Arnold v. Farr

• Decision Date: 13 June 1889
• Citation: Arnold v. Farr, 61 Vt. 444, 17 A. 1004 (Vt. 1889)
• Parties: FENELON ARNOLD ET AL. v. JOHN V. FARR ET AL
• Court: Vermont Supreme Court

17 A. 1004

61 Vt. 444

FENELON ARNOLD ET AL. v. JOHN V. FARR ET AL

Supreme Court of Vermont

June 13, 1889

JANUARY TERM, 1889.

The cause is remanded with mandate that the decree of the Chancellor dismissing the orator's bill of complaint be affirmed with costs.

L M. Read and C. B. & C. F. Eddy, for the orators.

Present ROYCE, CH. J., POWERS, ROWELL, TYLER, JJ.

OPINION

TYLER

The main question in this case is whether the deed from Brigham to defendant Farr conveyed an absolute title to an undivided sixth part of the spring or a right only to take that portion of the water from some convenient point in the aqueduct.

The orator's counsel claim in their brief that the only right Brigham's grantors had was an undivided part of the water of the spring to be taken through the aqueduct, and that they could convey no greater interest than they owned that Brigham, during the time that he held title, and the defendant thereafter until October, 1886, placed this construction upon the grant by taking their share of water from the aqueduct, and that their construction of it is the measure of the defendant's right.

Referring to the partition of the real estate of Arnold; there can be no question but that his heirs thereby acquired absolute title to the spring and aqueduct. The deed from DeWolfe to the orator Arnold did not convey the use of the water nor a mere right to draw it, but "two undivided ninth parts of the aqueduct and spring of water now running to the dwelling house owned and occupied by said DeWolfe, with full liberty to conduct said portion of water from said premises." * * The same language is used in the deed from DeWolfe to Stoddard and in that of the latter to Phelps. Then DeWolfe, Arnold and Phelps, each owned two undivided ninths of the spring and aqueduct and conveyed a one sixth interest therein to Brigham, whose deed to Farr contains substantially the same description. Farr, therefore, acquired a good title to an undivided sixth part of the spring and aqueduct with a privilege of taking that portion of the water from such point in the aqueduct as should be most convenient.

Is the defendant limited to the particular means mentioned in the deed of taking his share of the water to his premises? When a deed is of doubtful meaning, the manner in which the parties holding under it have for a long period of time treated the thing granted, aids in giving it a practical construction. This is the import of the Massachusetts cases cited upon the orator's brief.

In Dryden v. Jepherson, 35...