67 Vt. 489 | Vt. | 1893
The only deed offered in evidence was one from S. C. Chubb to Nat Whittier and D. B. Minard, conveying an interest in certain springs or wells of water, for injuring which the suit'is brought. At the opening of the case, statements were made by counsel to the effect that defendant’s title was obtained from Chubb by a deed subsequent to that given the plaintiffs, and that before the injury complained of the interest acquired by Nat Whittier had been transferred to his wife.
The competency of Nat Whittier as a witness depends upon whether he was properly joined as a party. No. 45, Acts 1886. It is claimed that he was not a proper party because of the provisions of No. 140, Acts of 1884. But if this act should be given the effect claimed it would not prevent the joinder of the husband in suing for an injury to the wife’s realty, unless the property was so obtained as to be held to her sole and separate use. Nothing appears in regard to the wife’s acquirement of this property except that it was conveyed by the husband to a trustee and by this trustee to the wife, and no further fact will be presumed to im
The plaintiff’s case, upon which a verdict was directed for the defendant, discloses that the two wells in question were dug, the pipe laid from the first to the second and from the second to the buildings, and the use of the water entered upon, before the deed of the right was given ; that after this deed was given, a portion of the lot near the wells was conveyed to the defendant, who dug a cellar upon it, and made an excavation in the bottom of the cellar, the bottom of which excavation was two feet lower than the bottom of the upper well; that while the cellar was being dug considerable water came into it, and that the excavation in the cellar is permanently filled with water; that a diminution in the plaintiff’s supply was noticed while the cellar was being dug, that after the digging was completed it took about ten times as long for the upper well to fill after being exhausted by the syphon as it did before, and that this condition of things has since continued. It is not claimed that these places were anything more than collections of percolating water.
The defendant claims that his liability is merely that of an adjoining owner; and if he is right in this the verdict in his favor was properly directed. It is well settled that there are no correlative rights between adjoining land owners in regard to percolating water, and that one whose underground supply is cut oil' by the digging of his neighbor is without remedy. Chatfield v. Wilson, 28 Vt. 49; Harwood v. Benton, 32 Vt. 724.
The plaintiffs cannot recover unless it can be held that
It is certain that a grant of the land containing these wells would have deprived neither Chubb nor his grantee of the right to dig upon the remaining land to the injury of the wells. A holding to the contrary would be inconsistent with the settled law upon the subject of percolating water. Harwood v. Benton, 32 Vt. 724 (735). But here the water afforded by the wells is the very thing granted; and the question is whether the grant secures the owner of the right from a diminution of the supply by means of other excavations.
The law refuses to recognize the existence of correlative rights in percolating water as between land owners, for the reason that the laws which govern its presence and movement are so secret, uncertain and uncontrollable, that a general regulation of the subject is impracticable. It cannot be said, however, that a right to percolating water greater than would be acquired by a deed of the land may not be created by apt and sufficient words ; and if the language of this deed clearly imports such a right, the law will not refuse to recognize it.
The grantor conveys in the first place all his right and title to the springs or wells, giving a minute description of their location. He then inserts the following clause : “I also quitclaim all right and title which I have in and to what
Judgment reversed and cause remanded.