Barre Water Co. v. W. M. Carnes

• Decision Date: 01 January 1893
• Citation: 27 A. 609,65 Vt. 626
• Parties: BARRE WATER CO. v. W. M. CARNES ET AL
• Court: Vermont Supreme Court

27 A. 609

65 Vt. 626

BARRE WATER CO. v. W. M. CARNES ET AL

Supreme Court of Vermont

January 1, 1893

GENERAL TERM, 1893

Bill for an injunction. Heard upon bill and answer at the March term, 1893. TAFT, chancellor, dismissed the bill, pro forma. The orator appeals. The opinion states the case.

Decree affirmed and cause remanded.

E W. Bisbee and Geo. W. Wing for the orator.

Before ROSS, CH. J., ROWELL, MUNSON AND START, JJ.

OPINION

START

This cause was heard on bill and answer and the facts stated in the answer are to be taken as true. A stream of water, called Jail Branch, runs through the town of Barre, flowing through the the villages of East Barre and Barre, the former village being about four miles above the latter on said stream. Under No. 171 of the acts of 1886, the orator has erected a dam across Jail Branch three miles above the village of Barre and one below East Barre, and the village of Barre is being supplied therefrom. There is also a stream of water called Nichol's Brook, which flows through East Barre and empties into Jail Branch about one mile above the orator's dam. The inhabitants of East Barre have always taken water from Jail Branch, its feeders and tributaries, for their necessary use, and must always do so, as they have no other source of supply. The orator has never obtained, by purchase or by the right of eminent domain, any right in the waters of the Jail Branch or its tributaries above its reservoir. The defendants, under No. 186 of the acts of 1892, have, by purchase, acquired the right to construct a dam across Nichol's Brook and to build a reservoir at a point three-fourths of a mile southerly from Jail Branch, and have purchased the rights of the riparian owners in and to the waters of said stream flowing over and through their respective lands, from the site of their proposed dam and reservoir to the main stream; and they have constructed an aqueduct from the site of said proposed dam to East Barre for the purpose of supplying the inhabitants of East Barre with water for domestic, sanitary and fire purposes.

The waters of Jail Branch flow over the orator's dam and along its proper channel, notwithstanding the amount of water taken from the stream by the orator's aqueduct. Jail Branch is the natural outlet for the water in East Barre, and all water taken from said stream, its feeders and tributaries, and not consumed, must flow into Jail Branch about one mile above the orator's dam. The defendants deny that there will be any sensible diminution of the water, or the free flowing of the same, at the orator's reservoir, except the natural waste. The orator claims it is entitled to have all the waters of Nichol's Brook flow into Jail Branch and from thence into its aqueduct, and seeks to enjoin the defendants from taking any of the water in Nichol's brook for the purposes aforesaid. The inhabitants of East Barre have always obtained water for their use from Jail Branch and its tributaries, and all such inhabitants as can reach this stream and its tributaries without trespassing upon the lands of others, can lawfully use the water flowing therein for domestic purposes. In Philadelphia v. Collins, 68 Pa. 106, it is said: "Every individual residing upon the banks of a stream has a right to the use of the water to drink and for the ordinary uses of domestic life; and where large bodies of people live upon the banks of a stream, as they do in large cities, the collective body of the citizens has the same right, but of course in a greatly exaggerated degree."

A riparian owner may conduct water by means of pipes to any part of his premises, where he thinks it...