Davidson v. Vaughn

• Decision Date: 01 May 1945
• Docket Number: 130
• Parties: J. G. DAVIDSON v. GILBERT M. VAUGHN
• Court: Vermont Supreme Court

44 A.2d 144

114 Vt. 243

J. G. DAVIDSON v. GILBERT M. VAUGHN

No. 130

Supreme Court of Vermont

May 1, 1945

February Term, 1945.

Construction of Grant of Water Right.

1. A written agreement must be construed so as to give effect to the intention of the parties if it can be gathered from the language used when interpreted in connection with, and in reference to, the purpose sought to be accomplished and the nature and condition of the subject matter of the grant at the time the instrument was executed.

2. If a written instrument is clear and unambiguous, it is to be given effect according to its language, for the intention and understanding of the parties must be deemed to be that which their writing declares; the meaning is then a question of law, and the intention so manifested cannot be altered by evidence, or findings of extraneous circumstances.

3. It is only when the meaning of an instrument is uncertain that resort may be had to the well settled, but subordinate, rules of construction, to be treated as such and not as rules of positive law.

4. One to whom a right to take water has been granted, who has at the outset used the right to only a limited extent, is not because of such limited use precluded from later claiming the full enjoyment of the right.

5. The grant of a right to take water from a stream or spring conveys a right in the land itself, and is something more than an easement; it is an interest partaking of the nature of a profit a prendre.

6. A spring exists where the water has its living source.

7. While a recital in the preamble or elsewhere in a deed or contract may be consulted in aid of the interpretation of an ambiguity in the instrument, it cannot control the dispositive or operative portion, when this is clear and definite, or create a doubt which does not otherwise exist.

8. Resort to the practical construction of a written instrument shown by the conduct of the parties as a means of interpreting the instrument is permissible only when the meaning of the instrument is doubtful.

9. The grantee of a water right may at any time enlarge his use of the right provided he keeps within the terms of the grant.

10. A defendant, when he makes answer to a bill in equity, must set up all the various grounds of defense upon which he intends to rely.

BILL IN EQUITY seeking injunction to prevent interference with a water right. In Chancery, Bennington County, Hughes Chancellor. Bill dismissed.

Decree reversed. It is ordered, adjudged and decreed that the defendant, his heirs, administrators, successors assigns, agents and servants be and they are hereby enjoined and restrained from removing or interfering with the pipe laid by the plaintiff from the spring and brook upon the defendant's land to the land of the plaintiff, and from interfering with the plaintiff, his heirs, administrators successors, assigns, agents and servants, in maintaining and renewing said pipe. Let the plaintiff recover his costs.

Francis E. Morrissey and Guy M. Page for the plaintiff.

Asa S. Bloomer for the defendant.

Present: MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.

OPINION

MOULTON

This is a bill in equity. The plaintiff seeks an injunction restraining the defendant from interfering with a pipe laid from a spring on the defendant's land, through which the plaintiff takes water for use on his premises. After hearing and written findings of fact the trial court dismissed the bill and the cause is here on the plaintiff's exceptions.

The parties are adjoining land owners. The spring is situated on a hillside and the stream issuing from it flows in a northerly direction for a distance of 120 feet and then sinks underground and pursues a well defined channel through limestone rock, in a manner reminiscent of Alph, the sacred river, which, as the poet tells us, "ran through caverns measureless to man." After following its subterranean course for approximately 225 feet, it emerges from the face of an almost vertical ledge and thereafter goes on its way in the normal manner of a mountain brook.

During the autumn of 1939 the plaintiff was engaged in building a house or cottage on his land and, inferentially, with the consent of the defendant, constructed a cement catch basin or reservoir at the base of the ledge, which received the waters of the stream, and from which the plaintiff laid a pipe, in a ditch, 771 feet to the boundary of his property and thence to the house. Thereafter, on November 27, 1939, the parties entered into a written agreement, executed by each of them with the formalities of a deed of real estate, which recites that whereas the plaintiff is constructing a cottage on the Wilcox lot for which he desires to obtain a supply of water and that there is, on the defendant's land, a certain spring of water, now being used by the plaintiff, from which the defendant is willing to grant to the plaintiff the right to continue to take a part of the water for his use at his cottage, the defendant grants to the plaintiff "a perpetual right to tap said spring and the brook flowing therefrom... and to convey said water from said spring and brook by a suitable pipe laid in a ditch" to the plaintiff's cottage. It is agreed that the amount of water to be taken by the plaintiff from the spring and brook shall at all times be limited to one half the flow, but that he may use any part of the flow in excess of the one half granted for as long a time as the defendant does not utilize it, and that the plaintiff "shall have the right to lay, maintain and renew such a pipe from the spring or brook on the lands of Vaughn as will enable him to convey the water supply to his cottage, with the right of ingress and egress at all reasonable times over and upon the premises of Vaughn for such purposes. " The agreement is expressed as binding upon the heirs, administrators, successors and assigns of the respective parties.

