64 Vt. 10 | Vt. | 1891
The opinion of the .court was delivered by
The Dorset Marble Co. has not appeared to prosecute its appeal. The decree of the court of chancery against it is substantially affirmed with costs. The right of the orator against D. S. Kent & Co. to have the bed of the stream of the Battenkill river through the premises of D. S. Kent & Co. unobstructed, and kept in such condition that it will not set the water of the river back upon the orator’s meadow, is established by the judgment of this court in 1876. The masters have found that that “ suit was for substantially the same cause of action as is alleged against said Kent & Co. in this suit.”
This applies to the deposit of spent sand, worn marble, and gravel and sand from the mountain stream, in the- bed of the river, so as to obstruct the flow of the water therein as established by the suit at law. The orator’s meadow is higher up the 'river than the marble mills of the defendants. He has no interest in their use. of the river on their respective premises, provided such use does not obstruct the flow of the water therein, so as to set it back upon his meadow to liis damage. They have the right to use the water and its flow, as it passes across their respective prem
This does not make them joint tort feasors, in the sense that each is liable for all the damages occasioned to the orator’s meadow. There must therefore be a further reference to the masters to ascertain the total amount of damages sustained by the orator, and the amount thereof which the wrongful acts of each defendant has contributed thereto. . '
It is found by the masters that the channel of the river, on the premises of D. S. Kent & Co. though walled is of sufficient capacity, if kept free from obstructions, to allow all the water of the river to pass off freely, but that the. spent sand, and worn marble settle and obstruct the channel more or less. Doubtless the narrowing of the channel by the Dorset Marble Co. and the obstructions placed by that company therein, obstruct the passage, to some extent, of this material coming into the stream wrong
The Dorset Marble Co. must make such change in the walls of the stream, and such removals otherwise, • as- will leave a channel of sufficient width, depth and capacity, to carry the water of the stream from the orator’s meadow, as freely as it was wont to run before such walls and obstructions were placed in the channel of the stream. D. S. Kent & Co. must also either turn the mountain stream back to its former channel and open the walled partition of the channel of the .Battenkill river so that the orator can remove whatever of deposit may be brought into it • by the mountain stream; or it must, at its own expense, remove all siich deposits brought into the Battenkill so that it will not occasion any setting back of its waters upon the meadow of the orator. The defendants as regards the orator have the right to utilize the Battenkill and the mountain- stream, by walling or -changing the channel, or by allowing spent sand and worn marble to pass into the water on their premises, provided, they do it in such a manner as will not cause the water to set back upon the orator’s meadow to his damage.
■ The cause is remanded with a mandate in accordance with these views, and, as it is a substantial affirmance of the decree of the court of chancery, with 'costs to the orator in this court.
