Ainsworth v. Stone

• Decision Date: 12 February 1901
• Parties: AINSWORTH v. STONE.
• Court: Vermont Supreme Court

50 A. 805

73 Vt. 101

AINSWORTH

v. STONE.

Supreme Court of Vermont. Rutland.

Feb. 12, 1901.

Appeal in chancery, Rutland county; Tyler, Chancellor.

Suit by Seward J. Ainsworth against Lucretia M. Stone. From a decree dismissing the bill, orator appeals. Affirmed.

Argued before TYLER, MUNSON, START, WATSON, and STAFFORD, JJ.

Joel C. Baker, for appellant.

G. L. Rice and G. E. Lawrence, for appellee.

START, J. The orator asks to have established a right to continue to take water from a spring situate on the defendant's land, and for an injunction restraining the defendant from interfering with such right and from prosecuting actions at law based on suchtaking. It appears that some 45 years ago, when Ellas W. Kent, the defendant's father, owned the land on which the spring is situated, one Batcheller laid pump logs from the spring to his premises, and thereby conducted water to his dwelling house; that the defendant's father deceased in 1883, and she then became the owner of the land. In 1884, Batcheller, by his deed of warranty, conveyed the premises to Joel W. Ainsworth; and Ainsworth, without the consent or knowledge of the defendant, put a lead pipe from his premises through the pump logs to the spring, and water has since been drawn through the pipe. At the time the pipe was put in the logs had become so decayed that it was necessary to put in new logs or lead pipe. In putting in the pipe, the old logs were taken up at intervals, and some were so badly decayed that they were not used in laying the pipe. In 1886 Ainsworth conveyed his premises to the orator. On the testimony of Batcheller, which was received subject to the orator's objection and exception, it is found that Batcheller conferred with Kent before putting in the pump logs and taking the water, and, without consideration, obtained Kent's permission to do so. From these findings, under the holding in Allen v. Fiske, 42 Vt. 462, and Clark v. Glidden, 60 Vt. 702, 15 Atl. 358, it is clear that the water was originally taken under a license, which terminated with the life of the logs; and that, before the lead pipe was put in by the orator's grantor, Batcheller and the orator's grantor had received the full benefit of Batcheller's expenditure, and the right to the water had terminated. The lead pipe having been put in without the consent or knowledge of the defendant, it was put in without right, and the terminated right to draw the water was not revived by this expenditure. But the...