385 A.2d 1070 | Vt. | 1978
Subject matter jurisdiction of the Public Service Board, under 30 V.S.A. § 201 and 30 V.S.A. § 203, is the sole question presented for review by the question certified from the Public Service Board. As the Board correctly ruled, determination of this question could well terminate the whole litigation, because if there is no jurisdiction the Board cannot grant either petitioners’ prayer for permission to abandon the water system here in question or their alternative prayer for a certificate of public good and a rate increase. Interlocutory appeal of the Board’s ruling in favor of jurisdiction (and refusing to adopt the contrary recommendation of its hearing examiner) was properly granted.
A preliminary procedural question suggests itself, which the parties have not seen fit to raise. The first action to surface here was a petition for declaratory judgment, brought to the Franklin Superior Court by the petitionees here Smith and wife, who claimed to be users of the water facility, against the petitioners Pfenning and wife, its claimed operators. The Pfenning petition to the Public Service Board followed
30 V.S.A. § 203(3) gives the Public Service Board general supervision of companies other than municipalities engaged in the collecting, sale and distribution of water for domestic, industrial, business or fire protection purposes. 30 V.S.A. § 201 defines “company” to include individuals and partnerships. But the Smiths claim that, under the relevant chain of title, they are part owners as well as users of the system, that they have an interest in the land of the Pfen-nings. This, they say, brings the system within the rule we recognized in Kelly v. Alpstetten Association, Inc., 131 Vt. 165, 167-68, 303 A.2d 136, 137 (1973), that the sale of water to customers not part of its ownership is the basis for Public Service Board jurisdiction. Their undisputed chain of title, they say, gives them a profit a prendre. Our review of that chain, and the undisputed fact that the source of the water itself is springs within the public highway limits, lead us to the conclusion that this claim is untenable. We answer the certified question as to the existence of subject matter jurisdiction in the Public Service Board in the affirmative.
Four parties appear to be served from the common source, all of whom derive title from a common grantor. In most instances the owners are husband and wife, but the singular name will be used for purposes of brevity. The common grantor, Kinney, in 1953 conveyed off a lot to Leahy, a present user. The deed clause relating to water reads as follows:
There is also conveyed herewith to the grantees, their heirs and assigns, a right to water, which water is being pumped from the Kinney residence above mentioned providing, however that the said grantees their heirs and assigns pay to said Kinneys, their heirs and assigns the sum of twenty-four ($24.00) dollars per year in lieu of any and all charges. It being understood between the parties hereto and binding on their heirs and assigns that the grantees, their heirs and assigns may cancel this agreement relative to water by written notice of their intentions so to do, which notice will be sent to the grantors or their heirs and assigns and filed in the Town Clerk’s office. This agreement is intended to run with the land. (Emphasis added.)
In 1954, Kinney conveyed off another lot to Bartlett, lying east of the Leahy lot. The clause relating to water was substantially identical, except for words clarifying that cancellation could not be by the grantors.
In 1955, Kinney conveyed off to Cheeseman the balance of the Blouin property (from which the other lots had come), excepting the Kinney and Leahy lots and several others also previously conveyed. Noteworthy as evidencing the under
In 1963, Cheeseman conveyed to petitionees Smith his remaining property in the area, reserving his home lot. In the basement of the home is the cistern, into which flows water from under the highway, and the pump which pumps it from the cistern to the users. The water clause in this deed reads as follows:
The grantor by this conveyance agrees to furnish water to the barn located on the premises herein conveyed and the grantees agree to pay for the use of said water the sum of twenty-four ($24.00) per year. The right to use the water shall be reasonable use only and in common with others already supplied by the grantor. (Emphasis added.)
Again, in the encumbrance clause, reference is made to the Howard “spring rights” and the Martin and Paulette “well rights.” The Leahy and Bartlett rights are referred to as “rights to be furnished water.”
In 1965, petitioners Pfenning came into the title, when Cheeseman conveyed to them the home lot he had reserved in the Smith deed. No reference to the water system appears anywhere in the deed, but they make no claim that this omission relieves them of any liability.
From the foregoing chain of title, it appears quite clear that there was never any intent to convey to the present users, apart from the Pfennings, anything more than a contract right to be furnished water, as described in the several deeds. The distinction appears to have been quite clear in the mind of the common grantor and his successor. Spring rights, where granted, were described as such. Well rights, where conveyed, were so described. Those rights were, quite evi
The question certified by the Public Service Board is: "Does the Public Service Board have jurisdiction to set rates for, and otherwise supervise, the water system in this case ?” It is answered in the affirmative.
Certified question answered in the affirmative, and cause remanded.