O. V. Hooker & Son v. McLeod

| Vt. | May 15, 1896

Munson, J.

The water power in question is used in the operation of mills on both sides of the Passumpsic river at St. Johnsbury, and of a pumping station located on an island which divides the dam. The power is treated as divided into forty parts, of which twelve and one-half parts are used on the north side of the river, eight parts on the island, and nineteen and one-half parts on the south side of the river. The parties to this suit are the owners on the south side; the orators owning two shares, the defendant Hynes four shares, and the defendant Milling Company thirteen and one-half shares; the defendant McLeod’s only interest being that of a stockholder in said company.

In 1881 these shares were owned, one by the orators, one by Orcutt & Pinard, four by the Bank, and thirteen and one-half by the defendant McLeod. All these parties except Orcutt & Pinard were then taking water to their respective mills through separate bulkheads and flumes, and Orcutt & Pinard were intending to build a shop to utilize their share, and had the right to take it in the same way. At this time the owners named entered into some arrangement by which the separate bulkheads were abandoned, and a common bulkhead and flume constructed to convey the water to the vicinity of the mills. The means then provided for taking the water are those now in use. After Orcutt & Pinard, the Bank and defendant McLeod had paid their shares of the expense of the common structure, the property of Orcutt & Pinard was acquired by the orators, that of the Bank by the defendant Hynes, and that of McLeod by the defendant Milling Company.

Some years later, all the owners of the power entered into an arrangement under which the owners on the north side took their shares through a common bulkhead, and the drawing through the different bulkheads was regulated by a contrivance which the parties call a weir. This weir was made by planking the lower part of the three bulkheads up to a common level, and giving to each bulkhead a width corresponding to the proportion of water which those drawing through that bulkhead were entitled to take. The bulkheads still remain as then arranged.

The water passing through the bulkhead owned by the parties to this suit was taken to the several mills of the defendants through openings in the side of the common flume at different distances from the bulkhead, and to that of the orators through an opening in the end of the flume. The defendants became dissatisfied with this arrangement, and made preparations to divide the common flume by partitions; whereupon the orators brought this suit to enjoin them from so doing. The defendants answered, and also filed a cross-bill praying the court to establish an equitable division of the water flowing through said bulkhead. The court below decreed a division of the bulkhead and flume, and the orators appeal.

Nothing is involved in this suit that requires the bringing in of the other owners of the power. All the parties interested in the southern bulkhead and flume and the water taken into it are before the court, and the case calls merely for a determination of their rights as among themselves. The question is not whether the whole power is properly utilized and divided by the three bulkheads, but what the division of that taken by the southern bulkhead shall be while the common structure remains in use.

The rights in suit are of sufficient permanency to entitle the parties to an adjustment in equity. The use of the flume is not determinable at the pleasure of a single owner. Whatever right of independent action may remain, it is certain that one party contributing to the structure could not by any independent action deprive another of the benefit of his expenditure. The rights conferred upon one by the joint action of all must continue during the ordinary life of the structure. There is no finding as to the ordinary life of such a structure, but the facts reported indicaté that it may be considerably longer than the time this one has been in existence.

In the examination of the case some decisions came to the notice of the court which suggested the query whether the construction of this common flume, “by some arrangement,” as is found by the master, and under the circumstances disclosed, was of itself a waiver of the right to partition during the ordinary life of the structure; and it was thought advisable to have the question examined and argued by counsel. But, upon argument, we are satisfied that a partition of the flume cannot be denied on the ground indicated.

The expense of the bulkhead and flume was not divided among the parties according to their respective interests in the water, but upon some plan which the case does not disclose; and the orators now insist that the division of the water should be in proportion to the sums contributed to this expense. It is apparent that the interest in the power was not the only thing to be taken into account in apportioning the expense of the flume; for the mills were at different distances from the bulkhead, that of the orators being the farthest; and it is evident that various other conditions may have existed that could have been taken into account in determining an apportionment of the expense. We find nothing in the case to authorize a division of the water upon any basis other than its ownership.

