Wilson v. Wilson

2 Vt. 68 | Vt. | 1829

Hutchinson, J.

delivered the opinion of the Court. There appears no connection, either in fact or in principle, between the subject matter of the first and thirdfcounts of the plaintiff’s declaration. The question raised, in connection with the subject of the first count, is presented by the exception ¡taken to¡ the charge of the Court.

It appears, from the case and writings therein referred to, that the plaintiff, in 1802, derived, from Aaron Haskins and-others, all the title he and the defendant both now have, at the place of the dam and flume in question; that he had a right to erect a dam, so as to raise the water ten feet above its natural height, at common low water — That, in 1808, the plaintiff conveyed to the defendant the right of erecting such dam, and taking and using one half of the water — That the plaintiff, also becoming owner of works farther up the river, in 1815, a dispute arose between him and the defendant about the height of the defendant’s dam, and the same was settled by the award of arbitrators, and a monument placed in the rock to prevent all future uncertainty about the height to which a dam might be erected — That the plaintiff, before this suit was brought, had erected a furnace at the end of this dam, where he had none erected before, and, it is understood, on premises not owned by him when the award wás made ; and that the defendant’s new flume, planked up two feet higher than the dam, occupied eight feet of the space where the water before passed over the dam. The water had arisen, and done an injury to the plaintiff’s furnace.

Upon this point, the Court instructed the jury, that the defendant had no right, by the erection of additional flumes, or otherwise, to raise the water higher than the dam, at the height fixed by the arbitrators, would have arised it; and that if he did so, and the plaintiff was damnified thereby, he was entitled to recover his damage thus sustained.

Though this arbitrament and award might have, and probably had, reference to the plaintiff’s complaints of injury to his works above, from the great height to which the defendant had raised the water by his dam ; yet it settled the height of the dam, in reference to the rights of the plaintiff'and defendant, under the lease Tlaslcins and others to the plaintiff, and his deed to the defendant. That question was so settled, that the plaintiff must bear whatever injury was done to his works above, if any such existed; and he might well act upon the faith of this, in new erections and purchases connected with it. If the defendant had no right to raise the dam above a certain height, and he did so raise it, to the injury of the plaintiff’s rights that existed at the time of the award, or that he had acquired since that time, in either case, the plaintiff would be entitled to damage for such injury. It seems, that the defendant’s new flume occupied eight feet of what before was dam ■, and it was two feet higher than the dam. Of course, it must have formed an obstruction to the water passing Over the dam, eight feet long and two feet high. This might occasion a greater height of water in the pond, and a heavier current where it passed over the dam, than if this obstruction were not there. Whether it did so or not, was a proper question to the jury, and, we think, was properly submitted to them in the charge.

In the third count, the plaintiff complains of obstructions to, and taking away part of a bridge, leading from the plaintiff’s shop and factory, over the river tó the main road.

It appears, by the writing referred to, of April 8th, 1805, that Aaron Haskins and others, of whom the plaintiff was one, then appropriated a piece of laud, about two and a half rods wide, and extending from the east end of the great bridge .across said river,north-eastwardly,to the road that runs north and south, for a road,and agreed lhai this road, so established by agreement, should be kept open, as free and clear to the public forever. This writing lyas recorded in the town records. The plaintiff, when he conveyed half of the water to the defendant, conveyed a piece of land lying north of this road, and bounded upon its north line; also a piece by this description, “ all the land northerly of a ledge, running from the river to the highway above mentioned, (that is the highway runing north and south) with a shop thereon standing, containing about ten rods of land.5*

The defendant objected to the plaintiff’s testimony to prove this third count, and to prove the injury complained of; but the same was admitted. The objection to this evidence, and to the charge of the Court upon it, goes wholly to the form of the action; the defendant contending that it would support trespass and not case.

The Court, however, consider that, while the plaintiff complains of the interruption of an easement merely, he must declare in case, ff he complains of an injury to his right of soil in the highway, he may declare in trespass; though the same act that occasioned the injury impede the .use of the easement. Here the plaintiff complains of nothing but the interruption of his easement ; and, upon this declaration, could recover for nothing else.

Again, the defendant contends that the plaintiff’s deed to him covers the land in question, conveying to him all the right the plaintiff would otherwise have. This leads to a construction of the last clause in the descriptive part of said deed. What is meant by “ all the land north of the ledge ?” It cannot mean all there is in the world north of the ledge. Several things concur to show what was intended. 1st. The quantity. The deed says about ten rods of land. The testimony is, that the whole between the ledge and said cross road is about twelve and three fourths rods of land. 2d. The shop mentioned in the deed stands on this piece, but south of said cross road. 3d. The same deed, by another description, conveys to the defendant the land next north of this cross road. These two separate descriptions could have no possible object, but to exclude the land over which this cross road passed. 4th. Said deed is a warranty deed, and neither party seems ever to have supposed that cross road to be an incumbrance to affect the covenants. Yet such it would be, if the land under such road had been conveyed. This serves to show how the parties have understood the deed, for more than twenty years.

We think this deed does not cover the land under said cross road. But if it did convey the land,we discover no ground upon which the plaintiff’s right to the easement can be affected by it-The plaintiff could give no conveyance that would prevent this cross road from being a public road. He joined with others in mating it such, so long ago as the year 1805. Such it must remain till altered by something more than any deed from one of the original owners. But there is no description in this deed that can be construed into an intention to convey any easement or right of' Way. What is conveyed is clearly certain lands, and half of the water at the dam. The Court, therefore, correctly instructed the jury, that, if the plaintiff had used this right of way for mor» than fifteen years, it was sufficient evidence of his right; and that such right was not extinguished by the plaintiff’s deed to the cle-fendant.

Mr. Bates, for the plaintiff. Mr, Phelps, for the defendant,

Neither would this be rendered otherwise by the work of th» plaintiff, and others interested, in piling up the remains of the old bridge, and carrying their portions to their respective houses. This could be nothing more favorable to the defendant, than evidence of abandoning the highway as such ; and that was comprised in the charge about the plaintiff’s having used this easement for fifteen years. Furthermore, it was no more evidence of an abandonment, than it was of clearing away the rubbish preparatory to the erection of a new bridge. And it seems a new bridge was actually erected in the fall of 1825.

With regard to the admission of the testimony about the foot bridge, and its being cut away by the defendant; this testimony was properly admitted, if it tended to show what seems supposed by the charge of the Court; that is, if it tended to show that this was a temporary bridge, erected for the purpose of enjoying the same easement, while abetter bridge should be erected. A recurrence to the third count of the declaration shows that the variance urged in argument does not exist. The charge in the declaration is, that the defendant wrongfully, &c. did tear up, break down, cut away, and remove, part of said bridge, and put obstructions on the same. It no where gives any such description of the bridge as to designate it a foot bridge, or any other bridge in particular. The gravamen is the impediment to the easement, by the cutting away, he. the bridge, upon which the plaintiff and others crossed the river to the main road, in the enjoyment of that easement.

Upon the whole, the judgment of the County Court is affirmed.