59 Vt. 108 | Vt. | 1886
The opinion of the court was delivered by’
Wesley C. Peck formerly owned the mills, and all the water power, rights and privileges in the stream, now in contention between the orator and defendant. These consist, among; other things, of a grist-mill and saw-mill. The gristmill is located further down the stream, and has a small dam and pond for turning the water of the stream upon the wheel, but not of a capacity to accumulate any considerable, water more than what flows in the stream. The stream is small, and only in time of high water furnishes sufficient running water to propel the machinery in either mill. The saw-mill, located a few rods above the grist-mill, has a dam and pond capable of storing a very considerable quantity of water. To operate the grist-mill, when the water flowing in the stream was insufficient for that purpose, Mr. Pock arranged to draw water from the
They differ with reference to the extent of the orator’s rights, and. with reference to the duty of the orator to - contribute toAvard the maintenance of the dam at the saw-mill. The orator contends that he has the right to draw the Avater only as an easement, and that it is the duty of the defendant, who has become the owner of the saw-mill and privilege, to maintain the dam and secure to him the privilege of drawing the Avater at all times at his own expense. There is no contract between the parties, or-the defendant’s grantor and the orator, in regard to maintaining the dam. The defendant contends, there being no contract imposing the duty upon him to maintain the dam at the saw-mill privilege — that he can abandon or give up the use of the water power created by the dam and allow the dam to Avaste and perish; and the privilege granted is more than the mere right to draw the water, that it confers whatever is necessary to make the privilege available — a right to maintain the dam and pond, and have the Avater' of the stream stored in the pond, for his use. By whatever name the orator’s privi
Neither the orator nor the defendant being under any contract obligation to maintain the water power for the exclusive benefit of the other, either can abandon it, and be under no obligation to aid in its maintenance. Each having an interest
This holding necessitates a further reference under the cross-bill to determine the relative right of each party to the water power created by the saw-mill dam and pond, and an apportionment of the expenses properly incurred in its maintenance. This holding .that the defendant was under no legal obligation to maintain the water power for the sole benefit of the orator to draw from, establishes that the orator has no right to the five dollars, found by the master, as damages occasioned by the delay of the defendant in completing necessary repairs in the fall of 1882, inasmuch as it was the right and duty of the orator to have made the repairs equally with the defendant; and if the defendant did not proceed with sufficient rapidity to suit his convenience, he could have made them himself. The solicitors substantially agree that the relative rights of the parties to the use of the water power created by the saw-mill dam is to be determined as they wore in use at the date of the contract and conveyance from Peck to the orator.
II. The only other matter necessary to be considered in the present stage of the case is whether the orator was entitled to the injunction which he procured against the defendant. We think, neither on the facts found by the master, nor under the relative rights and duties of the parties in and to the water, was.he entitled to the injunction. It is conceded that it was necessary to rebuild the dam, and it is found that the defendant was proceeding with due diligence to rebuild it in a proper manner. Neither the fact that the defendant used it in a safe and proper manner for his own convenience before it was completed; nor the fact that he had not then
On these views the decree dismissing the orator’s bill was correct, and would be affirmed if it were not for the cross-bill, which it was agreed the defendant might file.. The hearing in this court has proceeded as though the cross-bill were filed. To furnish the proper relief in the cross-bill further proceedings in the Court of Chancery are necessary; and the cause is remanded with a mandate settling the rights and duties of the parties in accordance with the views already expressed.