Henry W. Clement v. Rutland Country Club

• Decision Date: 10 January 1920
• Citation: 108 A. 843,94 Vt. 63
• Parties: HENRY W. CLEMENT v. RUTLAND COUNTRY CLUB
• Court: Vermont Supreme Court

108 A. 843

94 Vt. 63

HENRY W. CLEMENT v. RUTLAND COUNTRY CLUB

Supreme Court of Vermont

January 10, 1920

January Term, 1919.

APPEAL IN CHANCERY. Bill to establish the respective rights of the parties in a water system supplying both. Heard on bill answer, defendant's cross bill, plaintiff's replication thereto, and Chancellor's findings of fact at the September Term, 1917, Rutland County, Fish, Chancellor. Decree for the plaintiff. The defendant appealed. The opinion states the case.

The decree is altered to read as follows: It is ordered adjudged, and decreed that the plaintiff is the owner of an undivided five-eighths interest in and to the aqueduct described in said bill of complaint and spring No. 1 so-called, and that he owns such piping as he used in connecting spring No. 3, so-called, so far as the same can be removed without material injury to the property of the defendant or the aqueduct. Let the injunction be modified accordingly.

And so altered, the decree is affirmed. The cause is remanded.

Marvelle C. Webber for the defendant.

Present: WATSON, C. J., HASELTON, POWERS, TAYLOR, and MILES, JJ.

OPINION

POWERS

This is a suit in chancery brought to establish the respective rights of the parties in a water system which supplies both. They trace their titles to a common owner, the late Redfield Proctor. In 1867, Senator Proctor owned a farm lying on both sides of the highway now known as Grove Street in the city of Rutland. The dwelling house then occupied by him and his family and now owned and occupied by the plaintiff is on one side of this street, and the farm house, now owned and occupied by the defendant as a club house, is on the other. The defendant's golf links are also on that side of Grove Street, and in connection therewith, as we understand the findings, the defendant now owns all of the Proctor farm lying on that side--the west side--of the street. In the western part of this farm there is a pasture known as Pine Hill, on which is a natural pond, known as Pine Hill Pond. From this a small stream flows easterly and falls into East Creek, which runs southerly through the farm. At some time prior to August 30, 1867, Senator Proctor and his neighbors, Cain, Verder, and the Lawtons, decided to build a water system. Each of the four--the Lawtons counting all the time as one--was to own one undivided fourth of it. The water was to be taken from the outlet brook of Pine Hill Pond in a two-inch pipe to a point near the Lawton house, and from that point an inch pipe was to be laid to the house of each owner. The necessary rights of way were to be granted, and the owners were to share in fourths the expense of constructing the aqueduct to a point within five rods of each house, from which point each owner was to complete it to his buildings at his own expense. On the date named, Senator Proctor and his wife, Emily, hereinafter spoken of as the Proctors, deeded to each of the parties named, Cain, Verder, and the Lawtons, their heirs and assigns, an undivided fourth part in the right to take a two-inch pipeful of water from the outlet brook of Pine Hill Pond. This deed contained provisions for carrying into effect the arrangements for the construction of the water system as specified above. Thereupon the parties built a dam across the brook at a point below the outlet of spring No. 3, hereinafter referred to, and laid a two-inch pipe from the intake pond created thereby to a point in the rear of the Lawton house. From this point, the aqueduct was continued to the four houses by inch pipes. Through these pipes the parties were supplied with water at their respective buildings. On May 7, 1872, the Proctors conveyed some of their land on the west side of the street and included in the deed a grant of one undivided half of the Proctor interest in the water system. This interest is covered by a deed now held by the defendant.

On March 26, 1909, the plaintiff acquired title to the Proctor dwelling house by a deed from Senator Proctor's widow. This deed purported to include what water rights and interest in the aqueduct were reserved in the Proctor deed of August 30, 1867. The plaintiff also holds deeds from or tracing to the original owners covering the interests conveyed by the Proctors to Cain and Verder, as above stated. But the defendant denies that the plaintiff has even paper title to the Lawton interest. This question and the question of the validity of the paper titles depend upon the legal character of the interest conveyed by the original Proctor deed and the legal effect of the subsequent change in the source of water supply. It is to be observed that this water system really consists of two elements: An aqueduct; and certain water rights. And it might easily happen that the rights of these parties in one might differ from their rights in the other.

[1, 2 3] The defendant claims that the rights conveyed by the Proctors by the original deed were mere easements, and not an interest in the real estate itself. That this would be the result in some jurisdictions may be admitted; but it is not so in Vermont. Our rule is that the grant of a right to take water from a stream or spring conveys a right in the land itself. This right is something more than an easement; it is an interest partaking of the nature of a profit a prendre. It may be granted as a right in gross, or as a right appurtenant. In either case, it is assignable, descendible and devisable. This is all made plain and put beyond question by Lawrie v. Silsby, 76 Vt. 240, 56 A. 1106, 104 A. S. R. 927. The rights granted by the Proctor deed were not inseparably annexed to particular lands, were not rights appurtenant, as claimed by the defendant, but were rights in gross, and could be sold and conveyed apart from the land to any one who chose to buy. That they were in gross appears from the Proctor deed. Not only were they not in terms made appurtenant to particular lands, but it unmistakably appears that it was intended and expected that the parties to this deed were to, or might, supply water to other persons. The grantors covenanted that they would not sell to others the right to take water from the brook, or take it themselves, "to supply any persons that [whom] the parties acting under this deed will supply" except by agreement of all parties interested. This shows that from the beginning it was contemplated that water might be sold by the owners of the system. The action of the parties has been in accord with this. The Proctors divided their right and sold half of it to Baxter. The only interest in the original system which the defendant owns or pretends to own depends upon the validity of this conveyance. The Cain right was divided and treated in the same way. All the conveyances, except as hereinafter stated, made specific grants of the water system. The plaintiff's claim of title to the Lawton interest is based upon a quitclaim deed from H. H. Farmer and others. This deed makes a specific grant of one-fourth of the water system. But the grantors had no title to this...