82 Vt. 310 | Vt. | 1909
This case was heard with City of Barre v. Perry and Scribner, 82 Vt. 301, 73 Alt. 574, and stands the same as that ease in many respects; bnt a difference in some of the facts is made the basis of further claims, which require special consideration.
The original permit in this case is dated, April 7, 1894, and was given by the bailiffs of the village of Barre to defendant McFarland, who was then the owner of the springs which supply defendants’ system. After the permit was given, and before the work of installation was undertaken, defendant Boyce bought a half interest in the springs, and he has since been associated with McFarland in the entire business. The city of Barre was incorporated by No. 165, Acts of 1894, which took effect on the first Tuesday of March, 1895. The pipes of defendants’ system were laid mainly in the seasons of 1894 and 1895, without other authority than the permit above mentioned. In February, 1896, the city council adopted a resolution which recited that ‘the defendants were the owners of a water system constructed and continued under permission given by the bailiffs of the village, and that they desired to extend their works under the authority of the city; and which thereupon gave the defendants the right to lay, relay and repair their pipes, and have the same remain in any and all the streets of the city for the purpose of supplying the inhabitants with pure spring water. The defendant McFarland was then one of the aldermen, and the resolution was offered by him, but nothing appears regarding the vote. A considerable extension of the defendants’ system was made subsequent to the passage of this resolution.
It is objected that the permit as introduced in evidence had been mutilated by erasures which left its original reading uncertain. The master finds that a portion of one line of the original permit is so obliterated that its exact reproduction is impossible, but nothing appears regarding the cause. It is apparent from the permit as reproduced in the report that the lost words were those designating something to be laid as the means of carrying the water through the streets, and that the inability to reproduce them is of no importance to the questions raised. It is also found that there are some pencil marks on the permit which were not on it when issued, but the report accounts for their presence, and the circumstances negative any improper purpose in making them.
It is said that if the village charter authorized the bailiffs to provide a water supply, it did not authorize them to permit the introduction of water for a special and limited purpose. This claim is so clearly disposed of by the views we entertain upon other points that a special consideration of it is unnecessary.
The orator’s main contentions are that the authority to provide a supply of water rested with the village and not with the bailiffs; that the action of the bailiffs, if authorized, could not affect the rights of the city under its charter in the absence of a reservation in defendants’ favor; and that the vote by which the city council undertook to confirm and extend the privileges claimed under the village permit was invalid. The village charter provided that the village might make bylaws relating to a water supply, but no bylaw is shown conferring authority therein upon the bailiffs. Stress is laid in this connection upon the terms of the permit, which are in substance that the bailiffs grant the permission so far as they have the right to do it. The act incorporating the city of Barre cast upon it all the duties, liabilities, obligations and debts of the village of Barre. If the defendants’ expenditures imposed any obligation upon the village, this provision was doubtless sufficient to transfer that obligation to the city. But it is said that the defendants must have understood from the permit that there was a doubt as to the authority of the bailiffs to give it, and that expenditures made under a permit that carried with it this knowledge cannot equitably be made the basis of a right. It is said that no effect can be given to the action of the city council; that it is to be presumed that defendant McFarland voted for the resolution,
After the passage of the resolution in question, and after the defendants had continued their extensions under it and under the special authorizations above mentioned, and before any question had been raised as to the legality of their occupancy, the Legislature amended the orator’s charter by No. 145, Acts of 1896, which provided that every person, company or corporation then owning and having water pipes in any street should.file with the city clerk a survey of the location thereof covering certain particulars, and which prohibited the laying of further pipes by any owner until such requirement was complied with. The defendants were clearly within the purview of this enactment, for they then had a system of pipes in the orator’s streets, the later extensions of which had been made under special permits of the city council; and this provision was a legislative recognition of their occupancy of the streets, and of their right to continue it upon complying with the conditions imposed. The view we take of this legislation renders it unnecessary to inquire regarding the power of the village bailiffs, the effect of the orator’s charter as originally enacted, or the validity of the resolution objected to. The matter is more fully stated, and the further questions raised are disposed of, in the opinion in the companion case above referred to.
Pro forma decree reversed and cause remanded with mandate.