Hull v. Fuller

4 Vt. 199 | Vt. | 1831

Thompson, J.,

•delivered the opinion of the Court. — The plaintiff, in the several counts of his declaration, complains of the defendant’s flowing his, the plaintiff’s, land, being lot no. 216, by means of a dam erected by the defendant, down the river, on lot no. 21, which adjoins said lot no. 216. The defendant pleaded the general issue, and the jury returned a verdict against him. On the bill of exceptions, allowed by the judges of the county •court, the first question presented, is, whether the plaiutiff showed a sufficient title to make a prima facie case against the defendant. The case shows, that, before the defendant erected his dam, the plaintiff obtained a deed of his lot, and took possession, by cutting the timber on about half an acre of the land, and following up the possession thus begun, claiming title to the whole lot under his deed. From this showing, it must, as against a stranger to title, be presumed, that the plaintiff has a good title : and the fee cannot be presumed to be in any one, who may hereafter sue for the ■same cause, as urged by the defendant’s'counsel. This objection cannot avail the defendant, unless he shows title, or actual prior possession in himself, or those under whom he claims.

The cause, then, must depend on the construction, which the Vlourt shall give to the deed from Fasset to Waldo, under which ’the defendant claims. The prior possession of Chilson, though it might affect the measure of the plaintiff’s damages, yet cannot affect the whole recovery, because Chilsou’s dam was lower, and his pond flowed less land, than those of the defendant. The descriptive part of the deed from Fasset to Waldo is as follows, to wit; “ Beginning at the N. W. corner oflot no. 21 ; thence running south 8 degrees west, about sixty rods to the south bank of the river; thence running up said river on the south bank to the first falls; thence continuing to run in .such a direction, as to include a mill yard., and the whole of a mill pond, which may be raised by a dam on said falls, to a road that leads to the centre of Enosburgh ; thence easterly on said road to the north line of said lot no. 21; thence N. 82 degrees west, to the place of beginning.” The plaintiffcontends, that this deed must receive such construction, that the road shall limit the height and eastern boundary of the pond ; and that it will admit of no other’ construction. But the defendant contends, that it will admit of this, and two other constructions : 1st. That the pond might be raised as high as a dam, built at the falls across to the point of rocks, would raise it; and 2d. that there is no limitation to the height of the pond, provided it should be raised by a dam on the falls ; that the reference to the road forms a boundary to the land, and not to the height or extent of the pond. It is to be remarked, that this deed is very vague and loose in many particulars. It gives neither courses nor distances in passing around the piece contemplated for a mill yard and pond. That is all left to be settled .by what shall be found necessary, or obviously convenient. It is obvious, that the intention of the grantor was to convey land within some limits ; and not a mere privilege as to any part of the premises. It is equally obvious, that, in the description, the grantor had reference to the lines and boundaries of the land, rather than to any definite extent of the pond. The road, therefore, must have been regarded as the boundary of the land, and not as a limit of the pond. Upon any other construction, the land was wholly undefined ; for there is no boundary from the falls to the road, unless it be this around the mill-yard and pond ; and yet, when this boundary arrives at the road, it continues on by said road and the line of the lot to the place of beginning. This shows, that the description given, was given as a description of the land itself. The result of all this must be, that the height of the dam, and the height and extent of the pond, were not, in- terms, limited at all. The law, however, would limit and control the enjoyment and use of the grant, to the erection of such a dam as would aflord a reasonable use of the privilege. And, when such should be built, and such a pond raised, as would effect such object, the boundaries would thereby be established. The grantee would have a right to build such a dam as could be built at the falls,, and of such a- height as would well answer the purposes of the mills contemplated to be built there. If this construction be correct, it is very clear that the merits of the suit have not been tried ; because the decision was made wholly upon the ground, that the road fixed the height and extent of the pond. How far the privilege conveyed by this deed will be binding on the plaintiff, must depend on the facts. which may be developed on a future trial.

The judgement of the county court is reversed, and a new trial.is granted.