Griswold v. Town School Dist. of Town of Weathersfield, 1243

• Citation: 117 Vt. 224,88 A.2d 829
• Decision Date: 06 May 1952
• Docket Number: No. 1243,1243
• Parties: GRISWOLD et ux. v. TOWN SCHOOL DISTRICT OF TOWN OF WEATHERSFIELD.
• Court: United States State Supreme Court of Vermont

Page 829

88 A.2d 829

117 Vt. 224

GRISWOLD et ux. v. TOWN SCHOOL DISTRICT OF TOWN OF WEATHERSFIELD.

No. 1243.

Supreme Court of Vermont.

May 6, 1952.

Ernest E. Moore, Wallace C. Schinoski, Ludlow, Raymond L. Miles, Springfield, for plaintiff.

Alban J. Parker, Springfield, for defendant.

Before SHERBURNE, C. J., and JEFFORDS, CLEARY, ADAMS and CUSHING, JJ.

JEFFORDS, Justice.

This is an action of tort. The complaint alleges, in substance, that on July 16, 1948, the plaintiffs were the owners of a certain spring and aqueduct leading therefrom located on lands of others; that the spring supplied water to the plaintiffs' residence which is located next to the Perkinsville school house in the town of Weathersfield; that the spring had supplied a never failing flow of water to the plaintiffs' residence; that the spring was kept filled by an underground stream of water that flowed in a definite stream through a channel into the spring; that the water supply at said school house was inadequate for the use of its pupils and for this reason the defendant, through its servants and agents began to dig and explore for a water supply for the school house; that in such effort the defendant's servants and agents acting for the defendant excavated a deep hole in the ground only twelve and one half feet distant from the plaintiffs' spring and four feet below the bottom of the spring; that the defendant's servants and agents unlawfully and without right placed large quantities of dynamite in this hole and exploded the dynamite and thereby diverted the stream of water that had flowed into the spring so that it became practically dry and useless thereafter.

Other acts with similar results are alleged to have been done by the defendant at a later time. It is alleged that the defendant diverted and took for its own use the stream of water which formerly flowed into the spring by causing it to flow into the defendant's newly constructed water system without having compensated the plaintiffs for such diversion and taking in any way.

It is also alleged that the plaintiffs' aqueduct was torn up and its broken ends exposed and unconnected and that the plaintiffs' spring house was broken open.

The defendant demurred to the complaint on the ground that it was required as a matter of law to take such measures as were necessary to get an adequate water supply for its Perkinsville school, and in so doing it was engaged in a governmental activity directly connected with the purpose for which it was created and thus is immune from liability for the injuries claimed in the complaint to have been suffered.

The demurrer was sustained. The plaintiffs were allowed an exception to the ruling and the cause was passed to this Court for hearing and determination before final judgment as provided by statute.

The question is whether the complaint states a good cause of action as against the ground of the demurrer.

The right to take water from a spring located on the land of another is a right in the land itself and thus, beyond doubt, a property right. Davidson v. Vaughn, 114 Vt. 243, 248, 44 A.2d 144; Clement v. Rutland Country Club, 94 Vt. 63, 66, 108 A. 843; Lawrie v. Silsby, 76 Vt. 240, 251, 56 A. 1106. The declaration alleges that the underground stream which supplied the spring flowed in a definite channel; thus it was not percolating water subject to the rules pertaining thereto. The plaintiffs had an interest in this water which the defendant could not interfere with or destroy by an unlawful diversion of the water. Fire Dist. No. 1 v. Graniteville Spring Water Co., 103 Vt. 89, 152 A. 42.

Article 2 of chapter 1 of our constitution provides 'that private property ought to be subservient to public uses when necessity requires it, nevertheless, whenever any person's property is taken for the use of the public, the owner ought to receive an equivalent in money.' If property has to be so taken it must be under the right of eminent domain. Sanborn v. Village of Enosburg Falls, 87 Vt. 479, 483, 89 A. 746. The defendant had this right of taking the property and property rights in question by virtue of the provisions of V.S. 1947, § 4413. It did not choose to exercise its right under the statute and now claims immunity from liability because it was engaged in a governmental activity.

This doctrine of immunity from liability does not apply where the injury complained of is the taking of private property for public use without compensation. Thompson v. City of Philadelphia, 180 Miss. 190, 177 So. 39; Johnson v. Independent School Dist. No. 1, 239 Mo.App. 749, 199 S.W.2d 421; Stevens v. City of Worcester, 196 Mass. 45, 81 N.E. 907; Pine v. Mayor, etc., C.C., 103 F. 337; Jacobs v. City of Seattle, 100 Wash. 524, 171 P. 662, L.R.A.1918E, 131; Bradbury v. Vandalia, etc., Dist., 236 Ill. 36, 86 N.E. 163, 19 ,L.R.A.,N.S., 991; Adams & Sullivan v. Sengel, 177 Ky. 535, 197 S.W. 974, 7 A.L.R. 268; McQuillin Mun. Corp. § 3280; 63 C.J.S., Municipal Corporations, § 757, page 50; 18 Am.Jur. 774 and 1026; 38 Am.Jur. 265.

This rule has been recognized and applied in our own cases. Whipple v. Village of Fair Haven, 63 Vt. 221, at page 224, 21 A. 533; Winn v. Village of Rutland, 52 Vt....