91 Vt. 350 | Vt. | 1917
When this case was here before, the demurrer to the bill was sustained, the bill adjudged insufficient, and the cause remanded with mandate that the bill be dismissed unless
Respecting the parties, the amended bill shows that the Moore & Thompson Paper Company, the Robertson Paper Company, the Wyman Flint & Sons Company, and the Rockingham Paper Company, are corporations organized and existing under the laws of the State of Vermont; that the International Paper Company is a corporation organized and existing under the laws of the State of New York;, that all of said corporations have places of business at Rockingham, in the State of Vermont; that J. T. Moore & Son is a partnership consisting of John T. Moore and Carroll A. Moore, both residents of said Rockingham; that Olive Adams, a plaintiff in the original bill, who has deceased, was at the time of her decease and at the time of the bringing of that bill, a resident of said Rockingham; that the plaintiff Frank Adams is the son of Olive Adams, and administrator of her estate, and is a resident of said Rockingham; that said Abbie Howard and Daniel D. Howard are residents of the State of Pennsylvania; that the business of the Olive Adams estate is being carried on at said Rockingham; that the defendant Bellows Falls Canal Company is a corporation organized under the laws of the State of Vermont, and has an office and is doing business at said Rockingham; and that all of said persons and corporations are now and have been ever since the bringing of the original bill, within the jurisdiction of the courts of the State of Vermont.
The amended bill further shows, as is more particularly set forth .in the original bill, and as stated in the former opinion, that the defendant (hereinafter generally designated as the Canal Company) is the owner of a water power consisting of a
It also appears from the bill as amended that on the 28th day of February, 1832, the Canal Company was also the owner'in fee of land situated in said town of Rockingham and adjacent to the canal, separate parcels of which it conveyed, on that day or later, by deed or lease to the plaintiffs respectively, or their assignors, together with the right to draw or take water from the canal to furnish power at their respective mills and plants on the parcels of land so conveyed, copies of which deeds and leases, set out in Kaec verba, are attached to the original bill and made a part thereof, special reference being made to the “proposals” (set out in the same manner) forming a part of certain of the grants and leases, as indicated therein — particularly to paragraph V.
The deeds, leases, and contracts from or with the- Canal Company, under which the plaintiffs hold their respective interests, are severally pointed out in the former opinion, and need rarely to be noticed here with much particularity. In this connection, however, it should be stated, in passing, that Olive Adams having died, all the right, title, and interest under the deed to John Carey hereinafter mentioned, now stand in the estate of Olive Adams, and in her real representatives, now parties to the suit.
By paragraph I of the “Proposals”: “The Bellows Falls Canal Company propose to sell and lease their Mill Powers situated on the Connecticut River, in that part of the town of Rockingham called Bellows Falls, on the following terms and conditions, to be varied as the parties may agree in the deed or lease. For the price that may be agreed upon, they ypill grant
When the “proposals” were adopted by the Canal Company does not appear. But by its deed dated February 28, 1832, the company conveyed to John Carey, in fee, a certain piece parcel of land situated in the village of Bellows Falls, in the town of Rockingham, “and whereon the stone grist mill in said village” then stood (describing the land thus conveyed by metes and bounds), “and also a privilege equal in point of time to that of the owners of any water privileges on the Bellows Falls Canal of taking at his or their own expense by means of a trunk at the bottom of said canal as at present fixed and not exceeding in diameter three feet square, sufficient water from the said canal to carry three run of stones, a smut mill and a corn cracker with bolts and all other machinery which are or may be necessary and proper for a grist and flouring mill with such number of stones as aforesaid when applied upon the principles of water saving machinery as at present constructed.”
