Betty Kasuba v. Fred H. Graves

• Decision Date: 05 October 1937
• Parties: BETTY KASUBA ET AL. v. FRED H. GRAVES
• Court: Vermont Supreme Court

194 A. 455

109 Vt. 191

BETTY KASUBA ET AL. v. FRED H. GRAVES

Supreme Court of Vermont

October 5, 1937

May Term, 1937.

Injunction to Restrain Pumping Water from Quarries Causing Unnatural Flow in Brook---Theory on Which Case Tried and Briefed---Rights of Riparian Owners---Some Detriment to Lower Owner Permitted---Failure to Show Monetary Damage---When Equitable Relief Granted---Right to Deposit Waste Products in Stream---Right to Reasonable Use---Factors in Determining Reasonableness---Reasonable Use a Question of Fact to be Found or Inferred---Use Held Unreasonable---Order Permitting Discharge of Water Necessary to Upper Riparian Owner---Necessities of Upper Owner as Measure of Rights of Lower---Order Permitting Injury to Lower Owners---Application of Doctrine of Comparative Equities---Obligation of Lower Owners to Keep Brook Open---Comparative Equities When Cost of Avoiding Damage Not Found---Doctrine Not Applicable in Circumstances---Rights of Upper Owner Defined.

1. In suit in equity seeking injunction to restrain defendant from pumping water out of slate quarries so as to cause unnatural flow of water in brook crossing plaintiff's farm, where case was tried below and briefed in Supreme Court upon theory that plaintiffs and defendant were respectively lower and upper riparian owners, and that their rights were governed by law applying to such owners, Supreme Court so treated the case.

2. In general, every owner of land over which stream flows has right to natural flow of stream, and cannot be deprived of it but by grant, actual or presumptive, but this rule is subject to qualification that riparian owners have correlative rights and must so use their own rights as not to deprive others of equal enjoyment of same rights.

3. Restriction making rights of riparian owners correlative does not go so far as to deprive upper riparian owner of right to reasonable use of waters of stream even though such use may involve some slight inconvenience or detriment to those situated below.

4. In suit in equity seeking injunction to restrain defendant from pumping water out of slate quarries so as to cause unnatural flow of water in brook crossing plaintiffs' farm, failure of plaintiffs to show amount of their monetary damage, if any, held not to affect their right to injunctive relief if their case was otherwise made out, since damages found by chancellor, that unnatural flow of water interfered with passage from house to barn, damaged certain crops, made it necessary to plow over some land and made new water courses in meadow land, were substantial in character.

5. Though amount of monetary damage is not shown, equity will not refuse injunctive relief where there has been unwarranted invasion of a person's property, likely to be continuous in character, and such as, continued under claim of right, might ripen into easement.

6. The reasonableness of the use must determine right of upper riparian owner to deposit waste products of manufacture in a stream, and this must depend upon extent of detriment to riparian proprietors below, and while such owners must submit to such inconvenience and injury as may result from use of stream in proper manner by upper riparian owner, they are not compelled to submit to damages which are not necessarily occasioned thereby.

7. Riparian owners, as against each other, are entitled to a reasonable use of the waters of a stream.

8. Size and character of stream and use to which it is subservient are pertinent for consideration in determining reasonableness of its use by riparian owner.

9. What is reasonable and proper use of waters of stream by riparian owner is usually question of fact for trier, and though trier fails to make express finding on the subject, if it can be inferred from facts found that use was reasonable, and such inference is necessary to support decree, Supreme Court will assume that lower court drew this inference.

10. In suit in equity seeking injunction to restrain defendant from pumping water out of slate quarries so as to cause unnatural flow of water in brook crossing plaintiffs' land, where there was no finding as to reasonableness of defendant's use of stream but facts showed material damage to plaintiffs resulting therefrom, held that use shown was unreasonable as matter of law and that inference otherwise would not be justifiable.

11. In such suit, order of chancellor enjoining defendant from discharging waters from quarries into brook except to such extent "as may be absolutely and indispensably necessary for the beneficial use by the defendant of such quarries in the operation thereof" permitted defendant, if it was so necessary, to discharge any quantity of water into brook regardless of extent of damage to lands of plaintiffs.