The report finds that the proposed division will restrict, the amount which the orators might heretofore have taken from the common flume, but will not prevent them from drawing their full share of the amount entering the southerly bulkhead, and that the three bulkheads make a fair division of all the water which they are jointly capable of taking. The orators object to any division which will prevent them from utilizing two-fortieths of the power at all stages of the water. We think they cannot resist the proposed division upon this ground. The owners have not so far deemed it advisable to provide for taking more water than can be received by these bulkheads, and the master considers it impracticable to arrange bulkheads and flumes, to utilize the entire flow in times of very high water. However this may be, we think the parties are entitled to an apportionment of the power as now utilized. The case calls, merely for an equitable division of such part of the water as the parties themselves have seen fit to provide the means of' taking. The orators are doubtless entitled to two-fortieths of the water at its highest stage, but they are not entitled to space enough in this bulkhead to take it.

The master reports that the present arrangement works a disadvantage to the defendants, and that a division of the flume as proposed will equalize the delivery, if the water is used as received. The orators insist that if any division is made it should be determined by the apertures of discharge. It would seem that the proposed division must give to the several owners their proper shares of the power utilized, if the water entering the several compartments is given the same facility of escape. It appears, however, that the discharging capacity of the wheels used in defendants’ mills is larger than that of the orators’ wheel, considering their respective rights; and it is claimed that in some conditions of the flow the amount entering the proposed compartments will be controlled by the size of the wheels.

It is not clear that the general finding of the master is inconsistent with this claim. The finding is that a proper division of the bulkhead and flume will give to each owner his fair share of the water flowing through said bulkhead and flume, if he will use the water while the other owners are using it as it flows along. It would seem from this statement that much of the ground necessary to be covered in reaching a fair division of the water would lie in the regulation of its use, even if the flume were divided. The report does not show how far these partitions would control the division when the owners are drawing down ponded water with wheels disproportioned to their rights. This will more fully appear from those portions of the report devoted specially to the orators’ requests. The orators requested the master to state whether the discharge from the different sections of the flume, if divided, would affect the velocity of the water flowing through them. The master reports thereon that he is not able from the evidence to answer the inquiry; that there was evidence that the velocity affected the amount discharged, and that the amount discharged affected the velocity, but that the conditions controlling either were not shown. The orators also requested the master to state whether the proposed division of the flume would effect a division of the water, if the outlets were disproportioned. The master replies that the evidence does not enable him to determine what the effect of disproportion in the outlets would be with all the other conditions as they are, or as they would be in case of division, and that he sees no reason why the outlets may not be made of a size exactly proportioned to the ownership. The orators further requested the master to report what effect the proposed division would have with all the wheels running and drawing all the water they could, with a full pond in low water. To this the master says he is not able to find that the effect would be any different in low water from what it would be in high water, provided the pond was just full in each case, and that he believes and finds that when the pond is just full, with the weirs as they are, a division of the common bulkhead and flume would be equitable and fair. It is claimed that this answer misses the point of the orators’ inquiry. In any event, the answer cannot, when read in connection with the other answers, be said to determine what the regulating effect of the partitions would be during the time that the water was being lowered from the top of the dam to the level of the weir. It seems probable that this is an important stage of the water to be considered in making an adjustment of this character, and that a division which did not meet the requirements of this stage would largely fail of its purpose. The master's report is evidently very full and exact as to all matters covered by the evidence, but he says that no hydraulic engineer or expert was produced as a witness, and he has indicated the incomplete condition of the evidence in some important particulars. While it may be that upon a further showing the proposed division will be seen to be equitable and sufficient, there seems to be a shortage in the report, apparently from lack of evidence, which justifies a further inquiry before remanding for final decree. It may be that the proposed partition is essential, even if supplemental regulations are necessary to a complete adjustment. It is possible, however, that the effect of other regulations might be so controlling as to make the partitioning of the flume itself an unjustifiable expense; and it seems desirable that we have further information upon this point before requiring that expenditure.

Decree reversed pro forma, and cause remanded with mandate that the report be recommitted to the master with instructions that he receive such further evidence as may, with the evidence already introduced, enable him to answer the inquiries set forth in the opinion, and to report more fully as to the efficacy of the division recommended in the original report, as compared with other practicable methods of division.