This deed contains a covenant for quiet enjoyment of “the
It further appears that the “proposals” are annexed to and are a part of the grants and leases from the Canal Company to all the other plaintiffs, respectively, or their assignors; that each of these grants and leases is of a parcel of land described therein, “together with the said (giving number of) mill powers (as described in the annexed proposals and to be used as therein set forth) with all the privileges and appurtenances to the same belonging, ......” and that there is reserved a specified annual rent for each mill power so granted or leased, and by each lease a yearly rental on the land itself. The International Paper Company, by subsequent contract with the Canal Company, acquired the further right to use all the surplus water, paying thereunder a gross sum yearly for its entire water power rental. The several grants are in fee; the several leases, descendible and assignable, are for the term of ninety-nine years; and each grant, except the one to John Carey, and each lease, is made “subject to the agreements, terms, conditions and all other matters and things in the said annexed proposals set forth as obligatory upon the grantees” or lessees as the case may be.
It is unnecessary for present purposes to go more into detail respecting the quantity of water, comparatively or otherwise, that each of the plaintiffs has the right to draw or take from the canal and use; for certain it is, that by virtue of their respective water rights and privileges, they all, including those holding under the deed to Carey, have a common interest in the use of the water power, and as we shall see presently they have common
The allegations in the original bill show that for some years then last past, and at the time the bill was filed, the dam and water power property owned by the defendant, had been and was then taxed to the defendant in the town of Walpole, New Hampshire, the amount of tax varying from year to year but approximating in the year 1911, $5,000; that the defendant claims that it is entitled to a lien upon the granted premises for the taxes so assessed, with a right of action to recover the same from the grantees, and has notified the plaintiffs, and each of them, that defendant will look to them to be reimbursed for any and all payments which it has made or will make to said town of Walpole on account of taxes laid and assessed therein on the dam and the water power property, claiming, among other things, that paragraph V of the “Proposals” gives defendant such lien and a legal right to enforce against the plaintiffs, claims and demands for taxes on the dam, etc.; that said paragraph Y merely provides, and has ever been understood by the parties to provide, that the rent therein mentioned shall be paid by the grantees without deduction for any taxes or assessments which the grantee may be required to pay upon the premises granted or leased to it, and does not include, and was never intended to include, any taxes assessed against the grantor for or in connection with its water power or otherwise, or to give the grantor any right to collect any such taxes from the grantee; that the term ‘ ‘ granted or leased premises, ’ ’ as used in said paragraph Y, includes, and has ever been understood by the parties to include, simply and only the land granted or leased to them in the said town of Rockingham, and any fixtures or improvements thereon, but does not include, and has never been understood to include, the dam, nor the place where the water is stored before being diverted into the canal, nor the water either in the dam or in the canal, nor the property or rights other than as stated above; that at the time said grants and leases were respectively made, and ever since, up to the year 1911, the grants and leases were regarded and construed by each and all the parties thereto, as referring only to taxes payable and paid by the grantees and lessees, and as including and covering property and rights in Rockingham, only, owned exclusively by them respectively, and that the Canal Com
In addition to the foregoing facts alleged in the original bill, the amended bill shows, that after the filing of the original bill, and on the 12th day of November, 1912, the Canal Company filed in the equity side of the superior court for the County of Cheshire in the State of New Iiampshire, its bill of complaint or petition for abatement of taxes, setting forth the title to the water powers, the contract relations between these plaintiffs and the Canal Company, the appraisal of the property in the town of Walpole, the amount of the taxes which for that year was $19,140, and alleging that most of said taxes represented property of the grantees and lessees of that company, who are the plaintiffs here, and that the same should be separately assessed to and paid by these plaintiffs, and praying that said superior court make the selectmen of the town of Walpole parties and co-defendants in said action, and quash said assessment and tax, and issue to said selectmen its writ of mandamus, commanding them to reassess said real estate for that year, and in so doing to appraise separately and tax to the Canal Company and to said several grantees and lessees their respective interests in said real estate, in accordance with such directions as should be laid down “by said court or by the Supreme Court;” also praying for order of notice to each of said grantees and lessees, directing them to appear and show cause why the interests owned by them should not be separately appraised and taxed to them respectively, etc.; that on the same day, an order of notice issued from said superior court, directing notice to each of, these plaintiffs, and ordering the town of Walpole, the selectmen thereof, and each of these plaintiffs, to file their answers, etc.; that thereupon these plaintiffs