12. In such circumstances, necessities of defendant could not measure rights of plaintiffs.

13. In such suit, where it seemed clear that pumping of water from quarries to extent permitted by decree of chancellor would result in continuing injury to plaintiffs, order was to be modified unless doctrine of comparative equities was applicable.

14. Doctrine of comparative equities is not one of general application, and whether it is applicable at all depends upon circumstances of the particular case.

15. In suit in equity seeking injunction to restrain defendant from pumping water out of slate quarries so as to cause unnatural flow of water in brook crossing plaintiffs' farm, held that plaintiffs were under no obligation to keep brook open where it flowed through barnyard in order to care for such unnatural flow.

16. In such suit, where chancellor found that no damage to plaintiffs would result if brook were "kept open in a proper manner" where it crossed plaintiffs' barnyard, but there was no finding as to cost thereof, an essential element for application of doctrine of comparative equities was lacking.

17. In such suit, where chancellor found that unnatural flow of water interfered with passage from plaintiffs' house to their barn, damaged certain crops, made it necessary to plow over some land and made new water courses in meadow land held that doctrine of comparative equities did not apply though chancellor also found that as result of opening of quarries by defendant thirty men were taken off relief rolls in town and that damage to plaintiffs would be slight as compared to damage defendant and community in general would suffer if defendant were absolutely restrained from pumping water from quarries.

18. In such suit, held that defendant had right to pump water from quarries to extent that pumping was absolutely and indispensably necessary for their beneficial use, and could be done without substantial injury to plaintiffs, but that, unless he acquired right from plaintiffs, he had no right to discharge water from quarries in such manner and in such quantities as to increase natural flow of stream to extent that it overflowed onto lands of plaintiffs, cut new channels therein, or damaged their crops.

APPEAL IN CHANCERY. Plaintiffs' bill sought to enjoin defendant from discharging water from slate quarries by means of pumps so as to cause unnatural flow of water in brook crossing plaintiffs' land and alleged irreparable injury to them as a result thereof. Heard on bill, answer and findings of fact by chancellor after the March Term, 1936, Rutland County, Jeffords, Chancellor. Decree enjoining defendant but to a limited extent only. The plaintiffs appealed and filed bill of exceptions. The opinion states the case.

Decree reversed, and cause remanded, with costs to the plaintiffs. Let a new decree be entered in accordance with the views herein expressed.

Philip M. M. Phelps and Andrew C. Calvi for the plaintiffs.

Bert L. Stafford, Fenton, Wing & Morse and R. Clarke Smith for the defendant.

Present: POWERS, C. J., MOULTON, SHERRBURNE and BUTTLES, JJ., and SHIELDS, Supr. J.

OPINION

SHIELDS

The plaintiffs by a bill in chancery sought to enjoin the defendant from discharging water from his quarries, by means of pumps, so that it found its way into a brook and onto the lands of plaintiffs, alleging among other things that thereby the defendant had caused an unnatural flow of water across their lands, including their barnyard, meadow and tillage lands; that the water washed away valuable earth onto the lands of others; and that, if permitted to continue, it would cause irreparable injury to them by depositing refuse from the quarries on the premises and depreciating the value of their farm.

In his answer, the defendant denied these allegations, except as to the pumping of water from the quarries, and averred that the natural flow of the water is through the barnyard of plaintiffs, where for many years by necessity the plaintiffs have maintained a stone culvert over the ditch or bed of the stream where the water regularly flows, and that the plaintiffs had permitted this to become clogged with stone, dirt and other debris, so that the natural flow of the water was stopped to a large extent, and that, if these obstructions were removed, the plaintiffs would not have the difficulty with the water of which they complain.

A temporary injunction was issued, and, after full hearing and findings of fact by the chancellor, defendant was permanently enjoined from discharging water from such quarries into the brook running through the lands of the plaintiffs, "except such as may be absolutely and indispensably necessary for the beneficial use by the defendant of such quarries in the operation thereof." From this decree, the plaintiffs appeal.

The following are the principal facts established: The plaintiffs are the owners and operators of certain farm premises in Poultney, in Rutland County, which they occupy as a...