9 Vt. 242 | Vt. | 1837
Such other facts, shewn on the hearing, as are material in the case, will sufficiently appear in the opinion of the court delivered by
It has been considered, by both parties, necessary to inquire, as to the existence and extent of the right, claimed by the orators, to keep up a dam and thereby overflow the lands of the defendant. The answer of the defendant admits, or rather recognizes a right, in the complainants, to keep up the water to some extent, except between the first day oí May and the first day of the succeeding September, annually, but does not admit any right, or that the defendant had any knowledge of any claim of the complainants, as set forth in the bill. From the papers in evidence, it appears, that on the 11th of May, 1792, Jason Richardson, who then owned the premises, now owned by both parties to this bill, executed a deed to James Wilder of about one quarter of an acre of land, and at the same
It appears, that Jason Richardson, in March, 1807, conveyed the land owned by him, and which is the same land now owned by the defendant and complainant, to Stephen Powers. On the 21st of May, 1802, James Wilder conveyed all his interest in the works on the dam to Elkanah Phelps; and, on the same day, Stephen Powers executed a deed to Phelps. On .the construction of this last deed, a question, has been made. It is in the words following, to wit: “ a piece or parcel of land lying on the “ South branch of Water Queeche river, so called, and, for a des- “ cription, it being all that land, excepting the land belonging to “ Nicholas Baylies and Benjamin Swan, which is covered by the
Upon a recurrence to the testimony, we find that it was so
The right or privilege, which was thus conveyed to Phelps., it appears, has come to the present orators by a regular chain of conveyances; and it also appears in testimony, that the farm was conveyed by Powers to John Briggs, in April, 1808; that the administrators of Briggs conveyed to Jireh Swift in February, 1814; that in June, 1819, the complainant, Mower, and the defendant purchased the same farm and took a deed to themselves jointly; and that in April, 1820, they mutually conveyed to each other the several parts of the farm, by them respectively purchased of Swift, agreeably to the original agreement. The several deeds from Powers, Briggs’ administrators, and Swift, were deeds of warranty, containing the usual covenants against incumbrances.
It is, however, further urged in this case, that if there was any right thus granted to Phelps, the orators can claim no benefit from it, inasmuch as it has been lost, and the defendant and the owners of the farm have occupied it, without any inconvenience from the dam, for a long series of years. We think, however, there can be no foundation for the allegation that the orators have lost any right. The right arises from grant, and not from'prescription, and if the orators could not avail themselves of it, to its full extent, without encroaching upon those, who occupied the Baylies place, and although it should have been dormant, in consequence of that, for any number of years; yet, they might use it against all others, and, whenever the right of the- owners of the Baylies place could be purchased, or extinguished, or quieted, might use it without any interruption. Nothing would be lost by the interruption, or non use, in consequence of the claim of those, who owned the lot, originally purchased by Baylies. It appears abundantly from the testimony, that the grantees of Phelps and others, owning works on ‘this dam, have, at various times, kept it up and flowed the lands, now owned by the defendant, in the summer season; and that the inteference of Williams, who owned the Baylies place, was fre
As the orators have the right, of which we have spoken, by grant, and that grant is on record, the defendant is deemed, in law, to have notice of the same. All persons are considered as having notice of all the conveyances, on record, connected with their title. The deed from Richardson to Wilder, as well as the deed from Powers to Phelps, gave the right to erect a dam six feet high, and also to flow all the lands owned by the grantors, by raising the pond, which such a dam would raise, and created an incumbrance on those lands, and was similar to a grant of a right of way, or any other easement on the land. The grant was, therefore, of a part and parcel of the farm, which Powers owned, and which was afterwards purchased by the defendant and the complainant, Mower, and being on record, neither of them can now claim that they are purchasers without notice. This renders it unnecessary for us to attend to that part of the testimony, introduced to shew that the claim, or right in the owners of the dam, was a matter of public notoriety, known to the owners and occupants of the farm, and also to the present defendant.
We have thus examined and considered the proof, as to the existence of the right claimed by the orators, and the result of our inquiries is, as has been already expressed, inasmuch as both parties have considered the cause as depending, in a great measure, upon the result to which we might come, on this part of the case. It may be doubtful, however, whether any thing further was required, than to find that the complainants have claimed such a right; as the principal inquiry is, what is the effect of the deed executed by Mower to the defendant, in April, 1820. Mower was, at that time, the owner of the oil mill, situated on the dam, and, with the owners of the other privileges on the dam, had the right of raising the dam and flowing the lands, which have already been considered. The defendant claims, both in his suit at law, and here, that the effect of the deed from Mower to him was to convey the land to him free from any incumbrances, and to extinguish any right which he, Mower, had, at that time, under the grant to Phelps, before mentioned; and the question now is, whether it is consistent with equity, that he should thus use this deed. It is not pretended in the answer, that any thing was paid to Mower for a grant of this
We have not taken into consideration, whether the present dam is either higher or lower than it ought tobe by the grant. The dam may be erected as high as it was to be by the deeds of Richardson aad Powers, that is, six feet above low witter, as