Coolidge v. Hager

43 Vt. 9 | Vt. | 1870

The opinion of the court was delivered by

Wheeler, J.

There is no such absolute discrepancy between the statement in the case that the water was brought to the house before the defendant conveyed it to Mrs. Johnson and the concession by the plaintiff’s counsel, made a part of the case, that Mrs. Johnson putin the pipe and set the water to running, but that both may be true, for the water may have been running at the time she bought and she afterwards have put in other pipe and set it to running again; from the whole it is understood and considered that the water was running through the aqueduct to the house at the time she bought it and at the time it was conveyed to her. Part of the aqueduct was in land conveyed with the house, part in land of the defendant adjoining that conveyed, and the rest in the land of Spaulding where the spring was situated.

The exact right or estate of the defendant to of in the spring does not appear in the case except as it is described in his deed to Mrs. Johnson ; in that deed it is described as being an interest in the spring, and not as a mere right to the water; the defendant cannot well complain if his estate is taken to be as great as he himself described it to be in that deed. That interest was an inheritable and permanent estate in the water and land. Mixer v. Reed, 25 Vt., 254.

No question has or could well have been made but that all that part of the aqueduct which was in the land conveyed by the defendant and wife to Mrs. Johnson was conveyed with the land. That part of the aqueduct could have been of no material use to her, or to the house and land she had bought, without the water running in it and the right to the water in the spring and to have it run in the rest of the aqueduct as it was then running. Whoever grants a thing is supposed also, tacitly, to grant that without which the grant itself would be of no effect. 2 Wash. Real Prop., 622. Broom’s Max., 362. Branch’s Max., 32. Upon the principle of this maxim the grant to Mrs. Johnson of the house and land, and that part of the aqueduct in the land, carried with them the running water and the right to have it continue to run as it was then running, because the defendant could grant all these and without them the rest of the grant could not have been enjoyed in all its material parts. Since Nicholas v. Chamberlain, Cro. Jac., 121, this maxim has in almost all cases that have arisen been applied to grants of land, with water running to buildings upon it, wherever the grantor had a permanent estate that he could convey in the water and the aqueduct in which it was running, such as the defendant had in this aqueduct and this water. New Ipswich Factory v. Batchelder, 3 N. H., 190; Dunklee v. Wilton Railroad Co., 24 N. H., 489 ; Vermont Central Railroad Co. v. Hills, 23 Vt., 681. The only case cited in argument, that is directly opposed to this application of the principle of the maxim quoted, is Manning v. Smith, 6 Conn., 289, and the authority of that case is seriously questioned in Vermont Central R. R. Co. v. Hills. Swasey v. Brooks, 34 Vt., 451, is relied upon by the defendant as an authority opposed to Nicholas v. Chamberlain and the cases that have followed it; but in Swasey v. Brooks the grantor had not the right to convey the easement which the grantee claimed that he had undertaken to convey and had covenanted that he had a right to convey; and it was held that the grant should not be construed to include that as appurtenant to the thing granted which was not legally an appurtenance, and which the grantor could not legally grant. With this distinction kept iru view, this case is not opposed to the others. Upon principle and authority therefore it is considered that the deed from the defendant and wife to Mrs. Johnson standing alone would have conveyed the water as it was then running, with a right to the spring and aqueduct sufficient for its continuance, as an appurtenance to the house and land.

The other deed appears to have been executed and delivered on the same day with this one, and nothing appearing to the contrary, they are taken to have been contemporaneous and are to be construed together. The deed from the defendant alone is an express grant with certain limitations and restrictions of the same water and aqueduct of which the deed from the defendant and wife were an implied grant. By accepting the deed from the defendant with the limitations and restrictions in it the grantee impliedly covenanted with him to take the water only in accordance with these limitations and restrictions; and the effect of this implied covenant when construed with the other deed was to define and limit the general grant of the water and aqueduct as included in the other deed to that extent. It did not cut down the estate granted in the water and aqueduct otherwise than to limit the extent and manner of its enjoyment.

The estate which Mrs. Johnson took, subject to the limitations and restrictions with which she took it, passed by the succeeding grants to the plaintiff. The notice found by the jury to have been given by the defendant to the plaintiff could not defeat the operation of the grants. The defendant was neither selling or conveying, nor was any one selling or conveying, what he owned; under these circumstances anything that he said or omitted to say could not affect the contracts or conveyances. Whether the defendant had any claim for any part of the expense of repairing the aqueduct that he could enforce in any way against the plaintiff is not now decided ; but whatever claim he may have had that he could otherwise enforce, he had no right to cut off the pipe and disturb the plaintiff in the enjoyment of his right as a penalty for nonpayment.

The result is that the plaintiff had a right to the water running-in the aqueduct which the defendant disturbed without right, and for this disturbance the^laintiff is entitled to recover.

The pro forma judgment of the county court is reversed and judgment is rendered in this court for the plaintiff for the damages found by the jury, with interest.