The amended bill further alleges that the Canal Company is bound in equity and good conscience by reason of the foregoing, and by the opinion of the Supreme Court in this cause, to seek or submit to a determination of the aforesaid question as to the ownership and title and liability to tax, by the Vermont courts, either by proper proceedings in this suit or by some other suit or proceedings in the courts of that state, and to refrain from further proceedings in the New Hampshire court; but that, not regarding the aforesaid agreement and understanding, etc., the Canal Company has filed in the said superior court, in the State of New Hampshire, a similar petition (which is set out m haeo verba, in the amended bill) against the town of Walpole, the selectmen thereof, and the plaintiffs in the suit at bar, for the abatement of taxes assessed against the Canal Company, in said town of Walpole, for the year 1914, and for other relief hereinafter mentioned. The Canal Company undertook to specify in its said petition, according to its claim, the property interests and liabilities of the respective grantees and lessees, under the grants, leases, and contracts, executed by the Canal Company, stating, among other things: “That, by virtue of a clause which forms a part of all the above mentioned conveyances, leases and indentures, except the one under which said Olive Adams claims, said grantees and lessees assumed and agreed to pay all taxes
The petition contains no allegation that the appraisal of the property at $600,000 (the same sum agreed upon as the appraisal of 1912) is excessive; but it does allege that said valuation “is grossly excessive, disproportionate and unjust if treated as a valuation of your petitioner’s interest in said real estate, exclusive of the interest therein owned by and lawfully taxable to said grantees and lessees. ’ ’
The prayer of the petition is, in part, that the tax may be abated in its. entirety, or that so far as the same is assessed against and concerns the petitioner, may be abated to such an extent as will reduce the same to an amount representing a tax upon a just and proportionate valuation of the petitioner’s interest in said real estate, exclusive of the interests therein owned by said .grantees and lessees. The other parts of the prayer look only to the same end, namely, to the construction of the grants, leases, and contracts, by virtue of which the plaintiffs respectively hold parcels of land, and water rights connected therewith, under the Canal Company as grantor or lessor, which is exactly the same question as is involved in the suit at bar.
It is further alleged in the amended bill that it is the function of the courts of Vermont to determine upon whom the burden of the taxes assessed upon said parties shall ultimately fall, and to restrain the defendant from litigating said matter in the courts of the State of New Hampshire; that a considerable proportion of the properties of the defendant which are connected with and a part of its dam, canal, and pondage, are located within the State of Vermont, and such portions as are there located, including the canal, are taxed in Vermont, so that the courts of this State have jurisdiction in this case over all the parties in personam, over part of the property, and over the payment of of taxes which is ultimately involved in the issues between the parties, as set forth in the amended bill; that unless enjoined, the Canal Company, will undertake to proceed with said action in the New Hampshire court, and will therein undertake to secure some definite judgment, decree, or determination of the questions and issues above stated, as against the plaintiffs and each of them, and that the plaintiffs and each of them will be compelled either to suffer default in the New Hampshire case, by not appearing therein, and taking and abiding such consequences as
It is hardly necessary to state that the demurrer confesses all matters which are well pleaded in the bill as amended, to be true, and we must consider them accordingly.
From what we have already said, it is seen that all the different parcels of land held by the plaintiffs under the grants and leases from the Canal Company are situated in this State, as is also the canal from which the plaintiffs severally have the right to draw water for the purpose of power on, and in connection with the use of, the lands so held. Though the place of the divisional line between the State of Vermont and the State of New Hampshire is in dispute, and for the determination of the Supreme Court of the United States in a suit now pending, yet the amended bill alleges and the demurrer admits, that a considerable proportion of the properties of the defendant which are connected with and a part of its dam, canal, and pondage, is situated within the State of Vermont. By the provisions of the grants and leases in question, it should seem that the reservoir, composed of the pond and the canal, is an essential feature of the water power in which the plaintiffs severally have rights and privileges, and is so closely connected with the several pieces of land in their intended use, as to be necessary to their beneficial enjoyment; and that therefore it is an incident to the principal things conveyed, which passed under the grants and leases, in the proportions of the several water rights therein specified. Perrin v. Garfield, 37 Vt. 304.
