the damages. The law furnishes no precise or definite rule of damages in a case like this, and their assessment is peculiarly within the province of the jury. They were to be computed on the principle of indemnity and reasonable compensation for the plaintiff's loss by reason of the |