Bergeron v. Forger

• Decision Date: 05 October 1965
• Docket Number: No. 1517,1517
• Citation: 125 Vt. 207,214 A.2d 85
• Parties: Roger H. BERGERON and Betty J. Bergeron v. Paul FORGER, Margaret J. Forger and Charles M. Emerick and Eleanor E. Emerick.
• Court: Vermont Supreme Court

Page 85

214 A.2d 85

125 Vt. 207

Roger H. BERGERON and Betty J. Bergeron v. Paul FORGER, Margaret J. Forger and Charles M. Emerick and Eleanor E. Emerick.

No. 1517.

Supreme Court of Vermont.

Oct. 5, 1965.

M. Martin Leinwohl, Barre, for plaintiff.

McKee & Clewley, Montpelier, for defendant.

Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.

SMITH, Justice.

This is an equity proceeding. The plaintiffs claim the right to take water from an aqueduct leading from a spring located on the lands of the plaintiffs, but admittedly owned jointly by the defendants. Plaintiffs claim they are entitled to the water (1) by virtue of a certain deed or license, and (2) by virtue of an oral license granted to them by the defendant, Paul A. Forger. Injunctive relief is sought against the defendants from interfering with the flow of water to the premises, as well as damages from the defendants as a consequence of their interference with plaintiffs' water system.

The defendants filed an answer and cross complaint denying that the plaintiffs have any interest in the water from said spring by either record title or license, and seeking a permanent injunction against the plaintiffs from taking water from the spring as well as damages claimed to have been inflicted by the plaintiffs seeking to repair certain water lines.

Findings of Fact were made by the Chancellor below and a decree issued in favor of the defendants enjoining the plaintiffs from taking water from the spring or any line running from it, as well as prohibiting them from interfering with the defendants going upon their premises to repair and maintain their water lines.

Plaintiffs have appealed here from the order and decree of the Chancellor, as well as upon exceptions to certain of the findings of fact and failure of the Chancellor to find in accordance with requests to find made by the plaintiffs.

The undisputed facts found by the Chancellor disclose that the Forgers and the Emericks each own an undivided one-half interest in and to a certain spring of water located on the land of the Bergerons, east of the house on the premises, and which premises were formerly owned by H. J. and Blanche Carr, predecessors in title to the plaintiffs.

An aqueduct runs southerly from the spring with one pipe line extending easterly from it to the house of the Forgers. The aqueduct continues on in a generally southerly direction to the house owned by the Emericks, long known as the 'Stone House,' where it terminates. The Forgers still obtain their water supply from the spring in question but the 'Stone House' of the Emericks no longer uses water from the aqueduct having been supplied by city water from Barree for about twenty years.

The plaintiffs claim record title to water rights from the spring by virtue of a written agreement between Clayton Collins, Admr. of the P. O. Wheaton Estate with H. J. Carr, which is set forth in Finding 4 by the Chancellor:

'WITNESSETH, as follows: viz

'That the said Clayton Collins, acting as Administrator of the P. O. Wheaton estate, in consideration of the promises, agreements and provisos on the part of the said Carr hereinafter contained, does hereby agree to and with the said Carr, his heirs, executors and administrators, that he will allow the said Carr to take a stream of water from the aqueduct owned by said P. O. Wheaton estate, that supplies the stone house, so-called, on the Wheaton premises, from some point convenient to the premises of the said Carr, and will keep the main aqueduct so as to supply said drainage to said Carr's house in good and suitable repair for the period of five years.

'That said Carr promises and agrees on his part that he will take said water and pay for the same at the rate of ten dollars per year for each year of said term. Said aqueduct takes water from a spring on the premises formerly owned by A. S. Parkhurst in said Town of Barre, and it is understood and agreed that in case the spring should be unable to furnish sufficient water for users already at this time connected with said aqueduct and for the premises already being supplied with said aqueduct, then in that case the said Carr's use may be suspended or curtailed, so as not to deprive the present users of said water of any rights which they are already entitled to.

'It is further agreed that in case the said Carr should be deprived of water, then the rent should be correspondingly reduced in a just and proportionate amount to the time during which such use is suspended to said Carr.

'It is further agreed that the amount of water taken by said Carr shall be limited to that which will run through a pipe 1/16 inch in diameter. And in consideration of the covenants, agreements, undertakings and performances of the things herein agreed to be done and performed by the said Collins, his heirs, executors, administrators, or assigns, the said Carr, for himself, his heirs, executors, administrators and assigns, that he will pay to the said Collins, his heirs and assigns, the sum of ten dollars per year for each and every year of said term of five years, the said ten dollars to be payable semiannually in installments of five dollars each, on the first day of January and July respectively of each year of said term; said payments are to commence on the first day of January, A.D. 1922.'

The P. O. Wheaton Estate the Chancellor found to be a predecessor in title to the lands now owned by the Emericks, and the Carrs were predecessors in title to the plaintiffs Bergeron, which findings are unexcepted to.

The findings of the Chancellor in connection with the above agreement, to which the plaintiffs have excepted, was that the agreement itself was an 'implied license only as to a water supply to a tub for the use of cattle,' also, that 'the agreement expired in 1927 when the Carrs sold off their cattle.' (Findings 4, 5, 6 and 7).

We first consider whether the Chancellor was correct in his legal conclusion in Finding 4 that the written agreement between the Wheaton Estate and the Carrs was only an implied license, to which plaintiffs excepted.

Whether an instrument is a license or a lease depends generally on the manifest intent of the parties gleaned from a consideration of its entire contents. Even though a contract purports to be a 'license', if it is strictly within the definition of a lease it will be construed as such, and not as a license. Lowell v. Strahan, 145 Mass. 1, 12 N.E. 401; United States v. Gratiot, 14 Pet. 526, 39 U.S. 526, 10 L.Ed. 573; 32 Am.Jur. Landlord and Tenant, p. 31. Water rights and privileges are...