Daniel Fraser v. Thomas Nerney And Eugene Nerney

• Decision Date: 11 October 1915
• Citation: Daniel Fraser v. Thomas Nerney And Eugene Nerney, 95 A. 501, 89 Vt. 257 (Vt. 1915)
• Parties: DANIEL FRASER v. THOMAS NERNEY AND EUGENE NERNEY
• Court: Vermont Supreme Court

95 A. 501

89 Vt. 257

DANIEL FRASER v. THOMAS NERNEY AND EUGENE NERNEY

Supreme Court of Vermont

October 11, 1915

May Term, 1915.

APPEAL IN CHANCERY. Heard on the pleadings and findings of fact by the chancellor, at the September Term, 1914, Washington County, Butler, Chancellor. Decree for the plaintiff. The defendant appealed. The opinion states the case.

Decree affirmed and cause remanded. Let the bill be so amended in the court of chancery as to conform to the findings of the chancellor.

Richard A. Hoar and R. M. Harvey for the plaintiff.

John W. Gordon for the defendant.

Present MUNSON, C. J., WATSON, HASELTON, POWERS, and TAYLOR, JJ.

OPINION

POWERS

This is a controversy between next-door neighbors over the right of one to take water from a spring on the land of the other. The plaintiff asserts the right, and the defendants own the spring.

If the case is to be disposed of on the sufficiency of the allegations of the bill, as the defendants insist, it might be difficult to sustain the decree (which was for the plaintiff) in all respects for it might trouble one to point out in the bill allegations sufficient to sustain a prescriptive right in the spring. But however this may be, it is apparent from the record that the questions between the parties have been fully litigated, the disputed facts adequately found, and the plaintiff's right to relief established. In these circumstances, he will be allowed to amend his allegations, if necessary. No Troy Graded School District v. Troy, 80 Vt. 16 66 A. 1033. Moreover, the record does not show that the defendants sufficiently raised this question below. To be sure, they excepted to the findings on which the decree of a prescriptive right must have been predicated, but only on the ground that they were unsupported by the evidence.

The plaintiff's claim, when considered in the light of the findings, is made up of two parts: (1) an alleged right to take water from the spring by his pipe; and (2) a riparian right to have the waste water flow in its accustomed and well-defined channel across his land.

To establish his right to take water from the spring by his pipe, the plaintiff relies upon a grant thereof to his predecessor in title as an appurtenant of the estate; an implied grant of the same as an apparent easement; and a right by prescription. He admits that he has no such right by express grant.

We pass over the others, and take up a consideration of the claim of title by prescription.

It is found by the chancellor, that the plaintiff and his grantors have from 1886, and a long time prior thereto, until January 5, 1911, used the water of this spring, taking the same through a pipe leading from the spring to the cellar of the dwelling house on the plaintiff's farm, continuously, uninterruptedly, and under a claim of right. It also appears from the findings that for a time exceeding the necessary period, such use was fully known and acquiesced in by the owners of the defendants' farm. In 1886 repairs were made on the spring by Sumner Kimball, who then owned the plaintiff's farm, and W. B. Cheney, who then owned the defendants' farm. These parties then disagreed as to which had the first right to the water. This disagreement seems to have resulted in Kimball's favor, for his pipe was placed in the reconstructed spring two or three inches lower than Cheney's pipe. This relative location of the pipes has continued all along down to 1911.

The facts make a typical case of an easement by prescription. All the essential elements are present. The requisite period; the open, notorious, and continuous character of the use; the claim of right; the knowledge and acquiescence of the owners of the servient estate; all are established.

The fact the owner of the defendants' place also took water from the spring does not affect the result. Poronto v. Sinnott, 89 Vt. 479, 95 A. 647.

The defendants rely upon Hunter v. Emerson, 75 Vt. 173, 53 A. 1070. But the facts in that case were different; they lacked one essential; it did not appear that the use of the water by the claimant was adverse,--under a...