That the court of chancery has jurisdiction of the subject-matter, as shown by the original bill, was established when the case was here before; for otherwise, in remanding the cause, the mandate would have been peremptory to dismiss the bill for want of jurisdiction of the subject-matter. Holt v. Daniels, 61 Vt. 89, 17 Atl. 786; Deerfield Lumber Co. v. Lyman, 89 Vt. 201, 94 Atl. 837. And it was then also expressly held that:
“The Vermont courts may properly deal with the question, Upon whom shall the burden of taxes assessed on the property in question wherever situated ultimately fall ? ’ ’
That all the parties interested in this question are before the court as parties to this ease, is shown by the allegations of the amended bill. As part of the new matter alleged in the amended bill, it appears that the appraisal of that part of the property
The property conveyed by the Canal" Company to Carey in fee, is to be taxed to the owner, like any other property of that character. Whether by force of this grant and the covenants and provisions connected therewith, such owner, as between him and the Canal Company, is in equity bound to pay a proportionate part of the taxes upon said dam, reservoir, and rights of flowage, wherever lawfully assessed, and whether by force of the clause of paragraph V of the “proposals,” the other plaintiffs, as between them and the Canal .Company, are in equity severally bound to pay proportionate parts of all such taxes, constitute the primary and controlling question involved in this case. If under the aforementioned grants and leases, by operation of law or by reason of assumed' liability, the grantees and lessees, and their assigns, are responsible for all such taxes, wherever lawfully assessed, then the taxes assessed against the Canal Company in said town of Walpole, in and for the year 1912, on so much of said property as is there situated, on the appraised valuation of $600,000, as alleged in the amended bill, constitute a common charge which, as between the Canal Company and the plaintiffs, the latter are in equity severally obligated to pay in proportion to their respective interests in the subject-matter to which the common charge attaches. If such right of the defendant be established, then involved therein is the inseparable element of the equities between the plaintiffs themselves, without the adjustment of which their several liabilities cannot, in justice to all concerned, be determined. In Adams’s Equity, at page #267, it is said: “The equity for adjusting liabilities under a common charge arises where a charge or claim, affecting several persons, is or may be enforced in a manner, not unjust in the person- enforcing it, but unjust or irregular with regard to their liabilities inter se.” In Mandeville v. Riggs, 2 Pet. 482, 7 L. ed. 493, the Supreme Court of the United States, speaking through Mr. Justice Story, said: “It is a matter of justice, as well as convenience, that all the parties who are ultimately liable to contribution should, when practicable, be brought before the court, so that the equities between them may be adjusted as well as the right of the plaintiff.” In such cases of liability for a common charge, says the same learned Justice, equit
In connection with the former holding in this case, that the Vermont courts may properly deal with the question as to who shall ultimately bear the burden of the taxes assessed on the property in question, wherever situated, no particular court was mentioned; but it is not to be supposed that any court was had in mind other than the one which, proceeding to judgment, can afford a plain, adequate, and complete remedy, doing justice to all concerned, according to their several rights and liabilities. This holding in the former opinion, when taken in connection with what is therein said concerning the doctrine of apportionment, as it must be to a proper understanding of the law as there laid down, clearly shows that in the opinion of the court, as there
Furthermore, the subject-matter of contribution and apportionment being within the original jurisdiction of equity, such jurisdiction is “of a permanent and fixed character,” and “being once vested legitimately in the court, it must remain there, until the Legislature shall abolish, or limit it.” 1 Story Eq. Jur. § 641; Viele v. Hoag, 24 Vt. 46; Walker v. Cheever, 35 N. H. 339.
