42 Vt. 614 | Vt. | 1869
The opinion of the court was delivered by
The right of the orator to maintain this bill of complaint depends upon the rights of the parties under the deed ■executed by the orator to the defendant, Charles Shorey, April 2, 1866. The deed in question contains the following reservation, namely : “ Reserving the right of taking all the waste water as it now runs into the tub on said premises by aqueduct, to the lot formerly owned by J. Prescott, with the right and privilege of digging up and repairing the same at any time by paying all damage which it may be to the premises.” The bill states, and the answer admits, the aforesaid conveyance ; that there was and is a valuable spring of water on said premises; that at the time of said conveyance there was an aqueduct leading from said spring, through which the water at that time run from the spring into a tub on said premises near the dwelling-house, and that the orator’s deed to said Charles Shorey contains a reservation in the words set forth in the orator’s bill. The defendants admit the right of the orator under said reservation to take the waste water which might flow from said tub, and convey it by aqueduct to his Prescott lot, with the right to repair the same between the tub and his said premises. But the defendants insist, first, that they are under no obligation to keep the aqueduct in repair from the spring to the tub, or to keep the water running to
In regard to the litigated facts, it may be sufficient for the court to state that, upon examination of the testimony, we think the material fact sstated in the bill are established. The construction, which the defendants’ counsel claim should be given to the deed, would make the right of the orator depend entirely upon the will of the defendants, or those who claim under them. This is equivalent to saying the orator has no right at all by the reservation. But this position can not be sustained. The construction must be upon the view of the whole language of the reservation. Arid the intent of the parties, to be gathered from the nature of the subject matter and the language used, must control. Cooney v. Hays et al., 40 Vt., 474. From the language of the reservation, it is plain that the parties to the deed understood at the time of its execution the orator had reserved a certain and permanent interest and right in the premises, which could not be defeated at the will or pleasure of the grantee, his heirs or assigns. The reservation in the deed, of “ the right of taking all the waste water as it now runs into the tub on said premises by aqueduct,” is a reservation of an interest and right in the spring of water itself to the extent named. The words : “ All the waste water as it now runs into the tub on said premises,” means all the water carried, and all the water that would run from said spring to said tub by said aqueduct, or a like aqueduct, except' such portion of the water passing into said tub as might be necessary for the use of the grantee, or other person claiming under him, the water for the use of the grantee, or such other person, to be taken from said tub, according to the terms and effect of the reservation. It is stated in the bill and proved that a large amount of water flowed from said spring by said aqueduct and run into said tub, and but a small portion of the water running into said tub, at the time of the execution of said deed by the orator to said Charles Shorey, was used; that a large proportion of said water run away as waste water;
It appears that the tub mentioned in said reservation was situated on the west side of the dwelling-house, at the time the orator conveyed to said Charles Shorey the waste water then running on to the garden westerly of the house. We think the reservation contemplates that the water should run from the spring to that tub, where the tub was situated when the orator conveyed ; that he reserved the right to take the waste water from that tub as it was then situated, and carry it to his Prescott lot, consequently the defendants had no right to remove the tub to the prejudice of the orator. The defendants have no right to tap the spring, aqueduct or tub so as to diminish the quantity of water reserved by the orator, or to deprive him of any of the water so reserved. We think the reservation contemplates that the grantee, or the person or persons holding or occupying under him, should keep the aqueduct in repair from the spring to the tub only so long as he or they use the water. But if the defendants, or other persons who may own or occupy the premises so conveyed by the orator to said Charles Shorey, refuse or neglect to keep said aqueduct in good and sufficient repair from the spring to the tub, the orator has the right, and he may, for the purpose of enjoying his said reservation, enter upon the premises so. conveyed by him, and repair said aqueduct, or lay a new aqueduct from the spring to said tub, whenever the water ceases to run in said aqueduct, or whenever, for want of repairs or want of a new aqueduct, the water does not run from the spring to said tub in the quantity contemplated by gaid reservation. If the orator repair said aqueduct, or lay a new
We think the orator is entitled to the relief prayed for in his said bill of complaint.
The pro forma decree of the chancellor is reversed, and the case is remanded to the ■ court of chancery, for a decree in favor of the orator, conformable to this decision, and for the orator to recover his costs.
