Drinkwine v. State, 75-72

• Decision Date: 06 February 1973
• Docket Number: No. 75-72,75-72
• Parties: Harvey DRINKWINE and Helen Drinkwine v. STATE of Vermont.
• Court: Vermont Supreme Court

Page 616

300 A.2d 616

131 Vt. 127

Harvey DRINKWINE and Helen Drinkwine v. STATE of Vermont.

No. 75-72.

Supreme Court of Vermont.

Feb. 6, 1973.

Langrock & Sperry, Middlebury, for plaintiffs.

Kimberly B. Cheney, Atty. Gen., and Richard M. Finn, Asst. Atty. Gen., for defendant.

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

KEYSER, Justice.

The plaintiffs brought a bill of complaint to Addison County Court on April 26, 1971, seeking injunctive relief against the defendant, State of Vermont, to restrain the operation of the pumps and drilled wells located on its property in Salisbury, Vermont, used as a fish hatchery.

Previously, on April 1, 1970, the plaintiffs brought a bill of complaint for the issuance of an injunction against the defendants based upon the same claim set forth in the instant case. The trial court dismissed that complaint for failure to state a cause of action. The sole issue there was, as here, whether the doctrine of absolute ownership of percolating waters should be modified in Vermont to include a standard of reasonable care because of changed environmental conditions. On appeal to this Court the judgment was affirmed. See Drinkwine v. State, 129 Vt. 152, 274 A.2d 485 (1970).

In the instant case the defendant denied all substantive allegations in the complaint and also pleaded in defense, inter alia, that the complaint failed to sufficiently state a cause of action and that the same subject matter was adjudicated in the prior action between the same parties.

Upon hearing the case on the pleadings and arguments of counsel, the court entered judgment dismissing the complaint for failure to state a cause of action. It is from this judgment order that the plaintiffs have appealed to this Court.

The issue raised by plaintiffs' appeal is basically the same as in the prior action-should this Court modify the doctrine of absolute ownership of percolating waters in the light of changed environmental conditions? The defendant's counterstatement of issues specifies two-(1) failure of the plaintiffs' complaint to establish a causal relationship between the pumping activities of the defendant and depletion of plaintiffs' water supply, and (2) res judicata.

The court having decided the case on the pleadings we must look to the allegations in the complaint for the pertinent facts to determine the correctness of the ruling below.

The plaintiffs make the following allegations in their complaint. The plaintiffs own property located near the premises owned by the State known as the Salisbury Fish Hatchery. Prior to November 1, 1969, the State drilled certain wells on its property and on or about that date the wells were put into operation. The State pumped unreasonable quantities of water from its wells for use at the State Fish Hatchery. The amount of water pumped reached as much as 900 gpm. The plaintiffs have rights to and use certain springs easterly of their home buildings which are used for human and animal sustenance. Prior to the operations of the fish hatchery they never suffered from a shortage of percolating waters in their springs. Shortly after November 1, 1969, the level of the spring water began to fall and continued to do so. As a direct and proximate result of the...