79 Vt. 361 | Vt. | 1906
The orator owns a valuable meadow located on the “Second Branch” of White River in Royalton. The defendant Stoughton owns a water-power on the Branch a little below thp meadow, and there maintains a dam and equipment, and utilizes the same for the generation of electricity for lighting the stores and buildings in Royalton and South Royalton. This bill is brought to prevent the defendant from SO' maintaining his dam as to> overflow the orator’s meadow.
The orator does not deny the defendant’s title, or his right to maintain his dam, but he does deny the right to' maintain a dam so* high and so tight as to set the w'ater back over the meadow.
The defendant’s title to the water power traces back to a deed- from Dow Crane and wife to Lucius B. Wright and Horace A. Lyman, dated and recorded February 28, 1853. In 1854, Lyman and wife conveyed the same to- Wright, and by successive conveyances the title came to the defendant Stoughton on January 15, 1877. None of these deeds define
“The dam on said privilege rebuilt August, 1854, b-y L. B. Wright, 7 feet 4 inches in height from a bolt in the rock about or near the middle of said dam.
Attest, Calvin Skinner,
Recorded April 24, 1855. Town Clerk.”
It is to the height stated in this memorandum that the defendant claims the right to maintain his dam;; and it appears from the report that such a dam would, if made tight, set the water back over certain portions of the orator’s meadow and cause him substantial damage.
Prior to 1901, the dam in question had been maintained at varying heights and in different conditions of repair, — particular reference to- which is here unnecessary. In that year it was thoroughly repaired by the defendant, and the electric light station erected and a supplemental steam plant installed. Flash boards were then added to the dam, thereby raising it to the height of seven feet and three and one-half inches from the iiro-n pin mentioned in the memorandum-. It is of these flash boards that the orator especially complains, as they cause the waters of the pond to overflow his meadow as stated. The defendant has always claimed the'right to- maintain his dam to the height specified in the memorandum above referred to-, and this the orator knew and denied; and in July, 1900, the orator, by letter, warned the defendant against raising the dam so as to flow the meadow.
But were it to be" received as evidence on the grounds claimed for it, it would not affect the result of the controversy. .Notice of the claim of a right to. maintain a dam to a given height, alone, would not, though persisted in for the requisite period, result in a prescriptive right to. flow the meadow. Indeed, the actual maintenance of the dam to that height for the specified time, would not necessarily so result. It is only when the dam begins toi be so maintained that the orator’s meadow is actually injured by the back-water, that prescription begins to run. This has been the law of this State ever since it was so decided in Hurlburt v. Leonard, Brayt. 202. “No prescription begins to run,” says Judge Redeieed in Norton v. Valentine, 14 Vt. 239, “until a right of action accrues; and no right of action accrues until injury is inflicted.” And this rule has been consistently followed by this Court down to the present time. Lawrie v. Silsby, 76 Vt. 240, 56 Atl. 1106. The erection of the dam was no. invasion of the orator’s rights. It was only the subsequent use of it, in case that use threw-
The burden of establishing a prescriptive right lies upon him who asserts it. Gould Wat. §341. This defendant, though he may have shown a claim of the right for the required time, has not shown an exercise of the claimed right for the time required, and so has failed to establish the right.
Our disposition of the case will doubtless result in some extra expense to the defendant, but the situation presented does not require us to withhold the equitable relief to' which the orator is plainly entitled.
Decree affirmed and cause remanded.