Bridgeman v. Village of Hardwick, 67 Vt. 653

67 Vt. 653 | Vt. | 1895

THOMPSON, J.

I. This is an appeal from the award of one cent damages to the petitioners by the trustees of the village of Hardwick for water taken by the village under authority granted in its charter, for domestic, sanitary, fire and other purposes. The petitioners appealed, and this proceeding was for a reassessment of their damages by the county court.

They are the owners of a farm of about one hundred acres lying northerly and westerly of the village of Hardwick, and adjoining the same. Quite a large portion of the southerly part of their farm, adjacent to the village, is suitable and quite valuable for building purposes, and they have surveyed and plotted into building lots quite a portion of land adjacent to the village and offered the same for sale. Eaton brook flows through their farm for the distance of nearly three-fourths of a mile. It is the water of that stream that the defendant has condemned and taken, diverting it from its natural channel at a point above where it enters the petitioners’ farm. The building lots plotted and offered for sale are not adjacent to nor bordering upon the brook, but the land bordering upon it is suitable for building purposes. The petitioners have never utilized the water for any other than farming purposes.

The defendant claims that their right of recovery is limited to three hundred dollars, which the commissioners find to be the amount of the petitioners’ damage by reason of being deprived of the water for domestic purposes and such benefits as might result to their land ior the purpose of irrigation.

As we construe the original and supplementary reports, taken together, the commissioners make the alternative finding that, if the petitioners had the right to sell building lots not abutting on the brook and to supply buildings erected thereon with water from the brook, or to sell the right to take water therefrom for domestic purposes to supply the buildings which might be erected on such lots, they are entitled to recover eight hundred dollars damages, which sum includes the three hundred dollars already mentioned. The petitioners insist that, on’the facts reported, they are entitled to recover the larger sum. These are the only claims in respect to damages now urged by either party, except as to interest.

The petitioners’ right of recovery is not limited to the damages resulting from being deprived of the use of the water for the legitimate uses to which they had put it prior to the taking by the defendant. They are entitled to recover such a sum as will compensate them for the loss of the use of the water for all available purposes to which they legitimately might have put it, or might have permitted it to be put,'at the time of the taking. Baxter v. Rutland, 67 Vt. 607, decided this term; Hooker v. Montpelier & White River R. R. Co., 62 Vt. 47; Leonard v. Rutland, 66 Vt. 105; Bailey v. Woburn, 126 Mass. 416. The mere plotting of the building lots in anticipation of an opportunity to sell them did not sever them from the residue of the farm, but they were still an integral part of it, and the entire farm still continued to be riparian to thé stream. Alta Land & Water Co. v. Hancock, 85 Cal. 218; 20 Am. St. R. 217.

In Barre Water Co. v. Carnes et al., 65 Vt. 626, this court said:

“A riparian owner may conduct water by means, of pipes to any part of his premises, where he thinks it will be most convenient and advantageous to him, and may use the part" so diverted for the same purposes and to the same extent that he could if it flowed through a natural channel. Chatfield v. Wilson, 31 Vt. 358; Wheatley v. Chrisman, 24 Pa. St. 298. Dwellers in towns and villages watered by a stream may use the water for domestic purpose to the same extent that a riparian owner can, provided they can reach the stream by a public highway or secure a right of way over the lands of others. '*' * * They can drive their •cattle to the stream and allow them to quench their thirst, and can carry water in pails to their houses ; or each individual can carry the water in a pipe to his dwelling for such use, provided he can secure a right of way for that purpose.”

The petitioners, with each lot sold which does not abut on the stream, can s'ell a right of way thereto over their land. Residents of buildings erected on lots thus sold, would be dwellers of a town or village within the meaning of the law laid down in Barre Water Co. v. Carnes, supra, and as such, having lawful access to the stream, could take water for domestic purposes, if it were not all taken by the defendant. Thus, if the water had not been taken by the defendant, the petitioners could in effect have sold the right to take water to supply for domestic purposes the buildings erected on lots not abutting the stream, for with the right of way the occupant could thus take the water, and without it he could not.

II. The plaintiffs claim to recover interest from the date •of the taking of the water by the defendant, on whichever .sum found by the commissioners, this court holds they are entitled to recover. They are entitled to interest on such ■damages from the time of the taking. No exception was taken to the commissioners’ report on the ground that they •did not consider and allow interest in arriving at their findings in respect to the amount of damages. Each of their .alternative findings is in the present tense “the plaintiffs .are entitled to recover,” referring to the first day of the term of court to which they made and returned their report. The •original report was recommitted on other questions. The •case standing thus, we think it is to be presumed that they included interest in arriving at the damages reported.

Judgment reversed and judgment for the plaintiffs to recover eight hundred dollars■, with interest from June 5, 18$‡, and their costs.