42 Vt. 303 | Vt. | 1869
Argued at the general term, November, 1868. Decided at the general term, November, 1869.
The opinion of the court was delivered by
The orators own and occupy a starch factory on a stream in Newark, deriving title to the water-power and the site of the dry-house from the defendant’s grantor, David Smith to Oliver H. Smith, by deed dated May 21, 1862, in which is the following language: “ Also the water-power, commencing at a
In applying the law as set forth in that case to this, it seems plain that the defendant, in the use of his shingle-mill in a reasonable manner, has the right to discharge the sawdust, shavings and waste from it into the stream in the ordinai’y course of using such mills, and that he is not bound, as matter of law, to prevent them from going into the stream, and have them accumulate or draw them off and deposit them so that they cannot get into the stream. On the other hand he has not a right, wantonly and needlessly, and out of the ordinary course in such cases, and not in the service' of his substantial interest and benefit in the use of his mill in a reasonable manner, to throw or permit them to go into the stream, wli'en, by so doing, injury will be caused to the orators in
The question then is, whether the evidence shows that the defendant, in the use of his shingle-mill, has transcended his right in violation of the concurrent right of the orators. This we must find in order to warrant us in granting relief under the averments and prayer óf the bill.
In the first place the evidence makes a rather strong impression on our minds that much of the trouble which the orators claim, and give evidence to show, that they experience in the condition of the water as it comes to their works, is attributable to the manner in which they have constructed and adjusted a new dam in reference to their works, and to the lack of proper fenders and strainers to protect against inrpurities that may get into the stream from the mills-and works above the orators. It would seem that by proper modes and means which they could, without unreasonable pains and expense, have adopted and put in use, they could have secured themselves from the troubles complained of while the defendant was using his shingle-mill and letting the sawdust and waste from it go into the stream.
At the same time we fail to find from the evidence the wrongful intent and design on the part of the defendant, as charged in the orators’ bill; and we also fail to find such a state of facts as would warrant us in holding that the defendant has so transcended his own rights in violation of the rights of the orators as riparian
As no exigency of the case would be served by our going into a critical analysis and discussion of the evidence, we deem what is above expressed as being sufficient for the occasion.
The decree of the chancellor is therefore reversed and the cause remanded, with a mandate that the'bill be dismissed with costs.