Blaine v. Ray

| Vt. | May 15, 1889

The opinion of the court was delivered by

Eoss, J.

The master finds that the defendant’s grantor told the orator’s grantee that if he would dig at the place pointed out and find water, he might lay logs and conduct it to his barnyard, and that he might have the water. He further finds that the orator’s grantor did so dig and find water, laid the logs and conveyed the water to his premises, understanding that the right to take the water, as he had begun to take it, had been given to him ; that the orator and his grantor, under this right and claim, continued to take the water in the manner entered upon, uninterruptedly, openly, for more than fifteen consecutive years. This was an open, continuous exercise of adverse right, under the •claim of ownership, for.a sufficient length of time to give the orator prescriptive title to it. It does not matter that the defendant and his grantors did not all, or any of them, know that the orator and his grantor claimed to own the right to take the water by gift. The orator and his grantor were in the continuous use •of the right. The defendant’s grantor, Laekie, who'told the ■orator’s grantor that if he found water and conveyed it to his premises he might have the water, knew, or ought to have known, that he had given the orator’s grantor the right to take the water as the owner thereof. If Lackie’s grantee, or any of the subsequent owners of the defendant’s premises, did not know that the orator and his grantor claimed to be in the exercise of the right as owners, they knew, or ought to have known, that they were in the enjoyment of the right, or easement, and so were put upon inquiry in regard to the title or claim under which the orator and his grantee were exercising the right. If they had inquired they would have learned that the occupants were occupying as owners, and in law they are bound by the knowledge which they would have acquired by inquiry. Hence the orator and his grantor’s -occupancy or enjoyment of the easement or right was adverse, continuous, open and notorious, and, under a claim of ownership, and at the end of fifteen years, ripened into an absolute title to the easement, or right, as perfect, in law, as it would have been if Laekie had conveyed the same to the orator’s grantor by a duly executed deed. The defendant’s solicitor contends that the-enjoyment of tihe right or easement by the orator and his grantor was under a license which was revocable when the old log aqueduct became worn out. If the master had found that the defendant’s grantor, Lackie, gave the orator’s grantor only the right to-take the water for the time being, and that the license so given was revocable at the pleasure of Mr. Lackie, then the contention of the defendant’s solicitor would be sustained by the decisions-of this court; but the master- has not so found, but. has found that Mr. Lackie used such language that the orator’s grantor had the right to understand, and did understand, that he was acquiring the right by gift to take the water for all time, as owner:. The right acquired by the adverse use was co-extensive with the right which the orator and his grantor entered upon and continuously exercised for fifteen consecutive years. On the facts found by the master, the orator is entitled to hold -the decree granted by the Court of Chancery.

The decree is affirmed and the cause remanded.