Hazen v. Perkins
| Decision Date | 08 November 1918 |
| Parties | CHARLES D. HAZEN ET AL. v. SUMNER W. PERKINS |
| Court | Vermont Supreme Court |
Special Term at St. Johnsbury, April, 1918.
APPEAL IN CHANCERY, Orange County. Heard on special master's report, and plaintiffs' exceptions thereto, in chambers on March 8, 1917, Fish, Chancellor. Decree that the bill be dismissed with costs to the defendant. The plaintiffs appealed.
Decree affirmed and cause remanded.
Charles Batchelder for the plaintiffs.
Present WATSON, C. J., POWERS, TAYLOR, and MILES, JJ.
The plaintiffs, severally owners of land abutting on Lake Morey, a natural body of water in the town of Fairlee on which are built cottages for summer occupancy, seek an injunction against defendant, requiring him to remove the gate and all structures erected by him at the outlet of said lake for the purpose of affecting the level thereof, and perpetually enjoining him from erecting or maintaining at said outlet any artificial structure for the purpose of raising or lowering the water of the lake, and to recover damages suffered in the premises.
The outlet of the lake is a small stream which flows southerly and southeasterly into the Connecticut river. The plaintiffs Hazen, Watson, and Low, are the owners in common of a water privilege, known as the Pierce privilege, on the outlet stream. The defendant owns and occupies certain lands and a water privilege, here known as the Perkins privilege, on the outlet stream southerly of and below the Pierce privilege and claims and has exercised the right, in connection with the use of his water privilege, to raise the water of the lake by means of a gate and flashboards at the outlet, for the purpose of conserving the water supply at his privilege, and to lower the same as his needs at the latter place may require. His mills are 382 rods from the outlet of the lake, and the crest of his dam is about 15 1/2 feet lower than the crest of the outlet dam. He owns no land abutting on the lake.
The defendant claims that he had the right, by grant through successive owners from one of the original proprietors of the town, to control the flow of water from the lake in connection with the use and enjoyment of his said water privilege, and that he and his successive grantors in title have exercised such right continuously, openly, notoriously, exclusively, and under a claim of right, for more than one hundred and twenty years, and down to the bringing of this bill.
The case was heard by the chancellor on the report of a special master and plaintiffs' exceptions thereto. The exceptions were overruled and the bill dismissed with costs to the defendant. The plaintiffs appealed; but in presenting the case for review they take no note of the exceptions. Our considerations are therefore confined to the rights of the parties as based upon the pleadings and the facts of record.
It is argued that this Court knows judicially that the waters of Lake Morey are public waters. Very likely we might take judicial notice that the waters of this lake are boatable, as a part of the principal features of the geography of the State (The Montello, 11 Wall. 411, 20 L.Ed. 191), were it necessary in determining their character; but it is not necessary. The master reports that this lake has an area of some six hundred and forty acres; that on its shores are located from eighty to one hundred cottages, occupied during the summer season for purposes of pleasure and recreation; that there are also located on the lake two hotels and a large casino or place of amusement, and several girls' camps, so that during the camping season the lake is a considerable summer resort, the number of people annually frequenting it as such being estimated at about seven thousand; that the lake is used extensively for boating by the occupants of the cottages around it, for which purpose a considerable number of rowboats and canoes are used, together with ten or more motorboats; that a steamboat plies thereon, making regular trips during the summer season for the purpose of carrying passengers around the lake; and that on the shore adjacent to some of the cottages are boathouses and retaining walls, and structures of one sort or another for use in getting into and out of the boats and canoes. On these facts the waters of Lake Morey are boatable, as matter of law, and therefore they are public waters within the provisions of the Constitution as construed in New England Trout and Salmon Club v. Mather, 68 Vt. 338, 35 A. 323, 33 L.R.A. 569. And they have been so deemed and acted upon by the General Assembly: by No. 140 of the Public Laws of 1896, the fish and game commissioners were authorized and directed to examine the outlet of this lake, and to take such steps as might be necessary in repairing the same to protect the waters of the lake and the property below the outlet, money being appropriated for such purpose; again by No. 228 of the Public Acts of 1908, the fish and game commissioner was directed to make a similar examination, and to cause such repairs of the outlet to be made as were necessary for the protection of the waters of the lake and the fish therein.
During the years 1897-1898 the fish and game commissioners, pursuant to the directions of the former act, caused to be constructed at the outlet a pile dam in the neighborhood of three hundred feet long, with a sluice some forty feet long and two feet wide, and having a plank bottom to serve as an outlet. The bottom of this sluice was fixed at a level several inches higher than the bottom of the old sluice. Across the new sluice, as an obstruction to the flow of water through it, were placed two planks two inches wide and one four inches wide. No gate was constructed in the sluice, so that, except as controlled by natural causes, the top of these planks fixed the height of the water in the lake. No claim is made that the dam and sluice, so put in by the State, caused the water to encroach upon the lands of the riparian proprietors, or worked any violation of their rights. And it will be presumed, the contrary not being shown, that these public officers acted in accordance with the law and their instructions. But after such work was done, the defendant put in the gate now existing at the outlet, by cutting out the two bottom planks and constructing a gate to operate on the inside, or lake side, of the remaining plank, with a means of raising and lowering the same. From this we understand that the gate did not operate to raise the height of the water of the lake, but it enabled the defendant to lower it to the level of the bottom of the sluice, eight inches below the level fixed by the authorized agents of the State. In addition to the use of this gate, defendant has used flashboards at the outlet to raise the level of the lake whenever he needed more storage of water for his mills, and he appears to have done this from time to time ever since he acquired title to his water privilege in March, 1895. He admitted having used two flashboards consisting of 2 x 4 pieces, which would raise the normal level eight inches. No finding is made at variance with this admission.
Being public waters according to the test afforded by the Constitution, the grants of land bounding upon the lake pass title only to the water's edge, or to low-water mark if there be a definite low-water line. Fletcher v Phelps, 28 Vt. 257; Jakeway v. Barrett, 38 Vt. 316; Austin v. Rutland R. R. Co., 45 Vt. 215. The bed or soil of such boatable lakes in this State is held by the people in their character as sovereign in trust for public uses for which they are adapted. Illinois Central R. R. Co. v. Illinois, 146 U.S. 387, 13 S.Ct. 110, 36 L.Ed. 1018; Revell v. People, 177 Ill. 468, 52 N.E. 1052, 69 Am. St. Rep. 257, 43 L.R.A. 790. The defendant did not, therefore, acquire any title to the waters of the lake, as such, nor to the lands covered by such waters, by grants from private sources. And the General Assembly cannot grant to private persons for private purposes, the right to control the height of the water of the lake, or the outflow...
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