Coffrin v. Cole

67 Vt. 226 | Vt. | 1894

ROSS, C. J.

I. The defendant’s exception to the master’s report, because he received and considered the testimony of J. K. Darling, was properly overruled. His testimony was, that when he made the deed of the land on which the' spring in controversy is located, to the defendant, her grantor told defendant that she did not own any interest in the spring ; that her father had given her verbal license to pump water from the spring to the house on the land being conveyed, but retained full control over the water, and had the right to stop the use at any time. The deed, then being made, conveyed to the defendant “all right” the grantors had “to take water from the spring on the granted premises.” The deed does not define the right conveyed. It was proper to show what right the grantors claimed. This testimony did not attempt to abridge, but to define the right conveyed. It also showed that the right conveyed was different from the right which the defendant claims in her answer. She there claims an absolute right, acquired by adverse use, by her grantors and herself, for more than fifteen years. This evidence also showed that the defendant was then informed that the use by her grantors was under a license from the common grantor of both parties, and for that reason not adverse to the orator’s title to the spring. The defendant’s counsel further contends that this evidence was erroneously received by the master, because neither the orator’s title and right to use the spring, nor that of the defendant, were put in issue by the bill and answer. The bill is somewhat loosely drawn, and manifestly, mainly for the purpose of charging the defendant with polluting the spring, which is unsustained by the findings of the master. The bill, however, alleges that the orator and his grantors had enjoyed the free, uninterrupted, undisturbed possession of the spring for fifty or more years, and that he has the right to enter upon the land of the defendant to clean his spring and the pipes leading therefrom. It further alleges that the grantors of the defendant never claimed title to the spring, but that the defendant claims title to the land where the spring is located “including the spring in dispute.” The answer denies that the grantors of the defendant never claimed title to the spring, and never used it except under a license from the common grantor of the parties, and then alleges that she and her grantors for more than sixteen years have by right used the water from the spring, and that such use has been open and under a claim of right. Hence, the facts alleged in both bill and answer fairly put in issue the rights of the respective parties to this spring of water.

II. The defendant further contends that the decree of the chancellor was erroneous, in that it confirms the orator’s title to the spring of water, because the orator does not pray to have his title thereto, and the defendant’s rights therein, if any, ascertained and determined. The bill prays for an injunction restraining the defendant from meddling with the water in the spring or the pipes therefrom, from in any way fouling the water, and from interfering with the orator in cleaning and repairing the spring and the pipes leading therefrom, and for “such other and further relief as the nature of the case may require.” The general prayer for relief, “such as the nature of the case may require,” is sufficient to uphold any decree properly required, fully and effectively to dispose of the issues raised by the bill and answer. As we have shown, the bill and answer put in issue the rights of these parties, if not to the title to the spring, to the use of the water of the spring. The latter is not in legal effect different from their respective titles in and to the spring ; for, the right to use the waters flowing from a spring arises out of the title to the spring. On the facts found the title to this spring is in the orator, with the right to enter upon the defendant’s land at reasonable times, and in a reasonable manner, and do what is necessary to give him the use of the spring. This is his right under the conveyances from the common grantor, Hosea Welch, 2d. But Hosea Welch, 2d, when owning the orator’s premises, and when conveying the defendant’s premises to his daughter, who, with her husband, conveyed to the defendant, gave her verbal permission to take water from the spring in the manner it is now being taken, “but it must not in any way interfere with his use of the spring, nor infringe on his right to take water to his premises” — the premises now owned by .the orator. The daughter acted upon this parol license, and put in the pump and pipe.now in use. She, under the license from her father, acted upon by her, under the decisión of Clark v. Glidden, 60 Vt. 702, had the right to use the water from the spring in the manner she then entered upon its use, but so as not to infringe upon her father’s right until after she had realized the full benefit of the expenditure incurred, or until the pipe and pump then put in were fairly worn out. Then the license can be revoked. But her exercise of this right must be of such a character as not to interfere with the use then made of the water of the spring by her father/ This right of the daughter has come to the defendant, and the right of the father has come to the orator. The defendant had, on one occasion, denied the orator the right to enter upon her premises to clean and repair the spring and pipe, and had made some threat, looking to the pollution of the water. Under the pleadings and facts found it was proper, not only to confirm the orator in his title to the spring of water, but to enjoin the defendant from interfering with his use of the spring, it not being found that the orator had made or claimed to make any improper use of his title to the spring, or the water thereof, nor to interfere with the defendant’s right to use the water under the terms oi the license.

Decree affirmed and cause remanded.