76 Vt. 240 | Vt. | 1904
The orators, who take water by a pipe from a brook on what is called the Rawrie lot, and conduct it to their several nonriparian farms and buildings for domestic and farm uses, have not' thereby acquired a prescriptive right to do so as against the defendants, who' own the riparian land next above the Rawirie lot, called the Hale lot, though the water has been taken long enough in point of time, for the law of this State is, as well as of many if not most of the other states, and of England, that the presumption of a grant from long-continued enjoyment arises only where the person against whom the right is claimed could have lawfully interrupted or prevented the exercise of the subject of the supposed grant. Shumway v. Simons, 1 Vt. 53; Norton v. Volantine, 14 Vt. 239; Hoy v. Sterrett, 2 Watts. 327, 27 Am. Dec. 313; Holsman v. Boiling Springs Bleaching Co. 14 N. J. Eq. 335; Vliet v. Sherwood, 35 Wis. 229; Nelson v. Butterfield, 21 Me. 220; 28 Am. & Eng. Ency. Law, 1st ed. 1005; Stockport Waterworks Co. v. Potter, 3 H. & C. 300, 325; Chasemore v. Richards, 7 H. L. Cas. 349, 370; Webb v. Bird, 13 C. B. n. s. 841; Sturges v. Bridgman, 11 Ch. D. at page 855.
Murchie v. Gates, 78 Me. 300, 4 Atl. 698, and Holker v. Porritt, L. R. 8 Ex. 107, and L. R. 10 Ex. 59, on which the orators rely to support their claim' of a prescriptive right, are not in point, for there natural streams had been divided so that part of the water flowed in artificial channels, and the law of natural watercourses was applied to the artificial channels, and the plaintiffs were regarded as riparian proprietors the same as though they abutted on the natural branch of the stream; though in the Exchequer Chamber the judgment in Holker v. Porritt was affirmed on different ground.
The orators, therefore, having no prescriptive right against the defendants, must stand on whatever other rights they have against them. The orator, James B. Rawrie, owns the Rawrie lot, and has ever since 1870, and must stand on his right as such owner. The defendants do' not question the right of the other orators as against Rawrie to take the water as they do, but they say nothing as to the legal quality of the right, and the orators claim- that in the circumstances it will be presumed to rest in grant, and we are inclined to> think that this is the true view of the matter. It appears from the report that prior to the year 1854, the then owners of the orators’ farms and buildings, one of wihom was H. N. Chamberlin, the then owner of the Rawrie lot and of the said Rawrie’s farm, joined together in laying the aqueduct in question, and thereby took water from the brook to their respective farms and buildings for domestic and farm uses, and shared in the expense and ownership of said aqueduct; that said farms and buildings were thus supplied with water until the year 1854, when the owners of said aqueduct, wishing to
Although it appears clearly enough that water was thus taken in the first instance by license of Chamberlin, the then owner of the Bawrie lot, yet it appears with equal clearness that that license was unlimited in point of time, and so understood by all the parties thereto, and that the water has been taken and used for all these forty years and more under a claim of right. This being so, the fact that the use began by permission did not prevent the acquisition of a prescriptive right to take as against the owners of the Bawrie lot. Arbuckle v. Ward, 29 Vt. 43; Blaine v. Ray, 61 Vt. 566, 18 Atl. 189.
But is this prescriptive right sufficient to enable the orators, other than Bawrie, to maintain this bill in their own names? It is not, unless a grant to them from an owner of the Bawrie lot would be sufficient, for they can prescribe for
But in this country it is held in some jurisdictions that an incorporeal right to water may be granted in gross or' made appurtenant to other land, and that the grantee may sue in his own name for a disturbance of his right. Thus, in St. Anthony Falls Water Power Co. v. The City of Minneapolis, 41 Minn. 270, a riparian owner of part of an island in the Mississippi River just above the Falls, sold other land of his not bordering on the river, and with it granted right to take water from the river for use thereon, which the grantees did by means of a canal, and the defendant succeeded to their rights. It was objected that as the city had no land abutting on the river, it was not a riparian owner, and had no riparian rights. But the court said it was entirely immaterial whether the defendant’s rights were riparian or conventional; that it had rights, for the disturbance of which it had a right of action; that it was unimportant whether it was held that the provision in the grantor’s deed in regard to a canal amounted to a division of the river into two courses, or whether, what seemed to be more in accordance with principle and common, sense, it was held that a riparian owner may grant a part of his estate not abutting on the stream; and, as appurtenant thereto, a right to draw water from the stream for use on such land.
