70 Vt. 327 | Vt. | 1896
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
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
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
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
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.