Drinkwine v. State, 98-70

• Decision Date: 01 December 1970
• Docket Number: No. 98-70,98-70
• Citation: 129 Vt. 152,274 A.2d 485
• Parties: , 2 ERC 1133 Harvey DRINKWINE and Helen Drinkwine v. STATE of Vermont.
• Court: Vermont Supreme Court

Page 485

274 A.2d 485

129 Vt. 152, 2 ERC 1133

Harvey DRINKWINE and Helen Drinkwine v. STATE of Vermont.

No. 98-70.

Supreme Court of Vermont.

Dec. 1, 1970.

Langrock & Sperry, Middlebury, for plaintiffs.

James M. Jeffords, Atty. Gen., and Jon C. Stahl, Asst. Atty. Gen., for the State.

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

KEYSER, Justice.

This appeal is from an order of the Chancery Court for the County of Addison dismissing plaintiffs' bill of complaint for failure to state a cause of action. The sole question raised by the plaintiffs' appeal is whether the doctrine of absolute ownership of percolating waters should be modified in Vermont to include a standard of reasonable use.

The defendant in addition to its answer moved to dismiss the bill of complaint. Since this motion attacks the sufficiency of the petition, it is in the nature of a demurrer and its consideration depends entirely upon the facts stated in the petition. Gerety v. Poitras, 126 Vt. 153, 154, 224 A.2d 919. The following factual situation is shown by the allegations appearing in the petition.

The plaintiffs own property in Salisbury, Vermont, and had certain springs easterly of their home buildings. The State of Vermont through its Department of Fish and Game also owns property in Salisbury known as the Salisbury Fish Hatchery and operates the same. Sometime prior to November 1, 1969 the state had certain wells drilled in order to obtain water for use at the fish hatchery and began pumping water to supply the hatchery about the 1st of November.

The plaintiffs allege that since the pumping operations began, the defendant has pumped 'unreasonable amounts of water' from the wells. They further allege that as a direct and proximate result of such unreasonable use, their water supply and springs and the percolating waters which have traditionally filled their springs have been drawn away and dried up. The plaintiffs claim that they have suffered great damage and have no adequate remedy at law. The remedy sought is an injunction against the state and the Fish and Game Department from continuing to operate the pumps and wells in question.

The plaintiffs admittedly are attempting to introduce a different doctrine into our law 'to include a standard of reasonable use' in percolating waters between adjoining landowners. The established law of this State is that there are no correlative rights in percolating waters between adjacent landowners.

Our present rule was adopted at an early date (1855) in the case of Chatfield v. Wilson, 28 Vt. 49, 54-55. The court there held that there are no correlative rights existing between the proprietors of adjoining lands, in reference to the use of the water in the earth, or percolating under its surface. Such water is to be regarded as part of the land itself, to be enjoyed absolutely by the proprietor within whose territory it is; and the law governing the use of running streams is inapplicable.

This principle has since been followed in numerous cases which are collected and cited at page 49 in White River Chair Co. v. Conn. River Power Co. (1931), 105 Vt. 24, 162 A. 859. In that case the court said at pages 48-49 of the opinion, 162 A. at page 869:

'Our rule is the rule of the common law as laid down in the leading case of Acton v. Blundell, 12 M. & W. 324. Such water is regarded as part of the land itself, and it belongs to the owner of the land as much as the land itself or the rocks and stones on it. ...