legal right to draw the water down as far as he may desire at any time for hydraulic purposes, and in this connection it is claimed by Koch that, on account of the small power used and developed by him at his mill, he can use the water at a very low stage for grinding purposes and at a head which would not be of value for general manufacturing or power purposes. The water has been drawn down at different times during the existence of the dam, probably to as low a level as existed this fall. These periods of low water are explained on the one side by the dam being out of repair at the time the water was drawn down, and on the other, there is testimony that at times in the past the water has been drawn way down for hydraulic purposes. It seems clear to us that the hydraulic power generated at a low stage of water is of little value.

On the other hand, the electric-power people who generate a considerably larger amount of power than is generated at the Koch mill, and who have a still greater head, being lower down and having a lower tail water, admit that when a considerably low-water stage is reached the water is of little practical value for electrical-generating purposes, and that they have to go on to steam at such periods, anyway. On the part of Koch, it is further claimed that any rights of navigation in the lake, any rights of fishing or hunting or other use of the lake for public purposes is entirely subservient or subject to the primary right of Koch to draw the water as he pleases from the pond. This, in fact, is the main question presented. On the part of the users of the lake, it is clearly established that the lake has been used always for navigation purposes, that it is used very considerably for that purpose now, and for fishing and hunting. There is much evidence that the low water causes injury to the fishing, of which there seems to be considerable, and that if low water should come in a very cold winter the net result would be the freezing of the lake to the bottom and the destruction of a large amount of fish. There does not appear to be any question but that in times past the fish have been killed in large quantities during the winter and have become a public nuisance in the spring when they rot and cause a very disagreeable stench, and there is some testimony to the effect that these insanitary conditions are likely to result in injury to the public health,

although no such instance of injury in the past has been demonstrated or is known. The control of the water at the dam seems to have been abandoned for several years by Koch. He seems to have taken no interest in keeping up water for hydraulic purposes, his attitude, evidently, in part, growing out of local feeling and action in the past. The dam was actually repaired and rebuilt by people interested in maintaining the water level, but even when the dam is rebuilt the water can be and is still wasted by Koch because of the fact that the flume and wheelhousing is not kept in repair. In fact, the wheel in Mr. Koch's mill is not now in a position to be used, according to his testimony.

It appears clear that if the water were not wasted, but properly conserved for hydraulic purposes, the necessity for using power at the lower levels would, to a large extent, be done away with. This may not always be so in very dry seasons. If the water on the other hand in very dry seasons is allowed to be practically taken out of the lake and some reasonable minimum level is not fixed, it appears clear to us that not only will navigation be seriously interfered with, as it has in the last year or two, but that there is great injury to fishing and likelihood of insanitary conditions, and in case of the existence of such low water at freezing time, there would be very great injury to all fish in the lake. The fact that low water does interfere with navigation is admitted by Mr. Koch through his attorney, but the position of the attorney is that navigation is incident and merely follows the use of the water by Mr. Koch for water-power purposes, that when water was drawn down in the past navigation was interfered with and abridged, and will undoubtedly be interfered with and abridged in the future, but this cannot take away the right of Mr. Koch to such use of the water power as he sees fit to make.

[24] The minimum level hereinafter fixed for the protection of navigation, public rights, fishing, etc., will not allow the use of the water by Koch at the lower levels. As we have said, we do not think this will greatly interfere with his hydraulic rights, though it is possible, as testified by him, to run his wheel and use power at a lower level. The minimum level hereinafter fixed will not interfere with any substantial use of power by the

power company, as according to their own testimony when the level has arrived at or about the level fixed by us, the water power becomes of little value and steam has to be used. In this case we have on the one side the public rights of the state in navigation, fishing, etc., which this Commission is bound to conserve within reason, and on the other side we have the rights of the water-power users who have lawfully established a dam for hydraulic purposes. We believe that the minimum level hereinafter fixed by us will not unreasonably interfere with hydraulic power, and that it will reasonably conserve the public rights in navigation, fishing, etc., in the lake at Hustisford, and will tend to prevent insanitary and unhealthful conditions. It is not to be overlooked that the owners of the hydraulic power have no right to use the water arbitrarily and regardless of the effect on the levels of the lake, but are to use the water for hydraulic purposes in a reasonable way with the object of conserving the water for hydraulic purposes and maintaining the level of the lake for public purposes. The arbitrary wasting of power by Koch through the flume and the wheel-housing is in defiance of any of the public rights, and in our opinion, is without justification. To us it appears that one ought not be allowed to waste water and then claim the right to lower the pond level for hydraulic power, regardless of public rights.

The freezing of the lake in a very cold winter, if the water should be low, would undoubtedly be very disastrous to fishing. This could easily happen if the water is allowed to be drained. in the fall even to the point at which we have permitted the water to be taken down strictly for hydraulic purposes during the summer, in extraordinary periods of drought. For the purpose of protecting public rights in navigable waters, including navigation, fishing and hunting, and for preservation of public health, we find that the minimum levels hereinafter fixed are necessary and proper.

The order herein entered will regulate the use of the dam by whoever may be the owner or user thereof.

IT IS THEREFORE ORDERED, That no water shall be wasted either through the dam or through the flume when the level of the water does not exceed the level of the crest of the flashboards

on said dam. This does not mean that a reasonable and regular flow of water shall be unnecessarily interfered with, but that wanton or unnecessary waste shall not be allowed. The minimum level of water to be maintained in said pond shall not be lower than a level of substantially one foot below the crest of the dam, or substantially in the neighborhood of two feet below the crest of the flashboards, and the owners and users of said dam shall cease to draw water for hydraulic purposes when this minimum level is reached, except that in seasons of extraordinary drought the water may be drawn for hydraulic purposes during the months of July and August to a point six inches lower than the minimum level above fixed. The owners and users of said dam are hereby required to maintain said dam and flume and power plant in a good condition of repair so as to prevent the waste of water through leakage.

This order shall become effective 20 days from the date hereof. A supplementary order hereto will be issued fixing the levels in relation to the Commission's bench mark now established.

[U.-1758]

IN RE APPLICATION OF THE HUBBARD FARMERS TELEPHONE COMPANY FOR AUTHORITY TO INCREASE RATES

Decided December 31, 1919

MEMORANDUM OF DECISION

Applicant, Hubbard Farmers Telephone Company, seeks authority to increase its general rate from $1.25 to $1.50 per month, and to place in effect an additional charge of $2 per year for desk telephones and a rate for extension bells.

Valuation. Applicant's system consists of three metallic circuits with a total of about 41 subscribers, all of which receive switching service at Neosho at a cost of $5 per year. Applicant estimates that it would cost about $3,500 at the present time to replace the lines. The books do not show the investment for the reason that a large amount of the labor furnished in the construction of the system was donated by the stockholders. A fair value of the property, however, considering the fact that no switchboard is owned, would be nearer $2,000 than $3,500.

Operating Expenses. Expenditures for 1918 were $444.74, which, on account of the increase in cost of switching service, batteries, materials, and supplies, and higher wages, will be increased to about $600.

Desk Sets. It is customary to make an additional charge for desk telephones on rural lines for the reason that the investment and maintenance costs are somewhat higher than for wall sets. An additional charge of 15 cents per month should cover this, and will be authorized. The application to increase rental charges is reasonable and should be granted.

ORDER accordingly, also authorizing a charge of 15 cents per month for extension bells.