Ames v. Dorset Marble Co.

• Decision Date: 15 February 1892
• Citation: 23 A. 857,64 Vt. 10
• Parties: WILLIAM D. AMES v. DORSET MARBLE CO. & D. S.KENT & CO
• Court: Vermont Supreme Court

23 A. 857

64 Vt. 10

WILLIAM D. AMES v. DORSET MARBLE CO. & D. S.KENT & CO

Supreme Court of Vermont

February 15, 1892

GENERAL TERM, OCTOBER, 1891

The cause is remanded with a mandate in accordance with these views, and, as it is a substantial affirmance of the decree of the court of chancery, with costs to the orator in this court.

Batchelder & Barber, for Kent & Co.

Munson J., having been of counsel, did not sit.

OPINION

ROSS

The Dorset Marble Co. has not appeared to prosecute its appeal. The decree of the court of chancery against it is substantially affirmed with costs. The right of the orator against D. S. Kent & Co. to have the bed of the stream of the Battenkill river through the premises of D. S. Kent & Co. unobstructed, and kept in such condition that it will not set the water of the river back upon the orator's meadow, is established by the judgment of this court in 1876. The masters have found that that "suit was for substantially the same cause of action as is alleged against said Kent & Co. in this suit."

This applies to the deposit of spent sand, worn marble, and gravel and sand from the mountain stream, in the bed of the river so as to obstruct the flow of the water therein as established by the suit at law. The orator's meadow is higher up the river than the marble mills of the defendants. He has no interest in their use of the river on their respective premises, provided such use does not obstruct the flow of the water therein, so as to set it back upon his meadow to his damage. They have the right to use the water and its flow, as it passes across their respective premises but not so to obstruct the passage of the water as to set it back upon the orator's meadow to its essential damage. D. S. Kent & Co. have the right to change the course of the mountain stream upon their premises, but are bound to make such change in such a manner as will not injure the orator. Under the same restrictions, the defendants have the right to wall the stream on their respective premises. It is found that the Dorset Marble Co. have obstructed the stream upon its premises, by narrowing and filling the channel, in various ways, and that D. S. Kent & Co. have contributed to the filling of the channel, by allowing its spent sand and worn marble to pass into the stream and by changing the course of the mountain stream so that it brings much more gravel and material into the bed of the Battenkill river. Each defendant...