In May, 1940, before it was completed, the plaintiff's cottage was destroyed by fire, and the plaintiff erected another and slightly larger dwelling on another part of the land owned by him. To supply this building with water, he extended the pipe from a point near the site of the former cottage to the new house, no part of the extension being upon the defendant's land. Since the new house stands on a higher elevation than the former one, the plaintiff, desiring a greater pressure of water than could be obtained from the reservoir at the ledge, in June 1940 built another reservoir or "spring house" on the brook 290 feet farther up the hill from the ledge, and 52 feet below the spring, and laid a pipe from this "spring house" to connect with the pipe already leading from the reservoir across the defendant's land. Later, he laid another pipe from the "spring house" to the spring itself. He also constructed a chromium plant on his property, for temporary use, and connected it with the pipe laid to his new house.

The defendant objected to the erection of this "spring house" and removed the pipe leading from it to the reservoir at the base of the ledge. It is to prevent the repetition of this act that the injunction is sought.

The plaintiff contends that under the agreement he has the right to take his share of the water directly from the spring and from any part of the brook that issues from it; the defendant, that the right is limited to the place where the water was being taken at the time the instrument was executed, and only for the purpose of supplying the plaintiff's cottage then being erected and therefore could not be extended to any other place on his property. No claim is made that the plaintiff has taken or intends to take more water than the instrument allows him.

The agreement, which is in effect a deed, must be construed so as to give effect to the intention of the parties if it can be gathered from the language used when interpreted in connection with, and in reference to, the purpose sought to be accomplished and the nature and condition of the subject matter of the grant at the time the instrument was executed. Hill v. Bell, 111 Vt. 131, 135, 11 A.2d 211; Parrow v. Proulx, 111 Vt. 274, 277, 15 A.2d 835; Freeguard v. Bingham, 108 Vt. 404, 406-7, 187 A. 801; Kennedy v. Clark, 103 Vt. 349, 353, 154 A. 577; Vermont Kaolin Corp'n. v. Lyons, 101 Vt. 367, 376, 143 A. 639; Cutler Co. v. Barber, 93 Vt. 468, 473, 108 A. 400. If the instrument is clear and unambiguous it is to be given effect according to its language, for the intention and understanding of the parties must be deemed to be that which their writing declares. Stratton v. Cartmell, 114 Vt. 191, 42 A.2d 419; In re Beach Est., 112 Vt. 333, 335, 24 A.2d 340; Kerr & Elliott v. Green Mtn. Ins. Co., 111 Vt. 502, 510, 18 A.2d 164; Freeguard v. Bingham, supra; Johnson v. Hardware Mutual Ins. Co., 108 Vt. 269, 281, 187 A. 788. The meaning is then a question of law, and the intention so manifested cannot be altered by evidence or findings of extraneous circumstances. Freeguard v. Bingham, supra; Greene v. Helme, 94 Vt. 392, 396, 111 A. 557; Vermont Marble Co. v. Eastman, 91 Vt. 425, 444, 101 A. 151. It is only when the meaning is uncertain that resort may be had to the well settled, but subordinate rules of construction, to be treated as such and not as rules of positive law. Johnson v. Barden, 86 Vt. 19, 29, 83 A. 721, Ann Cas 1915A, 1243; County of Addison v. Blackmer, 101 Vt. 384, 389, 143 A. 700.

The description of the right conveyed, "a perpetual right to tap said spring and brook," is clear and unequivocal. It is not limited as to place or method. The verb "tap" is defined in Webster's New International Dictionary as "to let out or cause to flow by piercing... to open or break into so as to extract...