Foster v. Stafford Nat. Bank

• Decision Date: 31 December 1886
• Citation: 5 A. 890,58 Vt. 658
• Parties: FOSTER v. STAFFORD NAT. BANK.
• Court: Vermont Supreme Court

5 A. 890

58 Vt. 658

FOSTER

v. STAFFORD NAT. BANK.

Supreme Court of Vermont.

December Term, 1886.

Appeal from a report of a special master assessing damages on an injunction bond.

The plaintiff, Foster, obtained a preliminary injunction in April, 1883, against the defendant, restraining it from the removal of a dam erected by him at the outlet of Willoughby lake. This injunction continued in force until November, 1884, when it was set aside by the supreme court. Foster v. Bank, 57 Vt. 128. The defendant then moved for an assessment of damages on the injunction bond, and a special master was appointed to assess them. He reported that the defendant owned about 2,500 acres of land in Westincoe, but that none of it touched the lake except about two acres at the outlet, and extending down Willoughby river, the outlet of the lake. He found, in addition, as follows:

"None of the defendant's lands, not even the two acres at the outlet, were damaged by the maintenance by the orator of the dam and gates at the outlet. * * * The defendant insisted before the master that, as injunction damages, it was entitled to recover what the rental value of the control of the water at the outlet was for the seasons of 1883 and 1884. The orator insisted to the contrary, and objected to any evidence tending to show such rental value. The master admitted it. * * * If the defendant is entitled to recover such rental value as damages, from all the evidence, which varied widely, I find the rental value of the control of the water of the lake for said seasons by means of the gates, etc., was $175. * * * The dam would save, until a dry time, some three feet of water on the entire lake, and then the same could be let out to supply water to the mills on the stream."

Edwards, Dickerman & Young and O. H. Austin, for defendant in error, Foster.

The decision in Foster v. Bank, 57 Vt. 128, did not determine as to the right of the bank to control the flow of water. COLLAMER, J., in Davis v. Fuller, 12 Vt. 178; Johns v. Stevens, 3 Vt. 308; Parker y. Griswold, 17 Conn. 288; Buddington v. Bradley, 10 Conn. 213; Hood v. Johnson, 26 Vt. 64; 3 Kent, Comm. 439.

If the bank had not been enjoined, it would have removed the dam. There could have been no rental. Adams v. Barney, 25 Vt. 225; Redfield, J., in Collins v. Smith, 16 Vt. 9; Webb v. Well, Id. 636.

Ide & Stafford, for plaintiff in error, Stafford Nat. Bank.

The bank is entitled to nominal damages, and the measure is the rental value of the property. 1 Sedg. Dam. 267; Dudley v. McKenzie, 54 Vt. 685; Bolivar Manuf'g Co. v. Neponset Manuf'g Co., 16 Pick. 241; Appleton v. Fullerton, 1 Gray, 186; 2 Sedg. Dam. 208; Center v. Hoag, 52 Vt. 401; Chicago v. Huenerbein, 85 Ill. 594; S. C. 28 Amer. Rep. 626; New Orleans v. Gaines, 15 Wall. 632; Masterton v. Mayor, etc., 7 Hill, 61; Bagley v. Smith, 10 N. Y. 489; Taylor v. Bradley, 39 N. Y. 129; Schell v. Plumb, 55 N. Y. 592; Dennis v. Maxfield, 10 Allen, 138; Simpson v. Railroad Co., 1 Q. B. Div. 274; Wakeman v. Wheeler & W. Manuf'g Co., 4 N. E. Rep. 264; Morrison v. Darling, 47 Vt. 67.

ROYCE, C. J. The matters presented for our consideration arise upon the report of the special master appointed to assess the damages on an injunction bond. The dam and gates that the defendants were enjoined from removing upon the occasion of the execution of the bond were erected, under a claim of right, many years before the defendants acquired their title to the land upon which they were erected. In the spring of 1883 the defendants obtained their title, and caused a notice to be served on the orator that they should remove said dam and gates, and allow the water to flow in its natural channel; and thereupon the orator procured an injunction to prevent the defendants from removing them.

It is not found that any attempt was made to procure a modification or dissolution of said injunction; but at the October term of supreme court, 1884, the cause was heard upon demurrer to the bill, and remanded, with mandate that it be dismissed, with costs, and the defendants then caused said gates to be...