91 Vt. 262 | Vt. | 1917
This is a bill in chancery. The case has before been here on an appeal from a decree dismissing the bill. We were not then content to dispose of the ease on the facts presented on the former hearing, and the decree dismissing the bill was reversed pro forma, and the cause was remanded for further proceedings in the court of chancery. 89 Vt. 233, 95 Atl. 487. Further proceedings were had, the same chancellor sitting as before, further findings were made, and a decree was rendered for the plaintiff. From this decree the defendant appeals.
The house of the plaintiff was purchased in 1848, by Timothy P. Redfield. On his decease, in 1888, it passed to his widow by the provisions of his will, and upon her decease, in 1906, it passed to the plaintiff by inheritance.
When Judge Redfield made his purchase in 1848, there was a pipe which conveyed water to the premises purchased from
In 1896, Mrs. Redfield caused the old pipe to be dug up and a new one laid, and paid for the digging and the pipe. Before this bill was brought the defendant prevented the plaintiff from making repairs on this pipe laid in 1896. In the additional facts found by the chancellor since the remand of the case, it is found that the laying of the new pipe in 1896, was with the knowledge and apparent acquiescense of the defendant’s predecessor in title. The chancellor then finds from all the evidence in the case that at the time this pipe was laid in 1896, there was an understanding that the previous arrangement in regard to taking water should continue; and he further finds that the ordinary life of th¿ aqueduct has not expired. Thereupon a decree was rendered in behalf of the plaintiff permitting her to take water through the aqueduct during the life of the same, to enter upon the premises of the defendant to make repairs so as to keep the aqueduct usable or to remove temporary obstructions, but not to the extent of renewing the aqueduct.
And by the decree the defendant, his servants, agents and successors in title are enjoined from interfering with the plaintiff in the exercise of the rights and privileges indicated and it is decreed that the plaintiff on her part continue to pay the sum of five dollars annually as long as she shall convey water through the aqueduct from the spring to her premises, that she shall make the payments that have been omitted as hereinafter stated, and that she recover her taxable costs.
The defendant criticizes the finding that the ordinary life of the aqueduct has not expired. But no exception was taken to this finding, no request was made that the testimony be reported, and the chancellor makes no reference to the testimony. The finding cannot be disturbed. The defendant claims that the arrangement was such that it could be terminated at any time upon notice, basing this claim largely upon the fact that the plaintiff was under obligation to pay $5 a year for the use of the water. But this claim was sufficiently considered when the case was formerly here. 89 Vt. 233, 235, 95 Atl. 487. See also, Clark v. Glidden, 60 Vt. 702, 15 Atl. 358.
One cannot tacitly license another to incur the expense of laying an aqueduct on the premises of the former for the purpose of a water supply, and then insist that he is merely renting the use of water, and that he has a right at any time, on notice, to refuse to supply water, and render the aqueduct useless. In other words the law will not permit the perpetration of a fraud. Wheaton v. Cutler, 84 Vt. 476, 484, 79 Atl. 1091.
All of the claims of the defendant have been considered either in the preparation of this opinion or of that given when the case was before here. Further specification of claims held to be ill-grounded is unnecessary.
Decree affirmed and cause remanded.