It is said that an injunction is not necessary to protect a prior jurisdiction rightfully acquired by the "Vermont court from being defeated by the institution of subsequent litigation over the same issue in another court; that the New Hampshire court is the one which first acquired rightful jurisdiction of the questions involved in the tax appeal now pending there. But we do not think that this is quite an accurate statement of the situation shown by the allegations of the amended bill. The question upon whom ultimately rests the burden of taxes assessed upon the property in question, depends upon the construction of the instruments by which the plaintiffs respectively hold the real estate and water rights under the Canal Company as grantor or lessor. The original bill sought a construction of those instruments, and in ease the Canal Company’s claim as to the construction be sustained, then the general prayer was sufficient for an apportionment of the tax assessed against that company and constituting the common charge. As was held on the demurrer to that bill, a court of equity has jurisdiction of the subject-matter, but the allegations of the bill were insufficient and the demurrer was sustained. But jurisdiction does not depend upon the sufficiency of the bill. If the court has jurisdiction of the subject-matter and of the parties, nothing more is required. A defective statement of the cause of action does not destroy jurisdiction. Jurisdiction of the particular matter does not mean simple jurisdiction of the particular case, but jurisdiction of the class of cases to which the particular case belongs. O’Brien v. People, 216 Ill. 354, 75 N. E. 108, 108 Am. St. Rep. 219, 3 Ann. Cas. 966. It follows that jurisdiction attached with the bringing
It appears that the original bill was filed on September 10, 1912, and the demurrer thereto, on November 1, 1912. The amended bill alleges that on the day last named the Canal Company filed in the New Hampshire court, its petition for an abatement of taxes assessed on the real estate situate in the town of Walpole, for that year, etc.; that the supplemental bill in the suit at bar was thereupon brought and the company temporarily enjoined from prosecuting its said petition; that this petition was subsequently dismissed upon stipulation by and between the Canal Company, the town of Walpole, and the plaintiffs in the suit before us; that subsequently to the dismissal of the aforementioned petition, the Canal Company filed in the same court in New Hampshire, a similar petition against the town of Walpole, the selectmen thereof, and the plaintiffs in the suit at bar, for the abatement of the taxes assessed against the Canal Company in said town, on the same property, for the year 1914. The Canal Company was temporarily enjoined by the court of chancery in this State, from further prosecution of this last named' petition, which injunction is still in force. The allegations and the prayer of each of the two petitions filed in the New Hampshire court, are more particularly stated in an earlier part of this opinion; and they show that the same question of the construction of the said Vermont deeds, leases, and contracts, is the primary one there involved, as is involved in the present case.
Therefrom it is pretty apparent that the real purpose of the petition, now pending in New Hampshire, is to have said question of construction determined by the court of that State, instead of by the court of Vermont wherein proceedings for that purpose were first instituted and are still pending. Thus the amended bill shows that the Vermont court of chancery acquired jurisdiction of the subject-matter and of the parties before any proceedings were instituted in the New Hampshire court involving the same primary and controlling question. It is a well established principle that the law of the state in which land is situated must be looked to for the rulés which govern its descent, alienation, and transfer, and for the effect and construction of the conveyances. Baxter v. Willey, 9 Vt. 276, 31 Am. Dec. 623; McGoon v. Scales, 9 Wall. 23, 19 L. ed. 545; Brine v. Hartford Fire Ins. Co., 96 U. S. 627, 24 L. ed. 858; Baum v. Birchall, 150
It is urged by the defendant that the last part of the alleged agreement and understanding by and between the parties at the time the first petition in the New Hampshire court was dismissed, namely, “that it was understood that these questions would be litigated in Vermont, ” is in effect an agreement to oust the jurisdiction of the New Hampshire court, and therefore contrary to- public policy and void. Let this be as it may, we do not rest our holdings on that part of the agreement. The agreement as alleged is admitted by the demurrer, and is for consideration certainly as far as not objectionable on the ground named; also the alleged actions of the parties pursuant thereto and in consequence thereof.
The pro forma decree overruling the demurrer and adjudging the amended bill sufficient, is affirmed. The pro forma de