In Goodrich v. Burbank, 12 Allen, 459, it was held that an assignable right in gross to take water from a spring on land conveyed could be reserved to the grantor, his heirs and assigns. The court said that water itself may not be the subject of property, but that the right to take it, and to have pipes laid in the soil of another for that purpose, and to
In Poull v. Mockley, 33 Wis. 482, a grant to one and his heirs and assigns forever of a right to take water from a well on the grantor’s land, was held to create an easement in^ gross, and to be assignable by the grantee. The court followed the Massachusetts cases, and said it saw no- substantial reason why such an easement is not assignable.
It would seem to follow that if the right to take water from a spring or a stream' is an interest in the land itself, that such right is grantable as a right in gross or appurtenant, andis assignable, descendable, and devisible; and such, we think, has always been the view entertained and practiced upon in this State. Situated as we are, with so. many springs and' streams of pure water on which our people are largely dependent for their domestic needs, we think this doctrine best adapted to our local situation and circumstances. We hold,, therefore, that the other orators, as well as Eawrie, can maintain the bill in their own names if the defendants have’
Each riparian proprietor has a right to1 use the water of the stream for his own natural wants, and for the like wants of his family and his beasts. Many -of the authorities say that for these purposes .he may use all of it if necessary. But the logical result from the correlative rights of riparian proprietors would seem to¡ be that each must use his own right SO' as not to deprive the others of an equal enjoyment of their same rights. And this is the view taken in Chatfield v. Wilson, 31 Vt. 358, and Barre Water Co. v. Carnes, 65 Vt. 626, 27 Atl. 609. The same view is taken in Elliot v. Fitchburg Railroad Co., 10 Cush. 191. It would seem to follow that reasonable use is the only limit that can be set bo the exercise of these rights. This is the rule in New Hampshire, where they repudiate the English doctrine, and hold it to' be a question of fact whether the use of the water made by. a riparian owner for his own purposes or for sale to¡ others for non-riparian purposes is, in all the circumstances, a reasonable use. Gillis v. Chase, 67 N. H. 161, 31 Atl. 18. Sometimes the law will say what is a reasonable use. Thus, they hold in New Jersey that the sale of a right to take water for use on non-riparian lands is unreasonable as matter of law, if thereby another riparian' proprietor sustains palpable damage. Higgins v. Flemington Water Co., 36 N. J. Eq. 538. But if the use is lawful and beneficial, it must be deemed to be reasonable, and not an infringement of the rights of other riparian owners to whom it occasions no actual and perceptible damage. Elliot v. Fitchburg Railroad Co., 10 Cush. 191, 197. There a riparian owner granted to> the defendant a perpetual right to divert all the water of the stream to its non-riparian •premises, where it supplied its locomotive engines with water.
We are asked to deny an injunction because the damage is so small to the orators, and growing smaller all the time,, and the master thinks that the water in the defendants’ pond, the creation of which is complained of, may purify itself from objectionable taste and odor in ten years, though probably a longer time will be required to render it tasteless and odorless as it leaves the pond; and because an> injunction will hurt the-defendants more than it will help the orators. But as the case has got to go back for further findings, this question is reserved.
It is objected that the bill cannot bé maintained because not brought in the name of The Ox B-o-w Aqueduct Company. But this objection cannot be sustained, because it does not appear that the company was ever incorporated and organized. The statute provided that associations thereunder should be formed by written articles, “subscribed by the members.” It fairly appears that these articles were not subscribed by-the members, for the report professes to set out the articles-in their very words, and no signatures are attached. Substantial compliance with the terms of a general incorporation
Again, the statute provided that corporations created thereunder, “when organized,” should be capable to sue and "be sued. It does not appear that said association was ever organized, and therefore it would have no capacity to sue even though the articles had been subscribed.
Reversed and remanded with mandate.