Carroll,
Oct. 3, 1916.
Dana J. Brown, Guardian, v. Oliver P. Berry & a.
Petition, by the owner of the grist-mill to modify the receiver’s instructions. The proceeding is a branch of the same litigation heretofore before the court and reported in 71 N. H. 117, 128; 72 N. II. 77, 211; 73 N. H. 310, 603, 611; 74 N. H. 225, 598; 75 N. IL. *596416. Hearing by the court. It was ordered that the receiver “ deliver, under the orders heretofore made, thirty-eight cubic feet of water per second for ten hours of each working day to the gristmill wheels.” The orders in force provide that when the water in the reservoir is drawn down to the four foot point the receiver shall cease drawing water until a sufficient quantity accumulates in the reservoir to run all the mills at dam C for an economical period. The defendants excepted to the court’s order on the grounds (1) the plaintiff has no right to develop electric energy to sell; (2) the plaintiff’s preferential right is limited to the use of the water for grist-mill purposes. Transferred by Chamberlin, J., from the December term, 1915, of the superior court.
Hollis & Murchie (Mr. Alexander Murchie orally), for the plaintiff.
Oscar L. Young and Leslie P. Snow (by brief and orally), for the defendants.
Young, J.
(1) It has already been held that the plaintiff may use this quantity of water at the grist-mill “for any purpose he sees fit”; Hutchins v. Berry, 75 N. H. 416, 418; consequently his right to use it in the way he proposes to do is not an open question.
(2) No question in respect to the plaintiff’s preferential right to the use of the water flowing in the stream is raised by the defendants’ exception, for as the orders now átand the receiver will stop drawing water from the reservoir when it is drawn down to the four foot point until sufficient accumulates to run all the mills at dam C for “an economical period.”
Exceptions overruled.
All concurred.