Davidson v. Vaughn.

• Decision Date: 02 October 1945
• Docket Number: No. 130.,130.
• Citation: 44 A.2d 144
• Court: Vermont Supreme Court
• Parties: DAVIDSON v. VAUGHN.

44 A.2d 144

DAVIDSON

v.VAUGHN.

No. 130.

Supreme Court of Vermont.

May 1, 1945.

Rehearing Denied Oct. 2, 1945.

Exceptions in Chancery, Bennington County; Hughes, Chancellor.

Bill in equity by J. G. Davidson against Gilbert M. Vaughn to restrain defendant from interfering with a pipe laid from a spring on defendant's land through which plaintiff takes water for use on his premises. The trial court dismissed the bill. On plaintiff's exceptions.

Reversed.

Francis E. Morrissey, of Bennington, and Guy M. Page, of Burlington, for plaintiff.

Asa S. Bloomer, of Rutland, for defendant.

Before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.

MOULTON, Chief Justice.

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, 407, 187 A. 801; Kennedy v. Clark, 103 Vt. 349, 353, 154 A. 577; Vermont Kaolin Corporation 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, Vt., 42 A.2d 419. In re Beach Estate, 112 Vt. 333, 335, 24 A.2d 340; Kerr & Elliott v. Green Mountain Mut. Ins. Co., 111 Vt. 502, 510, 18 A.2d 164; Freeguard v. Bingham, supra; Johnson v. Hardware Mutual Casualty 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 Addition 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 something * * * to pierce so as to let out, or draw off, a fluid.’ Taking this language in its common and usual meaning (Bass & Co. v. Wilton Woolen Mills, 117 Me. 314, 104 A. 160, 161), the plaintiff became entitled to take the water not only from the brook, but from the spring itself. Nor was he precluded by the fact that he had previously taken water from the reservoir first constructed, for his subsequent acts were not an extension or enlargement of the right granted. Willard v. Stone, 253 Mass. 555, 149 N.E. 681, 684. Arnold v. Farr, 61 Vt. 444, 447, 448, 17 A. 1004, 1005, is in point. In that case the deed to the defendant conveyed ‘one undivided sixth part of a certain spring, and the aqueduct which conveys the water therefrom * * * with full liberty to take such portion of the water running in said aqueduct from such point in said aqueduct as shall be most convenient, and conduct the same to his premises.’ The question was whether the defendant had the right to lay an independent pipe to the spring. It was held that he was not limited to the particular means of taking his share of the water mentioned in the deed, but that he could take it directly from the spring, and that, since the grant was clearly defined ‘the fact that the defendant and his grantor for many years drew their shares from the stone aqueduct is not conclusive against the defendant's right to take it from the spring by another aqueduct * * *.’ It is true that the deed conveyed an undivided part of the spring, whilst in the present case the right to tap the spring and brook is the subject of the grant. But our rule is that 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 à prendre. Clement v. Rutland Country Club, 94 Vt. 63, 66, 108 A. 843; Lawrie v. Silsby, 76 Vt. 240, 251, 56 A. 1106, 104 Am.St.Rep. 927; Village of Brattleboro v. Yauvey, 101 Vt. 314, 318, 143 A. 295; and see Payne v. Sheets, 75 Vt. 335, 345, 55 A. 656. A right in the land includes a right in the spring to the extent specified in the conveyance. Hill v. Shorey, 42 Vt. 614, 619. So the distinction above noted is not important.

The defendant says that the place where the water issues from the face of the ledge and flows into the reservoir there situated is a ‘spring’ according to the definition in Magoon v. Harris, 46 Vt. 264, 271, that ‘a spring of water is a place where water by natural forces usually issues from the ground.’ The ‘natural force’ here apparent is the force of gravity. The flow of water is the brook itself, which has...