95 Vt. 364 | Vt. | 1921
This is a proceeding in chancery to enjoin the defendant from interfering with an aqueduct supplying the plaintiff with water. The case was tried by the chancellor on the pleadings in the case and oral evidence. Findings were made, and a decree thereon rendered for the plaintiff, perpetually enjoining the defendant from in any way preventing the water from flowing through the aqueduct, in question, or from interfering with the plaintiff’s sole use, occupancy, control, maintenance, and ownership of the spring and aqueduct in question. From this decree the defendant appealed to this Court.
The chancellor found that about September 1, 1888, or prior thereto, L. W. Adgate, then the owner of the land upon which the source of water supplying the aqueduct was situated, gave to Edgar Hunt and Henry A. Babbitt, then the owners of the plaintiff’s premises, an instrument in writing as follows: “Agreement between L. W. Adgate and Hunt and Babbitt. It being for a spring of water in the town of Hardwick, Yt., in the edge of the woods owned by L. W. Adgate, southerly from the meadow owned by the daughters of L. W. Adgate, with the right to place a tub or box in the spring and granting to the said Edgar Hunt and Henry A. Babbitt the sole and entire use of the water from said spring until such time as it will be needed to supply a dwelling house and barn on said Adgate’s lot after which the entire and sole control of the water not needed for the said house. ’ ’ The instrument was signed by Adgate, and was recorded in the land records of Hardwick September 1, 1888. The water has never been needed to supply any dwelling house or barn on the Adgate lot.
The findings further show that October 15, 1901, Adgate conveyed the premises on which the spring in question was situate to J. W. ITovey; that Hovey, on November 13, 1916, conveyed to the plaintiff by quitclaim deed the spring in question, with the right to box the same and to maintain an aqueduct
The chancellor also found that shortly after Adgate gave the writing to Hunt and Babbitt they constructed the aqueduct. By what right Hunt and Babbitt constructed the aqueduct through the land of the Adgate girls does not appear. The plaintiff made no claim that it was by express grant, but claimed the right to have and maintain it where it is, under a prescriptive grant.
The findings further show that Hunt and Babbitt conveyed the premises now owned by the plaintiff to Joseph Massey March 2, 1893, and that Massey conveyed the same to the plaintiff May 28, 1915, and that she still owns the same.
The ground of the first exception is that there was no evidence supporting the findings. That fifteen years of adverse possession will invest the possessor with title to real estate is so
It is perfectly well settled, as claimed by the defendant, that, to create a prescriptive right to real property, the possession must be open, notorious; and of such a character as to attract the attention of the owner (Barber v. Bailey, 86 Vt. 219, 84 Atl. 608, 44 L. R. A. [N. S.] 98; Arbuckle v. Ward, 29 Vt. 43; Wells v. Austin, 59 Vt. 157, 10 Atl. 405), and no discussion of the law upon this point is necessary. The question is whether there is any evidence tending to show notice of such possession.
We think there is evidence tending to show it. The laying of the aqueduct, the length of this one, the digging up of the earth for that purpose, and covering the same, could not have been done secretly and without notice to the owner of the land. The chancellor finds that a short time after the aqueduct was laid, a barrel was placed over the aqueduct on the “Adgate girls’ land” two or three rods from the barn on that same land, now owned by the defendant; that a pipe from that aqueduct brought water into that barrel for a time, and though water had ceased to flow into it for more than fifteen years at the time the defendant became owner of that land, the evidence tended to show that a remnant of the barrel ánd the pipe that carried the water into it was still there. Mr. Massey, who was the owner of the plaintiff’s premises from March 2, 1893, to May 28, 1915, testified that water ran through that aqueduct to the buildings during all the time he owned them, except at occasional times when repairs were being made, such as happen in any such system; that while he owned the place he kept the pipe in repair. When asked if he knew where the line was between Doctor Adgate’s land and the land of the Adgate girls, he answered: “I can’t say the difference — Adgate girls and Adgate — they always was Doctor
The witness further testified that during'the time he owned the plaintiff’s premises he had to clear out the pipe after every heavy rain, and doing so had to use a force pump on many occasions.
The evidence further tended to show that, during Massey’s ownership, some portion of the aqueduct froze, so water did not flow to the buildings, and the pipe -was dug up for a little _ distance and cut, and the water brought into a barrel, and there used during the remainder of the cold weather.
It can hardly be conceived that the aqueduct could have been laid, the tub or barrel near the barn maintained for the length of time indicated by the evidence, and remnant of it left until the defendant became the owner in 1915, with the pipe carrying the water into the barrel still there, the cleaning out the pipe after every heavy rain, the frequent use of the force pump, the-freezing up of the pipe, and the bringing water into a barrel, and the open use of the water, as shown by the evidence, during the many years the aqueduct existed, with the relation Adgate sustained to the Adgate girls and their land, without the owners of the land through which the aqueduct ran knowing all about it. The case abundantly shows that the owners of the plaintiff’s premises during their possession unfurled their flag and kept it flying; so that the owner might see, if he would, that an enemy had invaded his dominions and planted standard of conquest. Wells v. Austin, 59 Vt. 157, 165, 10 Atl. 405.
Decree affirmed and cause remanded.